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HomeMy WebLinkAbout2012 06-28 CHCA i CHARTER COMMISSION JUNE 28, 2012 Brooklyn Center, Minnesota City Hall Council/Commission Conference Room AGENDA 1 . Call to Order: 6:30 p.m. 2. Roll Call 3. Consideration of Minutes: June 13, 2012 4. Old Business a. Consideration of Chapter 9 Charter Amendment b. Consideration of Amendment to Adopt Ward System for City Council Seats 5. New Business a. Any new business? 6. Adjournment (Draft) MINUTES OF JUNE 13, 2012 BROOKLYN CENTER CHARTER COMMISSION MEETING Called to order by Chairman Stan Leino at 6:32 PM. Commissioner Lackner Removed: Chairman Leino announced that Secretary Brown had received a letter informing him that Commissioner Nathan Lackner had been removed as a Charter Commission member by the Chief Judge of the Fourth Judicial District, James T. Swenson, on June 8, 2012, for lack of attendance. Roll Call: Secretary Gary Brown called roll; Gary Brown, Stan Leino, Gail Ebert, Robert Marvin (arrived at 6:40), Ed Nelson, Mary O’Connor, Eileen Oslund, Eric Pone, and Mark Yelich were present. Excused Absence: Harold Middleton, Renita Whicker Absent: Ellen Davis and Bee Yang Consideration of Minutes: Motion by Pone, seconded by Yelich to approve minutes of May 10, 2012, approved unanimously 9-0. Old Business: Eminent Domain: City Attorney, Mr. Charlie LeFevere reported that the City Council did not approve the Commission’s proposed changes to Chapter 9, Eminent Domain. He suggested that there may be some middle ground between the City Council’s and Charter Commission’s positions. He then listed a number of issues that the proposed changes might impact the City’s Eminent Domain process (abatement of nuisances, partial takings and appraisals ahead of time). He suggested that the Commission could possibly follow the Federal guidelines as they relate to Uniform Relocation Act. He suggested that he could prepare a checklist of items for consideration by the Commission. A number of Commissioners asked questions of the City Attorney. Motion by Brown, seconded by Nelson, to direct the City Attorney to prepare a checklist for Charter Commission consideration at the next meeting, passed 8-1 with Pone voting nay. It was pointed out by the City Attorney that the City Council was obligated to phrase and put forward the question regarding Charter Commission’s proposed changes related to Eminent Domain to the voters. Motion by O’Connor, seconded by Yelich to strike the last sentence of 9.04, several members spoke in opposition to the motion until the City Attorney’s comments had been received. Motion to call the question by Yelich, seconded by Pone, approved unanimously 9-0. Motion was then voted on and was defeated 1-8 with O’Connor voting yea. Motion by Brown, seconded by Marvin to wait for City Attorney’s checklist offering “middle ground”, passed unanimously 9-0. Ward vs. At-large City Council Members: Several interested residents were then afforded time to speak to the issue by Chairman Leino: Former Mayor Phil Cohen, 5501 Humboldt Avenue N., suggested the Commission wait for more input and possibly hold a Public Hearing. Judy Thorbus, 6265 Brooklyn Drive, paper did not cover all of the issues, opposed to wards, likes the at-large system and thinks it works well. At-large is a safety net and she believes that City Council’s open microphone “Open Mike” gives residents an opportunity to be heard about issues. Tim Franklin, 6718 Bryant Ave. N., thanked the commission for their work thus far on the Ward vs. At-large issue. Ruby Dallas, 6419 Emerson Ave. N., feels strongly that residents are not represented by the at-large form of Council. She expressed concerns about representation of the diverse community. City Attorney, Charlie LeFevere, listed many pros and cons for both ward Councils and at-large Councils. He did not believe that there were many ward Councils of cities the size of Brooklyn Center. He believed that ward Councils were typically from larger communities. Commissioner Brown pointed out several communities that he had worked for that were considerably smaller than Brooklyn Center. LeFevere pointed out that a person running for City Council can finish second in an election and still be on the City Council. He did not believe that a ward system would have an impact upon the makeup of the City Council as demonstrated by an all female council just a few years ago. The City Attorney then informed the Charter Commission that any question being put before the voters had to be to the City Council by August 24, however the last City Council meeting prior to August 24 will be August 13, 2012. City Council Member Dan Ryan, 6442 Indiana Ave. N. stated that he had overriding concerns that voters will not understand the issue and that this change to the charter would add unnecessary administrative detail. He also spoke about the Chapter 9 proposed changes and that State Law supersedes the charter and the ways that (land) takings get paid for, would be impacted. Commission Member and subcommittee member Yelich passed out a revised Chapter 2 Ward vs. At-Large proposed Charter Changes which was then moved by Pone, seconded by Marvin for consideration. Yelich proposed a friendly amendment to remove Section 2.03d ANNUAL MEETINGS and then send to the City Council. Considerable discussion followed. Motion by Brown, seconded by Marvin, to call the question, motion passed unanimously 