Loading...
HomeMy WebLinkAbout2012 04-12 CHCACHARTER COMMISSION April 12, 2012 Brooklyn Center, Minnesota City HallCouncil/Commission Conference Room AGENDA 1.Call to Order: 6:30 p.m. 2.Roll Call 3.Considerationof Minutesof theJanuary 19, 2012 and February 4, 2012 Meetings 4.Old Business a.Nominationsfor Secretaryposition b.Reaffirmation of Recommendation of No Change to Sections 4.01 and 4.02 of City Charter from 2010 c.Council reaction to Chapter 9 Charter recommendation 5.NewBusiness a.Ward-versus-at-large for City Council Seats 6.Adjournment City of Brooklyn Center CHARTER COMMISSION Court Appointed The Charter Commission reviews the existing charter, considers proposed changes and makes recommendations to the City Council, and safeguards the concept of Home-Rule under the existing charter and Home Rule provisions in the state statutes. Commissioners serve a four-year term. Chairperson and fourteen members. [Minn. Stat. 13.601, Subd. 3(b)states that once an individual is appointed to a public bodythe following data are public: (1) the residential address;(2) and either a telephone number or electronic mail address where the appointee can be reached, or both at the request of the appointee.] Stanley LeinoRobert MarvinEric Pone Chair 20124711 Twin Lake Ave (29)Vice Chair 2012 7118 France Ave N (29)763-535-5498Public Relations Chair 2012 763-234-6137marvin.r@comcast.net4747 Twin Lake Ave N (29) flyfinn7@msn.com1/19/11-1/18/15763-971-0114 3/13/97-9/19/15ericpone@msn.com Harold Middleton9/19/11-9/19/15 Gary Brown5418 Oliver Ave N (30) 7012 Willow Lane N (30)763-549-5594Renita Whicker 763-560-6338hjannifer@comcast.net6331 Beard Ave N #1 (29) gary-julie-brown@comcast.net11/30/98-9/19/15763-560-1078 6/25/04-6/28/12renitawhicker@hotmail.com Edward Nelson9/19/11-9/19/15 Ellen Davis5236 Great View Ave N (29) 5301 Russell Ave N #206 (30)763-536-8963Bee Yang 763-560-23081/6/05-6/26/127224 Major Ave N (29) louisdavis@q.comphone: 9/19/11-9/19/15Mary O’Connor1/19/11-1/18/15 5429 Lyndale Ave N (30) Gail Ebert763-561-8038Mark Yelich 1613 Irving Lane N (30)8/2/10-8/1/146018 Beard Ave N (29) 763-566-6803763-486-6001 10/30/07-1/3/16Eileen Oslund1/19/11-1/18/15 Audit Chair 2012 Nathan Lackner6000 Ewing Ave N (29)1 vacancy 5300 Girard Ave N (30)763-537-2858 763-438-070210/30/01-1/25/14Updated 2/8/12 nathanlackner@gmail.com 1/19/11-1/18/15 City O Brookl y n Center Office of the City Manager A Millennium Community Cornelius L. Boganey MJL City Manager 763-569-3303 i cboganey @ci.brooklyn-center.mn.its March 29,2012 1VIr. Stan Leino, Chair Charter Commission 7118 France Avenue North Brooklyn Center MN 55429 Dear Chair Leino: At its March 26, 2012,meeting,the Brooklyn Center City Council reviewed and discussed the City Attorney's memorandum dated March 22, 2012, relating to the Charter Commission proposed amendment to the Brooklyn Center City Charter. The City Council accepted the staff report regarding the effect of the Charter Commission proposed changes to the City Charter and directed that a copy of the report be provided to the Charter Commission for its consideration. Enclosed is a copy of the City Attorney's memorandum, as well as an excerpt from the draft minutes of the March 26 City Council meeting pertaining to the proposed Charter amendment. Please provide these materials to the Charter Commission for review and discussion at its April 12 meeting. You may also wish to watch the City Council discussion of this item online at www.city fbrooklyncenter.org. To meet the requirements of State Law,the Public Hearing notice will be published in the Sun Post on April 12, 2012, setting the Public Hearing date for May 14,2012. Should you need any additional information,please feel free to contact me. Sincerely, Cornelius L. Boganey City Manager cc: City Council Our Mission: An attractive,clear,safe community that enhances the quality of life ardpreserves thepublic trust 6301 Shingle Creek Parkway Recreation and Community Center Phone&TDD Number Brooklyn Center, MN 55430-2199 (763)569-3400 City Hall& TDD Number(763)569-3300 Fax(763)569-3434 Fax(763)569-3494 www.cityofbrooklyncenter.org "3 Charles L.LeFevere 470 US Bank Plaza 200 South Sixth Street . . Minneapolis MN 55402 (612)337-9215 telephone g � (612)337-9310 fax avenU �: clefevere@kennedy-graven.com http://www.kennedy graven.com CHARTERED MEMORANDUM Date: March 22, 2012 To: Curt Boganey From: Charles LeFevere Re: Proposed Amendment to Brooldyn Center City Charter At the regular City Council meeting of March 12, 2012, the Brooklyn Center Charter Commission proposed to the City Council an amendment to the City Charter, for adoption by ordinance. The City Council requested that staff prepare comments on the proposed amendment for consideration by the City Council. The first part of the amendment relates to Charter Section 9.01,which gives the City the authority to acquire property. The first sentence of Section 9.01 currently reads "The city may acquire by purchase, gift, devise, or condemnation, any property, real or personal, corporeal or incorporeal, either within or without its corporate boundaries,which may be needed by the City for public use or purpose." The proposed Charter amendment would amend the last clause to read "for a public use or public purpose". I believe that this.would not change the meaning of the Charter but apparently the Charter Commission felt it was important for purposes of clarification. The Charter Commission also proposed to add a new subdivision 1 to Section 9.01 which would define"public use"or"public purpose". The definition