HomeMy WebLinkAboutCity Council Minutes 07-23-2002 Special 2Adopted Minutes
Special Council Meeting
July 23, 2002
A Special Meeting of the Plymouth City Council was called to order by Mayor Tierney at
8:45 p.m. in the Council Chambers, 3400 Plymouth Boulevard, on July 23, 2002.
COUNCIL PRESENT: Mayor Tierney, Councilmembers Hewitt, Harstad, Slavik, Stein
and Johnson
ABSENT: Councilmember Black.
STAFF PRESENT: City Manager Johnson, Public Works Director Faulkner, Planning
Manager Senness, Finance Director Hahn, Police Chief Gerdes, City Attorney Scott, and
City Clerk Paulson.
City Attorney Scott stated there would be two separate hearings this evening regarding
relocation benefits for Richard and Janice Pickering (3 03 0 Highway 10 1) and James and
Evelyn Anderson (17915 30th Place). He explained these were two properties that were
purchased by the City for the reconstruction of County Road 101. He stated the
Pickerings and Andersons have filed claims with the City for relocation benefits. The
City reviewed the claims at the staff level, and the City Manager denied eligibility. He
noted that with his correspondence dated July 15 to the Council, copies of the denial of
claims for relocation benefits for both parties were included, and the denial of claims is
what is being appealed.
He explained the basis for the City's denial is that the owners voluntarily conveyed the
properties to the City. Therefore, if the City didn't purchase and condemn the properties,
the claimants would've remained in their homes. He stated if there is a voluntary
conveyance of property, with. no threat of condemnation, and if one complies with the
rules which is what the City did, there is no entitlement of relocation benefits. He stated
the Council is strictly addressing the eligibility issue and whether the claimants are
eligible for relocation benefits. He stated after the hearings have been conducted for both
claimants, staff is recommending that the Council not decide the issue this evening, but
have staff review and submit findings for the next regular Council meeting.
Councilmember Harstad asked if the claims were determined to be frivolous in nature,
could the City seek reimbursement of legal fees. City Attorney Scott replied no.
Councilmember Harstad asked if the City could counter claim for those discrepancies and
code violations found with each of the properties. City Attorney Scott replied that isn't
part of this evening's hearings. He reiterated that the Council is only to determine if
there is any eligibility for relocation benefits. If the Council were to determine that the
claimants are entitled to relocation benefits, staff would determine what relocation
benefits the claimants would be entitled to.
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Special Meeting of July 23, 2002
Page 2 of 10
Councilmember Johnson asked if it was correct that the City wasn't requiring the
claimants to sell their properties, and if either claimant chose not to sell their property,
the City wouldn't have proceeded with condemnation proceedings. City Attorney Scott
stated that is correct.
Hearing on Appeal by Richard and Janice Pickering of Denial of Claim for
Relocation Benefits
Attorney Kurt Schnitker, from Schnitker and Associates, stated he is representing both
claimants. In addition, on a separate matter, he is also representing Diane Archer who
was a tenant of the Pickerings. He explained that his firm represents individuals who are
displaced by governmental agencies. He recited sections from the URA (Uniform
Relocation Act) and State law, and in his opinion, the City erred in not providing
relocation benefits to the claimants. He stated if this had been a Minnesota Department
of Transportation project, the claimants would've received full market value as well as
full relocation benefits. He stated these claims are about equitable treatment and the need
to treat people fairly.
He stated the City Attorney is relying his opinion on the Federal regulations for voluntary
sales. However, Minnesota Statutes 117.52 states that if a person voluntarily sells and
waives their relocation rights, there would be certain obligations by the seller. This law
applies to non -Federal agencies, which is what the City is. He stated a waiver agreement
must be signed, and it must describe the types of relocation benefits being waived (for
example, moving expenses, mortgage differential and housing replacements). In
addition, there needs to be a statement that indicates that the sale of the property is
voluntary, and there isn't a threat of eminent domain. Prior to the execution of the
agreement, this must be explained to the property owner/tenant. He stated the Pickerings
had no agreement, but the Andersons did. However, the Anderson's agreement didn't
state the types and amounts being waived. He believes that the City knew there were
certain relocation benefits, and because the claimants didn't know the benefits that were
available to them, they couldn't decide whether or not they would decide to sell the
property.
