HomeMy WebLinkAbout1987 04-20 CCP Reguar Session I
CITY COUNCIL AGENDA
CITY OF BROOKLYN CENTER
APRIL 20, 1987
7 p.m.
1. Call to Order
2. Roll Call
3. Invocation
4. Open Forum
5. Approval of Consent Agenda All items listed with an
asterisk are considered to be routine by the City Council
and will be enacted by one motion. There will be no
separate discussion of these items unless a Council member
so requests, in which event the item will be removed form
the consent agenda and considered in its normal sequence on
the agenda.
6. Resolutions:
a. Expressing Recognition of and Appreciation for the
Dedicated Public Service of Richard Jennrich
b. Accepting Bid and Awarding Contract for Water Tower No.
1 Reconditioning, Improvement Project No. 1987 -02,
Contract 1987 -B
-Water Tower No. 1 is located at 69th Avenue and France
Avenue North. This item was tabled at the April 6,
1987 Council meeting.
c. Accepting Proposal for Furnishing of 420 Linear Feet of
Class 55 Ductile Iron Pipe with Restrained Joints for
Use in Improvement Project No. 1987 -03, Brookdale 16"
Water Main Improvement
*d. Accepting Work Performed under Contract 1987 -A,
Reconditioning of Wells No. 4 and No. 9
e. Authorizing the Mayor and City Manager to Amend an
Agreement between the City of Brooklyn Center and
Brooklyn Center Mediation Project
*f. Declaring Earle Brown Activities as a Civic Event from
May 29 through October 1
*g. Amending the 1987 General Fund Budget
-This will approve an appropriation for the repair of
the civil defense siren on 57th & Girard Avenues North.
*h. Accepting Bid and Authorizing the Purchase of One (1)
Heavy Duty Industrial Tractor and Loader
- Appropriation approved in the 1987 Parks Maintenance
Budget.
CITY COUNCIL AGENDA -2- April 20, 1987
7. Planning Commission Item: (7:30 p.m.)
a. Planning Commission Application No. 87007 submitted by
Shingle Creek Land Company requesting special use
Permit approval for off -site accessory parking at the
Shingle Creek Business Center near 67th and Shingle
Creek Parkway.
-This item was recommended for approval by the Planning
Commission.at its April 9, 1987 meeting.
8. Ordinance:
a. An Ordinance Amending Chapter 34 Regarding Off Premise
Advertising Signs
-This item was recommended for approval by the Planning
Commission at its April 9, 1987 meeting. This item is
offered this evening for a first reading.
b. An Ordinance Amending Chapter 35 Regarding the Planning
Commission
-This item was first read on March 9, 1987, published
in the City's official newspaper on March 19, 1987 and
was offered for a second reading on April 6, 1987.
Action on this ordinance was tabled at the April 6,
1987 meeting. This item requires a 4/5 vote of the
City Council.
1. Resolution Defining Duties and Responsibilities of
the Brooklyn Center Planning Commission
9. Discussion Items:
a. Water Quality Improvement Status Report
b. Proposal for Traffic Study and Preliminary Design of
69th Avenue North between Dupont Avenue North and Zane
Avenue North
1. Resolution Approving Agreement for Professional- -
Services with Short - Elliott - Hendrickson Inc.,
Consulting Engineers
c. MAMA -49 Contract Changes
d. Lower Twin Lake
e. House File No. 1342 Pertaining to the Sale of Wine in
Grocery Stores
1. Resolution Regarding House File No. 1342 Pertaining
to the Sale of Wine in Grocery Stores
*10. Licenses
11. -
Adjournment
Member introduced the following resolution and
�o
moved its adoption:
is RESOLUTION NO.
RESOLUTION EXPRESSING RECOGNITION OF AND APPRECIATION
FOR THE DEDICATED PUBLIC SERVICE OF RICHARD JENNRICH
WHEREAS, Richard Jennrich has served the City of Brooklyn Center as an
employee since March 30, 1953; and
WHEREAS, he is retiring from public service on May 1, 1987; and
WHEREAS, his devotion to the tasks and responsibilities as
Maintenance Worker II contributed substantially to the efficiency and level-of-
service of the City; and
WHEREAS, he has consistently worked to provide good public relations
through courtesy and informational assistance; and
WHEREAS, his public service and civic effort for the betterment of the
community merit the gratitude of the citizens of Brooklyn Center.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL of the City of
Brooklyn Center, that the dedicated public service of Richard Jennrich is
recognized and appreciated by the City of Brooklyn Center and that the City
wishes him a long and happy retirement.
Date Mayor
ATTEST:
Clerk
z
The motion for the adoption of the foregoing resolution was duly seconded by
member , and upon vote being taken thereon, the
following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
66
'Member introduced the following resolution and moved
its adoption:
RESOLUTION NO.
!RESOLUTION ACCEPTING BID AND AWARDING CONTRACT FOR WATER
TOWER NO. 1 RECONDITIONING, IMPROVEMENT PROJECT NO. 1987 -02,
CONTRACT 1987 -B
WHEREAS, pursuant to an advertisement for bids for Improvement Project
No. 1987 -02, Contract 1987 -B, bids were received, opened, and tabulated by the
City Clerk and Engineer, on the 2nd day of April, 1987. Said bids were as
follows:'
Bidder Bid Amount
JRG Enterprises, Inc. d/b /a
Johnson Brothers Company $ 74,600.00
Odland Protective Coatings, Inc. 87,100.00
Abhe and Svoboda, Inc. 93,120.00
Tenyer Coatings, Inc. 101,000.00
AND
WHEREAS the law Udder, JRG Enterprises, Inc. d /b /a Johnson
Brothers Company, failed to conform to Minnesota legal requirements by not being
registered as a foreign corporation as required by the Specifications for the
project; and
WHEREAS, it appears that Odland Protective Coatings, Inc. of Blaine,
Minnesota, is the lowest responsible bidder:
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL of the City of
Brooklyn Center, Minnesota that:
1. The bid of JRG Enterprises, Inc. d /b /a Johnson Brothers Company of
Pittsburgh, Pennsylvania, received for Improvement Project No.
1987 -02 is hereby rejected because it did not conform to
specification requirements.
1 2. The Mayor and City Manager are hereby authorized and directed to
enter into the attached contract, in the amount of $87,100.00
with Odland Protective Coatings, Inc. of Blaine, Minnesota in the
name of the City of Brooklyn Center, for Improvement Project No.
1987 -02 according to the plans and specifications therefor approved
by the City Council and on file in the office of the City Clerk.
3. The City Clerk is hereby authorized and directed to return
forthwith to all bidders the deposits made with their bids, except
that the deposit of the successful bidder and the next lowest
bidder shall be retained until a contract has been signed.
BE IT FURTHER RESOLVED that:
1. The estimated cost of Improvement Project No. 1987 -02 is hereby
amended from $88,014 to $97,892. The estimated cost is comprised
of the following:
RESOLUTION NO.
As Approved As Bid
Contract $ 78,200 $ 87,100
Engineering
Consultant 8,250 9,050
City 0 0
Administration 782 871
Legal 782 871
$ 88,014 $ 97,892
2. The estimated costs to be financed as follows:
As Approved As Bid
Special Assessments to Private _
Property
MSA Accounts
2600 (Expendable)
2611 (Restricted Reserve)
2613 (State Approved Projects)
Capital Project Fund (Division _}
General Fund (Division _)
H.R.A.
Public Utility Fund S 88,014 $ 97.892
TOTAL REVENUE $ 88,014 $ 97,892
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly seconded by
member , and upon vote being taken thereon, the fallowing
voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
CITY 6301 SHINGLE CREEK PARKWAY
OF
BROOKLYN CENTER, MINNESOTA 55430
BROOKLYN
r TELEPHONE 561 -5440
C ENTL 1 R EMERGENCY- POLICE - FIRE
911
TO: Sy Knapp, Director of Public Work
FROM: H.R. Spurrier, City Engineer
DATE: April 16, 1987 _
RE: Reconditioning of Water Tower No. 1
Improvement Project No. 1987 -02
Contract 1987 -B
One of the bidders on the above referenced project filed a "Protest of Award"
(copy attached) to the low bidder, Johnson Brothers Company.
The basis for the protest was the fact that Johnson Brothers Company was
responsible for a bidding error that resulted in a rebid of the project. That
error, according to the protest, was evidence that Johnson Brothers Company was
not a responsible bidder. The protest further stated that Johnson Brothers
Company was a foreign corporation and not registered to do business in the
State of'Minnesota, and that fa was just cause for rejection of Johnson
Brothers' bid.
We have investigated the validity of this protest and it is our conclusion that
the bid of Johnson Brothers Company should not be rejected on the basis of the
fact that the company was responsible for the rebid.
The second issue raised by the protest relates to the fact that'JRG Enterprises,
Inc. is a foreign corporation and is not registered to do business in the State
of Minnesota. Neither JRG Enterprises, Inc. or Johnson Brothers Company is
registered with the Minnesota Secretary of State as a foreign corporation. JRG
Enterprises, Inc. did initiate contact with the State for the purpose of
becoming registered to do business in Minnesota but they did not complete that
process. Since the company was not registered as required by the specifications
(see attached Page 7) and, since we have ascertained that they were aware of
this flaw at the time they submitted their bid - but failed to take the -
necessary action to achieve compliance, we are recommending that the bid of JRG
Enterprises, d /b /a Johnson Brothers Company be rejected (see attached City
Attorney's memo).
Accordingly, we would then recommend that the City Council accept the bid of
Odland Protective Coatings, Inc. and approve the contract for Improvement
Project No. 1987 -02, Water Tower No. 1 Reconditioning, Contract 1987 -B. Odland
Protective Coatings is the painting contractor that has painted Water Tower
No. 2 and Water Tower No. 3 and is qualified for this work.
April 16 1987
Page 2
We will review the need for the requirement that foreign corporations be
registered, and the process for enforcing that requirement, with our City
Attorney so that we can avoid problems such as this in future contracts.
Respectfully submitted, Approved for submittal,
H.R. Spurrier Sy napp
City Engineer Director of Public Works
HRS : j n
ABBE
S VO&DA
6 April 1987 ZINC.
City of Brooklyn Center
City Hall
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Attention: Mr. Bo Spurrier
Reference: Painting of Elevated Water Tank
PROTEST OF AWARD TO JRG, INC., dba JOHNSON BROTHERS PAINTING
Dear Mr. Spurrier:
Pursuant to our telephone conversation on Friday, we hereby protest any decision the
City of Brooklyn Center may make to award the above - referenced project to JRG, Inc.,
dba Johnson Brothers Painting. When this project was bid last time, that company
was the low bidder. Its bid was approximately 60 % of our bid, which was the second
low bid received. This unreasonably low bid indicates to me that the bidder is not
a responsible bidder.
Secondly, I checked with the Corporate Division of the Office of the Secretary of
State and found that-neither JRG, Inc -. nor Johnson Brothers Painting are registered
to do business as foreign corporations. This is just cause to reject their bid,
and requires that their bid be rejected.
Thirdly, allowing a'bidder to rebid a project once the bidder has claimed error and
withdrawn,its bid violates the intent of- -eke sealed bid process. The sealed bid
process would become a shambles if this policy were allowed.
As a result of the three reasons outlined above, we request -that you reject the
bid of JRG, Inc., dba Johnson Brothers Painting and award to the second low bidder.
Sincerely', Qs ,
D -0 �
Gail Svoboda
President
cc: Honorable Mayor
City Council
City Administrator
HAND DELIVERED
17066 REVERE WAY • P.O. BOX 251 PRIOR LAKE, MN 55372 • 612 - 447 -5760 OR 447 -6025 TELEX 467358
AN EQUAL OPPORTUNITY EMPLOYER
D. The Owner reserves the right to reject any bid where an
investigation of the available evidence or information does not
satisfy the Owner that the Bidder is qualified to carry out properly
the terms of the Contract. The Owner's decision as to qualifications
of the Bidder shall be final.
B -13. TAXES AND PERMITS. Attention is directed to the requirements of
the General Conditions reguarding payment of taxes and obtaining
permits.
B -14. MINNESOTA LEGAL REQUIREMENTS. Non- resident corporations shall
furnish with their bid evidence showing that all legal requirements
for transacting business in Minnesota have been fuffilled. Bids from
non- resident corporations will not be considered unless accompanied
by the required evidence.
B -15. PERFORMANCE BOND. The Bidder to whom a contract is awarded will
be required to furnish a Performance' Bond to the Owner in an amount
equal to one hundred (100) per cent of the contract price.
The bond shall be executed on the form included in the contract
documents by a surety company authorized to do business in the State
of Minnesota and acceptable as Surety to the Owner.
Accompanying the bond shall be a "Power of Attorney" authorizing the
attorney-in-fact to bind the surety company and certified to include
the date of the bond.
The Performance Bond shall be in effect for the duration of the two
. year warranty period.
B -lea. BOUND COPY OF CONTRACT DOCUMENTS. The proposal or other bidding
forms shall not be removed for the bound copy of contract documents.
The copy of contract documents filed with each bid shall be complete-
and shall include all items listed in the Table of Contents and all
addenda.
B -17. COPIES OF DRAWINGS AND SPECIFICATIONS. Copies of the drawings
and, specifications for use in preparing bids may be obtained
from AEC ENGINEERS & DESIGNERS, 511 11th Avenue South, Suite 423,
Minneapolis, Minnesota, 55415, for $25.00 per set.
The Contractor, to whom a contract is awarded, will be furnished
without cost to him five (5) copies of the specifications and five
(5) sets of the drawings, together with all addenda thereto. _
-7-
BID OPENING - FEBRUARY 19,1987
WATER TOWER NO. 1 RECONDITIONING
IMPROVEMENT PROJECT NO. 1987 -02, CONTRACT 1987 -B
STRUCTURAL
BIDDER REPAIR INTERIOR EXTERIOR LOGO TOTAL
JRG ENTERPRISES, INC. $9,978.00 $16,680.00 $29,945.00 $1,350.00 $57,953.00
D /B /A JOHNSON BROTHERS PAINTING
ABHE & SVOBODA, INC. $3,675.00 $29,260.00 $56,100.00 $3,000.00 $92,035.00
ODLAND PROTECTIVE COATINGS, INC. $4,700.00 $18,900.00 $72,000.00 $2,500.00 $98,100.00
MAGUIRE IRON, INC. $6,500.00 $14,980.00 $73,550.00 $3,000.00 $98,030.00
TENYER COATINGS, INC. $13,500.00 $20,000.00 $66,000.00 $1,500.00 $101,000.00
ENGINEER'S ESTIMATE $6,450.00 $8,750.00 $60,000.00 $3,000.00 $78,200.00
BID OPENING - APRIL 2, 1987
WATER TOWER NO. 1 RECONDITIONING
IMPROVEMENT PROJECT NO. 1987 -02, CONTRACT 1987 -B
STRUCTURAL
BIDDER REPAIR INTERIOR EXTERIOR LOGO TOTAL
JRG ENTERPRISES, INC. $13,975.00 $19,750.00 $37,875.00 $3,000.00 $74,600.00
D /B /A JOHNSON BROTHERS PAINTING
ODLAND PROTECTIVE COATINGS, INC. $7,700.00 $7,500.00 $69,500.00 $2,400.00 $87,100.00
ABHE 5 SVOBODA, INC. $8,720.00 $17,250.00 $65,650.00 $1,500.00 $93,120.00
TENYER COATINGS, INC. $12,500.00 $20,000.00 $66,000.00 $2,500.00 $101,000.00
ENGINEER'S ESTIMATE $6,450.00 $8,750.00 $60,000.00 $3,000.00 $78,200.00
LeFevere
Lefler
Kennedy
O'Brien &
Drawz
A Professional
Association
April 16, 1987
2000 First Bank Place West
Minneapolis
Minnesota 55402
Telephone (612) 333 -0543 Mr. Sy Knapp
Telecopier (612) 333 -0540 Director of Public Works
Clayton L. LeFevere City of Brooklyn Center
Herbert P. Lefler 6301 Shingle Creek Parkway
J. Dennis O'Brien Brooklyn Center MN 55430
John E. Drawz y
David J. Kennedy
John B. Dean Re: Bids for Water Tower No. 1
Glenn E. Purdue
Richard J. Schieffer
Charles L. LeFevere Dear Mr. Knapp:
Herbert P. Lefler III
James J. Thomson, Jr. you have asked form comments regarding the appropriate
Thomas R. Galt Y g g
Dayle Nolan response to a bid protest on the above - referenced matter.
BrianF.Rice Specifically, the lowest bid received for the project was
John G. Kressel from an out -of -state corporation. Paragraph B -14 of the
Lorraine S.
M. Strom men men INSTRUCTIONS TO BIDDERS provides as follows:
4& d H. Batty
m P. Jordan B -14 . M
Kurt J. Erickson INNESOTA LEGAL REQUIREMENTS.
William R. Skallerud Non- resident corporations shall furnish with
Rodney D. Anderson their bid evidence showing that all legal
Corrine A. Heine requirements for transacting business in
David D. Beaudoin
Paul E. Rasmussen Minnesota have been fulfilled. Bids from
Steven M. Tallen non- resident corporations will not be
considered unless accompanied by the required
evidence.
The bid from the low bidder did not include any evidence
that the non- resident corporation was registered with the
Secretary of State as required by Minnesota Statutes
303.03.
Attached is a memorandum dealing with this subject in
more detail. To summarize that memorandum, it is our
opinion that the most legally defensible course of action
for the City would be to reject all bids and readvertise.
The second most defensible position would be to reject
the low bid and award the contract to the second low
bidder.
The lease defensible course of action would be for the
City to waive the irregularity and award the contract to
the lowest bidder. Although this course of action is
inconsistent with the language of the instructions to
Sy Knapp
April 16, 1987
Page 2
bidders quoted above, we believe that good arguments can
be made to justify such a decision. Nevertheless, if the
City were to be challenged in awarding the contract to
the low bidder, there is a significant risk that a court
would conclude that the City has acted improperly.
If you have any further questions, please feel free to
give me a call.
Very truly yours,
Charles L. LeFevere
CLL:rsr
Enclosure
MEMORANDUM
TO: CHARLIE
FROM: MFS 'AT
DATE: April 16, 1987
SUBJECT: Whether the City f Brooklyn Center can award Y Y r a
contract to a non - resident corporation which did
not provide in its bid evidence showing that all
legal requirements for transacting business in
Minnesota had been fulfilled in accordance with
bid spec and if the City does not comply with its
own bid specification that bids from non - resident
corporations will not be considered unless accom-
panied by the required evidence.
1. Types of irregularities which can be waived
The law is well established in Minnesota that bids must
confor�T substantially to advertised plans and specifica-
tions. Material variances are not allowed to the extent
that unless the bid responds to the proposal in all ma erial
respects it is not a bid at all but a new proposition. The
test of whether a variance is material is whether it gives a
bidder a substantial advantage or benefit not enjoyed by
other bidders. This advantage can be further described as
an advantage in the competition as opposed to advantage as
to ease of entry into the competition, which second advan-
tage has been allowed in the public bidding process.
In Minnesota examples of irregularities found to be non
material include the following:
a. Noncompliance with a specification that cylinder
liners V, an electrical generating unit be re-
borable.
b. Time of performance not specified in specifica-
tions but specified in bid.
C. Time of a ent in bid o e h
p ym variance nc with payment
schedule in specification.
d. Submission of bid 8 10 minutes after time specified
in advertisement.
e. Bid sealed V opening, but before any other bids
were opened.
i
f. Bids not opened in presence of required ofWials
and at location specified in advertisement.
g. Contract awarded to corporation fft in existence
at time bid was filed and opened.
h. Bid bond not properly executed or notarized. 12
i. Certificate rath75 than affidavit of non - collusion
included in bid.
j. Non- inclusion QI bid bond by bidder due to negli-
gence of City.
To summarize the above, those elements of a bid are
material which involve price, quality or quantity of service
or other matter 15 that go into the determination of the
amount of a bid. A municipality can waive irregularities
which are non - material when such waiver is clearly for tq
City's benefit and no damages will be inflicted on others.
However, any action taken must not be capricious
or an unreasonable exercise of power. Additional reasons
for allowing waiver of irregularities as enunciated in
Minnesota case law include not placing exceedingly strict
limit Itions on the discretionary power of municipal authori-
ties. A more significant rationale which is developed in
more recent case law is the theory that a municipality
should not be denied the benefit a b'
e of low id on a p ublic
contract for every minor technYfal defect that does not
affect the substance of the bid.
2. Whether a municipality can enter into a valid contract
with a non - resident corporation which corporation does
not have a certificate of authority to transact busi-
ness Minnesota.
Although Minnesota Statutes, Section 303.03 is specif-
ic, viz. no foreign corporation shall do business in this
state unless it holds a certificate of authority so to do;"
a subsequent section provides that "failure of a foreign
corporation to obtain a certificate of authority to transact
business in this state does not impair the validity, of any
contract or act of such corporation" (M.S. 303.20). In
addition, "if a foreign corporation makes a contract with a
resident of Minnesota to be performed in whole or in part by
either party in Minnesota, . such acts (sic) shall be
deemed to be doing business in Minnesota by the-foreign
corporation and shall be deemed equivalent to the appoint-
ment b e
th
foreign corporation Y g of the Secretary of State of
Minnesota and successors to be its true and lawful attorney
upon whom may be served all lawful process in any actions or
proceedings against the foreign corporation arising from or
growing out of the contract ".
2
In Minnesota, a binding municipal contract is found in
the objective manifestations of contractual formation which
occur when: the terms and conditions of a municipal con -
tract have been settled, the contract price determined by
the amount of a bid submitted to the City, the Council has
accepted the bid and ordered by resolution the contract to
be signed by appropriate offi5aals and no discretion remains
in the City or its officials.
To summarize the discussion above, a foreign corpora-
tion can enter into a binding contract with a municipality
which contract, on the part of the City is valid and binding
once all objective manifestations of contractual formation
have occurred even though the foreign corporation does not
have a certificate of authority to transact business in this
state.
3. Whether non - compliance by both parties with the follow-
ing bid specification is a waivable irregularity as
described in Section 1 hereof: non - resident corpora-
tions shall furnish with their bid evidence showing
that all legal requirements for transacting business in
Minnesota have been fulfilled. Bids from non - resident
corporations will not be considered unless accompanied
by the required evidence.
A. Discussion
In my opinion non - compliance by the non- resident
corporation with registration requirement in the bid speci-
fications is a waivable irregularity. First, a certificate
of authority can be secured at any time from the Secretary
of State.' Second, the possession or non - possession of a
certificate is not material since it does not affect the
amount of the bid and could not give the bidder an unfair
advantage in the competition itself. Finally, it would be
in the best interests of the City to waive such irregularity
because it is in the City's best interest to benefit from
the low bid.
It is less clear whether the City can waive such an
irregularity when the instructions to bidders include the
statement that bids from non - resident corporations will not
be considered unless accompanied by a certificate of author-
ity.
