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HomeMy WebLinkAboutAgenda Packets - 2005/10/03CITY OF MOUNDS VIEW SPECIAL CITY COUNCIL MEETING AGENDA MOUNDS VIEW CITY HALL Monday, October 3, 2005 6:00 p.m. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL: Marty, Stigney, Gunn, Flaherty, Thomas 4. APPROVAL OF AGENDA 5. PUBLIC INPUT: Citizens may speak to issues not on tonight’s agenda. Before speaking, please give your full name and address for the minutes. Also, please limit your comments to three minutes. 6. SPECIAL ORDER OF BUSINESS - NONE 7. JUST AND CORRECT CLAIMS - NONE 8. COUNCIL BUSINESS A. Executive Session at 6pm to discuss potential litigation. This Special City Council Meeting will commence after this Executive Session. B. Consideration of a Resolution 6649 Concerning the Sufficiency of a Referendum Petition pursuant to City Charter. C. Review of Deed from State of Minnesota and Consideration of Resolution Subdividing Parcel to be Conveyed for Project. D. Consideration and Review of Lease Between City and Clear Channel for Billboard Sites; Review and Consideration of Leases between Medtronic and Clear Channel and an Assignment of Rents to the City for Existing Billboard Sites at The Bridges. E. Consideration of License Granting Access Rights Over a Parcel of City Land for a Fire Road and Access to Billboard Sites. (staff report will not be ready until Friday) F. Consideration of License Granting Post-Closing Access to The Bridges of Mounds View Golf Course Site to the City for the Winding Down of Golf Course Operations and Preparation and Conducting of an Auction of City Assets. G. Review and Consideration of Personal Property and City Assets Associated with Golf Course Operations and the Potential Transfer of Assets at the Time of Closing. H. Miscellaneous Issues Associated with the Closing and Transfer of The Bridges of Mounds View Golf Course to Medtronic. 9. CONSENT AGENDA - NONE 10. APPROVAL OF MINUTES - NONE 11. REPORTS - NONE A. Reports of Mayor and Council B. Reports of Staff C. Reports of City Attorney 12. Next Council Work Session: (New Brighton City Hall) Monday, November 7, 2005 Next Council Meeting: (New Brighton City Hall) Monday, October 10, 2005 Item No: 8B Meeting Date: October 3, 2005 Type of Business: Special Session City of Mounds View Staff Report To: Honorable Mayor and City Council From: Kurt Ulrich, City Administrator Item Title/Subject: Resolution 6649 Approving the Sufficiency of Petition in Opposition of Ordinance 760, an Ordinance Authorizing Disposal by Sale of Real Property Owned by the City of Mounds View to the Mounds View Economic Development Authority Background: On Monday, August 15, 2005, staff proceeded with determining the validity of the petition against Ordinance 760, an Ordinance Authorizing the Disposal by Sale of Real Property owned by the City of Mounds View to the Mounds View Economic Development Authority. On August 22, 2005, the City Council adopted Resolution 6608, determining that the referendum petition was insufficient, finding the referendum question invalid, and declaring that such question shall not be certified for a special election. According to 5.02 of the City Charter it states: Section 5.02. General Provisions for Petitions. A petition provided for under this chapter shall be sponsored by a committee of five registered voters of the City whose names and addresses shall appear on the petition. A petition may consist of one or more papers, but each separately circulated paper shall contain at its head, or attached thereto, the information specified in sections 5.05, 5.07 or 5.08 which apply, respectively, to initiative, referendum and recall. Each signer shall be a registered voter of the City and shall sign their name and give their street address. Each separate page of the petition shall have appended to it a certificate by the circulator, verified by oath, that each signature appended thereto was made in their presence and that the circulator believes them to be the genuine signature of the person whose name it purports to be. The person making the certificate shall be a resident of the City and registered to vote. In order to validate the petition, staff developed a database to track each resident that signed the petition. Each resident was checked on the Ramsey County Registered Voter Master List. This list contains all registered voters in the City of Mounds View. After this was completed, Staff checked all determined Non-Registered voters on the Minnesota Statewide Voter Registration System. This system is updated daily, and has the most updated information on registered voters. Names were rejected if they had the incorrect or missing address, incorrect or missing year of birth, illegible names, or if they were not registered. Subsequent review of the rejected names that were challenged by the petition committee revealed that twenty-five of the names were valid based upon information provided on the petition. The primary cause of these errors was the incorrect transfer of names from the petition to the electronic database. Discussion: Original petition numbers: Resubmitted Petition Numbers: Number of Signatures: 1,193 Number of Signatures: 1,220 Non-Registered Voters: 214 Non-Registered Voters: 192 Number of