He stated another matter is due process, and he has provided written legal arguments. He
stated in summary, when a person relocates as a result of government purchasing their
property, they are entitled to a hearing before an administrative hearing officer.
Therefore, they object to the Council serving as the administrative hearing officer
because they were involved with the project. He recited five cases to the Council that
pertain to the role of the hearing officer. The hearing must be fair and be before an
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Special Meeting of July 23, 2002
Page 3 of 10
impartial hearing officer. He explained if this were a Minnesota Department of
Transportation's case, there would've been an administrative hearing judge.
He stressed that this hearing is their due process or "day in court." Any appeal from this
proceeding would be given to the Court of Appeals. He stated a tape recording of these
proceedings is not sufficient; therefore, he has hired a stenographer.
He indicated that his correspondence dated July 17 wasn't included in the Council
materials. He believes that the City should pay the claimants' out-of-pocket expenses
including stenographer and attorney costs.
Councilmember Stein asked City Attorney Scott to explain why the Council is an
appropriate body to conduct the hearings.
City Attorney Scott stated he disagrees with Mr. Schnitker's interpretation of the law.
The City would follow State Statutes, as there are no Federal funds involved with the
County Road 101 project. He stated the State law states that a property owner and/or
displaced person will be provided with relocation benefits for federally funded projects.
He stressed that this is a voluntary transfer of the property, which means the claimants
aren't entitled to relocation benefits under the Federal rules. In addition, the Federal rules
contain no language regarding a hearing officer. He stated the Council would be making
a quasi-judicial decision. He stated Mr. Schnitker has highlighted cases were cities and
economic development authorities have chosen to utilize a hearing officer. Under the
Federal procedural rules, it states that the hearing is conducted by the agency. He stated
it's his position that the City is required to conduct this hearing, as the City can't delegate
their quasi-judicial authority. He indicated that regarding the document that the
Pickerings signed, there was no waiver language contained in the document for relocation
benefits, as they weren't eligible for the benefits.
Councilmember Johnson commented that the City allowed the Pickerings to remain in
their homes, as tenants, until September 21, 2001.
City Attorney Scott stated that there are no disputed facts, but the dispute is between him
and Mr. Schnitker.
Mr. Schnitker spoke of the difference between Federal and State rules and noted that in
the Federal rules, the defendant can't serve as the hearing officer. He also spoke of the
definition of a displaced person according to State law. He stated under all
circumstances, anyone would be eligible for relocation benefits if one occupies the
property and needs to move.
i
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1 Special Meeting of July 23, 2002
Page 4 of 10
Mr. Schnitker started to discuss the Diane Archer claim, but City Attorney Scott
reminded him that the Council is not discussing that claim this evening.
Hearing on Appeal by Richard and Janice Pickerine of Denial of Claim for
Relocation Benefits
Mayor Tierney opened the public hearing for the claim of Richard and Janice Pickering.
City Attorney Scott stressed that the Council had no involvement with the initial
determination of relocation benefits for the claimants.
Councilmember Stein requested there be a short recess before proceeding with the
witnesses. The Council conducted a break from 10:00 p.m. to 10:12 p.m.
Mr. Schnitker asked the Council if they believe that they have any conflict of interest in
this matter to make a fair and impartial decision.
Councilmember Stein replied no.
Mr. Schnitker asked if there have been any discussions regarding this matter with the
City Attorney outside of this hearing to discuss this case.
Mayor Tierney replied the Council has been acting accordingly under the direction of the
City Attorney.