In Johnson v. City of Jordan Johnson's attorney
picked up a bid package (specifications) which did not
include a copy of the newspaper ad which required a bid bond
or check in the amount of 5% of the bid. Johnson submitted
a'bid without bond or check and was awarded the contract as
lowest bidder. In the resolution awarding the contract,
3
Johnson was given two days to provide a bond or 5% deposit,
• which he did. The court found that the manner in which the
City awarded the contract created a binding contract; that
lack of a bid bond was not a material variation but only a
procedural requirement; that lack of a bid bond may have
been caused by the City's negligence and the City legally
waived the timing,of the submission of the,bid,bond, _.�
In Nielsen v. City of Saint Paul. Z2 , the city charter
specified that all bids must be filed
at the time and place
designated in the e advertisement for bids, which was in this
case the City purchasing agent's office. The purchasing
agent decided his office was not large enough to accommodate
all bidders that would appear, so he changed the place - -for
the opening of bids. As a result, the apparent low bidder
was late in submitting its bid. In addition, the low bidder
had not incorporated at the time of the bid opening, but
planned to do so. The City awarded the contract to the low
bidder. An unsuccessful c ssful bidder brought suit.
The court affirmed the City's action, holding that bids
for municipal contracts must substantially comply with all
requirements thereto as contained in statutes, charter
provisions, ordinances and advertisements; that .awarding a
contract is an administrative act of discretion vested by
law in the governing authorities of a City and the courts
cannot direct municipal authorities as to how they shall
exercise such discretionary power nor to whom they must let
a contract but can only enjoin municipal officers from
awarding a contract illegally which must include an arbi-
trary, capricious or unreasonable use of power; that the new
corporation was in all respects the successor of the entity
which submitted the bid and executed c ted the performance con -
tract; and the award to the lowest responsible bidder was
binding and valid.
B. Conclusion
There are several courses of action the City of Brook-
lyn Center might take. First, since a contract has not yet
been awarded and since the City reserved the right to reject
any and all bids in the advertisement for bids the City
could reject all bids. The law is very clear with respect
to this option.
Second, the City could reject the low bid on the ground
that it did not comply p y with the specifications. Although
the low bidder could conceivably sue the City in - -such a
case, I believe that the City's position would be very
defensible.
Third, the City could award the contract to the lowest
bidder, waiving the time of submission of the certificate of
authority to do business in Minnesota and specifying a time
4
for its submission. Points in defense of the City's non-
compliance with the bid specification (irregularity) that
bids from non- resident corporations would not be considered
without evidence of compliance with relevant state legal
requirements would be:
1) Statement in a bid specification that a bid will
not be considered without a certificate of author-
ity to do business is a non- m25erial, procedural
and administrative requirement not mandated by
state law, city cMinances, charter or the adver-
tisement for bids and non compliance with such a
specification is a waivable irregularity.
2) That the irregularity is waivable because taxpay-
ers should be assured of the best bargain for the
least money which occurs en a City accepts y p the
lowest responsible bidder.
3) That the City has the right to waive the irregu-
larity since it is clearly in its benefit to do so
and no damages will be inflicted on it since it is
fully p�rgtected by the bid bond, or wrong done to
others.
4) That the statement in the advertisement for bids
which specified that the City reserves the right
to accept the bid or bids which best serves the
interest of the Citypersedes the language in
the bid specification. '
5) That as a matter of fact no fraud or collusion
exists and that by waiving the irregularity no
material advantage is given to the bidder nor
'disadvantage to the other bidders.
6) That the statutory mandate to award the contract
to the lowest responsible bidder overrides the
slight irregularity.
7) That "the form of the bid, not being embodied in
the statute is a regulation prescribed by the City
and failure to technically comply with the form
required will not defeat the right of the lowest
bidder to have the contract if after bids are
opened, it appears there has been substantial
compliance with the requirements, and he tenders
himself ready to execute the regisite contract
and furnish responsible bondsmen."
In conclusion, the first course of action for the City,
rejecting all bids, is the most risk -free option. The
second option, rejecting the low bid and awarding to the
second low bidder would place the City in a very defensible
5
position. The third option, awarding the contract to the
out of state contractor carries considerably more risk of a
potential lawsuit. This would be the least defensible
position for the City; however, if the Council were to
decide to waive the irregularity and accept the low bid the
City would have at least a fair chance of defending its
action.
6
I. Coller v. City of St. Paul 26 NW2d 835
2. Sutton v. City of St. Paul 48 NW2d 436
3. See Coller note 1. Duffy et al. v. Village of
Princeton 60 NW2d 27
4. Johnson v. City of Jordan 352 NW2d 500 (Ct. Ap.)
5. See Duffy, note 3
6. Id.
7. Id
8. Nielsen v. City of St. Paul 88 NW3d 853
9. id.
10. Id.
11. Id.
12. Id.
13. Foley Brothers v. Marshall 123 NW2d 387
14. Johnson v. City of Jordan 352 NW2d 500
15. Id.
16. See Nielsen note 8
17. Id.
18. See Duffy note 3
19. Ottertail Power Co. v. MacKichan 133 NW2d 511
20. See Johnson note 14
21. Id.
22. See note 8
23. See Foley note 13
-
24. See Nielsen note 8
25. Id.
26. Id.
i 27. Id.
7
28. See Coller note 1
29. See Foley note 13
30. See Nielsen note 8
LLKOOM12.F54
8
Member introduced the following resolution and
moved its adoption:
RESOLUTION NO.
RESOLUTION ACCEPTING PROPOSAL TO FURNISH 420 LINEAR FEET OF
CLASS 55 DUCTILE IRON PIPE WITH RESTRAINED JOINTS FOR USE IN
IMPROVEMENT PROJECT NO. 1987 -03 BROOKDALE 16" WATERMAIN
WHEREAS, proposals were received, opened and tabulated by the City
Engineer on the 20th day of April, 1987. Said bids were as follows:
Bidder Bid Amount
Clow $ 13,608.00
American 14,397.60
U.S. Pipe 14,805.00
Griffin Pipe 15,640.80
AND, WHEREAS, the low bidder, Davies Water Equipment Company,
representing Clow Ductile Iron Pipe, of Brooklyn Center, Minnesota
is the lowest responsible bidder; and
WHEREAS, Northdale Construction Company, Inc. has initiated action to
prohibit the City of Brooklyn Center from executing said contract and the
District Court has issued an Order (File No. MX87 -5758) granting a temporary
restraining order and calling a temporary injunction hearing held on the matter
on April 8, 1987; and
WHEREAS, in the event the District Court, after its hearing on April
8th, 1987, issues a temporary injunction that continues the Court Order
prohibiting the City of Brooklyn Center from entering into the contract, then it
is the opinion of the City Council that the matter can best be resolved by
awarding the contract for furnishing of 420 linear feet of Class 55 ductile iron
pipe with restrained joints for use in Improvement Project No. 1987 -03 to Davies
Water Equipment Company of Brooklyn Center, Minnesota.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL of the City of
Brooklyn Center, Minnesota that:
1. The proposal of Davies Water Equipment Company of Brooklyn Center,
Minnesota, for Clow Ductile Iron Pipe is hereby accepted provided
the District Court issues a temporary injunction which continues
the courts order prohibiting the City of Brooklyn Center from
entering into a contract with 0 & P Contracting, Inc.
2. Subject to the provision described in Item 1, the Mayor and City
Manager are hereby authorized and directed to accept the attached
proposal in the amount of $13,608.00 with Davies Water Equipment
Company of Brooklyn Center, Minnesota in the name of the City of
Brooklyn Center for Improvement Project No. 1987 -03 according to
the proposal.
BE IT FURTHER RESOLVED that the sum of $13,608.00 is hereby
appropriated from the Public Utility Fund for the pipe.
RESOLUTION NO.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly seconded by
member , and upon vote being taken thereon, the following
voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
6�
CITY 6301 SHINGLE CREEK PARKWAY
OF
:BYROOKLYN BROOKLYN CENTER, MINNESOTA 55430
C ENTER 561 -5440
E NTER EMERGENCY- POLICE - FIRE
911
TO: Sy Knapp, Director of Public Wor s
FROM: H.R. Spurrier, City Engineer
DATE: April 15, 1987
RE: Improvement Project No. 1987 -03 _
Contract 1987 -E
As you know, there has been no decision from the court specifying whether we can
award the contract referenced above or whether it will be necessary to rebid the
project.
Some of the pipe in this project will be on piling and that pipe must be special
ordered. Pipe on piling crosses the golf course parking lot and therefore
delays parking lot construction. The special order pipe has a 45 to 60 day
delivery.
If the project is not awarded to the low bidder the rebid will delay pipe
ordering and golf course parking lot completion by 30 to 40 days.
There are only 4 manufacturers that produce this special pipe. We have
requested and expect to receive proposals from the 4 manufacturers Monday, April
20, 1987 at 11 :00 a.m. If the court, prior to the April 20, 1987 Council
meeting, grants the temporary injunction against the City regarding the original
bids for Improvement Project No. 1987 -03 then we will recommend that the City
Council adopt a resolution accepting the proposal for furnishing of 420 linear
feet of Class 55 Ductile Iron Pipe with restrained joints for use in Improvement
Project No. 1987 -03. If the court denies the request for the temporary
injunction, then the original award of the contract to 0 & P Contracting will be
in effect and this "contingency" plan to purchase the pipe under separate
contract should be terminated by rejecting all bids for the pipe. Finally, if
no ruling is available prior to the Council meeting, a contingency resolution
will be submitted for consideration by the City Council. _
A tabulation of the bids will be available at Monday's meeting.
Respectfully submitted, Apprqved for submittal,
H.R. Spurrier S napp
City Engineer Director of Public Works
HRS : j n �rCF
iz
"' Me6WuvRKaan =�"
b�
6d
Member introduced the following resolution and
moved its adoption:
RESOLUTION NO.
RESOLUTION ACCEPTING WORK PERFORMED UNDER CONTRACT 1987 -A,
RECONDITIONING OF WELLS NO. 4 AND NO 9
WHEREAS, pursuant to written Contract 1987 -A signed with the City of
Brooklyn Center, Minnesota, Layne Minnesota Company has satisfactorily completed
the following "improvement in accordance with said contract:
WELL NOS. 4 AND 9 RECONDITIONING PROJECT NO. 1987 -01
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL of the City of
Brooklyn.Center, Minnesota, that:
1. The work completed under said contract is accepted and approved
according to the following schedule:
As Approved Final Amount
Original Contract $ 14,576.00 $ 15,369.00
2. The value of work performed is more than the original contract
amount by $793.00 due to a general underestimation of planned
quantities.
3. It is hereby directed that final payment be made on said contract,
taking the Contractor's receipt in full. The total amount to be
paid for said improvement under said contract shall be
$15,369.00.
BE IT FURTHER RESOLVED BY THE CITY COUNCIL of the City of Brooklyn
Center, Minnesota that:
1. There is appropriated the sum of $793.00 for additional costs.
2. The appropriation will be financed by the Public Utility Fund.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly seconded by
member , and upon vote being taken thereon, the following
voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
6e
Member introduced the following
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO
AMEND AN AGREEMENT BETWEEN THE CITY OF BROOKLYN CENTER
AND BROOKLYN CENTEa-MEDIATION PROJECT
WHEREAS, Resolution No. 87 -27 authorized the Mayor and
City Manager to enter into an agreement between the City of
Brooklyn Center and Brooklyn Center Mediation Project; and
WHEREAS, the agreement between the parties was entered
into,on February 10, 1987; and
WHEREAS, the City agreed to pay $6,000 to Brooklyn
Center Mediation Project in two payments of $3,000 each, one
payable on February 2, 1987 and the second payable on August 3,
1987; and
WHEREAS, the Board of Directors of Brooklyn Center
Mediation Project have requested early payment of the second
installment because of an unanticipated delay in receiving funds
from Hennepin County.
NOW THEREFORE, BE IT RESOLVED by the City Council of
the City of Brooklyn Center that the Mayor and City Manager are
hereby authorized to enter into an amended agreement between the
City of Brooklyn Center and Brooklyn Center Mediation Project
which would allow the second payment of $3,000 on April 21, 1987.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
i
AGREEMENT BETWEEN
CITY OF BROOKLYN CENTER
and _
BROOKLYN CENTER MEDIATION PROJECT
This Agreement is made the 10th day of February, 1987 between the
City of Brooklyn Center,-hereinafter referred to as the City, and the Brooklyn
Center Mediation Project, hereinafter referred to as BCMP;
In consideration of the covenants set forth herein, the City and BCMP agree as
follows:
Services Provided BCMP, within its financial resources, agrees to provide
l and volunteer services to the residents of the
its full range of professiona
City including, without limitation, the following:
a. Mediation services for citizen - City disputes resulting from
conflicts in enforcement of City ordinances, rules, and regulations.
b. Mediation services for resolving ordinance and nonordinance related
neighborhood disputes.
C. Mediation services for resolving ,juvenile justice system disputes,
provided that the records-and identity of the juvenile shall be
z,
provided to BCMP pursuant to Minn. Stat. 260.161.
d. Such other services of a similar nature as may be assigned from time
to time by the City Manager of the City and as agreed to by the BCMP
Board of Directors_
Limitations and Report BCMP shall not compete with the City or other Social
Agencies by providing services which overlap with services provided by the
City or other Social Agencies unless such services can be provided more
efficiently and effectively by BCMP. BCMP shall submit an annual report to
the City outlining the services provided to the City during the preceding
year.
Liabilities. The City shall not exercise any control, shall provide no directive
or advice to, and shall not interfere with BCMP or its employees or volunteers in
the performance of the services required by this contract. BCMP volunteers and
employees shall not be considered employees of the City and shall be under the
direct control of BCMP. BCMP agrees to indemnify the City and hold the City
harmless from any liability, claim, demand or action of any kind, including legal
expenses, arising out of BCMP activities, and BCMP shall carry a policy of
comprehensive general liability insurance, including contractual liability
insurance, in an amount approved by the City to cover this agreement. BCMP shall
provide certificates of insurance to the City with the signing of this agreement.
It is understood that this insurance requirement does not constitute all of the
insurance that may be necessary.
Duration. The services provided by BCMP hereunder shall commence on the
10th day f February y 1987, and continue until December 31,
1987. It is understood between the parties that BCMP intends to continue to
provide similar services after expiration of this contract, as a volunteer
organization. Nothing in this contract shall be construed to mean that the City
shall renew this contract in the event that BCMP continues to provide such
services to the residents of the City of Brooklyn Center after expiration of this
contract.
Payment The City agrees to pay the sum of Six Thousand ($6,000) Dollars for the
services provided hereunder, for the term of the contract. The sum of $6,000
shall be the total obligation of the City under this contract and shall be
payable to BCMP as follows $3,000 on February 2, 1987 and $3,000 on A- agus -a-
- 19$3; April 21, 1987 in order to provide the services required hereunder. In the
event that BCMP fails to provide the services hereunder, discontinues its
operation, or otherwise breaches the contract in any material way, BCMP shall
refund to the City the amount determined by dividing the number of days
remaining under this contract by 365 days and expressing the quotient in
percentum and then multiplying the said percentum times the total contract
price.
Miscellaneous. The parties agree that this contract is'not assignable and
that the contract shall become effective upon approval by the BCMP Board of
Directors and the execution thereof by the President and Corporate Secretary,
and upon the approval by the City Council of the City of Brooklyn Center and
execution thereof by the Mayor and City Manager.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
CITY 0 R00 YN NTER
--
. b 6 i r yo ro m
C t Manager
BROOKLYN CENTER MEDIATION PROJECT
P!r at
o Secretary
Member Gene Lhotka introduced the following
resolution and moved its adoption:
RESOLUTION N0. 87 - 27
RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO
ENTER INTO AN AGREEMENT BETWEEN THE CITY OF BROOKLYN
CENTER AND BROOKLYN CENTER MEDIATION PROJECT
WHEREAS, the City of Brooklyn Center has allocated
$6,000 in the 1987 budget, Unit 11, Object 4429 for mediation
services; and
WHEREAS, the City of Brooklyn Center and Brooklyn
Center Mediation Project are desirous of entering into an
agreement for the provision of services from the Project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Brooklyn Center:
1. The Council has reviewed the Agreement Between the
City of Brooklyn Center and Brooklyn Center
Mediation Project, and finds that the execution of
the agreement is in the best interest of the City
of Brooklyn Center.
2. The Mayor and City Manager are authorized and
directed to execute the agreement on behalf of the
City.
3. The City Manager is directed to transmit an
executed copy of the agreement to Brooklyn Center
Mediation Project.
January 26, 1987 `Zr�
Date Mayor Pro tem
ATTEST: X , A,
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member Celia Scott ' thereof: and upon vote being taken
thereon, the following voted in favor Gene Lhotka,
Celia Scott, and Rich Theis
and the following voted against the same: none,
whereupon said resolution was declared duly passed and adopted.
Bill Hawes abstained from the vote.
M MK4
M2im
Roj¢ct
Mr. Paul Holmlund
Director of Finance
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center MN 55430
April 9, 1987
Dear Mr. Holmlund,
I am writing on behalf of our Board of Directors to request
early release of the second half of funds allocated to us
by the city of Brooklyn Center. Under the terms of our
contract, the second half is payable on August 3rd. We
would deeply appreciate getting them as soon as possible.
Our finiancial status is hurting because of an
unanticipated holdup of Hennepin County Funds. That
situation is currently being corrected in the Minnesota
legislature and the funds we anticipated having now will
not be available until June.
I am grateful for your time and consideration in " this
matter. If you have any questions or comments, please
call.
Thank you.
Sincerely,
6w�rl--�-Q- (�u
Bonnie Lukes
Acting Director
5136 North Lilac Drive • Brooklyn Center, MN 55429 • Telephone: (612) 536 -1121
Member introduced the following
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION DECLARING EARLE BROWN ACTIVITIES AS A CIVIC
EVENT FROM MAY 29 THROUGH OCTOBER 1
WHEREAS, the purpose of Earle Brown Activities is to
promote the City of_Brooklyn Center, its people and amenities;
and
WHEREAS, residents, the City community civic groups,
and businesses participate in the annual civic celebration to
demonstrate the vitality of the City of Brooklyn Center; and
WHEREAS, in order for Earle Brown Days, Inc. to
schedule.certain events requiring City - issued administrative land
use permits, it is necessary for Earle Brown Activities to be
declared a civic event.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Brooklyn Center that Earle Brown Activities are
declared a civic event from May 29, 1987 through October 1, 1987.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
M
9
Member introduced the following
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION AMENDING THE 1987 GENERAL FUND BUDGET
WHEREAS, Section 7.09 of the City Charter of the City of
Brooklyn Center does provide for a contingency appropriation as a
part of the General. Fund Budget, and further provides that the
contingency appropriation may be transferred to any other
appropriation by the City Council; and
WHEREAS, the civil defense siren on 57th and Girard
Avenues North was severely damaged by water seepage; and
WHEREAS, it is recommended that the siren be repaired at
a cost of $3,586.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of Brooklyn Center to amend the 1987 General Fund Budget as
follows:
Increase the Appropriations for the following line items:
Emergency Preparedness, Equipment Repair, 4382 $3,586
Decrease the Appropriations for the following line items:
Unallocated Expenses, Contingency, 4995 $3,586
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
i
& ' -0
A riY' 17
PItmi THE OFFICE OF Tut �y MNA
SUBJECT! Civil Dot Siren Breakdo
To totes Honorable Xayori City Council,:
Attached plea fin 47 a� copy of a mAmorandux ik 4 ay
,. describing a recce t r*akdovn of the *,iVi li � sir isit : 57�
and Girard. in this sesorandus ds r�i fid t
'he old
s iren at at a Cost flt # 600 1 which is i X
Budget. Attached al** pleas* find,: ° ,. ;of �t. r+ �d
resolution which 'sill . transfer the n d xe�
Unallocated Expenaa,', t Ac t t a�
Preparedness Pquipmf A
Wee have chosen th+a ' re it , siren alte�xn to �raythh+r�rr man h
new Biro ni, because it gill allow us to get . , into:
rating condition prior to the worst . Of', out. tp+rn
season,
ful
Gerald 06 415p
City Nana r
,F
3
MEMORANDUM
TO: Gerald G. Splinter, City Manager
FROM: Jim Lindsay, Chief of Police
DATE: April 8, 1987
SUBJECT: Civil Defense Siren Outage
Attached please find a copy of a letter from Lehn Electric
regarding the civil defense siren located at 57th and Girard.
The letter is self - explanatory and suggests two options for
dealing with the siren outage. Because we are entering the
tornado season, I recommend that their estimate for installing a
new motor costing $3,586.00 be accepted. There is not monies in
the civil defense budget to handle this kind of a repair. If
approved, the money would need to be transferred from the
Council's Contingency Fund.
ELECTRICAL CONTRACTING
REST OENTIAL- COMMERCIAL
LEHN ELECTRIC TRAFFIC SIGNALS
AUT0MAT40N
PARKING GATES
214 E. Main St. ANOKA. MINN. 55,303 612 - 421 -2929
April IF 1987
Brooklyn Center Police Department
Attn: Mr. Joel Downer
6301 Shingle Creek Parkway
Brooklyn Center, MN 55429
Subject: Civil Defense Siren
Dear Mr. Downer,
We removed the siren on Girard Ave. today. We had previously
checked it out and found it to be shorted to ground. I had hoped
that we would find something minor, but that isn't the case.
When we first tried to rotate the chopper on the siren, it was
bound up tight. This indicated that the bearings were "frozen"
by lack of grease or just worn out.
As we removed the motor, a little bit of water ran out. We proceed -
ed to open up the motor and couldn't believe our eyes. I have
enclosed a picture to show you. The inside of the motor: terribly
rusted and the windings are burned up. The tan pieces in the fore -
ground on the picture are pieces of ice This motor has a lot
of water in it for a long time. Upon closer examination, we found
two marks on the motor housing that indicate that this motor had
been disassembled at some previous time. Another item we found
was that on top of the motor are two screws for a bearing retainer.
There should have been some silicone or some other sealant on these
- screws. One of them had a gasket but the other one was quite loose.
The gasket may have deteriated and allowed the water to enter. The
seal on the bottom bearing didn't allow the water out, so there it
stayed and created problems.
There doesn't seem to be any other explanation. Everything else
seemed very water- tight.
I had hoped to be able to have the motor rewound and reuse the end
bells and rotor. This motor is so badly rusted, that I just won't
do that. The water and rust have pitted and damaged the entire
rotor and housing. The motor starter is also bad. This unit is
very old and has only two thermal motor protectors instead of code
requirements of three. That part isn't so bad, but this starter
is worn out. The contacts, which carry the motor load are burned
and two of them are totally gone.
Brooklyn Center Police Department
Civil Defense Siren
Page 2
April 3, 1987
I have looked at two different alternatives for your consideration.
A new siren of this same type installed, including check -out and
removing old siren would be
$ 5443.00
This new unit would have a 2 year warranty like your other Thunder -
beam sirens we recently installed. Delivery would be somewhat of a
problem, due to manufacturer delays. The earliest delivery on a
new unit would be approximately the middle of June.
The decond alternative and the one I would recommend is to install
a new motor on the existing siren. The new motor would carry a
2 year warranty just like a new siren. The motor is the only
moving part in this siren, so that is the only part that can give
problems. Delivery on the motor would be approximately 2 weeks.