9-0. Original Motion was not carried as a result of 7 yeas and 2 nays (Nelson and O’Connor). Motion by Yelich, seconded by Marvin, to place on next Charter Commission Agenda, 7 yeas and 2 nays (Pone and O’Connor). th Future Meeting Dates: Next Meeting June 28 at 6:30 PM and the meeting immediately after to be held on July 26. Commissioner Nelson will no longer be on the Charter Commission as he has now served his last meeting since his tem ends on June 26, 2012. Secretary Brown directed to check to see if there were any commissioners who have three unexcused meetings in a row. Adjournment: Motion by Marvin, seconded by Yelich to adjourn at 9:38, approved 9-0. unanimously Submitted for consideration, Gary E. Brown, Secretary Charles L.LeFevere 'Kennedy 470 Bank Plaza So 200 South Sixth Street Minneapolis MN 55402 (612)337-9215 telephone Graven clefe 337-9310fax cl efevere(c_�kennedy-graven.com littp://www.kennedy-gi-aven.com CHARTERED MEMORANDUM Date: June 20, 2012 To: Brooklyn Center Charter Commission From: Charles LeFevere Re: Amendment to Brooklyn Center Charter, Chapter 9 At the last meeting of the Charter Commission, I offered to prepare a "checklist" of possible exceptions to the proposed prohibition against dismissing condemnation proceedings after 90 days. As I worked on the list, it appeared to me that it would be more efficient to prepare actual charter language for consideration by the Commission. Therefore, I have attached a proposed form of charter amendment for consideration by the Commission, a copy of which is attached. A few comments are in order. First, I have not made any changes other than changing the format of Section 9.01 and changes to Section 9.04. The attached draft authorizes the City to dismiss condemnation proceedings. However, it adds a general prohibition, as was proposed by the Charter Commission, against dismissing proceedings after 90 days. In the attached draft, there are a number of proposed exceptions to this limitation on the City's power to dismiss a condemnation action. As we discussed at the last meeting, there are two possible opposing positions. One would allow dismissal of any condemnation action, at any time, for any reason. The opposite position would prohibit dismissal of proceedings after 90 days under any circumstances. The first has the advantage of giving the City Council the greatest flexibility in protecting the public interest and preserving taxpayer dollars in cases where condemnation is no longer in the public interest because of changed conditions or newly discovered facts. The advantage of the second position is that it protects landowners from the uncertainty of knowing whether condemnation proceedings, once commenced,may be abandoned at a later date. 406265v1 CLL BR291-7 I Brooklyn Center Charter Commission Memorandum June 20,2012 Page 2 The attached amendment generally prohibits dismissal of proceedings after 90 days. However, it lists five exceptions for consideration by the Commission. The first exception is that the City would have the power to dismiss proceedings if the condemnation was not resulting in displacing any persons (which includes businesses). Therefore, in the case of vacant land, property that is occupied by trespassers with no legal right to be there, partial takings that did not involve displacement of residents or businesses, and the like. The Uniform Relocation Act and Minnesota Statutes, Section 117.52 provide relocation assistance, benefits, and payments for individuals and businesses that are displaced as a result of a condemnation. It is my understanding that it was the primary concern of the Charter Commission that people and businesses in these circumstances should be protected. Therefore, the first exception is that if there are no individuals or businesses displaced by the condemnation, the City would retain the right to dismiss proceedings, even after 90 days. The second exception relates to nuisances. One of the remaining circumstances under which state law allows a city to condemn property is if the property is a public nuisance. However, if,when the city is more than 90 days into a condemnation action,the nuisance is abated,there would be seem to be little reason to force the city to continue the condemnation action to completion and use taxpayer dollars to acquire property that was no longer a nuisance. The third exception relates to abandoned property. If property is being acquired because it is abandoned (which under state law also means that it is not being maintained and taxes have not been paid for at least two years), it would not seem to be in the public interest to force the city council to continue with a condemnation proceeding if the property is reoccupied, maintained, and taxes are paid. The fourth exception would allow the City Council to abandon a condemnation if abandonment was consented to by a person who would have been displaced by the condemnation. For example, if a resident would be put out of his or her home by a condemnation, and if that person would prefer to have the city dismiss the proceedings so they could stay in their home, this exception would allow them to do so rather than forcing the city to complete the condemnation and acquire the property. It should be noted that the situation in multi-tenant residential or multi-tenant commercial properties is more complicated. In such cases, there may be some tenants who wish to stay and some