Illegible Signatures Number of Illegible Signatures Duplicates and Invalid 34 Duplicates and Invalid 31 Number of Registered Voters: 945 Number of Registered Voters: 997 The petition needed 989 signatures in order for it to be a sufficient petition. According to Section 5.03 of the City Charter it states: Section 5.03. Determination of Sufficiency. The committee shall file the completed petition in the office of the Clerk-Administrator. The required number of signers shall be at least fifteen percent for initiative and referendum, and for recall, at least twenty-five percent of the total number of electors who cast their votes for president at the last presidential election. Immediately upon receipt of the petition, the Clerk-Administrator shall examine the petition as to its sufficiency and report to the Council within ten days. Upon receiving the report, the Council shall determine by resolution the sufficiency of the petition. The last presidential election was in 2004, and 6,597 residents cast their votes. Fifteen percent of 6,597 is 989.55. After the initial Council findings, the petition was resubmitted on September 26, 2005, under the following Charter provision: Section 5.04. Disposition of Insufficient or Irregular Petition. If the Council determines that the petition is insufficient or irregular, the Clerk-Administrator shall deliver a copy of the petition, together with a written statement of its defects, to the sponsoring committee. The committee shall have thirty days in which to file additional signature papers and/or to correct the petition in all other particulars, except that, in the case of a petition for recall, the committee may not change the statement of the grounds on which the recall is sought. Within five days of receipt of the corrected petition, the Clerk-Administrator shall again report to the Council. If the Council finds that the petition is still insufficient or irregular, the Clerk-Administrator shall file the petition and notify the sponsoring committee. The final finding that the petition is insufficient or irregular shall not prejudice the filing of a new petition for the same purpose, nor shall it prevent the Council from referring the subject matter of the petition to the voters at the next regular or special election. In accordance with the Mounds View City Charter, additional signatures were submitted on September 26, 2005, regarding the petition for a referendum in the amount of 41 signatures, bringing the total number of signatures submitted regarding the petition for a referendum to a total of 997 signatures. Therefore, the petition initially submitted on August 15, 2005, and supplemented on September 26, 2005, requesting a vote as to the adoption of Ordinance No. 760, does include the requisite number of signatures required pursuant to the Mounds View City Charter. However, based upon the an opinion from the City Attorney (dated August 11, 2005), attached as Exhibit A, it is recommended that the City Council find that the question posed in such referendum petition be found invalid and that the question not be placed on the ballot of a future City special election. Upon Council action, the City will inform the petitioners of the findings of the City Council in regard to the referendum petition. Recommendation: It is recommended that the City Council consider and adopt the attached Resolution 6649, determining the sufficiency of referendum petition pursuant to City Charter, providing for the disposition of said petition, finding the referendum question invalid; and declaring that such question shall not be certified for a special election. RESOLUTION NO. 6649 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION DETERMINING THE SUFFICIENCY OF REFERENDUM PETITION PURSUANT TO CITY CHARTER; PROVIDING FOR THE DISPOSITION OF SAID PETITION; FINDING THE REFERENDUM QUESTION INVALID; AND DECLARING THAT SUCH QUESTION SHALL NOT BE CERTIFIED FOR A SPECIAL ELECTION WHEREAS, Section 5.07 of the Mounds View City Charter provides that an ordinance adopted by the City Council may be subjected to a petition for a referendum prior to the date when the ordinance takes effect; and WHEREAS, the City Council adopted Ordinance No. 760 which was scheduled to take effect on August 19, 2005, pursuant to the Mounds View City Charter; and WHEREAS, pursuant to Chapter 5 of the Mounds View City Charter a petition for a referendum as to Ordinance No. 760 has been received by the City; and WHEREAS, pursuant to the Mounds View City Charter, City staff previously reviewed and determined that the petition submitted to the City was insufficient because the number of valid signatures submitted was less than the required number; and WHEREAS, the referendum petition seeks a vote as to the final adoption of Ordinance No. 760 which authorizes the sale of real property by the City of Mounds View to the Mounds View Economic Development Authority; and WHEREAS, the City Council has received an opinion from the City Attorney which is attached and set forth as Exhibit A to this resolution and incorporated herein by reference; and WHEREAS, it is the opinion of the City Attorney that an ordinance dealing with the sale of land is an administrative act (among other reasons) of the City Council that is not subject to referendum pursuant to Minnesota law; and WHEREAS, the City Council previously adopted Resolution No. 6608, wherein the City Council determined the sufficiency of referendum petition pursuant to the Mounds View City Charter, provided for the disposition of said petition, found that the referendum question was invalid, and declared that such question should not be certified for a special election; and WHEREAS, pursuant to the Mounds View City Charter, additional signatures were submitted on September 26, 2005, regarding the petition for a referendum to a total of 997 valid signatures. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Mounds View that the recitals set forth above are hereby incorporated into and made a part of this Resolution as if fully set forth herein; and BE IT FURTHER RESOLVED, that the City Council of the City of Mounds View hereby finds the petition initially submitted on August 15, 2005, and supplemented on September 26, 2005, requesting a vote as to the adoption of Ordinance No. 760 to include the requisite number of signatures required pursuant to the Mounds View City Charter; and BE IT FURTHER RESOLVED, the City Council hereby finds that the question posed in such referendum petition is manifestly invalid; and BE IT FURTHER RESOLVED, the City Council hereby finds that the question posed in such referendum petition will not be placed on the ballot of a future City special election; and NOW THEREFORE BE IT FINALLY RESOLVED, that City staff is authorized to take all necessary action consistent with the City Charter and State law to inform the petitioners of the findings of the City Council as to the referendum petition submitted concerning Ordinance No. 760. Approved by the City Council of the City of Mounds View this 26th day of September, 2005. ___________________________________ Rob Marty, Mayor ATTEST: ___________________________________ Kurt Ulrich, City Administrator (seal) EXHIBIT A OPINION OF MOUNDS VIEW CITY ATTORNEY Kennedy 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 & Graven (612) 337-9300 telephone (612) 337-9310 fax http://www.kennedy-graven.com sriggs@kennedy-graven.com C H A R T E R E D M E M O R A N D U M DATE: August 11, 2005 TO: Mounds View City Council Kurt Ulrich, City Administrator FROM: Mary D. Tietjen Scott J. Riggs RE: Transfer of Property from City to EDA Referendum Issues This memorandum addresses the legal issues related to a potential referendum challenging the transfer of property from the City of Mounds View (“City”) to the Mounds View Economic Development Authority (“EDA”) for the Medtronic Development Project (“Project”). A key question is whether the City Council would have legal grounds to deny a referendum petition on the sale of the property and adopt a Resolution authorizing and finalizing the transaction. In my opinion, the City Council has a sufficient legal grounds to do both. Factual Background On July 11, 2005, the Mounds View City Council adopted Ordinance No. 760 authorizing the conveyance of certain property from the City to the EDA. The EDA intends to subsequently convey the property to Medtronic, Inc., for development and construction of an 820,000 square foot office complex pursuant to a purchase agreement and a contract for development between the City, the EDA and Medtronic. Residents have threatened to challenge the City’s conveyance of property for the Project pursuant to the power of referendum under Section 5.01 of the City Charter.1 1 Section 5.01 reads: “The people of Mounds View reserve to themselves the powers in accordance Legal Issues I. Is the conveyance of property a legislative act subject to referendum? II. May the City authorize conveyance of the property under Minnesota Statutes sections 471.64 and 465.035, without regard to city charter provisions? III. Does Minnesota Statutes Chapter 462 preempt the city charter referendum provision? Legal Discussion The following are legal arguments that would support a finding by the City Council to deny a petition for referendum on the sale of the property. I. The Conveyance of Property is Not a Legislative Act Subject to Referendum. The power of referendum is limited to acts which are legislative in character. Hanson v. City of Granite Falls, 529 N.W.2d 485, 487 (Minn. Ct. App. 1995)(citing Oakman v. City of Eveleth, 203 N.W. 514 (1925). To determine whether an ordinance is legislative and subject to a referendum, the courts have distinguished between legislative, administrative and quasi-judicial acts of a city. Id. at 488. In the Oakman case, a taxpayer sought to require the city to hold a referendum on an ordinance authorizing the settlement of a lawsuit against the city. The court found that the ordinance did not enact a law, but was instead the exercise of an administrative function: We think the measure is one that calls for investigation and discretion, and, if such matters are not to be met and handled as a part of the daily routine of business of a municipality, but must be submitted to the people to make a law for each controversy that may arise, we are drifting from the ideals of representative government. In fact, the theory of initiative and referendum was directed at supposed evils of legislation alone . . . To allow a referendum to