We would be able to be back in operation well before the May 6
test date. The new motor installed and back in operation would
cost
3586.00
Both of the figures include the new motor starter, which must be
installed, labor to remove and replace, and crane charges.
I have all the old parts at our office and would be more than happy
to show them to you.
If you have any questions, please call me.
Sincerely,
a 7�
Terry Lel�
hehn Electric, Inc.
TL /11
6h
Member introduced the following
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION ACCEPTING BID AND AUTHORIZING THE PURCHASE
OF ONE (1) HEAVY DUTY- INDUSTRIAL TRACTOR AND LOADER
WHEREAS, an appropriation was approved in the 1987
budget for the purchase of One (1) Heavy Duty Industrial Tractor
and Loader; and
WHEREAS, $24,000 was originally appropriated for the
purchase of the Heavy Duty Industrial Tractor and Loader; and
WHEREAS, two bids were received as follows:
Company Bid
Long Lake Ford Tractor $22,484
Carlson Tractor & Equipment $23,317
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City f Brooklyn oklyn Center that the purchase of One (1) Heavy
Duty Industrial Tractor and Loader from Long Lake Ford Tractor,
in the amount of $22,484 is hereby approved.
Date Mayor
ATTEST:
i Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
CORRECTION
MINUTES F
0 THE PROCEEDINGS 0 DINGS OF THE PLANNING COMMISSION
OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF
HENNEPIN AND THE STATE OF MINNESOTA
STUDY SESSION
MARCH 26, 1987
CITY HALL
CALL TO ORDER
The Planning Commission met in study session and was called to order by Chairman
George Lucht at 7:32 p.m.
ROLL CALL
Chairman George Lucht, Commissioners Molly Malecki, Lowell Ainas, Mike Nelson,
Wallace Bernards and Ann Wallerstedt. Also present were Director of Planning and
Inspection Ronald Warr en and Mary Lou Recording Secretary. Chairman Lucht
noted that Commissioner Sandstrom
was unable to attend this evening's meeting and
was excused.
APPROVAL OF MINUTES - March 12, 1987
Commissioner Nelson stated he had not voted on the approval of the January 29, 1987
minutes as he was not present at that meeting. He requested the minutes to be so
amended. Motion by Commissioner Ainas seconded by Commissioner Nelson to approve
the minutes of the January 29, 1987 Planning Commission meeting as corrected.
Voting in favor: Chairman Lucht, Commissioners Malecki, Ainas and Nelson. Voting
against: none. The motion passed. Commissioners Bernards and Wa.11erstedt did
not vote, as they were not at that meeting.
Commissioner Bernards stated he supports the Commissions recommendations
contained in the March 12, 1987 minutes in regard to the selection of the Planning
Commission Chairman.
APPLICATION NO. 87006 (Willard Blake
Following. the Chairman's explanation, the Secretary introduced the next item of
business, a request for s pecial use p ermit ap too o perate a retail showroom
q p A AP A ,
displaying electronic equipment, in conjunction with a communication service
center at 1800 Freeway P
Boulevard. He next reviewed the contents of the staff report -
(see Planning Commission Information Sheet for Application No. 87006 attached).
A brief discussion ensued regarding the parking on the site. The Secretary stated
there is space available for additional parking.
PUBLIC HEARING �
Chairman Lucht then opened the meeting for a public hearing and noted the required
notices had been sent. Commissioner Bernards asked if there is any on- street
parking in this area. The Secretary responded that there is no on- street parking
allowed on Shingle Creek Parkway and Freeway Boulevard. City Ordinances limit on-
street parking to no more than 6 consecutive hours between 8:00 a.m. and midnight and
no more than 4 consecutive hours between midnight and 8:00 a.m. on other City
streets.
Commissioner Bernards referred to Condition No. 4 and inquired if an overflow
parking problem occurs how would enforcement be obtained to provide the additional
required parking spaces. The Secretary responded the owner would be notifed and
given 30 -60 days to comply. He further noted that he had observed parking during
I
services conducted at the Spiritual Life Ministries located in that same building
and many parking spaces are being used but, their use is primarily in the evening
hours and does not conflict with the other uses in the building.
Chairman Lucht then called on the applicant to speak. Mr. Willard Blake
representing Continental Communications, stated he was not familiar with the
parking ordinance, but that he had never seen any cars parked in the area around the
space he was proposing to occupy. He stated he foresees no problems with parking.
His business hours will be tentatively 9:00 a.m. to 6:00 p.m.
Noting no one else was present to speak regarding the application, Chairman Lucht
called for a motion to close the public hearing.
CLOSE PUBLIC HEARING
Motion by Commissioner Nelson seconded by Commissioner Ainas to close the public
hearing._ Voting in favor: Chairman Commissioners Malecki, Ainas, Nelson,
Bernards and Wallerstedt. Voting against: none. The motion passed unanimously.
Commissioner Wallerstedt inquired if the parking lot at 1800 Freeway Boulevard is
cleared in winter. The Secretary responded he does not think there has been a
problem in the past, but is sure the tenants will let the landlord know if snow
removal becomes a problem.
ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 87006 (Continental
Communications /Willard Blake
Motion by Commissioner Nelson seconded by Commissioner Malecki to recommend
approval of Application No. 87006 subject to the following conditions:
1. Tenant improvement plans are subject to review and approval by
the Building Official with respect to applicable codes prior to
the issuance of building permits.
2. The special use permit is subject to all applicable codes,
ordinances and regulations and any violations thereof shall be
grounds for revocation.
3• The special use permit is issued to the applicant as operator of a
communications service center involving a retail showroom for
displaying and selling electronic equipment as well as an office
in conjunction with this operation. No other commercial
activity is acknowledged by this special use permit approval.
4. The owner of the property shall acknowledge his responsibility
for guaranteeing the striping and delineating of additional
parking stalls at the northwest corner of the site upon a
determination by the City that parking demand on the site exceeds
the available number of parking spaces.
5. Special use permit approval is exclusive of all signery which is
subject to the provisions of Chapter 34 of the City Ordinances.
Voting in favor: Chairman Lucht, Commissioners Malecki, Ainas, Nelson, Bernards
and Wallerstedt. Voting against: none. The motion passed unanimously.
3 -26 -87 -2-
8. The applicant shall enter into a traffic signal agreement with
the City, as approved by the Director of Public Works, whereby
they shall be responsible for paying half of the cost of the
future installation of a traffic signal at the Parkway
Circle /67th Avenue North intersection with Shingle Creek Parkway
if the necessity of such a traffic signal is determined by the
City.
9. Approval of this application does not acknowledge an amendment to
the landscape /plaza plan submitted under Planning Commission
Application No. 86033. The applicant shall submit a revised
plan for review and approval by the City.
10. Special use permit approval acknowledges the ability of RCM Plaza
to have a 100% office occupancy.
11. Special use permit approval is subject to all applicable codes,
ordinances and regulations. Any violation thereof shall be
grounds for revocation.
12. The applicant shall execute an easement over a portion of the
central parking lot dedicating that portion of the property
indicated on the approved plan for landscaping purposes.
DISCUSSION ITEMS
a) Draft Ordinance Amendment Regarding Billboards and Off- Premise Advertising
Signs
The Secretary introduced the next item, a recommended draft ordinance amendment
relating to the regulation of billboards and off - premise advertising signs. He
explained that this matter has been the subject of recent Planning Commission
discussions. He noted that concern had been raised regarding the effectiveness of
City 'Sign Ordinance provisions prohibiting billboards in light of recent Supreme
Court and other judicial decisions involving such signs. He added that the City
Attorney had submitted a written report, dated February 24, 1987, reviewing the
current status of the law regarding billboards and recommending certain changes in
the Brooklyn Center Sign Ordinance if the City wished to continue to restrict
billboards in the future. The Secretary noted that report had been discussed by the
Commission on March 12, 1987 and the Commission, by motion, concurred with the City
Attorney's recommendation and directed the staff to prepare an ordinance amendment
in line with the recommendations for their consideration.
The Secretary also explained that the Planning Commission lhad, prior to their
consideration of the City Attorney's report, been provided with a copy of Zoning and
Planning Law Report, Vol. 8, No. 10, November, 1985, relating to local control of
signs and billboards, which also serves as background information relating to the
issue before the Commission.
A discussion ensued relative to the draft ordinance amendment. Commissioner
Bernards questioned the new wording in the statement of purpose that seemed to
qualify off- premise advertising signs as "potential" traffic safety hazards while
the wording was almost dogmatic in reference to them being unattractive. The
Secretary responded that court decisions have accepted the argument that off -
4 -9 -87 -3-
premise advertising signs as traffic safety hazards and have more recently accepted
the notion that cities may regulate these signs on the basis of aesthetics. He
suggested that the word "potential" be stricken from this sentence to show
consistency between traffic safety and aesthetic concerns. Commissioner
Wallerstedt noted that she was not familiar with the report the Secretary had
referenced earlier and requested she be provided with a copy.
ACTION RECOMNIENDNG APPROVAL OF SIGN ORDINANCE AMENDMENT
Following further discussion, there was a motion by Commissioner Bernards seconded
by Commissioner Ainas to recommend approval of an amendment to the Sign Ordinance
with a change striking the word potential from Section 34 -100. Voting in favor:
Chairman Lucht, Commissioners Malecki, Ainas, and Bernards. Voting against:
none. Not voting: Commissioner Wallerstedt as she wanted more time to review the
matter. The motion passed.._:
A brief discussion ensued regarding traffic backup at Twin City Federal.
The Secretary reviewed upcoming business and stated he had no formal applications as
yet for the April 23, 1987 Commission meeting.
Chairman Lucht reported that Commissioner Nelson had informed him he would be unable
to attend the April 23 meeting.
ADJOURNMENT
Motion b Commissioner Wallerstedt seconded b Commissioner Malecki to adjourn the
Y Y J
meeting of the Planning Commission. Voting in favor: Chairman Lucht,
Commissioners Malecki, Ainas, Bernards and Wallerstedt. Voting against: none.
The motion passed unanimously. The Planning Commission adjourned at 8:34 p.m.
Chairman
4 -9 -87 -4-
1 7a.
MINUTES OF THE PROCEEDINGS OF THE PLANNING COMMISSION
OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF
HENNEPIN AND THE STATE OF MINNESOTA
REGULAR SESSION
APRIL 9, 1987
CITY HALL
CALL TO ORDER
The Planning Commission met in regular session and was called to order by Chairman
George Lucht at 7:34 p.m.
ROLL CALL
Chairman George Lucht, Commissioners Molly Malecki, Lowell Ainas, Wallace Bernards
and Ann Wallerstedt. Also present were Director of Planning and Inspection Ronald
Warren, City Engineer Bo Spurrier and Mary Lou Larsen, Recording Secretary.
Chairman Lucht noted that Commissioners Carl Sandstrom and Mike Nelson were unable
to attend this evening's meeting and were excused.
APPROVAL OF MINUTES - MARCH 26, 1987
Motion by Commissioner Ainas seconded by Commissioner Malecki to approve the
minutes of the March 26, 1987 Planning Commissioner meeting as submitted. Voting
in favor: Chairman Lucht, Commissioners Malecki, Ainas, Bernards and Wallerstedt.
Voting against: none. The motion passed.
APPLICATION NO. 87007 (Shingle Creek Land Company)
Following the Chairman's explanation, the Secretary introduced the first item of
business, a request for special use permit approval to provide off -site accessory
parking-on Tract A, R.L.S. 1572 (Spec. 12 site) in order to provide sufficient
parking to allow a full office occupancy of the RCM Plaza building, 6701 Parkway
Circle (Tract B, R.L.S. 1564) . The applicant has negotiated a lease with the audit
division of Target Stores for the remaining space in RCM Plaza as an office
occupancy. He next reviewed the contents of the staff report (see Planning
Commission Information Sheet for Application No. 87007 attached).
Commissioner Bernards noted that there is an existing traffic problem going north on
Shingle Creek Parkway to 69th Avenue North and inquired if the new office use will
intensify the traffic in that area. The Secretary stated that the City has acquired
property from Earl Brown Patio Homes and plans to reroute Shingle Creek Parkway to
make it through to 69th Avenue North. Such a project involves further reviews and
approvals, but should alleviate the congestion problems at Shingle Creek Parkway
and 69th. Commissioner Bernards stated there are also traffic problems at Shingle
Creek Parkway and Xerxes Avenue North.
City Engineer Bo Spurrier stated that the Short - Elliott- Hendrickson Traffic
Analysis reviewed the area between 69th Avenue North to T. H. 252 to eliminate the
bottleneck. This would involve an Environmental Assessment and possibly an
Environmental Impact Statement, and would probably not begin until 1989 or 1990.
Commissioner Wallerstedt inquired what could be done about the traffic
at Xerxes Avenue North and Freeway Boulevard. City Engineer Bo Spurrier responded
that there is no plan at this time for another traffic signal.
Further discussion ensued regarding further traffic impact by the full office
occupancy proposed in the RCM Plaza building. The Secretary reviewed traffic
analysis on probable cases done previously.
4 -9 -87 -1-
Chairman Lucht asked the applicant if he had anything to add. Richard Martens of
Winfield Developments, Inc., representing the applicant, stated he had nothing to
add, but would answer any questions the Commission may have.
Commissioner Bernards asked how parking will be designated for the RCM Plaza
building. The applicant responded parking is a joint use situation and the
majority of the parking will be used by employees.
PUBLIC HEARING
Chairman Lucht then opened the meeting for a public hearing and noted that the
required notices had been sent.. No one spoke and he called for a motion to close the
public hearing.
CLOSE PUBLIC HEARING
oFtion by Commissioner Wallerstedt seconded by Commissioner Malecki to close the
public hearing. Voting in favor: Chairman Lucht, Commissioners Ainas, Malecki,
Bernards and Wallerstedt. Voting against: none. The motion passed unanimously.
ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 87007 (Shingle Creek Land Company)
Motion by Commissioner Ainas seconded by Commissioner Malecki to approve
Application No. 87007 subject to the following conditions:
I. Special use permit approval acknowledges off -site accessory
parking of 153 spaces on Tract A, R.L.S. 1572 to be provided for.
the sole use of Tract B, R.L.S. 1564. The applicant shall
encumber the 153 parking spaces for this specific purpose in a
manner consistent with City ordinances as approved by the City
Attorney. Said encumberance shall be filed with the title to the
properties.
2. Special Use Permit approval acknowledges the proof -of- parking
for up to 153 parking spaces. The applicant shall execute an
agreement, as approved by the City Attorney, to install said
parking upon a determination by the City that they are necessary
for the proper functioning of the site. This agreement shall be
filed with the title to the property.
3. A revised declaration establishing parking rights in the central
parking lot for the Ramada Hotel, Parkway Place and Shingle Creek
11 shall be reviewed and approved by the Zoning Official and the
City Attorney prior to the filing at the County.
1 4. The applicant shall execute a standard utility maintenance and
inspection agreement as approved by the City Engineer.
5. The applicant shall submit a drainage plan for approval by the
Shingle Creek Watershed Mnagement Commission.
6. The applicant shall agree to dedicate the necessary easement area
required for storm water detention in accordance with the plan
approved by the Shingle Creek Watershed Management Commission.
7. The applicant shall be responsible for protecting the flowageway
running from the intersection of 67th Avenue North and Shingle
Creek Parkway to Shingle Creek.
4 -9 -87 -2-
ti
8. The applicant shall enter into a traffic signal agreement with
the City, as approved by the Director of Public Works, whereby
they shall be responsible for paying half of the cost of the
future installation of a traffic signal at the Parkway
Circle /67th Avenue North intersection with Shingle Creek Parkway
if the necessity of such a traffic signal is determined by the
City.
9. Approval of this application does not acknowledge an amendment to
the landscape /plaza plan submitted under Planning Commission
Application No 86033 The applicant shall submit a revised
plan for review and approval by the City.
10. Special use permit approval acknowledges the ability of RCM Plaza
to have a 100% office occupancy.
11. Special use permit approval is subject to all applicable codes,
ordinances and regulations. Any violation thereof shall be
grounds for revocation.
12. The applicant shall execute an easement over a portion of the
central parking lot dedicating that portion of the property
indicated on the approved plan for landscaping purposes.
DISCUSSION ITEMS
a) Draft Ordinance Amendment Regarding Billboards and Off- Premise Advertising
Signs
The Secretary introduced the next item, a recommended draft ordinance amendment
relating to the regulation of billboards and off - premise advertising signs. He
explained that this matter has been the subject of recent Planning Commission
discussions. He noted that concern had been raised regarding the effectiveness of
City Sign Ordinance provisions prohibiting f
Y g P P ibiting billboards �.n light o recent Supreme
Court and other judicial decisions involving such signs. He added that the City
Attorney had submitted a written report, dated February 24, 1987, reviewing the
current status of the law regarding billboards and recommending certain changes in
the Brooklyn Center Sign Ordinance if the City wished to continue to restrict
billboards in the future. The Secretary noted that report had been discussed by the
Commission on March 12, 1987 and the Commission, by motion, concurred with the City
Attorney's recommendation and directed the staff to prepare an ordinance amendment
in line with the recommendations for their consideration.
The Secretary also explained that the Planning Commission lhad, prior to their
consideration of the City Attorney's report, been provided with a copy of Zoning and
Planning Law Report, Vol. 8, No. 10, November, 1985, relating to local control of
signs and billboards, which also serves as background information relating to the
issue before the Commission.
A discussion ensued relative to the draft ordinance amendment. Commissioner
Bernards questioned the new wording in the statement of purpose that seemed to
qualify off - premise advertising signs as "potential" traffic safety hazards while
the wording was almost dogmatic in reference to them being unattractive. The
Secretary responded that court decisions have accepted the argument that off -
4 -9 -87 -3-
i
premise advertising signs as traffic safety hazards and have more recently accepted
the notion that cities may regulate these signs on the basis of aesthetics. He
suggested that the word "potential" be stricken from this sentence to show
consistency between traffic safety and aesthetic concerns. Commissioner
Wallerstedt noted that she was not familiar with the report the Secretary had
referenced earlier and requested she be provided with a copy.
ACTION RECOMMENDNG APPROVAL OF SIGN ORDINANCE AMENDMENT
Following further discussion, there was a motion by Commissioner Bernards seconded
by Commissioner Ainas to recommend approval of an amendment to the Sign Ordinance
with a change striking the word potential from Section 34 -100. Voting in favor:
Chairman Lucht, Commissioners Malecki, Ainas, and Bernards. Voting against:
none. Not voting: Commissioner Wallerstedt as she wanted more time to review the
matter. The motion passed.
A brief discussion ensued regarding traffic backup at Twin City Federal.
The Secretary reviewed upcoming business and stated he had no formal applications as
yet for the April 23, 1987 Commission meeting.
Chairman Lucht reported that Commissioner Nelson had informed him he would be unable
to attend the April 23 meeting.
ADJOURNMENT
Motion by Commissioner Wallerstedt seconded by Commissioner Malecki to adjourn the
meeting of the Planning Commission. Voting in favor: Chairman Lucht,
Commissioners Malecki, Ainas, Bernards and Wallerstedt. Voting against: none.
The motion passed unanimously. The Planning Commission adjourned at 8:34 p.m.
Chairman
s
4 -9 -87 -4-
1.
Planning Commission Information Sheet
• Application No. 87007
Applicant: Shingle Creek Land Company
Location: Tract A, R.L.S. 1572 (Spec. 12)
Request: Special Use Permit (Off -Site Accessory Parking)
The applicant (Shingle Creek Land Company) is requesting a special use permit to
provide off -site accessory parking on Tract A, R.L.S. 1572 (Spec. 12 site) in order
to provide sufficient parking to allow a full office occupancy of the RCM Plaza
building, 6701 Parkway Circle (Tract B, R.L.S. 1564) The applicant has negotiated
a lease with the audit division of Target Stores for the remaining space in RCM Plaza
as an office occupancy.
The properties under consideration are located in the I -1 zoning district and are a
part of the Shingle Creek Business Center. RCM Plaza is bounded on the east by the
Spec. 11 (or Shingle Creek 11) site; on the north b the S pec. 9• on the west b the
� Y P , Y
MTC site; and on the south by the Spec. 12 site and Parkway Circle (the nonpublic
roadway that serves as access to the Spec 12 Shingle Creek Business Center). The S
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site is a
vacant parcel between the MTC and RCM Plaza sites and the Ramada Hotel to
the south.
Off -site Accessory Parking
This application proposes to provide an off -site accessory parking lot containing
153 spaces for the sole use of RCM Plaza. It would also alter the most recent
allocation of parking spaces in the central parking lot (Tract C, R.L.S. 1564 and
Tract C, R.L.S. 1572) servicing various buildings in the Shingle Creek Business
Center which was approved by the City Council under Planning Commission Application
No. 86034 on September 8, 1986 The central parking lot is divided into two areas, a
north and south lot separated by a landscaped area and has a parkin capaci of 276
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parking aces.
p g p There also exists an agreement between the City and Lombard
Properties stipulating that Lombard will construct a 185 stall parking ramp over the
central parking lot upon a determination by the City that parking demand in this
complex demands it. A parking allocation totaling 332 spaces (276 in central lots
with 56 deferred as part of a future parking ramp) was allocated and distributed in
the following manner as part of Application No. 86034:
Building Spaces Required Provided On -Site Off -Site
Central Lot
Shingle Creek 11 152 50 102
(20% Office; 80% Industrial)
RCM Plaza 226 176 50
50% Office; 50% Industrial)
Parkway Place 271 156 115
(60% Office; 10% Clinic;
30% Industrial)
Ramada Hotel 493 428 65
1,142 810 332
. Because the applicant proposes a total office occupancy of RCM Plaza, the parking
requirement for that building would be 329 spaces based on the ordinance parking
formula for a 74,699 sq. ft. office building. As indicated above, there are 176
4 -9 -87 -1-
Application No. 87007 continued r
spaces on -site and a need, therefore, for 153 off -site spaces to accomplish this.
For an off -site accessory parking special use permit to be granted, it must be
consistent with the Standards for Special Use Permits and also, with the provisions
contained in Section 35 -701, Subdivision 3a through 39 (copy attached).
Subdivision 3b limits off -site accessory parking to one site for each principal use.
Therefore, the applicant proposes to have no parking allocation from the central
parking lot for RCM Plaza and to provide all of the needed off -site parking on the
vacant Spec. 12 site. They have submitted a parking plan showing an expansion of
the parking lot south of RCM Plaza on to the Spec. 12 site to provide the required
parking. B612 curb and gutter would be provided around the parking and driving
areas and additional landscaping, consistent with that at RCM Plaza, would be
provided in large parking lot islands and the greenstrips along Parkway Circle.
New Allocation
The new central parking lot allocation would be as follows:
Shingle Creek 11 102 spaces
Parkway Place 115 spaces
Ramada Hotel 65 spaces
Unallocated 50 spaces
Total 332 spaces
The applicant has also requested consideration of a proof -of- parking agreement at
this time because they may well have other alternatives and parking allocation
proposals in the near future.