Richard Pickering, 17283 182nd Avenue, Big Lake, stated he has resided at this address
for 10 months. He previously resided in the City at 3030 County Road 101 North, from
1982 to 2001. He stated he relocated as the City purchased his property. He had no
intention of selling his property before the City approached him. He stated he moved
because there was construction of a four -lane highway in front of his residence. This
project affected his property because the County desired a portion of his property for the
project. He stated they desired approximately 35 feet of his front yard, which would've
brought the road very close to his front door. This would've degraded the value of his
property. He noted that this roadway was previously a two-lane highway. He stated he
has no studies, but one reasonably assumes that when a two-lane roadway is increased to
four lanes, there would be an increase in the amount of traffic. He received
correspondence from the County indicating their intent to utilize eminent domain to
obtain that portion of his property if it wasn't worked out another way. He stated the City
worked with him, and he received letters from the City stating that they would be willing
Adopted Council Minutes
1 Special Meeting of July 23, 2002
Page 5 of 10
to purchase his property. It was his understanding that it was a joint City/County project.
He stated eventually they sold their property to the City.
Mr. Schnitker asked if the City provided him with relocation services. Mr. Pickering
replied no. He stated no payments or benefits were provided to him, and relocation rights
were never explained to him. He stated he never waived any rights to relocation benefits.
He noted there was a clause in the original sales contract that the City proposed, but he
didn't feel that clause was appropriate. Therefore, he proposed a redraft of the purchase
agreement deleting that clause. He intentionally omitted that clause in the purchase
agreement he presented to the City. He stated he has read State Statutes 117.52, and
regardless on how one is displaced, you are eligible for relocation benefits.
Mayor Tierney asked Mr. Pickering if he knew that he was voluntarily selling his
property to the City. Mr. Pickering replied yes. He understood that to mean that he was
willing to sell his property if the City made him an offer. He stated he knew that the front
portion of his property would be condemned if he didn't sell his property.
Mayor Tierney asked Mr. Pickering if he knew that he could repurchase his property.
Mr. Pickering replied no.
Mayor Tierney asked Mr. Pickering if he felt he received fair market value for his
property. Mr. Pickering replied yes. He added that he was willing to sell the property to
the City under the terms of the purchase agreement that didn't contain the waiver. He
stated he was unsure as to what the waiver implied at the time.
Councilmember Slavik asked Mr. Pickering if he recalled correspondence that he wrote
to her regarding the increase in noise from traffic on County Road 101. She stated there
were also complaints made to the Police Department. Mr. Pickering replied that he
recalled the noise was getting a bit too much.
Councilmember Johnson referred to correspondence from SHE, consulting engineer for
the project, for berming along the right -of --way as well as correspondence to the former
Public Works Director. She stated Mr. Pickering had the option of berming or selling his
property to the City. Mr. Pickering stated that he made the choice to sell his property to
the City. He added that the agreement with the City was that the property could be sold
in May 2001 so the City could have ownership of the property at the beginning of the
project.
Councilmember Johnson asked Mr. Pickering if he was told by the City that they had to
leave their home or could they occupy the home for a period of time. Mr. Pickering
replied the City informed them they could stay there until September, and this was his
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1 Special Meeting of July 23, 2002
Page 6 of 10
choice. Therefore, he rented the property from May 2001 to September 2001 from the
City.
Councilmember Johnson asked Mr. Pickering if it was his choice to sell the property.
Mr. Pickering replied yes, or the other option would've been to condemn the front 35 feet
of his property.
Councilmember Hewitt noted that Mr. Pickering had removed the clause relating to
relocation benefits from the original purchase agreement. Mr. Pickering stated that is
correct, as he didn't feel the language fit the structure. He stated the City made a
proposal and offer, and he made a counter offer. He stated he didn't understand the
language, but subsequently he had conversed with an appraiser, and he indicated that they
would be eligible for relocation benefits. He was then referred to an attorney. All this
took place after he signed the purchase agreement with the City. He stated he didn't want
to waive something that he didn't understand.
Councilmember Harstad asked Mr. Pickering if he listed his property prior to selling it to
the City. Mr. Pickering replied no.
