03-27-2013 Council Agenda - Laserfiche WebLink

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ATTACHMENT #7 Joel, The City has the authority to vacate the improved and unimproved rights of way (Minn. Stat. § 412.851). When vacating an easement the city acts in its legislative capacity. Therefore, its decision to vacate would only be set aside if a Court determined that the city acted arbitrarily and capriciously against the best interest of the public. Kangas v. Blueberry Township, 264 N.W.2d 389 (Minn. 1978); Rader v. Eastside Township, C3 -87 -744 (unpublished opinion). The term "Public" encompasses a larger area than the immediate neighborhood. The City Council should be able to conclude that its action is in the best interest of the city. In this particular case, the developer will stub a dedicated street to accommodate the future development on adjacent property. There is no guarantee that the City would not be sued by the adjacent neighborhood if it approves this particular development but I am confident that the City would prevail in litigation. If you have any questions, please feel free to contact Mr. Filla. Shelli Akers Legal Assistant to Attorney Jerome P. Filla Kelly & Lemmons, P.A. Joel, Generally, in regard to land use matters, the City Council makes either legislative or administrative decisions. A legislative decision, as the name implies, is one that determines the scope and operation of City government. When a city decides to construct a road or utility system, it is making a legislative decision. It is unlikely that in Court would overturn a legislative decision of the city. An administrative decision involves the application of laws that have been adopted by the city to development proposals that are presented to the city. If the application is in compliance with the city's regulations, the council must approve the application. If the application is not in compliance the city council must indicate why it is not in compliance and deny the application. The proposal submitted by Pine Tree Pond requires the City to make both a legislative and an administrative decision. The legislative decision involves the vacation of the unimproved right of way. The City can determine where to construct roads or other improvements within the City. This decision would probably not be overturned by a reviewing Court. The application also involves administrative decision, i.e. does the application comply with the City standards. If the application is compliant it should be approved. If it is not compliant the City should state its reason for denying the request for plat approval. If you have any questions, please feel free to contact Mr. Filla. Shelli Akers Legal Assistant to Attorney Jerome P. Filla Kelly & Lemmons, P.A. 30