Other Considerations
This proposed change leads to other considerations which must be addressed. First
of all, the additional office occupancy RCM Plaza (100 %) will lead to additional
traffic being generated particularly the p.m. peak hour. The traffic generation
based on a probable development used as the model in the Short - Elliott - Hendrickson
Traffic Analysis anticipated a 50% office occupancy being generated from the RCM
site. Of primary concern is the impact on the intersection of Shingle Creek Parkway
and Freeway Boulevard during the p.m. peak hour (5:00 to 6:00 p.m.). Given the
probable case, a level of service of D was anticipated. This level of service can be
improved to a level of service C with turn lane improvements. The proposed change
in occupancy will not cause maximum case development and we do not anticipate any
significant impact as this intersection with the proposed change in occupancy of the
building. However, the Director of Public Works has noted that the increased
office occupancy at RCM Plaza may well cause an increase in traffic movements at the
north intersection of Parkway Circle /67th Avenue North and Shingle Creek Parkway.
He has recommended, as part of the approval of this application, that the applicant
be required to enter into a traffic signal agreement with the City whereby they would
agree to pay for half the cost of a traffic signal at that location should one become
necessary within the next 10 years. This agreement would be similar to the one
Lombard has entered into to pay the entire cost of a traffic signal at the south
intersection of Parkway Circle and Shingle Creek Parkway. Similar agreements have
been executed for the north and south entrances to the Target /Shingle Creek Center
on Summit Drive and John Martin Drive respectively and with the Brookdale Square
Shopping Center.
4 -9 -87 -2-
�y
Application No. 87007 continued
The City Engineer has indicated that a drainage plan for the Spec. 12 site must be
submitted and approved by the Shingle Creek Watershed Management Commission. It is
our understanding that the applicant is preparing such a plan for submission. The
City Engineer has also expressed concern that the flowageway running from the
intersection of 67th Avenue North and Shingle Creek Parkway to Shingle Creek be
protected and left open.
Central Parking Lot Landscape Provisions
The City Council also approved a proposal by Lombard Properties on September 8, 1986
to construct a somewhat elaborate landscaped plaza with two pools and a pavilion
within the central parking under Planning Commission Application No. 86033•
The applicant wishes to request approval of a proposal to scale this project down to
provide only a landscaped area and a walkway through this same area. The area would
be the same size, approximately 54' wide north to south and 270' long east to west.
It would contain a lighted concrete meandering walkway with eight sitting benches.
The area would be sodded and contain numerous trees, shrubs and flowers (5 >Imperial
Locusts, 3 Norway Maples, 16 Green Spruce, 9 Radiant Crab, 4 Snowdrift Crab, 10
Japanese Tree Lilac, many Junipers, Winged Euonymus, Narrow Leaf Hosta and over
1,000 Red Geraniums). It should be noted that underground irrigation is required,
as under the previous application, in all landscaped areas.
Recommendation
We believe this application is in order and recommend approval subject to the
following conditions:
1. Special use permit approval acknowledges off -site accessory
parking of 153 spaces on Tract A, R.L.S. 1572 to be provided for the
sole use of Tract B, R.L.S. 1564. The applicant shall encumber
the 153 parking spaces for this specific purpose in a manner
consistent with City ordinances as approved by the City Attorney.
Said encumberance shall be filed with the title to the properties.
2. Special Use Permit approval acknowledges the proof -of- parking for
up to 153 parking spaces. The applicant shall execute an
agreement, as approved by the City Attorney, to install said
parking upon a determination by the City that they are necessary
for the proper functioning of the site. This agreement shall be
filed with the title to the property.
3. A revised declaration establishing parking rights in the central
parking lot for the Ramada Hotel, Parkway Place and Shingle Creek
11 shall be reviewed and approved by the Zoning Official and the
City Attorney prior to the filing at the County.
4. The applicant shall execute a standard utility maintenance and
inspection agreement as approved by the City Engineeer.
5. The applicant shall submit a drainage plan for approval by the
Shingle Creek Watershed Management Commission.
6. The applicant shall agree to dedicate the necessary easement area
required for storm water detention in or an
acc d ce with the plan
approved by the Shingle Creek Watershed Management Commission.
7. The applicant shall be responsible for protecting the flowageway
running from the intersection of 67th Avenue North and Shingle
Creek Parkway to Shingle Creek.
4 -9 -87 _3_
r
Application No. 87007 continued
8. The applicant shall enter into a traffic signal agreement with the
City, as approved by the Director of Public Works, whereby they
shall be responsible for paying half of the cost of the future
installation of a traffic signal at the Parkway Circle /67th Avenue
North intersection with Shingle Creek Parkway if the necessity of
such a traffic signal is determined by the City.
9. Approval of this application acknowledges an amendment to the
landscape /plaza plan submitted under Planning Commission
Application No. 86033 subject to all of the conditions imposed on
that application on September 8, 1986.
10. Special use permit approval acknowledges the ability of RCM Plaza
to have a 100% office occupancy.
11. Special use permit approval is subject to all applicable codes,
ordinances and regulations. Any violation thereof shall be
grounds for revocation.
4 -9 -87 -4-
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CITY OF BROOKLYN CENTER
Notice is hereby given that a public hearing will be held on the day of ,
1987 at p.m. at the City Hall, 6301 Shingle Creek Parkway, to consider
an amendment to the Sign Ordinance regarding off - premise advertising signs.
Auxiliary aids for handicapped persons are available upon request at least 96 hours
in advance. Please contact the Personnel Coordinator at 561 -5440 to make
arrangements.
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 34 OF THE CITY ORDINANCES
REGARDING OFF- PREMISE ADVERTISING SIGNS
THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS:
Section 1. Chapter 34 of the City Ordinances of the City of Brooklyn
Center is hereby amended in the following manner:
Section 34 -100. STATEMENT OF PURPOSE. The purpose of this ordinance is
to protect and promote the public health, safety, and welfare within the City by the
establishment of comprehensive standards, regulations, and procedures governing
or diplay
the erection, use s of devices serving as visual communications media; to
promote and preserve aesthetics iwth n the City; to provide for necessary visual
communication; to preserve and promote a pleasant physical environment; to protect
public and private property; and to encourage safety upon the streets and highways
within the City of Brooklyn Center, by regulating the type, number, structure, size,
location, height, lighting and the erection and maintenance of outdoor signs and
sign structures within said City. The City Council finds that off - premise
advertising signs constitute traffic safety hazards and are unattractive. The
provisions of this Chapter regulating off - premises advertising signs are
consistent with other efforts within the City to enhance aesthetics and promote
traffic safety, such as regulations pertaining to solid waste disposal,
anti- littering, and traffic safety.
" Section 34 -110. DEFINITIONS.
Billboard - [A sign located off of the premises where its subject
establishment, product, service, or activity is located, manufactured, sold,
offered, displayed, or conducted.] See Off - Premises Advertising Sign.
g . �_
Off- Premise Advertising Sign. - A sign that directs attention to a
business, commodity, service, or entertainment not exclusively related to the
premises on which the sign is located or to which it is affixed.
Section 34 -130. PROHIBITED SIGNS.
11. [Billboards, except as provided in Section 34 -140, Subdivisions 2c,
2f, 2h, 2i, 2k, 21, (1); or billboards which may be approved in
conjunction with an Administrative Permit as provided in Section 35-
800 of the City Ordinances; and certain rummage sale billboards as
Provided in Section 34 -140, Subdivision 2m of the City rdinances.
Y 7
Off- Premises Advertising SiBns except as otherwise permitted by
Section 3 - 140 and Section 35 -$00 of the City Ordinances.
ORDINANCE NO.
Section 2. This ordinance shall become effective after adoption and upon
thirty (30) days following its legal publication.
Adopted this day of 19
Mayor
ATTEST:
Clerk
Date of Publication
Effective Date
(Underline indicates new matter, brackets indicate matter to be - deleted.
t
MEMORANDUM
TO: Gerald G. Splinter, City Manager
FROM:' Ronald A. Warren, Director of Planning and Inspectior�y,
DATE: April 16, 1987
SUBJECT: Ordinance Amendment Regarding Off - Premise Advertising Signs -
On the April 20, 1987 City Council agenda is an ordinance amendment, which is offered
for a first reading, that would amend the City's Sign Ordinance regarding off
premise advertising signs or billboards. This matter has been the subject of
discussion by the Planning Commission since early March of this year and was
recommended by the Commission at their April 9, 1987 meeting.
The purpose of the ordinance amendment is to bring our Sign Ordinance in line with
recent Supreme Court and other judicial decisions involving the regulation of
billboards.
As you are aware, National Advertising Company, a subsidiary of A in January of
this year had applied for sign permits to construct seven billboards ranging in size
from 400 to 750 sq. ft. in area at various locations within the City. These permit
requests were denied on the basis that they were prohibited signs under the City's
Sign Ordinance. At that time I requested Jim Thomson of the City Attorney's office
to review our Sign Ordinance as it pertains to the regulation of billboards in light
of recent court decisions. Mr. Thomson responded on February 24, 1987 by providing
a report on the current status of the law regarding billboards and various
recommendations for change if the City was inclined to continue to restrict the use
of billboards (copy attached). The Planning Commission considered the report
during a discussion of the subject at its March 12, 1987 meeting. The Commission
clearly believed it was in the best interest of the City to continue to regulate
billboards and directed the preparation of an ordinance amendment in line with the
City Attorney's recommendation.
That draft was prepared and presented to the Planning Commission on April 9, 1987 at
which time, following review and discussion, they made their recommendation to
adopt the ordinance amendment.
The primary change is that billboards would be defined as "off- premise advertising
signs" and the definition would be the same as the definition used by the City of
Cottage Grove which the Minnesota Court of Appeals concluded was constitutional.
I have also attached a copy of Zoning and Planning Law Report, Volume 8, No. 10,
November, 1985, regarding local control of signs and billboards. This report had
been given to the Planning Commission about a year ago for their review. I believe
it is very informative and may also provide additional information and insight for
the City Council regarding their deliberation of this matter.
I will be prepared to discuss this.matter in more detail on Monday evening if the City
Council so desires.
a
6
LeFevere
Lefler
Kennedv
O'Brien &
Drawz
A Professional
association
2000 First Bank Place West February 24, 1987
Minneapolis
Minnesota 55402
Telephone (612) 333-0543
Telecopier (612) 333 -0540 DELIVERED BY MESSENGER
Clayton L. LeFevere
Herbert P. Lefler Mr. Ron Warren
J. Dennis O'Brien
John E. Drawz Planning and Inspection Director
David J. Kennedy CITY OF BROOKLYN CENTER
John B. Dean 6301 Shingle Creek Parkway
Glenn E. Purdue
Richard J. Schieffer Brooklyn Center, Minnesota 55430
Charles L. LeFevere
Herbert P. Lefler III g
James J. Thomson, Jr. RE: Regulation of Billboards
Thomas R. Galt
Dayle Nolan Dear Ron:
Brian F. Rice
John G. Kressel
, j ' aine S. Clugg At your request I reviewed the City's Sign Ordinance as
, s M. Strommen it pertains to billboards . The reason for your request is
,d H. Ba tty
to anal ze m P. Jordan y the effect of recent Court decisions in this
Kurt J. Erickson area.
William R. Skallerud
Rodney D. Anderson
Corrine A. Heine CURRENT STATUS OF THE LAW REGARDING BILLBOARDS
David D. Beaudoin
Paul E. Rasmussen The controlling case regarding the regulation of
Steven M. Tallen billboards is Metromedia, Inc. v. City of San Diego 453
U.S. 490, 101 S.Ct., 2882, 60 L.Ed.2d 800 (1981). The
City of San Diego enacted an ordinance imposing
substantial prohibitions on the erection of outdoor
advertising displays. The ordinance permitted on -site
commercial advertising, but prohibited other commercial
advertising and noncommercial communications, unless
permitted by one of several specified exceptions. The
Court noted that commercial and noncommercial
communications have been treated differently in the
context of the first amendment. Courts have afforded
commercial speech a limited measure of protection,
allowing regulation that might be impermissible if
applied to noncommercial speech. The Court analyzed
separately the questions of the constitutionality of the
ordinance relating to commercial and noncommercial
speech.
Regarding commercial speech, the Court restated the test
established in Central Hudson Gas and Electric Corp. v.
Public Service Commission 447 U.S. 557, 65 L.Ed.2d 341,
100 S.Ct. 2343 (1980), for determining the validity of
Mr. Ron Warren
February 24, 1987
Page 2
government restrictions. The test is as follows: 1) the
first amendment protects commercial speech only if that
speech concerns lawful activity and is not misleading. A
restriction on otherwise protected commercial speech is
valid only if it 2) seeks to implement a substantial
government interest, 3) directly advances that interest,
and 4) reaches no further than necessary to accomplish
the given objective.
The first element of this test has, not been an issue in
the cases subsequently applying the test. Likewise, the
second element has not been a disputed one; courts have
consistently held that traffic safety and aesthetics are
substantial governmental interests. The cases have
revolved around the third and fourth elements of the
test.
In Metromedia the Court struggled with the third element
of the Central Hudson test: Does the ordinance "directly
advance" governmental interest in traffic safety and in
the appearance of the City? The Court held that
billboards are real and substantial hazards to traffic
safety deferring to the legislative judgments of local
lawmakers and decisions of lower courts. The Court also
accepted the notion that billboards can be perceived as
an "aesthetic harm."
16 Finally, the Court recognized and approved the fact that
the City of San Diego had decided to allow one type of
commercial speech while restricting another type. The
City could properly decide that the government's interest
should yield regarding on -site commercial advertising,
but not to off -site commercial advertising.
Regarding the fourth element, the Court held that the
ordinance was not broader than necessary o accomplish
ccom '
Y p
ish
the
given objective and noted that the city could have
prohibited all commercial billboards but elected not to
o that t far. The Court held that insofar as the San Diego
0
Ordinance regulates commercial speech that it met the
constitutional requirements of the Central Hudson test.
Regarding noncommercial speech, the Court in Metromedia
held that "insofar as the city tolerates billboards at
all, it cannot choose to limit their content to
commercial messages" and further that "although the city
may distinguish between the relative value of different
categories of commercial speech."
The constitutional test for regulations of noncommercial
speech is found in United States v. O'Brien 391 U.S.
367, 20 L.Ed.2d 672 (1968). The O'Brien court set forth
the following framework for reviewing content neutral
r
Mr. Ron Warren
February 24, 1987
Page 3
regulation. A regulation of noncommercial speech is
constitutional if:
1. Regulation is within the constitutional power
of the government;
2. It furthers an important or substantial
government interest;
3. The interest is unrelated to the suppression of
free expression; and,
4. The incidental restrictions on First Amendment
freedoms is no greater than is essential to the
furtherance of that interest.
A recent Minnesota Court of Appeals case addresses issues
similar to those raised in Metromedia In City of Cottage
Grove v. Ott 395 N.W.2d 111 (Minn. App. 1986), the
defendant was convicted of violating the city's sign
ordinance. That ordinance banned all off - premises
advertising, defined as:
A freestanding sign which directs attention to a
business, commodity, service or entertainment not
to exclusively related to the premises where such a
sign is located or to which it is affixed.
The defendant in Ott leased property to a third party and
gave that party the right to erect a freestanding sign
advertising that party's business. On appeal from a
criminal conviction the defendant argued that the Cottage
Grove Ordinance was unconstitutional because it was
overbroad and prohibited constitutionally - protected
noncommercial speech. The defendant conceded that Cottage
Grove had the authority to prohibit signs on his property
that express commercial speech, thus the court did not
apply the Central Hudson four -part test. The Ott court
concluded that "insofar as the ordinance regulates
commercial speech, it meets constitutional requirements."
Id, at 114. The issue thus boiled down to whether the
ordinance applied to noncommercial speech. The Minnesota -
Court of Appeals compared the Cottage Grove Ordinance
with an ordinance that was cited with approval in
Metromedia and concluded that the Cottage Grove Ordinance
prohibited only off - premises advertising signs. The Court
concluded that the ordinance was constitutional because
it did not restrict noncommercial speech.
In summary, the current status of the law is that
municipalities have more discretion in regulating
billboards that contain commercial messages than
billboards that do not contain commercial messages.
Although the City is not precluded from regulating
Mr. Ron Warren
February 24, 1117
Page 4
noncommercial billboards, it would be more difficult to
uphold such a regulation. Therefore if the City Council
is inclined to continue to restrict billboards, the more
conservative approach would be to limit the restrictions
to commercial billboards.
CHANGES IN ORDINANCE
The Brooklyn Center sign ordinance is potentially
vulnerable to a constitutional attack. As presently
drafted, the Ordinance could be construed to distinguish
between different types of noncommercial speech, which
was explicitly prohibited in the Metromedia decision.
Although the City could arguably prohibit all off -site
billboards, the following discussion will analyze how the
Ordinance could be strengthened to prohibit only
commercial off -site billboards.
Regulation of commercial billboards has been explicitly
approved by the United States Supreme Court in the
Metromedia case and by the Minnesota Court of Appeals in
the Ott decision. An analysis of the holdings of those
cases, and others, suggest that the following changes
could be made to the Brooklyn Center Sign Ordinance to
bolster it against a constitutional attack:
a. Amend Definition of Billboard
The present ordinance defines billboard as "a
sign located off of the premises where its
subject establishment, product, service, or
activity is located, manufactured, sold,
offered, displayed or conducted. The City
should consider adopting the definition which
was explicitly approved by the Minnesota Court
of Appeals in the Ott decision. The Cottage
Grove Ordinance approved in Ott bans all
off- premises advertisin g signs, ns defined as "a
freestanding sign which directs attention to a
business, commodity, service or entertainment
not exclusively related to the premises where
such a sign is located or to which it is
affixed." The Ott Court held that this
definition only applies to commercial speech.
b. Add Severability Clause
The present Brooklyn Center Sign Ordinance does
not have a severability clause. Thus, if part
of the Ordinance is found unconstitutional the
whole Chapter could be thrown out. The
severability clause should provide that if any
provision in the ordinance is found
Mr. Ron Warren
February 24, 1987
Page 5
unconstitutional, that the remaining provisions
shall remain in effect.
C. Recite Governmental Interests
The amending ordinance should recite the
governmental interests involved (aesthetics and
traffic safety). The ordinance should also
state that off -site billboards are traffic
hazards and are unattractive, that the
regulations adopted are the least burdensome to
carry out the intended purposes, and that the
billboard regulations are tied into other City
efforts to enhance aesthetics and traffic
safety (i.e. waste disposal, anti- littering
ordinance, traffic safety code, etc.).
Documentation should be presented to the
Planning Commission to support these
conclusions.
It is my understanding that you will be discussing this
topic with the Planning Commission at its meeting of
February 26, 1987 in order to obtain further direction
from them. In the event that there is a recommendation to
amend the Sign Ordinance, we can .prepare the necessary
to language.
Sincerely,
LeFEVERE, LEFLER, KENNEDY,
O'BRIEN & DRAWZ
J mes homson,
JJT /kjj
cc: Richard Schieffer
Enclosure
13. The applicant shall provide an appropriate easement, as approved
by the Shingle Creek Watershed Management Commission, over new
water detention areas.
14. The property owner shall enter into a utility maintenance
agreement prior to the issuance of building permits.
Voting in favor: Chairman Lucht, Commissioners Phlecki, Nelson, and Ainas.
Voting against: none. The motion passed unanimously.
APPLICATION NO. 87006 (Continental Communications /Willard Blake)
Chairman Lucht noted that the applicant or a representative was not present. He
stated the Commission should next review the discussion items and then return to
this item, if the applicant shows up.
DISCUSSION ITEMS
a) Expansion of Highway 100 Racquet Club Off -site Parking Lot
The Secretary reviewed the Highway 100 Racquet Club plans to expand their off -site
parking by adding 100 stalls. The Secretary noted that off -site parking is a
special use in that zone and may require submission of a formal special use
application and public hearing. The Secretary added that a formal submission could
possibly be waived as the City still holds a performance bond on this property.
There was a brief discussion regarding a possible 1988 street upgrading of France
Avenue between the south City boundary and 50th Avenue which could include
Lakebreeze Avenue North. The Secretary stated the Racquet Club would support the
street upgrading. He also noted that some concerns have been mentioned regarding
some traffic back -up on Lakebreeze and that it was suggested that a second access or
some parking lot revisions in the main lot be undertaken to alleviate the problem.
He added that the property owner has agreed to review the matter and take some
corrective action. Chairman Lucht suggested extra lighting at the pedestrian
crossing. City Engineer Bo Spurrier also expressed a concern regarding the
lighting at the pedestrian crossing. The Secretary stated that the staff would
look into the lighting concern.
Further discussion ensued regarding the parking at the Racquet Club. Following the
discussion it was the consensus of the Commission that a formal submittal need not be
required provided the Racquet Club address the lighting concern by the pedestrian
crossing and work with the staff to reduce traffic backup on Lakebreeze through
Possible revisions to the main parking lot.
b) Sign Ordinance Regarding Billboards
The Secretary next reviewed a letter from the City Attorney's office regarding the
current status of the law it
regarding billboards. He explained the City Attorney had
been requested to analyze the effect of recent Court decisions as they related to the
City's Sign Ordinance involving billboards. The Secretary noted that the Sign
Ordinance defines a billboard as any off -site sign and goes on to prohibit these
signs with some exceptions. The Secretary stated that the thrust of the City
Attorney's letter is that if the City wants to continue to prohibit billboards as it
currently does, he would advise some amendments to the ordinance in line with recent
Court decisions.
3 -12 -87 -5-
A discussion ensued relative to the letter, the Court cases and the City's
regulation of billboards. The Commission believed that it was in the best
interests of the community to continue to regulate billboards as it currently does.
ACTION DIRECTING DRAFT ORDINANCE AMENDMENT
Motion by Commissioner Malecki seconded by Commissioner Nelson to concur with the
City Attorney's recommendation and to direct staff to draft an ordinance amendment
in line with the City Attorney's recommendations. Voting in favor: Chairman
Lucht, Commissioners Malecki, Nelson and Ainas. Voting against: none. The
motion passed unanimously.
c) Commission's Duties and Responsibilities
The Secretary reviewed an ordinance amendment regarding duties of the Planning
Commission. He stated that as part of the Year 2000 report it is recommended that
the City standardize duties for all Advisory Commissions. He noted that duties and
responsibilites for the most part would be acknowledged through resolution.
A discussion ensued regarding appointment of the Chairman of the Planning
Commission by the Mayor with consent of the City Council instead of the Chairman
being elected by the Planning Commission; the procedure for appointments to draw
people from the six neighborhood areas; and a procedure for interim appointments for
temporary replacement in the event a Commissioner becomes ill or is unable to
perform the duties for a period of time.
Commissioner Malecki expressed disagreement with the idea of having the Chairman
appointed by the Mayor rather than elected by the Commission. She stated that she
believed that the Chairman should be someone who has experience serving on the
Commission and that the election of the Chairman generally provides this. She
expressed concern, although she quickly pointed out that it has not been the case,
that the appointment of the Chairman could be a political appointment with little or
no consideration given to the Chairman's ability to preside over the body. It was
suggested that perhaps the wording should be that the Mayor appoint the Chairman
with the consent of the Planning Commission. Commissioner Malecki and other
Commission members stated they believed the current election process was the best.
Commissioner Ainas stated that the idea of an interim appointment was good.