is exactly the same(with the exception of a missing comma) as the definition in state law under Minn. Stat. § 117.025, Subd. 11. This amendment to the Charter would not change the law relating to acquisition of property by eminent domain since the provision in state law already controls acquisitions by the City of Brooklyn Center. Minn. Stat. § 117.012, Subd. 1 provides that"Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special law, all condemning authorities, including home rule charter cities, and all other political subdivisions of the state,must exercise the power of eminent domain in accordance with the provisions of this chapter, including all procedures, definitions, remedies, and limitations. Additional procedures, remedies, or limitations that do not deny or diminish the substantive and procedural rights and protections of owners under this chapter may be provided by other law,ordinance, or charter." 400441v1 CLL BR291-7 1 Subdivision 2 of the salve section provides that"Eminent domain may only be used for a public use or public purpose." State law mandates that acquisition of property by eminent domain can only be for a public use or public purpose, as that term is defined in Minnesota Statutes. Therefore, it is not necessary to make the change proposed to Section 9.01, since state law has already made that change, and specifically.supersedes any inconsistent charter provisions. However, it is also true that, because state law already mandates this change,the change will have no adverse effect on the City and its authority to acquire property, at least as long as the state law remains the same as it is now. The second change proposed in the Charter amendment would add a sentence to Section 9.03. Section 9.03 currently provides a deadline within which the City must pay a condemnation award determined in accordance with the procedures of state law. That deadline is either 70 days after the filing of a commissioners' report or 45 days after the final judgment, whichever applies. As it currently stands, if the City failed to make such a payment, the condemnee could seek an order of the Court to pay the award. The proposed Charter amendment would add a sentence providing that "If the award is not paid the court on motion of the owner of the land, shall vacate the award and dismiss the proceedings against the land." The City, of course, could avoid having the condemnation dismissed by paying the award within the time deadline. However, if, due to any administrative error or mistake, the City failed to make timely payment in accordance with the requirements of Section 9.03,the Charter amendment would provide for dismissal of the proceedings. This would mean that, if the City still wanted the land, it would have to start over with a new condemnation proceeding, which would not necessarily be in the interest of the taxpayers. The proposed change to the Charter that could have the greatest effect on the City is a proposed amendment to Section 9.04. Under the current language of 9.04,the City has the ability to dismiss a condemnation action. However, if the City decides to abandon a condemnation, for any reason,the City is required by Section 9.04 to pay all reasonable costs and expenses incurred by the condemnee, including attorneys' fees. This provision was apparently intended to reimburse the landowner for costs, expenses and attorneys' fees incurred as a result of the eminent domain proceedings. The proposed Charter amendment would add a sentence to Section 9.04 providing that "The city has a 60 day period from the initiation by the city council of eminent domain to dismiss proceedings unless an extension is stipulated and agreed to by all parties." I see three potential issues with this proposed amendment. The first is that "The initiation by the city council of eminent domain" is not a legally defined event. There are a number of steps taken by the City Council and the City in the initiation of eminent domain proceedings, and without specifying which step is intended to start the 60 day period running, there could be confusion about when the 60 day deadline expires. The second issue is that the proceeding is dismissed unless "an extension is stipulated and agreed to by all parties." There may be many parties to a condemnation proceeding,including all parties who have an interest in the property. The primary party in interest is usually the landowner. However, mortgagees, easement holders, tenants, and others may also be named in a condemnation action. It 400441v1 CLL BR291-7 2 could occur that a landowner was willing to grant an extension (that is, the landowner wished to agree with the city abandoning the condemnation), but an easement holder or a mortgagee, might not be willing to consent. Therefore, if the intent of this amendment is to provide some protection to the landowner,that could be fiustrated by any other party to the condemnation who did not wish to allow the dismissal. The third issue is the one that could have the greatest potential impact on the City's taxpayers. Under current law, if the City decides not to proceed with a condemnation action because circumstances have changed, it can abandon the action without paying the award or acquiring the property,provided that it pays the condemnee all of the condemnee's costs and attorneys' fees. The change in circumstances might be, for example, a case where the property was no longer needed for the original public purpose. This change in circumstances might not occur within 60 days. If it occurred after 60 