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HomeMy WebLinkAbout2012 07-26 CHCA CHARTER COMMISSION JULY 26, 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 28, 2012 4. Old Business a. Consideration of Chapter 9 Charter Amendment 5. New Business a. Any new business? b. Next Meeting 6. Adjournment (Draft)MINUTES OF JUNE28, 2012 BROOKLYN CENTER CHARTER COMMISSION MEETING Called to order by Chairman Stan Leino at 6:30PM. Roll Call: Secretary Gary Brown called roll:Gary Brown, Ellen Davis (arrived at 7:47), Mark Goodell, Stan Leino, Robert Marvin,Harold Middleton, Mary O’Connor, Eileen Oslund, Eric Pone, Bee Yang and Mark Yelich were present. Excused Absence:Gail Ebert Absent:Renita Whicker Consideration of Minutes: Motion by Yelich, seconded by Marvin to approve minutes of June 13, 2012, approved unanimously 10-0. Old Business: Considerationof Amendment to Adopt Ward System for City Council SeatsChairman Leino invited residents who desired to address the charter commission to speak: th Michael Parks, 3218 64Ave. N., indicated he had a problem with the city’s at-large council representation because he believed that the at-large representation was illegal according to previous federal court cases. Dan Ryan, 6442 Indiana Ave.,(Council Member), indicated that Parks had made several allegations regarding the legality of the at-large system presently in place in Brooklyn Center as well as many other cities, should be addressed by the city attorney. He indicated that he felt that the minorities were spread throughout the city and the premise of non representation was not founded. Former Mayor Phil Cohen, 5501 Humboldt Avenue N., does not like the fact that if we changed to ward system he could only vote for 25% of the council. He believes that the demographics should be checked.He felt that Park’s proposal dilutes the representation. Chairman Leino then closed the meeting for citizen input and opened commission discussion; Pone disagreed with all three citizens, against bi-polar government-African Americans are not invited to the table (to be elected), wants more people to believe they can run and be elected to the city council. Leino doesn’t want to change for change sake but wants citizen’s to decide. Goodell: How does at-large system create barriers to access to the council? Pone wants to make council bigger and representation more “local”. Marvin wants council members more responsive to the citizens. Middleton is concerned about proximity of council members to each other. Marvin feels Parks’ letter is not relevant. Brown stated thatall of the townships in Minnesota and Wisconsin are elected at large, Parks’ points are not valid. Oslund asked if we know if voters vote for people running for council in the same geographic area that they livein? Dan Ryan then added that lines on a map do not generate more people voting. Yelich passed around the updated proposed changes to the charter. He stated that he was concerned about the cost of making the changes, that this was a significant undertaking, household incomes were low in Brooklyn Center, and that it was hard to find enough time to run for council. He further pointed out the city’s goal of cultural diversity and that many people do not vote for two candidates even though they can to make sure theircandidate is elected. Motion by Yelich that Charter Commission send the issue to the council for consideration.Brown offered a friendly amendment to the motion to pass a resolution asking the city councilto put on the ballotthis fall as we know what the city council’s position is, seconded by Marvin.Pone does not feel the proposed changes go far enough. Motion fails 8-2 with O’Connorand Goodell opposing passage (requires two thirds of entirecommission for passage). Eminent Domain:Dan Ryan asked why Charter Commission has this as an issueas he does not see a problem?Where is the mischief to be remedied? He then read a statement. Commissioner Brown asked Ryan if he would be willing to offer an ordinance to deal with the commission’sconcerns? Ryan indicated that he could not speak for the entire council but would be willing to offer the ordinance to the council for consideration. Mayor Cohen pointed out where the city council has made several good uses of eminent domain. Marvin did not agree that these were good uses. Commissioner EllenDavis arrived to the meeting. Goodell asked the Chair to give an overview of the issuewhich the Chairman Leino did. Davis thinks that 60 days is more than enough time. Marvin does not like the indefinite length of time. O’Connor stated a concern that the city is forced to purchase the property within 90 days the way the current verbiage is written. Pone will not support any condemnation amendments and that elected