The Secretary stated that the Planning ommission's comments would be conveyed to
� Y
the City Council.
ACTION TABLING APPLICATION NO. 87006 (Continental Communications /Willard Blake)
Chairman Lucht recommended tabling the application because the applicant was not
present. Voting in favor: Chairman Lucht, Commissioners %lecki, Nelson and
Ainas. Voting against: none. The motion passed unanimously.
ADJOURNMENT
Motion by Commissioner Malecki seconded by Commissioner Nelson to adjourn the
meeting of the Planning Commission. The motion passed unanimously. The Planning
Commission adjourned at 8:50 p.m.
• Chairman
3 -12 -87 -6-
F' 18NING AND, PLANNING
LAW REPORT
■
Vol. 8, No. 10 November 1985
LOCAL CONTROL OF SIGNS AND BILLBOARDS:
AN ANALYSIS OF RECENT REGULATORY EFFORTS
by Edward H. Ziegler, Jr.
Professor of Law
University of Dayton School of Law
Since the U.S. Supreme Court's -1981 decision in Metromedia, Inc. v. City of San Diego, which produced five
separate views on the validity of sign and billboard controls, local regulations have been widely adopted or redrafted
resulting in considerable litigation in both federal and state courts. The Court's decision last year in Los Angeles
City Council v. Taxpayers for Vincent and other recent decisions now provide a framework for analyzing the
constitutional balance between first amendment protection of commercial and ideological expression and the com-
munity's interest in aesthetics The following article surveys these decisions and examines the current law of sign
and billboard regulation.
• Regulation of Commercial and • Time, Place, and Manner
Noncommercial Signs Restrictions s
• Fees, Removal, and Amortization
Introduction when the U.S. Supreme Court further complicated
Since early in this century, signs and billboards have the issue with its decision in Metromedia, Inc. v. City
been regulated to promote the traditional public pur- of San Diego, 453 U.S. 490 (1981), a case involving
poses of health and safety. See Thomas Cusack Co. the first amendment protection accorded signs as com-
v. City of Chicago, 242 U.S. 526 (1917). Local controls mercial or political speech. Only a few clear principles
over both commercial and noncommercial signs have emerged from the decision. See Crawford, "The Me-
more recently been widely adopted as a result of state tromedia Opportunity," 4 ZONING & PLAN. L. REP.
court decisions recognizing aesthetic considerations 145 (1981). The five separate opinions of the Court
as a legitimate public purpose for police power reg- in Metromedia sent mixed signals to federal and state
ulation. State courts were still in the process of re- courts concerning the constitutional validity of sign
solving problems related to the role and scope of and billboard controls.
aesthetics as a legitimate basis for land use controls Last year, the Supreme Court decided Los Angeles
Zoning and Planning Law Report
is published by Clark Boardman Company, Ltd. 435 Hudson Street, New York, NY 10014. ISSN 0161 -8113
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering
legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent person should be sought. —from a oeclaration of Principles jointly
adopted by a Committee of the American Bar Association and a Committee of Publishers.
City Council v Taxpayers for Vincent, 104 S. Ct. 2118 on signs is likely to further an aesthetic purpose in +
(1984), which upheld a regulation prohibiting the promoting visual beauty or other non - aesthetic public
posting of signs, including temporary political signs, purposes such as traffic safety. Although some recent
on public property. Read together, Metromedia and court decisions have invalidated sign controls with
Taxpayers for Vincent, along with an increasing num- apparent reliance on Justice Brennan's concurring
ber of state and federal court decisions, provide a opinion in Metromedia calling for greater judicial
somewhat more complete picture of the constitutional scrutiny of sign restrictions, see, e.g., Southern New
parameters of sign and billboard regulation and iden- Jersey Newspapers v State, 542 F. Supp. 173 (D.N.J.
tify those regulatory issues still unresolved by the 1982); the Supreme Court's decision in Taxpayers for
courts. Vincent reinforces the clear trend not to require com-
.
munities to demonstrate by statistical or other con -
Aesthetics as a Basis for Regulation crete scientific evidence that aesthetics or other
The Supreme Court in both Metromedia and Tax- supporting public purposes are likely to be furthered
payers for Vincent upheld the aesthetic interest in by regulation. See Dunagin v City of Oxford 718
community appearance as a legitimate basis for reg- F. 2d 738 (5th Cir. 1983); City of Fayetteville v Mallroy
ulation of signs. These decisions reinforce the clear Bank & Trust Co., 278 Ark. 500, 647 S.W.2d 439
trend in the 'majority of recent state court decisions (1983); Singer Super Markets, Inc. v Hillsdale Bd of
which have upheld land use regulation based on aes- Adjustment, 183 N.J. Super. 285, 443 A.2d 1082
thetic considerations. Court decisions in the following 982 .
g ( )
states have held that the aesthetic interest in com- A legislative record supporting regulation should
munity appearance and the derivative human values be developed and the aesthetic or other purposes sup -
related thereto may constitute the basis for land use porting regulation should be set out, since courts tend
regulation: Arkansas, California, Colorado, Florida, to be skeptical of what appear to be ad hoc post-
Georgia, Hawaii, Massachusetts, Montana, New Jer- enactment rationalizations for regulation. See Dills v.
sey, New Mexico, New York, North Carolina, Ne- City of Marietta, 674 F.2d 1377 (11th Cir. 1982) (re-
vada, Ohio, Oklahoma, Tennessee, Oregon, Utah, and fusing to accept aesthetics as basis for sign controls
Wisconsin. Moreover, in virtually all other states, since ordinance did not state or otherwise indicate
courts are likely to uphold regulation based on the that it was adopted for that reason).
aesthetic interest in community appearance when i
linked with such other non - aesthetic public purposes Total Ban on Signs
as traffic safety, protection of property values or tour- ' While the Supreme Court has ruled that political
ism. As discussed below, an aesthetic interest in com- or ideological expression, as so- called "pure speech,"
munity appearance, either alone or linked with some is entitled to a greater degree of protection than com -
non- aesthetic public purpose for regulation, will gen- mercial speech, the difference in protection is still not
erally be held to constitute a sufficient governmental entirely clear. In _Taxpayers for Vincent the Court
interest justifying reasonable controls on both com - ruled that a sign restrictioh which is content neutral
mercial and olitical signs, despite p g p to the fact that both but .which significantly impacts a form or metho d of
g y
P
types of signs are forms of speech protected by the political expression will be upheld only if: (1) it is
first amendment. within the constitutional power of government; (2) it
f arthers a substantial governmental interest that is
Deference to Legislative Judgment unrelated to the suppression of free expression; and
An important issue in regulation is the extent to (3) any incidental restriction on freedom of expression
which courts will defer to the legislative judgment is no greater than necessary to accomplish the gov-
that restrictions imposed on signs further aesthetic or ernmental interest.
other public purposes for regulation. Where regula- Applying this test, the Taxpayers for Vincent Court
tion significantly impacts speech protected by the first upheld as constitutional a total ban on the posting of
amendment, it will not be entitled to the usual pre- signs, including temporary political signs, on public
sumption of validity. Judges generally exercise their property within the city. The Court found the city's
own independent judgment on first amendment issues. interests in aesthetics and traffic safety sufficiently
See, e.g., Bose Corp. v Consumer's Union of United substantial to justify the ban and pointed out that
States, Inc., 104 S. Ct. 1949 (1984). However, the ample alternative channels of communication existed
Supreme Court in both Metromedia and Taxpayers for political expression within the community.
for Vincent expressly ruled that in the area of sign , Regulation that has the effect of banning political
controls, it would generally defer to a reasonably plau- signs everywhere within a community or even within
sible legislative judgment that a particular restriction a residential area are likely to be held unconstitutional -
162
as unduly restrictive and as foreclosing adequate chan- commercial uses already exist. Cf. State v Bloss, 637
nels of communication for political speech. See, e.g., P.2d 1117 (Hawaii 1982) (holding unconstitutional an
Mathews v. Town of Needham, 596 F. Supp. 932 (D. ordinance banning commercial speech at all times and
Mass. 1984); Meros v. City of Euclid, 594 F. Supp. in any manner on public property in Waikiki). Al-
259 (N.D. Ohio 1984); State v. Miller, 83 N.J. 402, though the Supreme Court has required that "For
416 A.2d 821 (1980). Sale" signs be allowed in residential areas, see Lin -
The validity of a ban on free- standing political signs mark Associates, Inc. v Township of Willingboro, 431
that are visible from a highway remains an unresolved U.S. 85 (1977), a ban on all other commercial signs
issue. Compare State v. Lotze, 92 Wash. 2d 52, 593 in a residential area is likely to be upheld. See, e.g.,
P.2d 817 (1979) (traffic safety and aesthetics held to State v. J. & J. Printing, 167 N.J. Super. 384, 400
justify ban on highway billboards expressing political A.2d 1204 (App. Div. 1979); Wildman Arms, Inc. v.
or ideological message) with State ex rel. Dept. of Zoning Hearing Bd., 15 Pa Commw. 569, 328 A.2d
Transp. v. Pile, 603 P.2d 337 (Okla. 1979), (ban on 528 (1974).
highway billboards not applicable to political or ide- Similarly, the Supreme Court's ruling in Metro -
ological speech). However, it now seems clear that media that off -site commercial signs may be banned
such a ban, or other forms of regulation, that grant has served as precedent for a number of s tate court
more favorable treatment to commercial signs than decisions upholding bans on off -site commercial signs
political or ideological signs generally will be held near highways, in business districts or within an entire
unconstitutional. See Metromedia, Inc. v. City of San community. See Bloucher Outdoor Advertising Co. v
Diego, 453 U.S. 490 (1981); John Donnelly & Sons v Minnesota Dept. of Transp., 347 N.W.2d 88 (Minn.
Campbell, 639 F.2d 6 (1st Cir. 1980), afpd, 453 U.S. App. 1984) (highway); Charter Townships of Oshtemo
916 (1981); Norton Outdoor Advertising, Inc. v Village v Central Advertising Co., 125 Mich. App. 538, 336
of Arlington Heights, 69 Ohio St. 2d 539, 433 N.E.2d N.W.2d 823 (1983) (business district); Lamar -Or-
198 (1982). It should be noted that in at least three lando Outdoor Advertising v. City of Ormand Beach,
states — Florida, Massachusetts and New York— 415 So. 2d 1312 (Fla. App. 1982) (community).
courts have recently upheld virtual bans on all free- Finally, the first amendment protection accorded
standing signs either in a particular area or within commercial speech is unlikely to overcome a ban on
the entire community where the ban was not chal- commercial signs which overhang public areas, see
lenged by the owner of an existing billboard which State v. Sangvinetti 141 Vt. 349, 449 A.2d 922 (1982),
displayed a political or ideological message. City of or a ban on all free - standing commercial signs, see
Lake Wales v. Lamar Advertising Assn, 414 So. 2d Syracuse Savings Bank v. Town of DeWitt, supra; Sun
1030 (Fla. 1982); Maurice Callahan & Sons, Inc. v Oil Co. of Pa. v. City of Upper Arlington, 55 Ohio
Outdoor Advertising Bd., 12 Mass. App. 536, 427 App. 2d 27, 379 N.E.2d 266 (1977).
N.E.2d 25 (1981); Syracuse Savings Bank v. Town of
DeWitt, 56 N.Y.2d 671, 436 N.E.2d 1315, 451 Restrictions on Size and Manner
N.Y.S.2d 713 (1982). of Display
In Metromedia, the Supreme Court ruled that a The first amendment protection accorded political
content- neutral sign restriction which significantly im- and ideological signs is clearly not an obstacle to
pacts a form or method of expression of protected imposing reasonable display restrictions on such signs.
commercial speech will be upheld if the regulation: Size, height, set -back, spacing, and other manner of
(1) seeks to implement a substantial governmental display restrictions will be held constitutional as
interest; (2) directly advances that interest; and (3) "time, place and manner" restrictions so long as the
goes no further than necessary to accomplish that regulation reasonably relates to a legitimate public
interest. Applying this test in Metromedia, the Court purpose (whether aesthetics or other public purposes
ruled that aesthetics and traffic safety were both suf- such as traffic safety, tourism or property values), is
ficient governmental interests to justify a total ban on content neutral, and is not an attempt to suppress the
all off -site commercial signs but held the ordinance speech itself. See, e.g., White House Vigil for The ERA
in question unconstitutional because it impermissibly Committee v. Clark, 746 F.2d 518 -(D.C. Cir. 1984)
favored commercial over political speech by allowing (upholding restrictions on size, construction and
on -site commercial, but not on -site political, signs. placement of signs in front of White House); Can-
Under Metromedia, a total ban on all commercial didates Outdoor Graphic Service v. City of San Fran-
signs within a community is likely to be held uncon- cisco, 574 F. Supp. 1240 (N.D. Cal. 1983) (upholding
stitutional as unduly restrictive and as foreclosing ordinance limiting the size and governing the manner
adequate channels of communication for commercial of attachment of political signs on public property);
expression, at least where a significant number of Fruner v. Cheltenham Township, 545 F. Supp. 1292
163
(E.D. Pa. 1982) (upholding ordinance prohibiting af- "Sambo's" may be distasteful with connotations of
fining of signs to utility posts, street signs, or any racial prejudice, but it is protected by the first amend -
other structures within rights of way of streets and ment).
highways). As indicated by the Supreme Court in Content - neutral regulation of types of signs or man -
Taxpayers for Vincent, the reasonableness of time, ner of display is where such regulation reasonably
place and manner restrictions on signs is likely to be furthers substantial public interests in aesthetics or
determined by whether regulation is unduly restrictive other general welfare purposes. Restrictions on free-
or forecloses channels for the communication of such standing signs, flashing signs, or the use of searchlights
expression. in regard to either commercial or political expression
Size and manner of display restrictions on political are likely to be upheld as reasonable "time, place and
signs that favor one form of expression over another manner" restrictions. Again, such restrictions cannot
based on content will be held unconstitutional. See, be unduly restrictive and must leave open ample al-
e.g., Lebron v. Washington Metro Area Transit Auth., ternative channels of communication for expression.
749 F.2d 893 (D.C. Cir. 1984) (restriction on political See, e.g., Robert L. Rieke Bldg. Co., Inc. v. City of
sign based on alleged deceptive or distorted content Overland Park, 232 Kan. 64, 657 P.2d 1121 (1983)
held unconstitutional); Baldwin v City-of Redwood, (upholding ordinance which required special permit
540 F.2d 1360 (9th Cir. 1976) (upholding regulation and restricted use of searchlights for commercial pur-
of political signs on single parcel of land prohibiting poses and other "attention attracting devices" because
signs larger than 16 square feet and prohibiting more it reasonably furthered traffic safety, aesthetics, and
than 80 square feet of sign area for all signs, but the protection of property values); City of Portland v.
holding unconstitutional a prohibition of more than Aziz, 47 Or. App. 937, 615 P.2d 1109 (1980) (up-
64su
square feet in aggregate sign area for any one holding ordinance which prohibited amplified noise
candidate or issue since the latter restriction related disturbances between 10:00 P.M. and 7:00 A.M. as
to content of signs' message); City of Lakewood v. reasonable regulation of time and manner of speech).
Colfax Unlimited Assn, Inc., 634 P.2d 52 (Colo. 198 1)
(holding unconstitutional sign regulations which al- Commercial vs. Noncommercial Signs
lowed some but not all types of political and ideo- The Supreme Court in Metromedia indicated that
logical signs). bifurcated sign controls distinguishing between com-
Similarly, the first amendment poses no obstacle to mercial signs (those advertising or promoting the sale
enforcing reasonable size and other manner of display of a product or service) and noncommercial signs
restrictions on signs with commercial messages. Such (those involving political or ideological speech) is per -
restrictions will be upheld so long as they are content missible so long as regulation does not grant com-
neutral, not unduly restrictive, and reasonably further mercial signs more favorable treatment than
a legitimate governmental objective. See, e.g., Donrey noncommercial signs. Recent court decisions since
Communications Co., Inc. v. City of Fayetteville, 280 Metromedia have relied on this aspect of the opinion
Ark. 408, 660 S.W.2d 900 (1983) (upholding set -back to hold sign controls unconstitutional which discrim-
and 75 square feet size limitation on free - standing inated against political signs. See, e.g., Norton Outdoor
signs); Krych v. Village of Burr Ridge, 111 Ill. App. Advertising, Inc. v Village of Arlington Heights, 69
3d 461, 444 N.E.2d 229 (1983) (upholding 120 square Ohio St. 2d 539, 433 N.E.2d 198 (1982) (ordinance
feet size limitation and 16 -foot height limitation); prohibiting on -site noncommercial signs invalid).
Hawkeye Outdoor Advertising, Inc. v. Bd. of Adjust - Indeed, bifurcated regulation may be required for
ment of Algona, 356 N.W.2d 544 (Iowa 1984) (20- ordinances that attempt to limit signs in a residential
foot height limitation on billboards); Singer Super- district or other area. In view of the strong protection
markets, Inc. v. Hillsdale Bd. of Adjustment, 183 N.J. accorded political and ideological speech, it is unlikely
Super. 285, 443 A.2d 1092 (1982) (attached sign not that noncommercial signs may be prohibited. See Me
to exceed 10 percent of front facade). Commercial tromedia, Inc. v. Mayor of Baltimore, 538 F. Supp.
speech relating to a lawful activity which is not false 1193 (D. Md. 1982) (holding ordinance unconstitu-
or misleading is protected by the content- neutrality tional since its effect was to ban most noncommercial
doctrine; thus, content- related regulation governing messages in urban renewal area). Despite the validity
commercial signs will be held unconstitutional. See of such a distinction, bifurcated controls may pose
People v. Mobile Oil Corp., 48 N.Y.2d 192, 397 N.E.2d interpretive problems in enforcement. See City of In-
724,422 N.Y.S.2d 33, 397 N.E.2d 724 (1979) (holding dio v. Arroyo, 191 Cal. Rptr. 565, 143 Cal. App. 3d
unconstitutional restrictions on signs relating to the 151 (1983) (holding unconstitutional an ordinance
price of gasoline); Sambo's of Ohio, Inc. v. City Council which would have required the removal of a mural
of Toledo, 466 F. Supp. 177 (N.D. Ohio 1979) (sign depicting Mexican heritage painted on the outside
164
♦ wall of a store, since the mural was ideological, not the aesthetic character of the area. But pre -event or
commercial, speech). pre- campaign time restrictions on political signs are
likely to be held unconstitutional as unduly restricting
Off -Site vs. On -Site Signs political speech or as favoring commercial over non -
The Supreme Court in Metromedia ruled that a commercial speech. See, e.g., City of Antioch v Can-
distinction between off -site and on -site commercial didates' Outdoor Graphics Serv., 557 F. Supp. 52
signs is permissible since businesses and the public (W.D. Cal. 1982) (holding unconstitutional ordinance
have a stronger interest in allowing on -site signs to limiting political signs to 60 -day period before elec-
identify business locations and the products or ser- tion); Van v Travel Information Council, 52 Or. App.
vices sold. This ruling by the Court has reinforced 399, 628 P.2d 1217 (1981) (same). Contra Ross v.
the validity of such a distinction in regulation which Goshi, 351 F. Supp. 949 (D. Hawaii 1972) (upholding
numerous state courts have also upheld this distinc- 60 -day pre - election limitation); Town of Huntington
tion. See, e.g., City of Lake Wales v Lamar Outdoor v Estate of Schwartz, 313 N.Y.S.2d 918 (1970) (up-
Advertising Assn, 414 So. 2d 1030 (Fla. 1982); Charter holding seven -week pre- election limitation).
Township of Oshtemo v. Central Advertising Co., 125 Post -event or post- campaign time limitations on the
Mich App. 538, 336 N.W.2d 823 (1983); State v Hopf, removal of "For Sale," "Garage Sale," or even po-
323 N. W.2d 764 (Minn. 1982). litical campaign signs are likely to be upheld as rea-
sonably furthering aesthetic interests in community
Portable vs. Permanent Signs appearance. See Baldwin v Redwood City, 540 F.2d
A regulatory distinction between portable (includ- 1360 (9th Cir. 1976) (upholding 10 -day post - election
ing signs -on- wheels) and permanent signs, not ad- removal requirement); Schoen v Township of Hillside,
dressed in Metromedia, has produced mixed results 155 N.J. Super. 286, 382 A.2d 704 (1977) (upholding
in recent court decisions. Some courts have upheld restrictions on "For Sale" and "Garage Sale" signs).
bans on portable or temporary commercial signs based
on the view that such signs present greater safety and Inspection and Removal Fees
aesthetic problems. See Rent -A -Sign v. City of Rock- The Metromedia decision did not address the con -
ford, 85 Ill. App. 3d 453, 406 N.E.2d 943 (1980); stitutionality of permit, inspection or removal fees
Hilton v. City of Toledo, 62 Ohio St. 2d 394, 405 imposed on commercial or political signs. If reason-
N.E.2d 394 (1980). See also Katin v. Lubbock, 655 able, such fees are likely to be upheld, particularly as
S.W.2d 360 (Tex. Civ. App. 1983) (affirming a sum applied to commercial advertising. See Robert L.
mary judgment). But other decisions have held that Rieke Bldg. Co., Inc. v City of Overland Park, 232
there is no reasonable basis for such a distinction Kan. 64, 657 P.2d 1121 (1983) (upholding $100 per -
based on aesthetics or traffic safety, especially where mit fee for commercial use of searchlights). However,
free- standing permanent commercial signs are al- inspection and removal fees, particularly as applied
lowed. See Dills v. Cobb County, 593 F. Supp. 170 to political signs, are likely to be held unconstitutional
(N.D. Ga. 1984); Signs, Inc. of Florida v. Orange when such fees are not directly related to the actual
County, 592 F. Supp. 693 (M.D. Fla. 1983). A safer
approach might be to allow attached or building fa-
cade signs but ban all free - standing commercial signs.'
See Syracuse Savings Bank v. Town of DeWitt, 56, ZONING AND PLANNING
N.Y.2d 671, 436 N.E.2d 1315, 451 N.Y.S.2d 713 LAW REPORT
(1982) (near total ban on free - standing commercial
signs upheld).
Managing Editor
Time Restrictions Fredric A. Strom
Editor
Time restrictions on the display of commercial or J. Benjamin Gailey
political signs have not fared well in recent court Assistant Editor
decisions. Courts have found that such restrictions Nanc J. Ch
undermine a city's interest in traffic safety, since the Published eleven times per year by
longer signs remain the less distracting they are to Clark Boardman Company, Ltd.