days, and the landowner was not willing to allow the city to abandon the proceedings, the city would be required to complete the proceedings, acquire the property, and pay the landowner, even though the property was no longer needed for public purposes. This acquisition would be paid for by taxpayer dollars. Another reason for abandoning a condemnation action is that the condemnation award, determined by the commissioners or the court, is so much higher than the estimated cost, that the city decides the cost is not justified by the public benefit of acquiring the property. The City Council might decide, in such a case, that the expenditure of tax dollars for acquiring the property could not be justified. If the proposed Charter amendment were adopted, the City Council would not have the ability to protect the taxpayers' dollars in this way. I assume that the purpose of the proposed addition to Section 9.04 is to provide some additional protection to the landowner. In most cases today,this additional protection may not be needed. The 2006 amendments to the law relating to condemnation so severely restricted the ability of public authorities to condemn land that the great majority of condemnations now are for simple projects like streets, road widening, utility easements, and the like. In these cases, acquiring authorities typically use the so-called "quick-take" procedure provided by Minn. Stat. § 117.042. Under.this quick-take procedure,the acquiring authority does not have to wait to acquire title and possession to the property until all of the legal proceedings relating to the condemnation have been exhausted. Rather,the acquiring authority can take title and possession to the property 90 days after notification to the property owner of intent to take title in this way. Before taking title and possession,the City is required to pay to the owner, or deposit into court, an amount equal to the acquiring authority's approved appraisal of value. Once title and possession is transferred (which usually occurs at around 90 days), the title to the land or interest in the land is owned by the City, and the final determination of the amount paid to the condemnee is made at a later date,when the condemnation procedures are finalized. Once title and possession is transferred,the City is no longer flee to abandon the condemnation proceedings. Therefore, in all such cases involving quick-take, the condemnee has the same protection as that which would be given to the landowner under the proposed amendment, although the City's ability to abandon the procedure would end after 90 days rather than after 60 days. 400441v1 CLL BR291-7 3 I I previously issued a Type III Rental License that expired on November 30, 2011. The property owner is also required to submit a mitigation plan and report monthly on the progress of that plan. Ms. Schleuning reviewed actions taken in regard to this rental license application and indicated Staff has reviewed that mitigation plan and held discussion with the property owner and recommends approval based on meeting standards in the mitigation plan. Councilmember Kleven moved and Councilmember Ryan seconded to open the hearing. Motion passed unanimously. No one appeared to address the Council. Councilmember Lasman moved and Councilmember Ryan seconded to close the hearing. Motion passed unanimously. Councilmember Lasman moved and Councilmember Kleven seconded to approve the issuance of a Type IV six-month provisional. rental license and mitigation plan for 5245-5247 Drew Avenue N., with the requirement that the mitigation plan must be strictly adhered to before a renewal rental license would be considered. Motion passed unanimously. 10e. ACCEPTANCE OF STAFF REPORT REGARDING PROPOSED AMENDMENT TO BROOKLYN CENTER CITY CHARTER Mr. Boganey introduced the item, discussed the history, and recommended the assessment of the proposed Charter Amendment relating to eminent domain be provided to the Charter Commission. Councilmember Ryan stated the Charter Commission presented an amendment to the City Charter at the last meeting. He asked if it would impact the timing of notification and public requirements, and the subsequent requirement for a Public Hearing, and should the Charter Commission determine to amend some of the language. City Attorney Charlie LeFevere advised in that case the best course for the Charter Commission would be to withdraw the original proposal, which would relieve the deadlines, and then submit new language and restart the process. Mr. Boganey explained that based on the date the City Council received the report, the ordinance language must be published no later than Thursday, April 12, 2012, so it would have to be submitted to the Sun Post by April 5, 2012. He noted that should the Charter Commission withdraw its original request, the City Council can determine whether to cancel the Public Hearing date. Mr. LeFevere described the two methods the Charter can be amended, via unanimous support of the City Council or vote of the electorate. In addition to forwarding this report to the Charter 03/26/12 -9- DRAFT Commission, Mr. LeFevere indicated it may be advisable to inform the Charter Commission if one or more City Councilmembers are not willing to consider this amendment. In that case, the Charter Commission could then decide if it wanted to submit a Charter amendment for the election, or determine to open dialogue with the City Council and try to reach an agreement. Mayor Willson stated he.was very clear at the last meeting that he would not support the language