be invoked in order to delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city. Oakman, 203 N.W. at 517 (emphasis added). The Oakman court also rejected the idea that the matter of awarding a contract is a legislative act: The orders of the city council as to which the referendum is sought in the case at bar are clearly executive and not legislative in their nature. A direction to an officer to sign a specified contract with a named person to do a defined thing for a specified price is not a legislative act. . . It is not the laying down of a rule, a with the provisions of this Charter to initiate and adopt ordinances and resolutions, to require measures passed by the Council to be referred to the electorate for approval or disapproval, and to recall elected public officials. These powers shall be called the initiative, the referendum, and the recall, respectively.” principle or a law by which the conduct of a public officer may be guided. Id. (emphasis added). General legislative acts lay down some permanent and uniform rule of law, administrative acts relate to daily administration of municipal affairs, and quasi- judicial acts are the product of investigation, consideration and deliberate human judgment based upon evidentiary facts of some sort. Hanson, 529 N.W.2d at 488. The Mounds View City Council adopted an ordinance authorizing the conveyance of real property from the City to the EDA. Although Minnesota courts have not directly held that the sale of real property is an administrative, rather than a legislative act, the case law strongly supports this argument. As an administrative act, the sale of property is not subject to referendum. Moreover, the ordinance authorizing the sale is an ordinance authorizing a contract for the conveyance of property. And, courts have held that entering into a contract is an administrative act. The sale of property does not establish a permanent or uniform rule of law; rather, it is an administrative act that is part of the day-to-day business activities of the City. Also, the fact that the Council authorized the sale by ordinance should not change the conclusion. In the Oakman case, the city adopted an ordinance approving a settlement and the court, nonetheless, held that the ordinance was the exercise of an administrative function. If administrative acts, such as the sale of property, were subject to referendum, it would defeat not only the purpose of referendum, but make it highly impractical and inefficient for the City to conduct its daily business affairs. Under the case law, a court would likely find that the sale of real property is an administrative, not a legislative, act. Thus, the ordinance authorizing the sale is not subject to referendum and the City Council may deny the sufficiency of a petition on this basis. II. State Law Allows the City to Convey Property Without Regard to City Charter Provisions. Two state statutes provide support for this argument. A. Minn. Stat. § 471.64. The first statute, Minn. Stat. § 471.64, authorizes the City to enter into a contract for the sale of real property to another political subdivision without regard to charter provisions: Any county, city, town, . . . or other political subdivision of the state may enter into any contract with . . . any other political subdivision of the state for the purchase, lease, sale, . . . of real property, without regard to statutory or charter provisions . . . (emphasis added). Minnesota courts have not had an opportunity to construe this statute. However, the Attorney General concluded in two opinions that a city may disregard charter or statutory procedural requirements when entering into a contract with another governmental entity. In both cases, the Attorney General decided that a city could disregard statutory and charter bidding provisions when entering into a contract for the purchase of electricity from the federal government. See Op.Atty.Gen., 59-A-15, March 30, 1965; Op.Atty.Gen., 59-A-15, July 7, 1945. Section 12.05 of the Mounds View Charter that provides that “[n]o real property of the City shall be disposed of except by ordinance.” However, section 471.64 authorizes the City to enter into a contract for the sale of property to the EDA without regard to the city charter. Although the City Council complied with the charter and adopted an ordinance authorizing the conveyance, Minn. Stat. § 471.64 provides authority for the Council to adopt a resolution authorizing staff to finalize conveyance of the property to the EDA. B. Minn. Stat. § 465.035. The second statute that supports the argument that the conveyance of property is not subject to charter requirements is Minn. Stat. § 465.035. That section provides: Any county, town, city or other public corporation may lease or convey its lands for a nominal consideration, without consideration or for such consideration as may be agreed upon to the state or to any governmental subdivision . . . for public use when authorized by its governing body. The Minnesota Supreme Court addressed this statute in County of Hennepin v. City of Hopkins, 58 N.W.2d 851 (Minn. 1953). In that case, Hennepin County conveyed property to the village of Hopkins for park and recreation purposes. After the deed had been recorded, the county