HomeMy WebLinkAbout02/10/1992 Council Minutes (2)1
CLOSED COUNCIL SESSION FEBRUARY 10, 1992
CITY OF LINO LAKES
COUNCIL MINUTES
DATE : February 10, 1992
TIME STARTED 5:35 P.M.
TIME ENDED 6:`37 P.M.
MEMBERS PRESENT: Reinert, Neal, Kuether, Elliott, Bergeson!
MEMBERS ABSENT None
Staff members present: City Engineer, Darrell Schneider; City
Attorney, Bill Hawkins; City Administrator, Randy Schumacher and
Clerk - Treasurer Marilyn Anderson. Mr. Thomas J. Radio of Popham,
Haik, Schnobrich & Kaufman, LTD. was also present. He has been
appointed by the City's insurance carrier to represent the City
in this litigation.
The purpose of the meeting was to discuss the Ron Birch, Lake
Amelia Estates litigation.
Mr. Schumacher explained that he has met with Mr. Radio and has
presented all the material on the Amelia Lake Estates development
to him. Mr. Radio introduced himself to the City Council and
noted that he is also a city attorney for another municipality
and is familiar with all facets of municipal litigation.
Mr. Radio explained that the city and several individual Council
Members have been served in this matter. An answer to the
lawsuit was filed as well as a petition to move the litigation to
Federal District Court. Mr. Radio felt that Federal Judges are
usually more conservative and this may benefit the City.
Mr. Birch's lawsuit is based upon four (4) claims. The claims
are: 1) denial of rezoning is arbitrary and capricious, 2)
constitutes taking of property without just compensation, 3)
violation of constitutional rights, and 4) the "implied
moratorium" is illegal and unauthorized.
Mr. Radio said that the focus of the litigation is on the claim
that the denial of the rezone is arbitrary and capricious. He
noted that the property was zoned R -X at the time Mr. Birch
purchased the property and his major claim is that there is no
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rational basis to deny the rezone to Planned Unit Development
(PUD). He may also say that he invested a great deal of time and
money into the development based on the representations of the
former City Planner and maybe even the former Mayor. Mr. Radio
also explained that the City Council did not provide any actual
basis to deny the petition for rezoning. However, if the
existing zoning is appropriate, it is up to the landowner to
prove his request for a rezone is accurate.
Mr. Radio presented a draft of a resolution which sets out the
reasons that form the basis for the Council denial of the request
for the rezone. He also explained that he did not understand why
Mr. Birch was required to go through the two (2) step program for
rezoning to PUD. Mr. Schumacher explained that the current City
Code does not allow property zoned R -X to be rezoned to such a
high density as allowed in the PUD. Mr. Radio also explained
that the Council did deny a request for an Environmental
Assessment Worksheet. He felt that this may be a problem.
There was discussion regarding a rumor that Mr. Birch defaulted
on his purchase agreement and may not have owned the property as
of January 1, 1992. Mr. Radio said he hoped Mr. Birch still owns
the property. If not, he could say that the City caused him
undue problems in its development that he had to default.
Mr. Radio suggested that he send a brief written discovery, ask
for documents, and file a summary judgement of dismissal of the
claim. If the summary judgement is approved, the claim of
"taking ", violation of constitutional rights and damages will be
taken out of the litigation. This means that the City will not
be responsible for punitive damages or attorneys fees. In
addition, the Federal Judge will remand the litigation to the
Anoka State Court. Insurance coverage may also be dropped at
this point. Mr. Hawkins explained that if this occurs, the City
will continue to retain Mr. Radio and his law firm as in other
recent litigations.
Mr. Radio asked if there were grounds for settlement of the
litigation before any further actions or costs were incurred. He
expressed concern regarding how the former City Planner will
testify in this matter. He was the professional although staff
action is not binding on the City Council. Mr. Radio noted that
he had spoken with Mr. Birch's attorney. It appears that Mr.
Birch is not in the business of starting lawsuits and is serious
about this case.
Mr. Radio explained that matters such as this can take six (6)
months to two (2) years to resolve. Such action is a disruption
of City life, does not get the best press and the City may not
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win. He suggested that open dialogue be started to resolve the
issue. He noted that the findings of fact presented in the draft
resolution will need support. Mr. Radio asked if the City would
leave the door open for negotiation and if the City would be
willing to rezone the land to PUD.
Mayor Reinert said he had hoped that all parties would sit down
and negotiate an agreement. Now that the litigation has begun,
it appears that Mr. Birch is not interested in negotiation.
Mayor Reinert felt that the area residents should have a part in
the agreement.
Mr. Radio explained that neighborhood complaints cannot form the
entire basis for denial and he did not recommend bringing
neighbors to the negotiating table. He did suggest that there
may be other ways to meet with the neighbors, however, there may
be no common ground in this matter. Mr. Radio said that
ultimately, the judge may require the neighbors to sit down with
the developer.
Mr. Radio explained again that Mr. Birch has sued the City and
the City should decide now whether or not it wishes to avoid
Federal Court. If the matter proceeds, there will be a trial
before a jury. Mr. Birch has asked for damages and if he wins,
all his expenses will be paid by the City.
Mayor Reinert suggested delaying action on this matter noting
that Mr. Birch does stand some risk of losing this litigation.
Mr. Radio explained that he would file a discovery motion and it
will cost Mr. Birch some money to respond. However, Mr. Radio
explained that if the City and Mr. Birch are close to a
settlement, this is the opportunity to settle without incurring
more costs.
Mr. Hawkins explained that he felt the issue with the neighbors
was density. Mr. Schumacher explained that Mr. Birch has
proposed to develop using the "cluster" development. The density
probably would not be much more than what is allowed in the
present zoning.
Mr. Radio said that it appears that the City Council is telling
him to proceed. He will continue communicating with the City
Council through the City Administrator.
The draft resolution will be presented to the City Council under
Old Business during the regular meeting this evening.
The closed session was adjourned at 6:37 P.M.
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These minutes were considered, corrected and approved by the City
Council at a regular meeting held on June__1-2- 1995.
a i1 G. Anderson,
Clerk Treasurer
Vernon F. Reinert,
Mayor
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