435 Hudson Street
motorists. See Dills v. City of Marietta, 674 F.2d 1377 New York, New York 100 14
(11th Cir. 1982) (holding unconstitutional ordinance Subscription: $95 for eleven issues
limiting portable signs to 120 days) Pre -event time Copyright 1985 by Clark Boardman Company, Ltd.
restrictions on "garage sale" signs in residential areas ISSN 0161 -8113
may be upheld in view of the interest in preserving
165
r
cost of inspection and removal. See Baldwin v. Red- vertising Co., 387 A.2d 745 (Me. 1978); Lubbock Pos-
wood City, supra (holding unconstitutional one dollar ter Co. v City of Lubbock, 569 S.W.2d 935 (Tex. App.
inspection fee and five dollar refundable removal fee 1978), cert. denied 444 U.S. 833 (1979). However,
per political sign since fees were not shown to relate courts in Florida, New Mexico, and California have
to actual costs). In addition, fees are likely to be held ruled that the Act and implementing state legislation
unconstitutional where they are found to impose a preempt local amortization of billboards near high -
chilling effect on political expression. See People v ways. Lamar- Orlando Outdoor Advertising v City of
Middlemark, 100 Misc. 2d 760, 420 N.Y.S.2d 151 Ormond Beach, 415 So. 2d 1312 (Fla. App. 1982)
(1979) (holding unconstitutional $1,000 performance Battalini v. Town of Red River, 669 P.2d 1082 (N.M.
bond and $50 cash deposit to obtain permit to erect 1983); Metromedia, Inc: v. City of San Diego, 26 Cal.
political wall sign). 3d 848, 610 P.2d 407, 164 Cal. Rptr. 510 (1980).
Whether a local amortization requirement can con
Elimination and Amortization stitutionally be applied to remove nonconforming po-
The Metromedia decision did not address issues litical or ideological signs is a question not yet
related to elimination of illegal or lawful noncon- addressed by the courts. In view of the Supreme
forming signs. Protection of private property rights Court's ruling in Taxpayers for Vincent that both
is more relevant to this issue than first amendment traffic safety and aesthetics are substantial enough
considerations. Recent court decisions continue to interests to justify a curtailment of a form of political
rule that illegally erected signs may be eliminated as expression, an amortization requirement is likely to
a public nuisance so long as notice and hearing pro- be held valid as applied to a political or ideological
cedures satisfy due process requirements. ,See, e.g., sign so long as the underlying prohibition or restric-
Young Electric Sign Co. v. State, 654 P.2d 1028 (Nev. tion is itself found to be constitutional —a position
1982). Case law indicates that amortization of existing essentially adopted by the New York Court of Ap-
nonconforming signs is being used more frequently in peals. See Suffolk Outdoor Advertising Co. v Town of
sign regulation and court decisions since Metromedia Southhampton, supra (power of amortization extends
have upheld amortization provisions so long as the to scope of police power).
grace period for removal is reasonable. See Donrey i
Communications Co. v. City of Fayetteville, supra (four Conclusion
years); Mayor of New Castle v. Rollins Outdoor Ad- The U.S. Supreme Court and virtually all state
vertising, Inc., 475 A.2d 355 (Del. 1984) (three years); courts have found that an aesthetic interest in com-
Village of Skokie v. Walton on Dempster, Inc., 119 pnunity appearance, either alone or when linked with
Ill. App. 3d 299,456 N.E.2d 293 (1983) (seven years); iron- aesthetic public purposes such as traffic safety,
Syracuse Savings Bank v. Town of DeWitt, 56 N.Y.2d roperty values or tourism, is a sufficient governmen-
671, 451 N.Y.S.2d 713, 436 N.E.2d 1315 (1982) (four fal interest to support reasonable content - neutral reg-
years and nine months); State v. Sanquinetti, 141 Vt. ulation of both commercial and noncommercial signs.
349, 449 A.2d 922 (1982) (five years). An important factor in determining the constitutional
However, the Indiana Supreme Court has recently validity of an ordinance is likely to be the extent to
ruled, as have earlier courts in Tennessee and Ohio, which reviewing courts follow the approach of the
that local communities may not amortize noncon- Supreme Court in Metromedia and Taxpayers for Vin -
forming uses based on state statutory and constitu- cent in refusing to "second guess" reasonably plausible
tional provisions. Ailes v. Decatur County Area legislative judgments that regulation is likely to fur -
Planning Comm'n, 448 N.E.2d 1057 (Ind. 1983). Sim- ther aesthetic or other supporting public purposes, at
ilarly, in New Hampshire the court has ruled that least in circumstances where there is no hint of bias
aesthetic considerations alone are not sufficient to jus- or censorship. In this regard it is significant to note
tify amortization of nonconforming signs. Loundsbury that most recent court decisions invalidating sign con -
v. Keene, 122 N.H. 1006, 453 A.2d 1278 (1982). irols since Metromedia have been rendered by lower
A still unresolved issue is whether a 1978 amend- federal courts —courts that are bound by Supreme
ment to the Federal Highway Beautification Act and Court rulings. See, e.g., Rhodes v Gwinnett County,
implementing state legislation preempts local amor- 557 F. Supp. 30 (N.D. Ga. 1982) (holding ordinance
tization of nonconforming signs near highways. New limiting each business to one on- premise sign unrea-
York, Texas and Maine courts have ruled that the sonable since it allowed a single offensive sign while
Act itself does not preempt local amortization. Suffolk prohibiting two or more inconspicuous signs). State
Outdoor Advertising Co. v Town of Southhampton, 60 courts in recent years generally have deferred to rea-
N.Y.2d 70, 455 N.E.2d 1245, 468 N.Y.S.2d 450 - sonable or fairly debatable legislative judgments in
(1983); State ex rel. Dept of Transp. v. National Ad- this area, particularly in states such as California, -
166
* Florida, Minnesota, Massachusetts, New Jersey, and their private meeting and refused to disclose matters
New York, which have a strong tradition of recog- discussed at the meeting. The court concluded that a
nizing aesthetics as a legitimate basis for controls on de novo consideration of the development proposal
signs and other land uses. - could be achieved only by invalidating the amend -
Local controls on signs and billboards that have ment.
been found invalid are generally those which either
banned or unduly restricted political or ideological Relocation of Nonconforming Use to Unused
signs on private property or accorded commercial Portion of Property Refused
signs more favorable treatment than political or ideo- The Supreme Court of Pennsylvania has ruled that
logical signs. The latter is an impermissible inversion a landowner's conveyance to the federal government,
in the hierarchy of first amendment values that can in lieu of condemnation, of land upon which non
arise in a variety of forms of sign regulation —bans, conforming buildings rested constituted an extin-
restrictions, fees or removal requirements. These guishment of the nonconforming use. In the same 4-
problems generally can be avoided or corrected in 3 decision, the court ruled that the relocation of the
drafting sign control ordinances by simply tailoring' use did not constitute a "natural expansion." Con -
the provision to narrow or enlarge its scope. sequently, the landowner could not transfe the use
to another part of the parcel not previously devoted
to that use. Bachman v. Zoning Hearing Bd. of Bern
RECENT CASES Township, 494 A.2d 1102 (Pa. 1985).
Ex Parte Meeting Voids Zoning Amendment Two of the landowner's 40 acres contained eight
A private meeting between a developer and a quo bungalows rented for year -round and summer use. He
rum of the local legislature was held to violate the ` subsequently conveyed to the United States, by deed
Alaska Open Meetings Act, Alaska Stat. §§ 44.62.31 in lieu of condemnation, 32 acres of land to be used
et seq., and require the invalidation of a rezoning ` for a federal dam project and moved the bungalows
ordinance adopted at a subsequent public hearing. The to the remaining eight acres. The court noted that
state supreme court ruled that the Act defines the the natural expansion of a nonconforming use is a
word "meeting" to include every step of the delib- state constitutional right, but held that the owner here
erative and decision - making process during the trans - ` had failed to establish that his relocation was a natural
action of public business. Since there was no expansion. Although he testified that he had previ-
"substantial reconsideration" of the issue at the public ously considered developing the eight acres in ques-
hearing, the court found that invalidation would best tion, the court said that evidence of an alleged
serve the public interest. Brookwood Area Homeown- nonconforming use must exist outside the property
ers Assn, Inc. v. Municipality of Anchorage, 702 P.2d ', owner's mind. Had the owner previously sought to
1317 (Alaska 1985). add more bungalows to existing ones, the result might
The meeting, which took place at the developer's have been different. In a statement which is probably
office, concerned the issues of density, drainage and broader than intended, the court added that a non-
buffer zones, and resulted in limitations on the de- conforming use cannot "be moved from its original
veloper's proposal. The court stated that the fact that setting." The court also held that an owner who sells
a legislative quorum was present did not in itself vi- property to the government is in the same position
olate the Act, but noted that the developer would as any victim of eminent domain. Payment serves as
have been free to meet individually with each member , compensation for the loss of a nonconforming use.
to discuss the project and lobby for passage of the The owner could not transfer the extinguished use,
rezoning ordinance. The court then found that the since that would effectively constitute the initiation
meeting was not merely a harmless violation of the of a prohibited use. -
Act, because the plaintiff association charged that it
would have presented different testimony at the public Neither Financial Analyst Nor Economist Is
hearing had it known the content of the developer's a "Professional Person" for Occupancy Purposes
private presentation and the facts showed that the The District of Columbia Court of Appeals upheld
legislature's ultimate decision was dependent upon a zoning board's determination that a businessman
that presentation. Turning to the remedy, the court who described his occupation as "accountant, finan-
stated that subsequent remedial action, which shows cial analyst and economist" did not qualify as a
a "substantial reconsideration" of the issue, may val- "professional person" entitled to a certificate of oc-
idate an otherwise void action. But no such reconsid- cupancy in a special purpose zone. The zoning reg-
eration was made here, because the legislative ulation permitted office use for a "chancery,
members testified that they saw nothing wrong with international agency, non -profit organization, labor
167
s
union, architect, dentist, doctor, engineer, lawyer or building code. An examination of the local standards s
similar professional person." An earlier decision of will be made in the following areas: fire safety, light
the court had affirmed the board's ruling that a and ventilation, structural loads, foundation systems,
"professional person" must: (1) have professional ed- materials standards, construction components, glass,
ucation; (2) be bound by a code of ethics and principles mechanical systems, plumbing, and electrical systems.
of practice by a professional organization; and (3) be Deficiencies in local standards may be remedied by
professionally licensed. Although an accountant could HUD through the supplemental application of pro-
meet these standards, neither financial analysts nor visions from an approved state code or the national
economists are subject to licensing, and economists CABO code. The rule is published at 50 Fed. Reg.
are not bound by a formal code of ethics. The court 39586 (9/27/85) and became effective on Novem-
agreed with the zoning board's position that qualifi- ber 1.
cation as a "professional person" in one field should
not allow an applicant to carry on a business in other RECENT PUBLICATIONS
fields as well. Colker v District of Columbia Bd, of
Zoning Adjustment, 474 A.2d 820 (D.C. App. 1985). Water News Service
The impact of water supply and quality_ problems
RECENT DEVELOPMENTS is felt the hardest at local levels, but most solutions
are still tied to policymakers in Washington. The
Supreme Court Accepts Another Taking Water Newsletter provides informed coverage of all
Compensation Case issues relating to water policy, including development
Perhaps embarrassed by past failures, the U.S. Su- in ports and wetlands, toxic wastes, groundwater, and
preme Court seems determined to resolve the com- water supply projects. Features include a water law
pensation issue in "temporary taking" cases. Just four report and a column on state initiatives. This is an
months after failing to reach the issue in Hamilton excellent newsletter, published twice a month by In-
Bank, see ZPLR (July - August 1985), the Court formation News Service, Inc., 1730 M St., N.W., Suite
agreed last month to review a California appellate 1100, Washington, DC 20036 (202- 857 - 1457), and
court decision dismissing a suit brought by a residen- available by subscription for $135 (one year) or $250
tial developer. The plaintiff alleges that the city of (two years).
Davis and adjacent county of Yolo prevented devel-
opment of a 159 -unit single family subdivision on the UPCOMING CONFERENCES
44 -acre tract, and rendered the property worthless,
b c }
y assifying the land as an "agricultural reserve Planning, and Eminent Domain r
g g� g, , sponsored
even though it is unsuited to such use, refusing to � y the Municipal Legal Studies Center, on December
allow street access to the property, and depriving the 4 -6, in Dallas, TX. Topics include financing and de-
property of sewage and water service. The appellate veloping public capital improvement projects, zoning
court found that no taking had occurred, since the and subdivision issues, growth management and plan -
local authorities had not ruled out all development, ning, inverse condemnation, and valuation of con -
but in its appeal to the Supreme Court, the landowner demned properties. Contact the Southwestern Legal
argues that the officials barred "any economically vi- Foundation at (214) 690 -2376.
able use" of the land and that seeking further ad- Land Use Law for Planners and Lawyers, spon-
ministrative relief would be futile. MacDonald, sored by the American Institute of Certified Planners,
Sommer & Frates v. County of Yolo, No. 84 -2015, on December 5 -6 in Charleston, SC. The program
review granted, 54 U.S.L.W. 3263 (10/21 /85). will be repeated on January 16 -17 in Santa Fe, NM,
and on May 29 -30 in Anchorage, Alaska. Topics
HUD Eliminates Federal Property Standards include zoning for aesthetics, zoning and the changing
for Single Family Homes family, fair hearing procedure, first amendment lim-
The Department of Housing and Urban Develop- itations, municipal liability, and changing judicial
ment has eliminated its handbook of minimum prop- tests for ordinance validity. Contact June McIntosh
erty standards and will now rely upon state or local of AICP at (312) 955 -9100.
building codes or the Council of American Building Latest Developments Under RCRA and CERCLA,
Officals (CABO) One- and Two- Family Dwelling sponsored by the ABA Section on Natural Resources
Code to provide the health and safety criteria for its Law, on December 13, in Washington, D.C. Issues
construction standards. HUD will approve a state or covered include RCRA's corrective action program,
local code, the new rule states, only after the local CERCLA reauthorization, and revisions in the Na-
HUD office has reviewed the r
standa ds and found rional Contingency Plan. Contact the Section office
them comparable to a nationally recognized model by calling (312) 988 -5602.
I
168
CITY OF BROOKLYN CENTER
Notice is hereby given that a public hearing will be held on the 6th day
of April 1987 at 7:30 p.m. at City Hall, 6301 Shingle Creek
Parkway, to consider an amendment to Chapter
35 regarding the
p g g Planning
Commission.
Auxiliary aids for handicapped persons are available upon request at least 96
hours in advance. Please contact the Personnel Coordinator at 561 -5440 to make
arrangements.
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 35 REGARDING THE PLANNING COMMISSION
FOLLOWS: THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS
Section 1. Chapter 35 of the City Ordinances of the City of Brooklyn
Center'is hereby amended in the following manner:
Section 35 -201. PLANNING COMMISSION. A Planning Commission of seven
members is hereby established and continued as a planning agency advisory to the
City ouncil. The Pl nnine Commission shall have the powers and duties
conferred upon it by statute charter, ordinance or resolution The Planning
Commission shall serve as the Board of Adjustments and Appeals for the purpose
of considering variances and appeals
[Any vacancy in an office of Planning Commissioner, by expiration of
his/her term, resignation, or removal shall be filled by appointment of the
Mayor, confirmed b a
Y y majority vote of the Council. Upon appointment, each
Commissioner shall serve for a term of two years or until a successor has been
appointed.
Each Commissioner shall be a resident of the municipality and shall
subscribe to the appropriate oath of office.
No Commissioner shall take part in the consideration of any matter
wherein he/she is the applicant, petitioner, or appellant, nor in the`"
consideration of any application, petition, or appeal wherein his/her interest
might reasonably be expected to affect his/her impartiality.
The Planning Commission shall annually elect its Chairman and by
majority vote may adopt rules of parliamentary procedure for the conduct of
Commission meetings. The said meetings of the Commission shall be held at least
once a month and shall be open to the public.
There shall be a Secretary to the Planning Commission appointed by the
City Manager of the municipality, who shall prepare the minutes of the meetings
of the Commission and shall maintain the files and records of the Commission.
The Secretary shall have any additional duties delegated to him by the
Commission, the City Manager or by the provisions of this ordinance.]
ORDINANCE NO.
Section 35 -202. [DUTIES OF THE PLANNING COMMISSION] COMPREHENSIVE
PLANNING
[1. Planning
[a.] 1. Comprehensive Planning.
The Commission shall, from time to time, upon its own motion
or upon direction of the City Council, review the
Comprehensive Plan and by a majority vote of all members of
the Commission recommend appropriate amendments to the City
Council.
Before recommending any such amendments to the City Council,
the Commission shall hold at least one public hearing to
consider the proposed amendment. The Secretary to the
Commission shall publish notice of the time, place and purpose
of the hearing once in the official newspaper of the
municipality at least ten (10) days before the date of the
hearing. Furthermore, the Secretary shall transmit copies of
the proposed amendment to the City Council prior to the
publication of the notice of hearing.
Following the review and recommendation by the Commission, the
City Council shall consider the proposed amendment and may, by
resolution of [a majority] two- thirds of its members, amend
the Comprehensive Plan.
[b.] 2 Coordination with Other Agencies.
In the performance of its planning activities, the Commission
shall consult with and coordinate the planning activities of
other departments and agencies of the municipality to insure
conformity with and to assist in a development of the
comprehensive municipal plan. Furthermore, the Commission
shall take due cognizance of the planning activities of
adjacent units of government and other affected public
agencies.
[2. Platting
Before dividing any tract of land into two or more lots or
parcels, an owner or subdivider shall, unless a variance is
authorized, proceed under the provisions of Chapter 15 of the
Ordinances of the City of Brooklyn Center.
3. Rezoning and Special Use Applications
The Commission shall hear and review all applications for
amendments to the Zoning Ordinance, hereinafter referred to as
Rezoning Applications ", and applications for special use permits.
The Secretary of the Planning Commission shall maintain permanent
files and records for each application to the Commission. The
record for each application shall consist of a written application
ORDINANCE NO.
on a form provided by the municipality, the minutes of the
Commission upon the hearing of the application, and the written
recommendation of the Planning Commission. (See Section 35 -210,
Rezoning, and Section 35 -220, Special Use Permits.)
4. Plan Approval
Every person;:. before commencing the construction or major
alteration of a structure (except one and two family dwellings and
buildings accessory thereto), shall submit information as set out
in Section 35 =230 hereof.
5. Variances (Adjustments) and Appeals
The Planning Commission shall serve as the Board of Adjustment and
Appeals of the municipality. When acting as the Board of
Adjustments and Appeals, the Planning Commission's recommendations
shall be advisory to the City Council.
The rules of parliamentary procedure governing the conduct of
Planning Commission meetings shall also govern the conduct of the
meetings of the Planning Commission when acting as the Board of
Adjustment and Appeals. The Secretary of the Planning Commission
shall act as the Secretary of the Board of Adjustment and Appeals
and shall maintain permanent files and records for each appeal,
application or petition to the Board of Adjustments and Appeals.
The Secretary hall maintain a
ry separate file for each application,
petition, or appeal to the Board of Adjustments and Appeals and
shall place in said file, the record pertaining to each proceeding
which shall consist of the written application, petition, or
appeal; a copy of the minutes of the hearing of the Board; and a
copy of the written recommendation of the Board.
The Planning Commission, acting as the Board of Adjustments and
Appeals, shall hear r applications for variances, (adjustments) in
accordance with Section 35 -240 and appeals in accordance with
Section 35- 250.]
Section 2. This ordinance shall become effective after adoption and
upon thirty (30) days following its legal publication.
Adopted this day of 1987.
Mayor
ATTEST:
Clerk
Date of Publication
Effective Date
(Underline indicates new matter, brackets indicate matter to be'deleted.)
Member introduced the following
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION DEFINING DUTIES AND RESPONSIBILITIES OF THE
BROOKLYN CENTER PLANNING COMMISSION
WHEREAS, the City of Brooklyn Center is promoting
planning of development and redevelopment in the City; and
WHEREAS, provisions for an advisory Planning Commission
were established in Chapter 35 of the City Ordinances; and
WHEREAS, as part of a movement towards standardization
of the City Council advisory commission structure, Chapter 35 of
the City Ordinances relating to the Planning Commission was
amended on March 23, 1987; and
WHEREAS, the City Charter provides for the
establishment of commissions to advise the City Council with
respect to policy formulation for municipal functions and
activities; and
WHEREAS, it is desirable for the City of Brooklyn
Center to continue the function served by the Planning
Commission.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Brooklyn Center that there is hereby established
within the City of Brooklyn Center an advisory Planning
Commission with duties and responsibilities as follows:
Subdivision 1. TITLE: This organization shall be
known as the Brooklyn Center Planning Commission.
Subdivision 2. SCOPE: The scope of activity of this
Commission shall consist of advising the City Council
and other Brooklyn Center advisory commissions
regarding matters relevant to planning functions.
Subdivision 3. PURPOSE: The general purpose of the
Commission is to act in an advisory capacity to the
City Council on issues related to comprehensive
planning of land use and development, platting,
rezoning and special use applications, plan approval,
variances and appeals.
Subdivision 4. DUTIES AND RESPONSIBILITIES: In
fulfillment of its purpose, the duties and
responsibilities of the Commission are as follows:
RESOLUTION NO.
1. Planning
a. Comprehensive Planning.
The Commission shall, from time to time, upon
its own motion or upon direction of the City
Council, review the Comprehensive Plan and by
a majority vote of all members of the
Commission recommend appropriate amendments to
the City Council.
Before recommending any such amendments to the
City Council, the Commission shall hold at
least one public hearing to consider the
proposed amendment. The staff liaison to the
Commission shall publish notice of the time,
place and purpose of the hearing once in the
official newspaper of the municipality at
least ten (10) days before the date of the
hearing. Furthermore, the staff liaison shall
transmit copies of the proposed amendment to
the City Council prior to the publication of
the notice of hearing.
Following the review and recommendation by the
Commission, the City Council shall consider
the proposed amendment and may, by resolution
of two- thirds of its members, amend the
Comprehensive Plan.
b. Coordination with Other Agencies.
In the performance of its planning activities,
the Commission shall consult with and
coordinate the planning activities of other
departments and agencies of the municipality
to insure conformity with and to assist in a
development of the comprehensive municipal
plan. Furthermore, the Commission shall take
due cognizance of the planning activities of
adjacent units of government and other
affected public agencies.
C. Land Uses
The Commission shall, from time to time,
review and report to the City Council on
balance among Brooklyn Center land uses, and
shall review existing land uses and kindred
regulations, recommending any changes to the
City Council (as outlined in the Brooklyn
Center Year 2000 Committee Report).
RESOLUTION NO.
2. Redevelopment
The Commission shall, from time to time, upon its
own motion or upon direction from the City
Council, review and discuss a redevelopment policy
for the City of Brooklyn Center, and make
recommendations to the City Council with regard to
redevelopment in the City.
3. Platting
Before dividing any tract of land into two or more
lots or parcels, an owner or subdivider shall,
unless a variance is authorized, proceed under the
provisions of Chapter 15 of the Ordinances of the
City of Brooklyn Center.
4. Rezoning and Special Use Applications
The Commission shall hear and review all
applications for amendments to the Zoning
Ordinance, hereinafter referred to as "Rezoning
Applications ", and applications for special use
permits. The staff liaison to the Planning
Commission shall maintain P ermanent files and
records for each application to the Commission.
The record for each application shall consist of a
written application on a form provided by the
municipality, the minutes of the Commission upon
the hearing of the application, and the written
recommendation of the Planning Commission. (See
Section 35 -210, Rezoning, and Section 35 -220,
Special Use Permits of the Ordinances of the City
of Brooklyn Center.)
