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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 PAGE 1 7/-z3 CLOSED COUNCIL SESSION FEBRUARY 10, 1992 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 PAGE 2 1 CLOSED COUNCIL SESSION FEBRUARY 10, 1992 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. PAGE 3 7/-0 CLOSED COUNCIL SESSION FEBRUARY 10, 1992 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 PAGE 4 1