the Charter Commission recommended due to the 60-day time limit that would result in the City being unable to withdraw from an eminent domain proceeding. In addition, there is a question of when and what triggers the 60-day period. Mayor Willson noted State Statutes already negate the ability for the City to.use eminent domain as it has been used in the past and he sees no reason to make the City's Charter more stringent and place the City at more risk. Councilmember Lasman concurred and noted additional concerns relate to points mentioned by Mr. LeFevere in the memorandum. She indicated if a proceeding is dismissed, all parties/agencies in a condemnation action would have to be in agreement, which could be a disadvantage to the land owner and the City. She stated she also has reservations and hopes after the-Charter Commission reads the staff memorandum it will take under advisement the points made by the City Attorney. Councilmember Ryan noted much of the Charter Commission's proposed amendment language echoes language in present State Law, which takes precedence over the City Charter. He felt the proposed amendment would place administrative rules in the Charter, which seems to be redundant. Mr. LeFevere stated the first part of the proposed amendment is the definition of public use and public purpose and identical to the State Law so it is not legally necessary. However, if State law is changed at some point in the future to give the City greater power, this amendment would hold the City back. . Mr. LeFevere described the consideration of the Legislature when it severely restricted the ability of cities to use eminent domain in its 2006 amendment and the resulting impact. He explained that in cases where the City is doing a public project (i.e., street), the project is typically in the CIP and the City does not want to wait to complete a condemnation process so instead it uses a quitclaim process to get title of the property within 90 days and after that point the City cannot back out. Councilmember Ryan stated the final clause of the proposed Charter amendment could cause difficulties for the City under circumstances of taking property for a defined public purpose (road, right-of-way). Mr. LeFevere advised it could also be for a development such as to remediate a contaminated site. He described the process for such an undertaking with the 60-day limitation and how it would take away the power of the City to protect tax dollars. Councilmember Ryan stated his concern with the proposed Charter amendment language, finding it would tie the hands of this and future City Councils. Councilmember Myszkowski stated Members have already addressed the many difficulties with the proposed Charter amendment and she found that the State Statutes were restrictive enough. She indicated she had pondered the 60-day limitation, which perhaps offered to create a situation where the City would never consider eminent domain. Councilmember Myszkowski stated she found the amendment to be dangerous in many ways and hopes the Charter Commission is amenable to reconsidering. 03/26/12 -10- DRAFT Mayor Willson indicated the Charter Commission has every right to propose language to the City Council and if the City Council is unanimous in accepting the recommendation, the Charter is altered. However, if one Council Member does not support the recommended change to the Charter, the Charter Commission has every right to then put that question before the citizens for a vote at an election. Mayor Willson stated should that occur, he would prefer it dovetail with a general election. Mr. LeFevere advised the Charter Commission could be asked to consider the City Council's support to consider an amendment at the next general election to avoid the expense of a special election. Mayor Willson estimated it cost $10,000 412,000 to conduct a special election. Mr.Boganey confirmed the cost of the last special election was in that range. Councilmember Kleven stated she agrees with comments by other Members that the proposed Charter language is more restrictive than State law and she hopes the Charter Commission will reconsider and dismiss their amendment proposal. Mayor Willson stated at the previous City Council meeting, Charter Commission Chair Stan. Leino indicated he would ask the Charter Commission to meet earlier and would convey that the City Council was not comfortable with the language. Mr. Boganey advised the next Charter Commission meeting is scheduled for Thursday,April 12,2012. Councilmember Lasman moved and Councilmember Myszkowski seconded to accept the staff report regarding the effect of the Charter Commission proposed changes to the City Charter Section Chapter Nine, Eminent Domain, and direct that a copy of the report be provided the Charter Commission for its consideration. Motion passed unanimously. 10L (FORMERLY CONSENT AGENDA ITEM NO. 6C) RESOLUTION NO. 2012-51 ACCEPTING DONATIONS FOR THE CENTENNIAL MEMORIAL AMPHITHEATER AND ACCEPTING CONDITIONS. Mr.Boganey introduced the item and presented the language of the revised resolution. Councilmember Lasman moved and Councilmember Ryan seconded to adopt Resolution No. 2012-51 Accepting Donations for the Centennial Memorial Amphitheater and Accepting Conditions. Motion passed unanimously. 11. COUNCIL REPORT Councilmember Kleven reported on her attendance at the following: • March 15,2012,Art Show for District 281 • March 15, 2012,Planning Commission Meeting • . March 17, 2012, Third Annual Spelling Bee Judge for District 281 Elementary Schools 03/26/12 -11- DRAFT