tenants who wish to be bought out and relocated. Obviously, it is not possible for both of these categories of tenants to be satisfied. The fourth exception would give the authority of any displaced person to consent to the abandonment of proceedings. This would favor those parties who did not wish to be displaced from their home or business over those who wished to have the city displace them and complete the condemnation process. It may be contrary to the original intent of the Charter Commission to require the City to complete condemnation to avoid the impact on landowners of the uncertainty of having their properties acquired. However, if the City Council does not wish to proceed with a condemnation, and some of the displaced persons would prefer to have the condemnation dismissed and remain in their homes or businesses, it may be that the better balance is achieved by allowing the dismissal rather than forcing the city to proceed and displace persons or businesses because other persons or businesses in multi-tenant situations wish to have the condemnation completed. 406265v1 CLLBR291-7 I Brooklyn Center Charter Commission Memorandum June 20,2012 Page 3 Finally, the fifth exception would allow the City to dismiss a condemnation if the purpose of the condemnation was to acquire and mitigate a contaminated area. The rationale for creating this exception is that if the City does not have the authority to dismiss a proceeding after 90 days, it may decide not to proceed with the condemnation because the potential costs and risks of being forced to complete the condemnation are too great. Examples of this were discussed at the last Commission meeting. There might be a case, for example, where the city was acquiring the property and had a contract with a developer to clean up the contamination and redevelop the property. If everything went as planned and the expenses were as anticipated, this might all be accomplished at a reasonably low expense for the city and could accomplish a significant increase in the protection of the public health. However, if it was later discovered (after 90 days) that the developer was out of business, that the cost of acquisition was too high for the project to be supported, or that the cost of remediation would be far in excess of what was expected, the city could find itself in a position of acquiring, and becoming responsible for, a very expensive piece of property that could not be cleaned up without an unacceptable expenditure of tax dollars. If the City Council decided not to pursue acquisition of property for a road widening, or city park, because of the risks of unforeseen costs, the City would probably not be greatly harmed. However, if the City Council was dissuaded from pursuing environmental cleanup because of the same risks, that could be much more contrary to the public health, safety and welfare. Therefore, I have suggested the acquisition of environmentally contaminated areas as an additional exception to the no-dismissal rule. As an additional protection to the public, I have added a public hearing requirement so that the City Council could not abandon the proceedings for condemnation of contaminated areas without a public hearing and without making findings justifying the dismissal of proceedings. Please let me know if you have any questions. CLL:peb 406265v1 CLL BR291-7 PROPOSED AMENDMENT TO THE BROOKLYN CENTER CITY CHARTER It is proposed by the Brooklyn Center Charter Commission that the Brooklyn Center City Charter, Chapter 9 be amended as follows: CHAPTER 9 EMINENT DOMAIN Section 9.01. POWER TO ACQUIRE PROPERTY. 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 any public use or purpose. Easements for slopes, fill, access, drainage, sewers, building lines, poles, wires, pipes, and conduits for water, gas heat, and power may be acquired by gift, devise, purchase, or condemnation in the manner provided by law. For purposes of this Chapter,"Public use"or"Public purpose"means exclusively: I. the possession, occupation, ownership and enjoyment of the land by the eg neral public, or by public agencies; 2. the creation or functioning of a public service corporation; or 3. mitigation of a blighted area, remediation of an environmentally contaminated area, reduction of abandoned property, or removal of a public nuisance. The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or a public purpose. Section 9.02. PROCEEDINGS IN ACQUIRING PROPERTY. The necessity of the taking of any property by the City shall be determined by the Council and shall be declared by a resolution which shall describe such property clearly and state the use to which it is to be devoted. In acquiring property by exercising the power of eminent domain, the City shall proceed according to the laws of this state, except as otherwise provided in this charter. Section 9.03. PAYMENT OF AWARD. The City shall, within seventy (70) days after the filing of the commissioner's report, or in the case of an appeal within forty-five (45) days after the final judgments or stipulations of settlement thereon, pay any award of damages allowed pursuant to this section and State law whether by the commissioners or upon appeal. 