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HomeMy WebLinkAbout07/25/1994 Council Minutes1 CLOSED CITY COUNCIL MEETING CITY OF LINO LAKES COUNCIL MINUTES JULY 25, 1994 DATE . TIME STARTED • TIME ENDED• MEMBERS PRESENT• MEMBERS ABSENT July 25, 1994 5:10 P.M. 6:47 P.M. Reinert, Neal, Kuether, Elliott, Bergeson None Staff Members present: Acting City Attorney, Barry Sullivan; City Administrator, Randy Schumacher and Clerk -Treasurer Marilyn Anderson. Attorney Jim Golembeck from the League of Minnesota Insurance Trust was also present. The purpose of the closed meeting was to discuss a recent proposal received from the Reshanau Park Estates Homeowners Association (RPEHA) regarding the use of two (2) outlots. The RPEHA proposal had been given to the City Council prior to the meeting. Mr. Schumacher explained that the trial date for this litigation has been set for August 15, 1994. He noted that the last time this matter was discussed by the City Council, he was directed to see if a settlement could be reached prior to the trial. Mr. Golembeck explained that he is representing Lino Lakes through the League of Minnesota Insurance Trust. Originally, the RPEHA had sued the City for everything possible. The City has presented motions for summary judgements on several of the issues, and the summary judgements were not granted. The City had also presented a request for a restraining order to keep the RPEHA from using the boat launch. The restraining order was not granted. Mr. Golembeck noted that every judge involved in this matter has not taken a "light" view of the case and has requested that the matter be settled before the trial begins. Mr. Golembeck said he wanted the City Council to be aware of all the facts and also his opinion. He noted that Mr. John Miller, former City Planner has testified against the City saying that it was his understanding that the outlots were approved for recreational use. PAGE 1 CLOSED CITY COUNCIL MEETING JULY 25, 1994 Mr. Golembeck said it is his opinion that if the matter goes to trail, the judge will rule in favor of the RPEHA. It appears that the judge feels that the City is using a "heavy hand" in the matter. Mr. Golembeck further noted that during the consideration of the final plat, the City Council directed the City Attorney to review the RPEHA's by-laws. Why would the City do this when the by-laws affect only the operation of the association? This action is being interpreted as the City's attempt to determine the use of the outlots. Mr. Sullivan said it could be argued that the City always reviews by-laws. There is testimony from Mr. Miller that the outlots are in a flood plain and cannot be used for residential purposes. Since the RPEHA wanted to use the outlots, they did not plead a "taking" claim. Mr. Golembeck explained that the destruction of the boat launch does not look good for the City. If the matter goes to a jury and it is a fact that people took action to deprive the RPEHA of their rights, the City may be required to pay the RPEHA attorneys fees. Mr. Golembeck also noted that if the actions of the persons who destroyed the boat launch can be associated with the City, the City may not be covered by insurance. Mr. Golembeck noted that every judge in the matter has "implored" settlement. He explained that if the City can draft a suitable settlement, the City will retain control in the matter. However, if the matter goes to trial, the final outcome will be out of the control of the City. If the RPEHA loses the case, they will appeal. Mayor Reinert said that the RPEHA has never exercised their right to apply for a rezone of the two (2) outlots so that they could be used for something other than residential. Mr. Golembeck said that the RPEHA feels that they were granted a right to use the outlots for recreational purposes when the final plat was approved and they do not have to get any other approvals from the City. Mayor Reinert referred to the most recent settlement proposal and said that there were many issues in the proposal that needed to be refined. He said his position remains the same, the RPEHA should apply for a rezone of the property and go through the proper channels for approval. Council Member Kuether said they feel that they would have to go through the Planning and Zoning Board process and the actions of the chairman of board would indicate that they would not get anywhere with a proposal. Mr. PAGE 2 1 1 1 1 1 1 CLOSED CITY COUNCIL MEETING JULY 25, 1994 Sullivan said that if the RPEHA applied for a rezone, that would be an admission that they did not have permission to use the outlots as they now feel they can. Mayor Reinert noted that if any other person or group wanted to use the outlots, they would have to apply for a rezone. Council Member Bergeson explained that the RPEHA has always contended that the use of the outlots is not an accessory use. Mr. Golembeck again stated that if the City offers a settlement, the City would have control over the future use of the outlots. However, if the matter goes to court, a judge will have control over the use of the outlots. Mayor Reinert said that if the RPEHA got together with the other home owners association on the lake, a workable solution could be found. Council Member Bergeson asked if the City agreed to a particular settlement and gave up some control of the outlots, what would the RPEHA give up? Mr. Golembeck explained that the City must draft a response to the proposal submitted by the RPEHA. Council Member Bergeson noted that there is not much time and asked would the trial continue if the RPEHA and the City are in the process of working out an agreement. Mr. Golembeck explained that the court would put the matter in obeyance. Mayor Reinert said his opinion is that the process for remedy of the situation has always been available to the RPEHA. Mr. Golembeck suggested that the City Council draft a response to the RPEHA proposal that is more restrictive than their proposal and make the approval contingent to the process (Planning and Zoning review and public hearing). Mayor Reinert said that the process should include a review of the impact to the lake, size