5. Plan Approval
Every person, before commencing the construction
or major alteration of a structure (except one and
two family dwellings and buildings accessory
thereto) , shall submit information as set out in
Section 35 -230 of the Ordinances of the City of
Brooklyn Center.
6. Variances (Adjustments) and Appeals
The Planning Commission shall serve as the Board
of Adjustment and Appeals of the municipality.
When acting as the Board of Adjustments and
Appeals, the Planning Commission's recommendations
shall be advisory to the City Council.
RESOLUTION NO.
The rules of parliamentary procedure governing the
conduct of Planning Commission meetings shall also
govern the conduct of the meetings of the Planning
Commission when acting as the Board of Adjustment
and Appeals. The staff liaison to the Planning
Commission shall act as the staff liaison to the
Board of Adjustment and Appeals and shall maintain
permanent files and records for each appeal,
application or petition to the Board of
Adjustments and Appeals. The staff liaison shall
maintain a separate file for each application,
petition, or appeal to the Board of Adjustments
and Appeals and shall place in said file, the
record pertaining to each proceeding which shall
consist of the written application, petition, or
appeal; a copy of the minutes of the hearing of
the Board; and a copy of the written
recommendation of the Board.
The Planning Commission, acting as the Board of
Adjustments and Appeals, shall hear applications
for variances (adjustments) in accordance with
Section 35 -240 and appeals in accordance with
Section 35 -250 of the Ordinances of the City of
Brook�lyn Center.
Subdivision 5. COMPOSITION: The Commission shall be
composed of a Chairperson and six (6) members, all of
whom shall be appointed and serve as set forth in
Subdivision 6.
Subdivision 6. MEMBERS METHOD OF SELECTION -TERM OF
OFFICE- REMOVAL:
Chairperson The Chairperson shall be appointed by the
Mayor with majority consent of the City Council. The
Chairperson may be removed by the Mayor with majority
consent of the Council. The Chairperson shall assure
fulfillment of the following responsibilities in
addition to those otherwise described herein:
1. Preside over meetings of the Commission;
2. Appear or appoint a representative to appear, as
necessary, before City advisory commissions and
the City Council to present the viewpoint of the
Commission in matters relevant to planning and
zoning;
3. Review all official minutes of the City Council
and other advisory commissions for the purpose of
informing the Planning Commission of matters
relevant to planning and zoning;
RESOLUTION NO,
4. Provide liaison with other governmental and
voluntary organizations on matters relevant to
planning and zoning.
Vice Chairperson A Vice Chairperson shall be
appointed annually by the Chairperson from the members
of the Commission. The Vice Chairperson shall perform
such duties as may be assigned by the Chairperson and
shall assume the responsibilities of the chair in the
absence of the Chairperson.
Members' Term of Office Members of the Commission
shall be appointed by the Mayor with majority consent
of the Council. The terms of office shall be staggered
two -year terms, except that any person appointed to
fill a vacancy occurring prior to the expiration of the
term for which -his predecessor was appointed shall be
appointed only for the remainder of such term. Upon
expiration of his term of office, a member shall
continue to serve until his successor is appointed and
shall have qualified. Terms of office for members of
the Commission shall expire on December 31 of
respective calendar years.
In the event an appointed Commissioner suffers from an
extended illness, disability, or other activity
preventing proper fulfillment of duties,
responsibilities, rules and regulations of the
Commission, the Commissioner may be temporarily
replaced during the temporary leave by an interim
Commissioner appointed by the Mayor with majority
consent of the City Council.
t
Qualifications for Membership Members of the
Commission shall be residents of the City of Brooklyn
Center while serving on the Commission, shall have been
a resident of said City for at least one year prior to
their appointment, and shall represent a broad range of
interest in the planning function.
Representation Requirements Due regard shall be given
by the Mayor in appointing Commission members with
geographical distribution within the City, as described
in Subdivision lo.
Conflict of Interest No Commissioner shall take part
in the consideration of any matter wherein he /she is
the applicant, petitioner, or appellant, nor in the
consideration of any application, petition, or appeal
wherein his /her interest might reasonably be expected
to affect his /her impartiality.
RESOLUTION NO.
_Resignations-Removal from Office - Vacancies
Commissioners may resign voluntarily or may be removed
from office by the Mayor with consent by majority vote
of the City Council. Three consecutive unexcused
absences from. -duly called Commission meetings shall
constitute automatic resignation from office.
Vacancies in the Commission shall be filled by Mayoral
appointment with majority consent of the City Council.
Comp nsation Commissioners shall serve without
compensation.
Subdivision 7. RULES AND PROCEDURES: The Commission
shall adopt such rules and procedures not inconsistent
with these provisions as may be necessary for the
proper execution and conduct of business.
Subdivision 8. MEETINGS: Regular meetings shall be
held with date and time to be determined by the
Commission. Special meetings may be called by the
Chairperson.
Subdivision 9. STAFF: The City Manager shall assign
one member of the administrative staff to serve as
staff to the Commission. The staff member assigned
shall perform such clerical and research duties on
behalf of the Commission as may be assigned by the
Chairperson or the City Manager.
Subdivision 10. NEIGHBORHOODS:
Neighborhoods Described
i
Southeast Neighborhood: The Southeast neighborhood
shall be bordered on the south by the south city
limits; on the east by the Mississippi River; on the
north by FAI -94; and on the west by Shingle Creek.
Northeast Neighborhood: The Northeast neighborhood
shall be bordered on the south by FAI -94 ; on the east
by the Mississippi River; on the north by the north
city limits; and on the west by Shingle Creek.
Northwest Neighborhood: The Northwest neighborhood
shall be bordered on the south by FAI -94 ; on--the east
by Shingle Creek; on the north by the north. city
limits; and on the west by the west city limits.
West Central Neighborhood: The West Central
neighborhood shall be bordered on the south by County
Road 10; on the east by Brooklyn Boulevard; on the
north by FAI -94; and on the west by the west city
limits.
RESOLUTION NO.
Central Neighborhood: The Central neighborhood shall
be bordered on the south by County Road 10; on the east
by Shingle Creek; on the north by FAI -94; and on the
west by Brooklyn Boulevard.
Southwest Neighborhood: The Southwest neighborhood
shall be bordered on the south by the south city
limits; on the east by Shingle Creek; on the north by
County Road 10; and on the west by the west city
limits.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by Y , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
q01
CITY 6301 SHINGLE CREEK PARKWAY
OF
B ROOKLYN BROOKLYN CENTER, MINNESOTA 55430
r - TELEPHONE 561 -5440
C ENTER EMERGENCY - POLICE - FIRE
911
TO: Gerald G. Splinter, City Manager
FROM: Sy Knapp, Director of Public Works
DATE: April 16, 1987
RE: Water Quality Improvements - Status Report
Attached hereto are the following items:
- a "Summary Report" dated February 13, 1987, of the study conducted by
SERCO between June, 1986 and February, 1987 (copies of the lengthy
technical report are also available at our office)
- a March 4, 1987 letter from SERCO
- an April 6, 1987 letter from SERCO
As indicated in these reports, a great deal of study and analysis has been
conducted during the past year. Also, two principal actions have been taken,
i.e..
- increased chemical treatment of the water has been initiated to reduce
the corrosiveness of the water.
Note: As shown in the attached reports, we have experimented with
several variations of chemical treatment. It now appears that the
most positive results are obtained by the use of Zinc
Orthophosphate.
- installation of three new in -line pumps within the watermains in the area
which has experienced the most severe problems. -
Note: These pumps do a good job of circulating the water. However, we
have received complaints from adjacent residents that the noise
from the pumps is resonating in their plumbing systems, disturbing
their sleep. We are working with the pump supplier to resolve
this problem. Until it is resolved, we are shutting the pumps off
overnight. While this reduces the noise problem, it is counter-
productive to our efforts to circulate the water.
'^ roae ui-uuaiu arc r
April 16, 1987
Page 2
It is my opinion that these measures have had positive results. Testing of
water at individual homes within the problem area has shown that iron levels in
the water supply are substantially reduced and that chlorine residuals are being
maintained at a proper level. However, I must also note that the estimated
costs for these measures is $50,000 per year.
Because it is very difficult to evaluate the long term effects of these measures
based on short term experience, it is my recommendation that we continue on our
present course of action (i.e -' continuous operation of the in -line pumps, once
the noise problem is resolved) for 4 to 6 months, then evaluate the results and
decide whether or not to continue on this course. If a decision is made that
replacement of some of the watermains is required, plans should be made to do
that work early in 1988.
One additional recommendation is made, i.e. to install a loop watermain on Paul
Circle, so as to eliminate the dead end conditions which exist on that street.
So long as this dead end exists, the in -line pumps have no effect on that line,
and the effects of water treatment are substantially reduced. The estimated
cost for installing this loop main on Paul Circle is $20,000. If the City
Council wishes to do so, this main can be installed in 1987.
I recommend that this matter be discussed with the City Council at their April
20, 1987 meeting. Following that discussion, City staff will communicate this
information to the neighborhood residents.
Respectfully submitted,
J-6
SY f PP
Director of Public Works
SK: jn
SUMMARY REPORT
STUDY OF THE WATER QUALITY
IN THE WATER SYSTEM
CITY OF BROOKLYN CENTER
BROOKLYN CENTER, MINNESOTA
JUNE, 1986 FEBRUARY, 1987
•
Prepared by: ?
Ge ald S. Allen, P.E., Project Manager
SERCO Laboratories
1931 West County Road C2
St. Paul, MN 55113
Dated: February 13 1987
•
TABLE OF CONTENTS
Page
SUMMARY STATEMENT , , . , . 1
BACKGROUND . . . . . . . . . . . . 2
DISCUSSION . . . . . . . . . . . . . . . 3
CONCLUSIONS AND RECOMMENDATIONS 6
•
•
SUMMARY STATEMENT
In summary, it can be concluded that the degraded water quality reported
and observed in the study area is caused by the presence of iron and
sediment resulting from the general corrosion of distribution system
(both in the street and in the residence) as well as the presence of
physical and hydraulic dead ends in the system.
The quality of the water can be improved by minimizing the distribution
system dead ends (both physical and hydraulic) and treatment of the water
to reduce the tendency of the water to corrode the pipe surfaces. This
corrosion can be controlled by increasing the dose rate of the corrosion
inhibitor (Zinc Othro- Phosphate) and /or increasing the pH level of the
water as well as minimizing the presence of Free Chlorine Residual in
the water.
•
-1-
•
BACKGROUND
A detailed study of the quality of the water supplied to residences in
an area on the western edge of the City of Brooklyn Center, roughly
bounded by 63rd Avenue on the south, 65th Avenue on the north, Orchard
Avenue on the east, and the City boundary or Unity Avenue on the West,
was performed by SERCO Laboratories in 1983 and 1984. As a result of
that study, the City initiated a program to improve the quality of the
water provided to the residences in that area including regular
flushing of the water mains during the summer months, continuous bleeding
of the water to insure a fresh supply in the water mains, installation of
inline pumps to move the water through the mains, addition of Chlorine
into the water system, and addition of Zinc Ortho Phosphate, a corrosion
• inhibiting chemical to the water supply. These actions have improved
the quality of the water provided to the residences in this area,
however, complaints still have been registered by the users and a
somewhat degraded water quality has been observed at some residences.
Therefore, as a followup of the 1983 and 1984 study, the City of Brooklyn
Center retained SERCO Laboratories to perform a study of the water
quality in the water system in June, 1986, with particular emphasis
on the quality of the water provided to the residences in the above
noted problem area.
•
-2-
DISCUSSION
Data and information was collected during the study by preparing a Water
Quality Survey Questionnaire that was sent to the residences in the area
where water quality complaints have occurred. A total of 20 completed
questionnaires were returned and evaluated. Water samples were collected
for analysis at these 20 residences as well as from the eight supply
wells and at six locations throughout the distribution system. Several
service lines in the study area were excavated and inspected by the City
to confirm that the services are tapped into the upper quadrant of the
water main pipe so that any solid material that may have settled in the
water main will not be drawn into the service pipe. All of the inspected
services were tapped into the upper quadrant of the main.
Unsatisfactory water quality, when present in a residence, was usually
noted throughout the house, typically included red and rust -like solids
and stains, with black objects and specs noted in some occasions. Odor
and smell in the water was also noted in those residences where
unsatisfactory water quality was experienced. The unacceptable water
. occurred on some occasions throughout the day, but was normally more
prevalent in the early morning hours and in general on a seasonal
basis more common in the summer than in the winter.
People from four of the residences indicated that the quality of
water had improved in the last year, however, people from a total of
eight residences indicated that there had been no improvement in the
quality of water during the past year. Zero to 0.2 mg /L Total Chlorine
Residual was measured in the residences on Unity Avenue and Paul Circle
and in one residence on Eleanor Lane. A Total Chlorine Residual of
approximately 1.5 mg /L is desirable in the water supplied to the user.
Data and information collected through this questionnaire, along with
the samples collected at the residences do not clearly identify why
certain homes have a water quality problem while the neighboring homes
do not seem to have the problem. This difference may be due to
differences in the operation of the treatment units in the houses
(water heater, water softener) that were not clearly identified in
this questionnaire.
-3-
It can be concluded from the information collected at the 20 residences
. that the deteriorated water quality in several of the residences are
due to the presence of high concentrations of iron (red and rust stains),
of manganese (black solids and specs) and the lack of Chlorine in the
water provided to the users.
The people in 12 of the residences who returned questionnaires indicated
that the quality of their water supply was unsatisfactory, while people
from eight residences indicated that the quality of their water supply
was satisfactory. The average water use per day per residence was
approximately the same for both groups (220 gallons per day per residence).
There is an average of 3.5 people living in the residences where the
water quality was unsatisfactory compared to an average of 2.8 people in
the residences where the water quality was indicated to be satisfactory.
Based upon the information collected during this study, the water pumped
from the wells and supplied to the residences of Brooklyn Center is safe
for human consumption and is a good quality water for domestic use. The
• water is relatively hard and should be softened before being used for
cleansing purposes. The concentration of iron in the water pumped from
the wells is below the recommended maximum concentration of .3 mg /L
except for well No. 2 which is seldom used. The low level of iron in
the well water should not cause any water quality or staining problems
as it leaves the wells. The manganese concentration is somewhat above
the concentration recommended (.05 mg /L) as the water is pumped into the
distribution system from the wells. These higher levels of manganese
will tend to percipitate out of the water as black particles and may
contribute to the presence of black -like solids.
An evaluation of the chemistry of the water indicates that it has a
tendency to be corrosive towards the metals in the distribution system
and therefore releases iron into the water. When the water is softened
it is more corrosive. Most of the City of Brooklyn Center distribution
system consists of cement line cast iron water mains, and is, therefore,
-4-
" s
protected from corrosion. However, unlined cast iron wipe was observed
• at the three locations that inline pumps have been installed in the water
system in the area where the water quality of the water supply has been
indicated to be unsatisfactory (Unity Avenue, Regent Avenue, and Orchard
Avenue).
The City's water distribution system is designed to provide only Total
Combined Residual Chlorine in the water system (Chlorine combined with
Ammonia) and that no Free Residual Chlorine be present in the water.
Free Chlorine has been measured in the Brooklyn Center distribution system
at levels as high as 1.4 mg /L. This high level of Free Chlorine Residual
can contribute to the tendency of the water to be corrosive towards the
metals in the distribution system.
Sulfate is present in the water supplied and if a Chlorine Residual is
not present at the point of use, it may contribute to the production
of hydrogen sulfide and cause a rotten egg smell. A trace of hydrogen
sulfide odor was noted at five of the supply wells. The presence of
• hydrogen sulfide also tends to enhance the corrosivity of the water
supply.
i
-S-
• CONCLUSIONS AND RECOMMENDATIONS
1. It is recommended that well No. 2 not be used except on an emergency
basis when all 'other well supplies are fully in use because of the
high iron content of the water and the presence of DO.
2. It is recommended that well No. 6 be used as a standby supply because
of the presence of DO, except that this well be used before well No. 2.
3. Both the Total and Free Chlorine Residual should be monitored throughout
the distribution system and if needed, the Chlorine and Ammonia dosage
adjusted to provide for a maximum combined available Chlorine Residual
level of 1.5 mg /L throughout the system and that no Free Chlorine
be resent in the system.
P Y
4. The Zinc concentration in the distribution system is between 0.15 and
0.2 mg /L, as a result of the addition of the corrosion inhibitor
(Zinc Ortho- Phosphate),which is below the suggested Zinc concentration_
of 0.5 -1.0 mg /L needed to help control corrosion.
Therefore, it is recommended that the dosage of Zinc - Ortho Phosphate
be increased to provide a Zinc concentration of 1 mg /L (5 times current
feed rate) in the water supply, for a period of one to two months
so that the benefit of this increased dosage can be determined.
5. The City of Brooklyn Center water supply can be made less corrosive by
increasing the pH of the water in the distribution system from
approximately 7 to 7.5 -7.7. This higher pH will tend to cause a
protective film of Calcium Carbonate to develope on the surfaces
of the distribution system. Therefore, it is recommended that pH
adjustment chemicals be added to the water supply for a period of
one to two months to determine the effectiveness and economics
of this procedure at Brooklyn Center.
6. The new recirculation pumps installed at Regent Avenue, Orchard Avenue,
and Unity Avenue should be operated on a continuous basis.
-6-
The installation of the inline pumps has helped to minimize the
hydraulic dead zones in the water mains where the water quality problems
have occurred and has improved the level of Chlorine in the water. This
improvement in the mains has also caused the Chlorine Residual to
increase in many of the residences where a low Chlorine Residual was previously
noted. The addition of Chlorine into the water in the main on Regent
Avenue did help to increase the Chlorine Residual in the water at
that location, but also caused localized corrosion of the water main.
Therefore, Chlorine should only be added to the water at the wells,
where Ammonium Sulfate is also added to the water.
7. The quality of the water at the residences on Paul Circle is
degraded because these residences are serviced by a dead -end water
main. It is recommended that water be bled on a continuous basis
from the end of the Paul, Circle 4 -inch distribution main or that
the main be regularly flushed until this dead end can be eliminated
by installation of additional water main.
8. All residential services should be thoroughly flushed after the quality
of the water in the distribution system is properly brought under
control and the iron concentration reduced to a satisfactory level
(below .3 mg /L Total Iron).
9. The use of galvanized pipe, and the galvanized pipe in combination with
copper at several of the residences, likely contributes to the corrosion
problem at those residences. Galvanized pipe should not be used with
copper pipe because the galvanized pipe is likely to corrode due to
electrical action. The City hould recommend that all galvanized pipe
e g P P
be replaced with a satisfactory copper or plastic pipe in the residential
systems after the q uality of the water in the distribution system is
managed to an acceptable level. The City should further recommend that
all of the residences regularly flush all of their hot water heaters
to remove any sediment, and that the softeners and other treatment units
• be thoroughly rinsed and cleaned in order to remove any sediment in them
that may exist, but only after their services have been thoroughly flushed
and plumbing changes made per the City's recommendations.
_7-
SEGOLaboratories St. Paul, Minnesota • Cedar Falls, Iowa
1931 West County Road C2 0 11 M ., St. Paul, Minnesota 55113
Phone 636 -7173
March 4, 1987
Mr. Sy Knapp
Director of Public Works
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Dear Sy:
I am sending this letter to give you a status report of our study of the
addition of Zinc Ortho Phosphate, a corrosion inhibitor, at higher feed
concentrations. In accordance with our meeting of January 6th at your
offices, we began to add the Zinc Ortho Phosphate at five times the previous
dosage beginning January 7th. This dosage was again increased by about
300 on January 11th to insure that the Zinc concentration in the distribution
system is maintained at approximately 1 mg /L.
S We have used the concentration of Iron in the water at the hydrant located at
Regent Avenue and Eleanor Lane as a measure of the success of the increase
dosage. It is assumed that if the Iron concentration at this location drops,
the corrosion action in the system is reduced. The enclosed figure shows
the measured concentration of Zinc and Iron at this location during our study
in January, February and March. The concentration of Zinc in the system was
0.15 to 0.2 last, summer and the Iron at the hydrant was 0.55 mg /L." You will
note that as we continued the study that the concentration of Zinc began to
level off at approximately 1 mg /L and the concentration of Iron dropped to
0.15 to 0.2 mg /L. In my opinion, this is an indication that the Zinc
inhibitor material is coating the piping and that the corrosion action has
been reduced. The desired maximum concentration for Iron in a water system
is 0.3 mg /L and we have maintained a concentration in the water below that
level at the hydrant for over two weeks. Therefore, it can be assumed
that at this higher Zinc Ortho Phosphate dosage that the corrosion apparently
can be controlled. It is my opinion that if this material is continued to
be used after our testing this spring, that a dosage resulting in a Zinc
concentration of approximately 0.5 mg /L in the water system will control
the corrosion. However, this will need to be confirmed if Zinc Ortho Phosphate
is continued to be used.
We are prepared to add chemicals to increase the pH of the water to 7.5 -
7.7 as proposed and plan to use Soda Ash (Sodium Carbonate). I have
requested that Dave begin adding the Soda Ash at 70 lbs, per million gallons
initially. The cost of Soda Ash is ten cents per pound resulting in a
chemical cost of $7.00 per million gallons. We.should begin to add this
chemical within the next week.
When Quality and Service Count
March 4, 1987
Page Two
If you have any questions or comments regarding the progress of this study,
feel free to contact me at your convenience. I will keep you informed of
th progress of our study and will expect to submit a detailed study report
at the completion of our work.
Sincerely,
SERCO Laboratories
rald S. Allen, P.E.
cc: Dave Peterson
GSA /cgk
LABOR ANALYSIS - WATER SAMPLES
3,0 HYDRANT - REGENT AVENUE & ELEANOR LANE
CITY OF BROOKLYN CENTER
BROOKLYN CENTER, MINNESOTA
SERCO Laboratories MARCH 3, 1987
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Iron Concentration
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0.3 mg /L
I
AUGUST JANUARY FEBRUARY MARCH
1986 1987 1987 1987
sERCOLaboratories St. Paul, Minnesota • Cedar Falls, Iowa
1931 West County Road C2
St. Paul, Minnesota 55113Y
Phone: (612) 636 -7173
April 6 1987
P ,
Mr. Sy Knapp
Director of Public Works
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Dear Sy:
I am sending you this letter to follow -up on my March 4th letter to give
you a status report of our study of the use of Zinc Ortho Phosphate and
pH adjustment chemicals for corrosion control.
You will recall, based upon the information I sent you in March, that we
appear to be able to successfully control the level of Iron in the distribution
system by using Zinc Ortho Phosphate at a level that will provide for a
residual Zinc concentration of approximately 1 mg /L in the water in your
system. It was decided that on the first of March we would begin to use
Soda Ash (Sodium Carbonate) to adjust the pH upward to 7.5 -7.7. This work
proceeded throughout March, however, we found that substantially greater
amounts of Soda Ash are required than we originally anticipated and that the
addition of this,material on a test basis will require a significant increase
in the chemical feed capabilities at the wells used during the tests. We
then did a short test run late in March using Caustic Soda and established
on a short -term basis a level of Caustic Soda that could be added using the
existing chemical feed equipment. We determined on a preliminary basis that
between two and three gallons per hour of 50% strength Caustic Soda needs to
be added at the well when it is continuously pumping in order to raise the
pH to our desired target level. However, in order to proceed with the use
of Caustic Soda, it would be necessary to purchase the Caustic Soda in addition
to the Soda Ash that has already been purchased for this test. SERCO had a -
small quantity of Caustic Soda that was used for the short -term preliminary
testing.