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. Section 9.04. CITY MAY DISMISS PROCEEDINGS. The City may dismiss all or part of the property being acquired in a condemnation proceeding so long as the dismissal is filed with the 406207v2 CLL BR291-7 I proper court prior to the expiration of the time for an appeal or before entry of judgment if an appeal has been taken. When the proceeding is dismissed, the City shall pay all reasonable costs and expenses incurred by the condemnee including attorney's fees. The City not dismiss a condemnation proceeding as to all or any part of a property later than 90 days after the adoption of the resolution required by Section 9.02; provided, however, that such 90-day limitation shall not apply in n any of the following g ases: 1. Acquisition that will not cause any person to be a displaced person, as those terms are defined in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 USC, Sections 4601 to 4655, as amended (the "Relocation Act"), or to be entitled to relocation assistance, services, payments or benefits under that Act or under Minnesota Statutes Section 117.52 as amended 2. Acquisition authorized by reason of a determination by the City Council that the property is a public nuisance as defined in Minnesota Statutes, Section 117.025, if the Council later determines that the acquisition is no longer in the public interest because the nuisance has been abated. 3. Acquisition authorized by reason of a determination by the City Council that the property is abandoned as defined in Minnesota Statutes Section 117.025 if the Council later determines that the acquisition is no longer in the public interest because the property occupied or the owner has made satisfactory plans for the property to be occupied and maintained. 4. Dismissal of the proceeding as to any property is in writing by any person who would be displaced by the acquisition of that property, as those terms are defined by Relocation Act. 5. Acquisition authorized by reason of a determination by the City Council that the property is in an environmentally contaminated area, as defined in Minnesota Statutes, Section 117.025, if the Council later makes a finding, following a public hearing with at least ten (10) days' published notice, that the estimated cost to the public of acquisition and remediation is not reasonably supportable or is too reg at to justify the benefit aig ned. Section 9.05. CITY MAY TAKE ENTIRE PLANT. If the City condemns a public utility which is operated at the time of the commencement of the condemnation proceedings as one property or one system, it shall not be necessary in the condemnation proceedings or any of the proceedings of the Council, to describe or treat separately the different kinds of property composing such system; but all of the property, lands articles, franchises, franchise values, and rights Rich comprise such system may, unless otherwise ordered by the court, be treated together as one property and an award the damages on condemnation. This does not prevent the City, when the plant and property are separable into distinct parts, from acquiring only such part or parts thereof as may be necessary in the public interest. [Underlining indicates new text.] 406207v2 CLL BR291-7 42 USC 4601. DEFINITIONS (5) The term "person"means any individual,partnership, corporation, or association. (6)(A) The term "displaced person' means, except as provided in subparagraph (B)— (i) any person who moves from real property, or moves his personal property from real property— (I) as a direct result of a written notice of intent to acquire or the acquisition of such real property in whole or in part for a program or project undertaken by a Federal agency or with Federal financial assistance; or (II) on which such person is a residential tenant or conducts a small business, a farm operation, or a business defined in paragraph 7(D), as a direct result of rehabilitation, demolition, or such other displacing activity as the lead agency may prescribe, under a program or project undertaken by a Federal agency or with Federal financial assistance in any case in which the head of the displacing agency determines that such displacement is permanent; and (ii) solely for the purposes of sections 4622(a) and (b) and 4625 of this title, any person who moves from real property, or moves his personal property from real property— (I) as a direct result of a written notice of intent to acquire or the acquisition of other real property, in whole or in part, on which such person conducts a business or farm operation, for a program or project undertaken by a Federal agency or with Federal financial assistance; or (II) as a direct result of rehabilitation, demolition, or such other displacing activity as the lead agency may prescribe, of other real property on which such person conducts a business or a farm operation, under a program or project undertaken by a Federal agency or with Federal financial assistance where the head of the displacing agency determines that such displacement is permanent. (B) The term"displaced person' does not include— (i) a person who has been determined, according to criteria established by the head of the lead agency,to be either in unlawful occupancy of the displacement dwelling or to have occupied such dwelling for the purpose of obtaining assistance under this chapter; (ii) in any case in which the displacing agency acquires property for a program or project, any person (other than a person who was an occupant of such property at the time it was acquired)who occupies such property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project. 406325v1 CLL BR291-7