Councilmember Harstad stated the County Road 101 project is a County project.
Therefore, the City doesn't manage right-of-way acquisition. He asked Mr. Pickering if
the County made him an offer for the 35 feet of his property so he could still retain his
home. Mr. Pickering replied no.
Councilmember Harstad asked Mr. Pickering at the time of the move if he was a renter of
the property. Mr. Pickering replied yes.
Councilmember Harstad asked Mr. Pickering how there could be a hardship with this
process since there were three appraisals on his property, with the City paying the
highest, and it was negotiated. Mr. Pickering replied he doesn't see there is a relationship
between what the Council thinks and what he thinks is a fair price for the property. He
stated this is irrelevant with the relocation benefits from being displaced.
Councilmember Harstad noted there were letters sent to every affected property owner
along the project. Mr. Pickering was one of eight property owners that approached the
City.
Mr. Pickering stated he was forced to move, he had expenses, and it cost him time. He
stressed that if a person is displaced, the party who caused the displacement is
responsible for relocation benefits.
Adopted Council Minutes
Special Meeting of July 23, 2002
Page 7 of 10
Councilmember Johnson noted correspondence received from Mr. Pickering indicating
his eagerness to sell his property. Mr. Pickering provided the appraisals and information
on the price of his home. He also contacted the City's former Public Works Director.
Therefore, she questioned at what point did the City cause harm to Mr. Pickering.
Mr. Schnitker objected to the comments.
City Attorney Scott stated this was a voluntary move, and Mr. Schnitker's position is that
Mr. Pickering was required to move. He stated this was a voluntary sale, and the City has
a legal argument.
Mr. Pickering acknowledged that the City has treated him fairly in regard to the purchase
price of the property, but he hasn't been treated fairly and legally regarding the relocation
benefits.
Mayor Tierney asked Mr. Pickering why he deleted the waiver language in the purchase
agreement, and whether he believed he could be entitled to benefits in the future.
Mr. Pickering replied he deleted the language because he didn't understand it. He didn't
understand what he would or would not be waiving.
Mayor Tierney asked Mr. Pickering what he feels he is entitled to. Mr. Pickering replied
he is unsure.
Mr. Schnitker stated if the City would've followed State Statutes originally, there would
be no claim on behalf of the claimants.
Councilmember Stein asked Mr. Pickering when he decided to utilize a standard real
estate purchase agreement, did he look into the waiver. Mr. Pickering replied no.
Councilmember Slavik reiterated she was contacted numerous occasions by the
Pickerings regarding the noise monitoring, sale of their property, etc., and she worked
very diligently in addressing those issues. She noted that there is nothing personal
against the Pickerings.
By request of City Attorney Scott, Mayor Tierney granted a 10 minute recess from 10:55
p.m. to 11:05p.m.
Mr. Schnitker stated this concluded the Pickering testimony.
Adopted Council Minutes
1 Special Meeting of July 23, 2002
Page 8 of 10
Motion was made by Councilmember Johnson, and seconded by Councilmember
Harstad, to direct staff to review the materials and prepare proposed findings for the
August 13 Council meeting. With all members voting in favor, the motion carried.