officials are just presenting excuses. Oslund concerned about two issues going to the voters. Middleton stated that citizens cannot comprehend these complicated issues. Goodell there are many variables but he is not opposed to eminent domain. ChairmanLeino asked for a motion. Yelich state that general public does not see eminent domain as a tool. Motion by Marvin, seconded by Pone,to consider amendments one by one. Motion passed 10-1 with Leino voting nay. Motion by Brown, seconded by Middleton to not make any changes to Chapter 9.Motion passed 10-1 with Yelich voting nay. Motion by Yelich, seconded by Marvin to amend Chapter 2 for Charter Changes that would allow Council Members to be elected by Ward versus At-large and pass onto Brooklyn Center City Council for a vote on the ballot this fall. Motion by Pone, seconded by Marvin, to call the question, passes 11-0. Original motion then voted on, and passes 9-2 with O’Connor and Goodell voting nay. Motion passes with required 2/3 majority. Future Meeting Dates: Next meeting July 26, 2012. Adjournment: Motion to adjournat 8:49PMbyYelich seconded by Brown, passed 11-0. Submitted for consideration, Gary E. Brown, Secretary courts, interpreting and applying language different from Minnesota's statute and rule. These A property owner appeals from a district court's approval of a quicx-taicc owner ague authorities have no persuasive Unless a cause of thee,these nces in the language a court order provides ee, that the chool di trict did not demonstrateelementary he necessity oof acquiring The he land and that the quick- e.g.,Fed.R Civ.P 5 O( ) erwise,costs—other than attorney's fees should be allowed to the prevailing party."):Haw.R. take procedure was not warranted.We affirm. Civ.P.54(d)(1)("[e]xcept when express provision therefor is made either in a statute or in these FACTS rules, costs shall be allowed as of course to the prevailing party unless the court otherwise Independent School District No. 709(hereinafter"the school district") recently planned and i directs"). built a new elementary school in the city of Duluth,which is called Piedmont Elementary School. In sum,we conclude that the district court correctly determined that it did not have discretion In�� during the planning stage. the school district sought to purchase land owned by Scott to deny Hannon's application for costs and disbursements based on Dukowitz's in forma paupers Kuiti that is adjacent to he property on which the school building was being built.In November status or in consideration of the financial hardship that might be caused.Thus,the district court ?010,the school board passed a resolution approving the acquisition of land owned by Kuiti. In did not err by awarding costs and disbursements in favor of Hannon as the prevailing party. December 2010, Kuiti transferred the land to a limited liability company named Silver Eagle DECISION Properties,LLC.Negotiations between the school district and Silver Eagle concerning a purchase Because Dukowitz did not state a viable claim for wrongful discharge,and because the district di n not result in February 011 the chool district notified Kuiti and Silver Eagle of its intent to acquire some court properly awarded costs and disbursements to Hannon,we affirm. of Silver Eagle's property through eminent domain.In March 2011,the school district petitioned Affirmed. the district court for the condemnation of a 15,247 square-foot(approximately.35 of an acre)par- cel of Silver Eagle's land.The four-sided parcel is west and north of the new school building.It is bounded on the north by Ensign Street,on the east by school property,and on the south and the west by a shopping center.The school district's petition states that the land will be used for pur- • poses of slope, grade.parking and access to"the new school.The petition sought title and pos- the statutory quick-take procedure.See Minn.Star. 117.042(2010). This opinion will be unpublished and session of the land through rnav not be cited except as provided by Silver Eagle opposed the condemnation. Minn.Stat. §480A.08,subd.3(2010). The case was tried to the district court in May 2011.The school district called one witness, STATE OF MINNESOTA Kerry Leider,its property and risk manager.Leider testified that acquisition of the land identified in the petition is necessary for semi-trailer trucks to properly access the school's loading dock, IN COURT OF APPEALS for the construction of retaining wal ls to manage the land's natural slope,for school gardens rclat- A11-1350 ed to educational programs,for parking,and for student recesses.On cross-examination,Leider testified that it was unclear whether the land ultimately would be used for additional parking. In the Matter of the Condemnation of