of boat motors, etc. He also felt that the people who live around the lake should have some input into the process since the request for a rezoning would impact their property values. Mr. Sullivan explained that the RPEHA must apply for a PDO rezone and go through the normal process. Mayor Reinert asked if the RPEHA were violators of the City Zoning Ordinance. Mr. Schumacher said that the City Zoning Ordinance requires a principal building on a lot before accessory uses can be considered. These are residential lots and this provision does apply. Council Member Bergeson asked if at the time of final plat approval, the City Attorney took the position that the lots were zoned R-1 and no accessory use could be approved until a PDO was PAGE 3 CLOSED CITY COUNCIL MEETING JULY 25, 1994 approved, why did the City Council ask to review the by-laws of the RPEHA? Mr. Sullivan said that at the time the final plat was approved, the developer did not have any plans for the two (2) lots. Mr. Sullivan again outlined the possible outcome for the City Council: 1) go to trial and if the City does loses, the RPEHA will be able to use the lots as outlined by the judge; and 2) the City will be responsible for payment of legal fees for the RPEHA. There is also a damage claim pending. However, since the RPEHA has been using the outlots, this claim should not be substantial. Mr. Golembeck explained that there is no way to tell how the judge will rule on the lots if the City does not win in court. He suggested that the City Council direct Mr. Brixius to prepare a proposal that outlines restrictive conditions. The proposal could be distributed to the City Council by Mr. Schumacher. Mayor Reinert said that if the City Council decides to go in this direction, the proposal should make it clear that the RPEHA must come before the Planning and Zoning Board and follow the entire process. Mr. Golembeck said that the City will include "due process" in the proposal. Council Member Kuether noted that if the City Council instructs Mr. Brixius to prepare a proposal with restrictive conditions, and the RPEHA follows the process and applies for a PDO, the City Council will be obligated to approve the proposal. Mayor Reinert said that the RPEHA should have applied for a PDO rezone in the beginning and all of this litigation could have been avoided. Council Member Elliott explained that the RPEHA felt that they could not get a fair hearing. She said that Mr. Golembeck's proposal was a good idea. Council Member Neal said he did not agree, the RPEHA violated the Zoning Ordinance. Mr. Golembeck explained that if the City Council directs Mr. Brixius to prepare a proposal and the RPEHA applies for a PDO and goes through the process, the City Council would agree to the proposal. The provisions of the proposal would be recorded on each of the parcels in the Reshanau Parks Estates subdivision. The recording will insure that all future owners of the outlots are aware of the restrictions on the two (2) outlots. Council Member Elliott asked if the matter is settled as Mr. Golembeck's suggests, and later.there is a violation of the settlement agreement, who prosecutes the violators. It was explained that the Police Department would issue tickets and the matter would go to court. Mr. Schumacher asked if the City submitted a proposal with PAGE 4 1 1 1 1 CLOSED CITY COUNCIL MEETING JULY 25, 1994 restrictions and the RPEHA turns down the proposal, will this help the City in the court proceedings? Mr. Sullivan said he felt it would help with the judge, but may not impress a jury Mayor Reinert said he felt it is unfortunate that he and Mr. Bergeson live on the lake. If the City Council follows through with Mr. Golembeck's proposal, it will appear that the matter is being handled behind closed doors and the people who are most impacted will feel slighted. Council Member Elliott felt the City Council should go forward with Mr. Golembeck's proposal and take the matter to the Planning and Zoning Board and go through the public hearing process. The people who are impacted can give input into the matter at that time. Council Member Bergeson said, suppose that the City Council proceeds with Mr. Golembeck's proposal and during the public hearing, pressure is exerted by the residents around the lake. Mr. Golembeck said that the City Council should act on what is right, not necessarily what the those residents want. Mayor Reinert asked if the City ordinances have been violated by the RPEHA. Mr. Sullivan said yes. Mr. Golembeck explained the issue is accessory use versus primary use. Mayor Reinert asked if it is the advice of the attorney to draft something that violates the Zoning Ordinance. Mr. Golembeck said no, the RPEHA must apply for a PDO zoning and the restrictions would be included in the zoning. Council Member Elliott felt if the City Council did not go through this process, the judge may not make the RPEHA go through the process but just grant them full use of the lots without restrictions. Council Member Bergeson asked if the City Council could require that the RPEHA discontinue the violations before the City Council considers a proposal? Mr. Schumacher noted that making the RPEHA take out the boat launch and restore the outlots to the original condition would mean that both parties would be starting on an even plain. Mr. Sullivan said that this suggestion could be considered. It was generally agreed that the Council would direct Mr. Brixius to prepare a proposal to the RPEHA that would contain all the restrictions that the City would want imposed when granting a PDO zoning. The RPEHA would have to apply for the PDO rezoning and go through the normal process outlined in the Zoning Ordinance. The City will also ask that the outlots be returned to their original condition prior to any negotiations regarding restrictions to be included in the PDO approval. The closed meeting adjourned at 6:47 P.M. PAGE 5 CLOSED CITY COUNCIL MEETING JULY 25, 1994 These minutes were considered, corrected and approved at a regular meeting of the City Council on June 12, 1995, 1994. MarilynC$. Anderson, Vernon F. Reinert, Clerk -Treasurer Mayor PAGE 6 1