Hearing on Appeal by James and Evelyn Anderson of Denial of Claim for
Relocation Benefits
Evelyn Anderson, 137 Summit Avenue, Loretto, stated she previously resided at 17915
30th Place for 27 years. She noted that she enjoyed living there until there was the Fisher
Pond development. She stated the fence from that development bounced all the noise and
exhaust fumes to their home. She stated County Road 101 was a two-lane roadway, and
they were willing to sell their property to the City. She stated when they were informed
that the roadway was going to change to a four -lane with two bike paths, they would need
to disclose this information to any potential buyer. Therefore, they were willing to sell
their property to the City, and they agreed to a good offer from the City. She stated
recently she learned that there was a waiver of relocation benefits as part of the purchase
agreement. When they were approached with the option to sell their home, the issues
surrounding their home would be the responsibility of the City. She indicated that they
were concerned about water drainage closer to their home with the new roadway and the
exhaust fumes. She stated she and her husband have had health problems, but they are
unsure if it is related to the exhaust fumes. They never noticed the amount of exhaust
fumes until they retired. Regarding the relocation benefits, they were never informed that
they were eligible, what they involved, or the amount of benefits. She stated if relocation
benefits would've been provided to them, they wouldn't have assisted them. She noted
they had items in storage, and her children assisted her in moving as her spouse is
disabled. She stated when they were first informed of the proposed reconstruction
project, they were totally opposed to it, as they knew that someone would need to
purchase some of their property. She indicated that they heard the term eminent domain,
and they didn't want to be involved with a court process, so they felt it was easier to sell
their property to the City. She stated they contacted the County and indicated their
opposition to the project, and the County suggested constructing a berm. She noted that
the berm would prohibit her from accessing her backyard via a vehicle. She indicated her
love for the City and stated the trees were to assist in buffering the noise, but they didn't.
She stated they had very limited options.
City Attorney Scott asked Ms. Anderson if they had an attorney represent them. Ms.
Anderson replied yes, but he didn't advise them on the purchase agreement.
City Attorney Scott asked Ms. Anderson if she understood that they didn't have to sell
their property to the City. Ms. Anderson replied yes, but there would've been eminent
domain proceedings from the County.
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Special Meeting of July 23, 2002
Page 9 of 10
Ms. Anderson stated it wasn't until this evening that they were informed that the City had
resold their properties. She stated under the conditions that they were living, with the
noise, exhaust fumes, and cancer scare, she doesn't feel they had any other choice, and
they made the smartest choice in the end.
Councilmember Johnson asked Ms. Anderson if the City forced them to sell their
property. Ms. Anderson replied no.
Councilmember Johnson asked Ms. Anderson if she had the expectation for the City to
explain relocation rights. Ms. Anderson replied why would the purchase agreement
contain this language if there wasn't the intent to discuss it. She admitted that her
previous attorney made a mistake.
Mayor Tierney asked Ms. Anderson if she believes she is entitled to some type of rights
and services regarding relocation benefits. Ms. Anderson replied no. She stated no one
has informed her. She stated perhaps it was bad judgment on her part to sign the waiver.
She stated it would've been better to have face-to-face contact with the City or the
County.
Councilmember Johnson commented that neither claimant this evening has indicated
what they feel they are deserving of.
Mr. Schnitker stated it takes a considerable amount of staff's time to determine the
benefits. He stated the only issue before the Council this evening is eligibility.
City Attorney Scott stated the City's position is not based on any waiver. He stated there
was no eligibility as there was a voluntary transfer of property. He stated mentioned
those documents that were being made part of the official record for the Andersons: Mr.
Schnitker also included a July 17 letter from his firm as part of the official record.
Mr. Schnitker stated their request is that the Council determines whether the Pickerings
and Andersons are eligible for relocation benefits. If they are determined to be eligible,
the City hires consultants. He requested that future claims regarding these matters are
processed reasonably as well as relocation of the administrative hearing. He stated one of
the issues that has been discussed this, evening is would the claimants have sold their
properties whether they would've been explained their relocation benefits. He stressed
that they were never explained what the rights and benefits would be. He stated if they
didn't sell their properties to the City, the County would've condemned their properties,
and there would've been some type of severance. He stated the claimants' positions are
based on State Statutes 117.52.
Adopted Council Minutes
l Special Meeting of July 23, 2002
Page 10 of 10
Motion was made by Councilmember Harstad, and seconded by Councilmember Hewitt,
to direct staff to review the materials and prepare proposed findings for the August 13
Council meeting. With all members voting in favor, the motion carried.
Adiournment
Motion was made by Councilmember Slavik, and seconded by Councilmember Stein, to
adjourn the meeting at 11:40 p.m. With all mem ers voting in favpq the motion carried.
Sandra R. Paulson, City Clerk