Certain Land for Silver Eagle called two witnesses.Vernon Swing,a traffic engineer,testified that the school dis- Purposes of Construction of Public School Facilities fed hat he haloecently seen semi-trailer er trucksea semi-trailer the schools loading rdock by driving sin Independent School District#709,petitioner. Respondent, reverse across school property. vs. In June 2011,the district court issued an order and memorandum in which it awarded the school Silver Eagle Properties,LLC,et al., district title to the land, on a quick-take basis, and awarded Silver Eagle compensation of Appellants, 576,200.Silver Eagle appeals. Wells Fargo Bank,N.A.,et al., DECISION Respondents Below. I. u Filed July 9,2012 Silver Eagle argues that the district court erred by finding that the condemnation of its proper- Filed Affirmed ty was necessary. 'tu Johnson,Chief Judge "Private property shall not be taken,destroyed or damaged for public use without just compen- su cation therefor,first paid or secured:'Minn.Const.art.I,§ 13."The first step in condemnation P-1 St.Louis County District Court cases is to determine whether a project has a valid public purpose or public use.The next step in the analysis is[to determine] whether the taking is reasonably necessary to further that public purpose' d)1 In ardistnct court act on, the petition801 o N.W.2d 160, 164(Minn.2011)en o File No.69DU-CV-11-781 f p ernmcntal agency has the burden of David e Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for proving that a taking is necessary.Regents of Univ.o Minn..t:Chicago&N.IV Transp.Co.,552 respondent) _ N.W.2d 578,580(Minn.App. 1996),review denied(Minn.Nov.20, 1996).The determinations Charles H.Andresen,Andresen&Butterworth,P.A.,Duluth,Minnesota(for appellants) of a condemning authority on these questions are deemed"legislative decisions,"which will be Considered and decided by Johnson,Chief Judge;Chutich,Judge;and Crippen,Judge.* power Ass'ri 707 NhW 2d 376 381 (Mi nl 2006)(quo�ationomiotted)cwhLundell h eans capric'ous- Retired judge of the Minnesota Court of Appeals,serving by appointment pursuant to Minn.Const.art.VI,§ 10. — ly,irrationally,and without basis in law or under conditions which do not authorize or permit the exercise of the asserted power,"Itasca Cnty.v. Carpenter,602 N.W.2d 887,889-90(Minn.App. UNPUBLISHED OPINION 1999)(quotation omitted).This court applies a clearly erroneous standard of review to a district JOHNSON,Chief Judge(Hon.John E.Desanto,District Court Judge) court's determination of necessity.Lundell,707 N.W.2d at 381. MINNESOTA LAWYER APPELLATE COURTS EDITION A-14■JUIV 16,2012 Co urt of Ap ------ Silver Eagle's Property was Silver Eagle also argues that the district court erred by permitting the school district to utilize whether the condemnation of some Of Eagle argues that the school dis- The main issue in this case is .on of the new school building."[Tjhe requisite necessity fora ns.More specifically,Silver Eag d for the land. necessary to complete construct' her,it is enough to find that th e statute s ck take"prov1s10 show that it has an immediate nee purpose is not absolute necessity,rat t did not present any evidence to accomplish a public pu trio domain proceedings contemplates that the district court taking to accor Wng is reasonably necessary or convenient for the furtherance of a proper pur- he statutory scheme for eminent assess and award dam- the proposed t; n omitted). "To overcome a con- "T ssity for the taking and then appoint commissioners to asse pose" Kettleson, 80 1 N­W.2d at 167.(quotations and alteration evidence that the taking is determine the nece 589, 590(Minn. 1990);see ages:'Alexandria Lake Area Serv. Region v. Johnson, 295 N.W.2d . dem' ding of necessity there must be overwhelming e alternatives to the 0 s required to award ning authority's fin .075,subd.2(2010).In that event,the commissionen 0 The mere suggestions of possible 117.085(20 10).The not necessary'.Lundell,707 N.W.2d at 381.' 00 -of arbitrariness."Id. (quotation also Minn.Stat.§ 117 with the district court.Minn.Stat.