Based upon the preliminary information, it was concluded that the cost of
pH adjustment may be nearly the same as the cost of using the Zinc Ortho
Phosphate depending upon the ultimate feed concentration that we expect to
be acceptable for the Zinc Ortho Phosphate.
When Quality and Service Count
April 6, 1987
Page Two
Therefore, Dave and I decided that we would proceed, beginning the first
of April, to reestablish the level of Zinc Ortho Phosphate in the system
at 1 mg /L and then begin to gradually reduce the concentration of Zinc to
its optimum dosage which I would expect may be approximately .5 mg /L. Once
we have established the optimum dosage of Zinc Ortho Phosphate we can then
do an economic evaluation and decide if we should proceed with the testing
using chemicals to adjust the pH of water in.place of the use of the Zinc
Ortho Phosphate. I would anticipate that we should be able to establish the
optimum dosage of Zinc Ortho Phosphate in approximately one month to six weeks.
I trust that this approach is acceptable to you and that the information
contained in this letter is helpful to you in determing the status of our
work in the water system. If, however, you have any questions or comments
regarding the contents of this letter or any other aspect of this study,
feel free to contact me at your convenience.
Sincerely,
SERCO Laboratories
G d S. A en, P.E.
cc: Dave Peterson
GSA /cgk
r-
9b
CITY 6301 SHINGLE CREEK PARKWAY
O F
:B ROOKLYN BROOKLYN CENTER, MINNESOTA 55430
TELEPHONE 561 -5440
C ENTER EMERGENCY- POLICE - FIRE
911
TO: Gerald G. Splinter, City Manager
FROM: Sy Knapp, Director of- Public Works
DATE: April 17, 1987
RE: Proposal for Traffic Study and Preliminary Design 69th Avenue North
Between Dupont Avenue North and Zane Avenue North
One of the segments of roadway within Brooklyn Center which needs improvement,
both with respect to its traffic - carrying capacity and its safety record, is
69th Avenue North between Shingle Creek Parkway and Lee Avenue North. In 1985
the City Council adopted Resolution No. 85 -144, "Resolution Approving Five Year
Municipal State Aid Capital Improvement Program ", which tentatively programmed
(1) the acquisition of additional right of way along 69th Avenue in 1988 and (2)
the reconstruction of 69th Avenue in 1989.
Our preliminary review of this proposed improvement indicates that many special
factors enter into the consideration of this project. These factors include:
1. a need for detailed review of traffic forecasts based on a detailed
review of the entire street and highway system between Dupont Avenue
North and Zane Avenue North
2. detailed''evaluation of right of way needs:
a. in the Palmer Lake area
Note: Some of the affected properties in the Palmer Lake area
were acquired with the use of federal LAWCON funds.
b. at the Mound Cemetery
C. from privately owned properties along the route.
3, evaluation of the environmental impacts of various alternatives
4. evaluation of soil conditions, especially in the Palmer Lake area
5. evaluation of the project effects on the Palmer Lake floodplain and
watershed
6. evaluation of traffic signal needs, geometric improvements, etc.
K
19 AU- UORKA(M =�'
April 17, 1987 %4
Page 2
7. evaluation of the effects of the project on public and private
utilities, etc.
8. need for detailed topographical surveys and land surveys.
It is my opinion that the scope of the required studies is substantially beyond
the capabilities of our Engineering Department when considering our other work
assignments. Accordingly, I recommend that the City employ a consulting
engineering firm to conduct the required studies and to develop a preliminary
design.
Attached is a proposal from Short - Elliott- Hendrickson, Inc. (SEH), a consulting
engineering firm which Brooklyn Center has used for many of our traffic
engineering studies during the past 6 years - each time with excellent results.
Analysis of their proposal indicates that the estimated costs for the traffic
studies and preliminary design is $59,000. It must be noted that this cost
estimate does not include any of the following items:
- development of a 6(f) report regarding the Palmer Lake property (if this
is required)
- soil borings, soils engineering and design
- aerial photography
- work items relating to right of way acquisition (i.e. field surveys,
property descriptions, appraisals, negotiations, etc.)
- other specialized studies which may become necessary.
T
Because 69th Avenue is a Municipal State Aid Street (easterly of Brooklyn
Boulevard) and is a County State Aid Highway (westerly of Brooklyn Boulevard) it
is recommended that the costs for this se o the project e t o
first ha f e ro b charged P P J g
a "local" MSA fund - i.e. Account No. 2611. Hennepin County has agreed to
cooperate with us on this study, including providing technical assistance and
review and comment. This will be very valuable in assuring that the study
results will be acceptable to Hennepin County, and that Hennepin County will
subsequently assume its share of construction costs and responsibilities.
All of the final design costs will be eligible for regular MSA or CSAH
reimbursements. Also, some of the costs incurred during the traffic
study /preliminary design phase may be eligible for reimbursement from the
regular MSA account to the local MSA account.
Attached, for consideration by the City Council, is a resolution accepting the
proposal from SEH to complete the traffic study and preliminary design at a cost
not to exceed $60,000. As noted above, additional work items would be
identified in more detail as these first -phase studies proceed, and each such
item would require subsequent approval of the City Council.
April 17, 1987
. Page 3
Because of the complexities of this improvement, it is my opinion that we
probably cannot meet the tentative schedule provided in the 1985 resolution.
Rather, I believe it is more realistic to plan for right of way acquisition in
1989, with construction in 1990. If we must become fully involved with a
detailed 6(f) study and report, an additional year or two of delay can be
anticipated.
Resp tfully submitted,
Sy 7napp
Director of Public Works
SK: j
9b �
Member introduced the following resolution and
moved its adoption:
RESOLUTION NO.
RESOLUTION APPROVING AGREEMENT FOR PROFESSIONAL SERVICES WITH
SHORT ELLIOTT HENDRICKSON, INC., CONSULTING ENGINEERS, TO
CONDUCT A TRAFFIC STUDY AND PRELIMINARY DESIGN OF 69TH AVENUE "
NORTH BETWEEN DUPONT AVENUE AND ZANE AVENUE NORTH,
IMPROVEMENT PROJECT NO. 1987 -08
WHEREAS, it is the opinion of the Brooklyn Center City Council that a
traffic study and preliminary design is needed relating to proposed future
improvements to 69th Avenue North between Dupont Avenue North and Zane Avenue
North; and
WHEREAS, the Director of Public Works has obtained a proposal from
Short Elliott Hendrickson, Inc. (SEH), Consulting Engineer, to conduct the
needed study and develop the preliminary design at a cost not to exceed $60,000;
and
WHEREAS, said proposal specifically excludes the following services
which may become necessary as the study and preliminary design process proceeds,
but which cannot be accurately defined until after the study and design process
is initiated: (1) development of a possible 6(f) report relating to properties
in the Palmer Lake area; (2) soil borings, soil engineering analyses, and soil
correction design; (3) aerial photography; (4) work items relating to right of
way acquisition (i.e. field surveys and property descriptions, property
appraisals, negotiations for right of way acquisition, etc.); and (5) other
specialized studies not identified within the SEH proposal which may become
necessary:
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL of the City of
Brooklyn Center, Minnesota that:
i
1. The following improvement project is hereby established:
IMPROVEMENT PROJECT NO. 1987 -08
69TH AVENUE NORTH BETWEEN DUPONT AVENUE NORTH
AND ZANE AVENUE NORTH
TRAFFIC STUDY AND PRELIMINARY DESIGN
2. The proposal submitted by Short Elliott Hendrickson, Inc., to
conduct the traffic studies and develop the preliminary design, is
hereby accepted. The Mayor and City Manager are hereby authorized
and directed to execute an agreement with SEH conforming to said
proposal, at a cost not to exceed $60,000.
3. As the needs for additional services which are not included in the
SEH proposal become defined, the Director of Public Works shall
report these needs to the City Council and submit his
recommendations regarding the procurement of those services, for
consideration by the City Council.
RESOLUTION NO.
4. All costs relating to this improvement project shall be charged to
the Municipal State Aid Fund Balance, Restricted Reserve Account
No. 2611.
Date Mayor
ATTEST:
Clerk
The motion i n for the adoption of the foregoing resolution was duly seconded by
member , and upon vote being taken thereon, the following
voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
M ' & C Eo. 7- -07
April i.7,:,: 1987
FROM Ma OFFICE OF THE CITE XANAM
SUBJECT; Housekeeping Changes to the sal .4
9/City of o*lyn
Cesnter r Agreement
To the Honorable Mayor and City Council.-
.Attached please find Copies of twat : s t
*;O%W Local 49 Labor
Agreement, which arw housekeeping - , in nature.
The first, change relates to Appendix A. of the . al ; ,A9. ",Agreies ent.
When it,was,pasaad and, approved approximat4l. ° . mir th ago y the
City Council,, + :ect toCl ° .' safari Or the
sechanic night serv#it a person, welding ate:.. w le in the
copy presented to the- City Council.. At - a, a, the Co1mcil
understood that the , :settlement involved .a: J i crease: for
all classif ications r and. the attached , , ndiaaftw the 3k
figure.. However; the - material to d in.. y U >+ a ket
that evening did not have the a ific lwft ° for.; the above
Positions.
,Also attached, is a, table indicat a ,tea in ; :anguag
contained within the master agreement relating
.. Union clause. cause the old is s° t e
current , requirements . of Mate law a , ati n ; ,
the t art a
XAMA
Taint Bargaining C ttee , have aqry to the sadif
language.
I
recommend . y+aur approVa1 of, bed to the ma t , ' and, we
recommend you pass a: ` notion allthorizinq the s the
attachments.
1ROAPectfully submit # .
k Gerald G. 8p nter
City Manager
Current
ARTICLE II RECOGNITION
The EMPLOYER recognizes the UNION as the exclusive
representative for all job classifications listed below whose
employment service exceeds the lesser of 14 hours per week or 35
percent of the normal work week and more than 100 work days per
year, excluding supervisory, confidential and all other
employees:
Recommended Change
ARTICLE II RECOGNITION
The EMPLOYER recognizes the UNION as the exclusive
representative for all employees in the job classifications
listed below who are public employees within the meaning of Minn.
Stat. 179A.03, Subdivision 14 excluding supervisory, confidential
and all other employees:
APPENDIX A
WAGES
A. The following wage schedule will be in effect from the first
payroll period in 1986 through the last payroll period in 1987:
MAINTENANCE III . . . . . . . . . . . $12.60 per hour
MAINTENANCE II . . . . . . . . . . . $12.10 per hour
MAINTENANCE I . . . . . . . .. . . . $ 8.72 per hour
MECHANIC . . $12.60 per hour
NIGHT SERVICE PERSON . . . . . . . $11.90 per hour
WELDING . . . . . . . . . . . . . . . . $12.35 per hour
CREW LEADER . . . . . . An employee assigned in writing
by the Department Head to assist
a Supervisor as a Crew Leader
shall be paid an additional $.52
per hour while performing such
duties.
B. All employees hired after February 7, 1984 may be classified at
the sole discretion of the individual cities covered by this
AGREEMENT as MAINTENANCE I and receive Working Out of
Classification pay provided by Section C of this APPENDIX.
C. WORKING OUT OF CLASSIFICATION PAY
C -1 Employees required by the EMPLOYER and who are adjudged by
the EMPLOYER to be qualified to operate the following
items of equipment will be paid the MAINTENANCE III rate
of pay for those hours assigned to the unit:
Caterpillar 12F Grader - Unit #12
Int. 1710 Elgin Sweeper - Unit #15
Bros SP3000 10 12 Ton Roller - Unit #18
Caterpillar #12 Grader - Unit 21
Caterpillar #950 Fr End Loader - Unit #27
Caterpillar Fr End Lo -
P Loader Model 930 Unit #13
Ford Backhoe 24 In Bucket - Unit #49 -A
John Deere Crawler Dozer - Unit #55
Elgin Pelican Americana Sweeper - Unit #28
Dragline (rental units)
Oil Distributor - Unit #14
C -2 Employees hired after February 7, 1984 in the MAINTENANCE
I classification who are required by the EMPLOYER and who
• are adjudged by the EMPLOYER to be qualified to operate
the following items of equipment will be paid the
MAINTENANCE II rate of pay for those hours assigned to the
unit:
A -1
9�
- CITY OF
ROBBINSDALE
4221 LAKE ROAD
_R08BINSDALE, MINNESOTA 55422
- TELEPHONE: (612) 537 -4534
March 30, 1987
Mr. Gerald Splinter
City Manager
6301 Shingle Creek Parkway
Brooklyn Center, MN.55430
Dear Mr. Splinter:
The City of Robbinsdale will hold a public hearing on Tuesday, April 7, 1987
to receive input from the residents of Robbinsdale on water surface regulations
for lower Twin Lake (that portion south of Highway 100). During this past win-
ter, there were some complaints regarding excessive snowmobile use and viola-
tions of the ordinance governing snowmobiles. Currently, there are water sur-
face regulations for boats and recreational vehicles (snowmobiles and all- terrain
vehicles) that have been approved by the Department of Natural Resources. However,
there are no motor restrictions or ban of motors for lower Twin Lake. The Robbins-
dale City Council will attempt to determine if further restrictions for lower
Twin Lake are necessary.
Regardless of the outcome of the public hearing, the City of Robbinsdale will
attempt to introduce legislation which defines the lower Twin Lake as being
situated wholly within the City of Robbinsdale. This would enable Robbinsdale
to have the statutory power to regulate lower Twin Lake subject to the approval
by the Department of Natural Resources. It is important to note that the DNR
would,be the final authority for water surface regulations as it has been in the
past.
Please copy this letter to all departments in your organization that you deem
necessary. If you have any questions, or comments, please contact me or Russ
Fawbush, Director of Parks and Recreation at 537 -4534.
Sincerely,
Walter R. Fehst
City Manager
WRF:RDF :jmf
AN EQUAL OPPORTUNITY EMPLOYER
Member introduce 91E
d the follows.
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION REGARDING HOUSE FILE NO. 1342 PERTAINING TO
THE SALE OF WINE IN GROCERY STORES
WHEREAS, House File No. 1342 has been introduced in the
1987 Minnesota Legislature; and
WHEREAS, passage of such legislation would remove local
control over the sale of alcohol, and would make alcohol more
easily available; and
WHEREAS, grocery store wine sales are inherently more
difficult to control than off -sale liquor store wine sales; --and
WHEREAS, allowing grocery stores to sell wine would
greatly increase the City's enforcement burden; and
WHEREAS, Minnesota's off -sale liquor stores are presently
doing an excellent job of marketing wine responsibly and
WHEREAS, wine is alcohol, not food, and should be sold by
off -sale liquor stores where the sale of it can be controlled to
the greatest degree possible; and
WHEREAS, increases in wine outlet availability in
Minnesota would lead to the destruction of the off -sale liquor
store industry, reduce tax revenues, and eliminate over 3,200 jobs
produced by municipal liquor stores.
NOW, THEREFORE, BE IF RESOLVED by the City Council of the
City of Brooklyn Center that:
1. The City go on record opposing any legislation in any
form that would allow the sale of wine in grocery
stores in the state of Minnesota.
2. The legislators representing the City of Brooklyn
Center oppose House File No. 1342.
BE IF FURTHER RESOLVED that certified copies of this
resolution be sent to Governor Rudy er
ich Senator Y P r Bill Luther,
and Representatives Phil Carruthers and Linda Schied.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
/o
Licenses to be approved by the City Council on April 20, 1987:
CIGARETTE LICENSE
Boulevard Superette 6912 Brooklyn Boulevard
City Clerk
FOOD ESTABLISHMENT LICENSE
Boulevard Superette 6912 Brooklyn Boulevard
Brooklyn Center Mobil - Supermart 6849 Brooklyn Boulevard
Dayton's 1100 Brookdale Center
Donut Delight 6838 Humboldt Avenue N.
Sanitarian p,(2
GARBAGE AND REFUSE COLLECTION VEHICLE LICENSE � --
T & L Sanitation 8201 Logan Avenue N.
Sanitarian
ITINERANT FOOD ESTABLISHMENT LICENSE
Brookdale Christian Center School 6030 Xerxes Avenue N.
Brooklyn Center Fire Department 6301 Shingle Creek Pkwy.
Sanitarian
MECHANICAL SYSTEMS LICENSE
Air Conditioning Associates, Inc. 689 Pierce Butler Route
Centraire, Inc. 7402 Washington Ave.S.
Flare Htg. & Air Cond., Inc. 664 Mendelssohn Avenue N.
New Mech Companies, Inc 1633 Eustis Street
* Northeast Sheet Metal, Inc. 4347 Central Avenue NE
Owens Services Corporation 930 East 80th Street
BuilddAg Official
MOTOR VEHICLE DEALERSHIP LICENSE (�
Brookdale Chrysler Plymouth 6121 Brooklyn Boulevard l'
City Clerk
RENTAL DWELLING LICENSE
Initial:
Jack and Nancy Wold 5907, 09 June Ave. N.
William P. Kelly 5724 Logan Avenue N.
Ronald & Carol Gray 6718 Scott Avenue N.
RENEWAL:
Quality Investment Co. Ryan Lake Apartment
James & Bobbie Simons 6109, 11, 13 Beard Ave. N.
Thomas Egan 5239, 41 Drew Avenue N.
H. E. Homes 6827 Fremont Place
Jeffrey Vest 5557 Knox Avenue N.
Gary & Vikki Linder 5715 Knox Avenue N.
Gerald & Elaine Theis 6719 Toledo Avenue N.
Fred Beier 5300, 04 Vincent Ave. N.
G & B Enterprises 3501 47th Avenue N.
M. B. L. Investment Co. 3613 47th Avenue N.
Donald E, Sobania 3701 47th Avenue N.
Nordic Properties 3713 47th Avenue N.
L. H. Hanggi 3725 47th Avenue N.
Ed Krzesowiak 3001, 07 51st Avenue N.
L. A. Beisner 2816 67th Lane
J. J. Barnett 2926 68th Lane
J. J. Barnett 2930 68th Lane
J. J. Barnett 2938 68th Lane
Director of Planning
- - - and Inspection
SIGN HANGER'S LICENSE
Crosstown Sign Company 10166 Central Ave. NE
Lawrence Signs Inc. 945 Pierce Butler Route
Suburban Lighting, g g, Inc. 6077 Lake Elmo Ave. N. �.
BuildiAg Official
SWIMMING POOL LICENSE
Riverwood Townhomes Association 6626 Camden Drive North
Sanitarian
GENERAL APPROVAL: ,
D. K. Weeks, City Clerk
I t
i
Member introduced the following
resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION APPROVING PARTICIPATION IN THE DAKOTA COUNTY
HOUSING AND REDEVELOPMENT AUTHORITY, MINNEAPOLIS /SAINT
PAUL HOUSING FINANCE BOARD, AND WASHINGTON COUNTY HOUSING
AND REDEVELOPMENT AUTHORITY JOINT SINGLE FAMILY MORTGAGE
REVENUE BOND PROGRAM AS DEFINED HEREIN AND AUTHORIZING
EXECUTION OF A JOINT POWERS AGREEMENT
WHEREAS pursuant to
p Minnesota Statutes, Chapter 462C, as
amended (the "Act ") the City of Brooklyn Center (the "City ") is
authorized to issue revenue bonds to finance single family
residential rental facilities within the jurisdiction of the City;
and
WHEREAS, pursuant to 1971 Minnesota Laws, Chapter 333, as
amended, The Dakota County Housing and Redevelopment Authority (the
"Dakota County Authority ") has all powers and duties of a housing
and redevelopment authority under the municipal housing and
redevelopment act, Minnesota Statutes, Sections 462.411 to 462.711,
as amended; and
WHEREAS, pursuant to 1974 Minnesota Laws, Chapter 475,
The Washington County Housing and Redevelopment Authority (the
"Washington County Authority ") has all powers and duties of a
housing and redevelopment authority under the municipal housing and
redevelopment act, Minnesota Statutes, Sections 462.411 to 462.711,
as amended; and
WHEREAS, pursuant to Minnesota Statutes, Section 462.12,
the Minneapolis /Saint Paul Housing Finance Board (the
"Minneapolis /Saint Paul Board") ) is authorized to exercise the
powers conferred upon the Cities of Minneapolis and Saint Paul, the
Minneapolis Community Development Agency and the Housing and
Redevelopment Authority in and for the City of Saint Paul,
Minnesota, by Minnesota Statues, Chapters 462C and 462, among other
things; and
WHEREAS, pursuant to the Act, the Dakota County
Authority, the Minneapolis /Saint Paul Board, and the Washington
County Authority (collectively the "Authorities ") are authorized to
issue revenue bonds to finance single family residential rental
facilities within Dakota County, Washington County, and the Cities
of Minneapolis and Saint Paul; and
the "Joint pursuant to Minnesota Statutes, Section 471.59
( oint Powers Act"), City y and the Authorities are
authorized to enter into an agreement for the exercise of such
powers by the Authorities on behalf of the City; and
WHEREAS, the City has previously approved a program (the
"Program ") for the issuance of single family mortgage revenue bonds
pursuant to and in accordance with Minnesota Statutes, Chapter
462C, after a duly noticed public hearing and has received an
allocation of authority for issuance of single family bonds under
Minnesota Statutes, Chapter 474A in the amount of $7.5 million; and
i
WHEREAS, the Authorities propose to jointly issue their
single family housing revenue bonds to finance various single
family residential programs in various cities, and acting on behalf
of the City, to finance the Program (the "Joint Program "); and
WHEREAS, it appears that participation by the City in the
Joint Program will result in significant financial benefit to the
City and will accordingly ultimately result in lower housing costs
to residents of the City; and
WHEREAS, there has been submitted to the City a form of
Joint Powers Agreement providing for participation of the City in
the Joint Program and the issuance by the Authorities of
obligations to finance the Program.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of Brooklyn Center as follows:
1. The City gives final approval to the issuance of
obligations pursuant to the Act to finance the
Program.
2. The City approves the participation of the City in
the Joint Program undertaken by the Authorities for
the purpose of financing the Program and authorizes
the staff of the City to cooperate with the Authority
with respect to such participation.
3. The City approves the form of Joint Powers Agreement
submitted to the City, and the Mayor and City Clerk
(or, in their absence or unavailability, any other
member of the City Council or City officer,
respectively) and such other officers or employees of
the City as may be appropriate are hereby authorized
and directed to execute the Joint Powers Agreement,
with only such alterations, additions or deletions as
may be necessary or desirable to effectuate the
purposes of this resolution and are not, in the
opinion of the City Attorney, materially adverse to
the interests of the City. The execution of the
Joint Powers Agreement by the parties herein
authorized to sign shall be conclusive evidence of
such determination.
Date Mayor
ATTEST:
Clerk
The motion for the adoption of the foregoing resolution was duly
seconded by member , and upon vote being taken
thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.