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LAKE ELMO CITY COUNCIL MTG. - 5/3/83 Page six a consensus, my feeling is that it's better to let the courts decide. And maybe that's a cop-out but that's my feeling. Declaratory judgment or mandate - the City would decide to bring it to the court system —could I ask Ray? • Ray Marshall - No, that's correct. If you're talking about declaratory judgment procedure, the City commences that action in the district court requesting a declaratory judgment on the validity of their procedure. • Mazarra - My feeling is that beyond anyone's doubt that this will certainly clear up the issue --for the railroad, the home owners, and for the people on the City Council; and it will make the decision that what we did was either valid or not valid and what our next step is. There are some risks in taking that approach, but that's my feeling. e Eder - On the issue of the defect, I think that the action taken by the Council on April 5 had some question of defect but there was not the total answer as to whether there was or wasn't a defect. And I think the Council acted generally by trying to evaluate the merits of the case, and at this point there may or may not be a defect; I don't know how that's totally going to be proven. But I think we made a conscious effort to look at the merits of the case and to look at what was in the Comprehensive Plan, to try and evaluate whether or not this particular use met established zoning ordinances of the City of Lake Elmo, whether it's fortunate or unfortunate, at least in my opinion and at least from information given to us, acted in good faith on that rezoning and made some very long-term commitments. It's a little different than if we issued someone a building permit and then they start building a house and then we have to solve it if there's some error in the technical aspects of it. I wish there was a way we could settle all the arguments simultaneously, but it appears that we can't unfortunately. I guess I'm generally in favor of at least putting the burden --and I don't like to do this personally but I'm looking at it as a public official for the best interests of the community as a whole --on those seven property owners to justify that the notice does invalidate the actual rezoning of the land and that the merits of the case do not warrant sufficiently that that defect not be considered for example. That's my position. • Gordon Moosbrugger, Attorney - Mr. Mayor, I don't want to talk to the merits of this issue but since you don't have a motion on the floor... ® Eder - I'm waiting for a motion. MIS Morgan/Dunn that the City Council declare that the Council acted without jurisdiction to change the zoning on the Hutchinson property because no notice was mailed to the adjoining property owners to inform them of the public hearing at the Planning Commission. That the petition for rezoning be sent back to the Planning Commission and Zoning Commission so that a legal public hearing can be held pursuant to the Ordinance. That the action of the Council in approving the rezoning is null and void because the ordinance was not followed and notices not mailed to the property owners. o Eder - One of the things that this Council is going to have to do is that when the zoning code was adopted, and I don't know the precise time, it uses just one word for a phrase in the State statute; and when I read it when the question came up, I interpreted it that any bona fide attempt or if people were aware