§ I not in itself support a finding damages and file a report of the award condemning authority's plan will process by which a petitioner may acquire title to proper omitted)- access supported its general finding of necessity by determining that the school dis- statutes also provide for an alternative proc eport of the award. Minn. Stat. §§ ty through condemnation before commissioners file a r The district c developing what it reasonably asserts is a proper and safe access for 117.042,.043 file0d.'UCiryf quiteative is limited to cases in which the condemn- trict"has definite plans for develo rading."The district court further found that the school me that it needs the property before the commissioners' definite and ing authority ca "reonably deterrit 191 N.W6n980is sufficiently Wurtele, -delivery trucks as well as sloping and g green space 0 uc for en awcould be of Minneapolis v "plan for as a reso environmental learning ation that a quick take district's green district court determined that­[t1hc plan for possibly apply a clearly erroneous standard of review to a district court's determin capable of fruition in the near future." purpose:'but the district court explained that is appropriate.See Lundell,707 N.W.2d at 383. . edit needs the developing parking is a speculative and indefinite . . -reasonably determined 0. V In this case,the district court found that the school district the school district's petition. project before the beginning of the 2011-2012 school year." ty is not fatal to necessity.The school dis- land this uncertain, finding of property to complete the Piedmont school district needed to acquire the The evidence presented at trial supports the district court's f Z n the school supported by Leider's testimony that the d a specific plan for the land owned by Silver Eagle,which is reflected i is to man- This finding is suPP n up the new school by September 2011.He testified that trio articulated In addition,Leider testified that it is necessary to build retaining walls by late May or June')0 11 in order to open 0 board's resolu allow semi-trailer trucks to properly access the school's loading the retaining walls already had been delayed for seven or eight months.Silver Eagle offered no age the land's natural slope,to , and to provide outdoor space for student recess- Is time frame.for development. dock,to create gardens for educational purposes'' the matter of access evidence relevant to the school district ranting the school district's request for quick-take F aspect of Leider's testimony, Thus,the district court did not clearly err by ga es.Silver Eagle's witnesses focused only on one Silver Eagle did not present any evidence about slope and grading to the school's loading dock,S mv dock,Silver Eagle attempted to establish only that it is possi- acquisition. issues.With respect to the load , ool's load dock without the condemnation of Affirmed. ble for a semi-trailer truck to bac�k up to the sch 0 its property: this argument is undermined by the testimony of Silver Eagle's own witness.On . testified that, without condemnation, a semi-trailer truck inevitably cross-examination, Swing tcs,,i -In addition.such a maneuver would cross a portion of Silver Eagle's property while backing up might endanger school children who might be on the school's driveway.The district court reject- fivew that the district court's evidence.Silver Eagle has failed to persuade this court ed silver Eagle's finding is clearly erroneous. Silver Eagle relies on the opinion in Regents,in which the district court denied the University of MinneZta's petition to condemn a 30-acre tract of land. 552 N.W.2d at 579. This court the ground that the University had failed to prove necessity.Id. at affirmed the district court on include the property on its master plan for campus 581. We noted that the University did not in "and had not determined a approved a single project for the property, development had"not yet af 580. Some University officials testified that land time frame for developing the property. Id. at spoke of a-potentially indefinite" ze two to seven�ears.but another official at the reclamation would tak iversity would develop the land. Id. This court concluded th. period of time before the Un University could not acquire the land through co lan condemnation for"speculative future use(stockpil- schoo p ,out- 1 district n this cs articulate a ing):'Id.Unlike the Regents case,however,the . time im frae foar e completind g the• project. recke lined specific uses for the land,and established a p )urposes of the condemnation.See passed a resolution that identified the f See id.The school board pass 1,271 274(Minn. 1990)(reasoning that council Citv of Pipesione v.Halbers?na,194 N.W.2d 27 complish idence taking as a means reasonably necessary to ac olution is-prima facie ev I airport).The school res' e hool district also established a precise schedule [public]use"to expand municipal airpo condemnation in March 1011 based on its plans for its project.The school district petitioned for condemn to open the new school in September 2011.Our conclLsion is not affected by the fact that e e Leider may not be necessary.Evn if th testified on cross-examination that additional parking may or parking spaces on the relatively small parcel that was school district does not create additional par, , it has established that the condemnation is necessary. hv condemnation, . . ,_ 'h,whool,district's condemnation