brought an action to invalidate the conveyance based on the failure to comply with a statute requiring the adoption and publication of a resolution defining the terms of the sale, a bond, and other specific requirements. The court held, however, that Minn. Stat. § 465.035 trumped the requirements in the other statute and that the county was permitted to convey the property without complying with the other statute. See id. at 855. The City in this case has authorized conveyance of property to the EDA for a public purpose. Under the Court’s holding in County of Hennepin, Minn. Stat. § 465.035 would trump the City’s charter requirements. Thus, the City may adopt a resolution authorizing staff to finalize conveyance of the property to the EDA, despite the ordinance requirement in the charter. Under this same reasoning, a court could also find that, in a conveyance of property from one public entity to another, section 465.035 trumps the referendum provision in the city charter. III. Minnesota Statutes Chapter 462 Preempts the Charter Referendum Provision. The City may also be able to argue that the conveyance and redevelopment of property is governed by Minnesota Statutes Chapter 462, and, therefore, Chapter 462 preempts the referendum provision in the charter. City charters provisions must be consistent with and are subject to state law. See State ex rel Town of Lowell v. City of Crookston, 252 Minn. 526, 91 N.W.2d 81, 83 (1958). The Minnesota Court of Appeals recently held that the procedures set forth in chapter 462 for adopting and implementing laws for land use planning preempt charter provisions reserving the right of referendum to voters to approve or disapprove land use ordinances. See Nordmarken v. City of Richfield, 641 N.W.2d 343 (Minn. Ct. App. 2002). In Nordmarken, a private redeveloper submitted a plan to the City of Richfield that required both a rezoning and an amendment to the city’s comprehensive plan. The council adopted the necessary ordinances to allow the plan to go forward. A group of citizens petitioned the council for referendum on the rezoning and comp plan ordinances. The court of appeals held that a referendum would be in conflict with the state law and that state law preempted the charter with respect to land use issues. Although Nordmarken did not deal with the conveyance of property, the same rationale may be applicable. Chapter 462 addresses the acquisition and disposal of property in furthering the planning goals of a city. First, section 462.353, subd. 3, authorizes a municipality to enter into contracts with other public or private agencies in furtherance of the planning activities authorized in sections 462.351 to 462.364. Next, Minn. Stat. § 462.356 addresses the acquisition and disposal of property in the context of a city’s comprehensive plan: After a comprehensive municipal plan . . . has been recommended by the planning agency and a copy filed with the governing body, no publicly owned interest in real property within the municipality shall be acquired or disposed of, . . . until after the planning agency has reviewed the proposed acquisition, . . . and reported in writing to the governing body . . . its findings as to compliance of the proposed acquisition, disposal or improvement with the comprehensive municipal plan. Section 462.356 requires that a city follow a specific process before selling property to ensure that the proposed sale is in compliance with the comprehensive plan. To subject the findings approving or authorizing a sale to referendum would usurp the process set forth in state statute. Also, the City has complied with section 462.356. The planning commission reviewed the ordinance authorizing the sale of property from the City to the EDA and reported to the City Council. Because state law governs the disposal of public property and the City has complied with that law, an argument can be made that the charter provision subjecting the City ordinance to referendum is preempted under the court’s rationale in Nordmarken. Conclusion The City Council has several bases upon which to deny the sufficiency of a referendum petition on the sale of property from the City to the EDA. First, entering into a contract for the sale of property is an administrative, not a legislative, act and therefore is not subject to referendum. Second, state law authorizes the City to convey property to another governmental entity without regard to city charter provisions. Although the City Council has adopted an ordinance authorizing the sale, it is not prohibited from also adopting a resolution to authorize staff to finalize the transaction. Finally, an argument can be made that the state law governing land use planning and the disposal of public property preempts the referendum provision in the city charter. Thus, based upon the above-discussed rationale, it is recommended that any referendum petition received by the City regarding the sale of property from the City to the EDA be denied as insufficient. In addition to the City’s involvement in this matter, the city council should also keep in mind that other parties, including Medtronic, may be able to challenge the sufficiency of any referendum petition or potential election based upon the above- referenced case law, statutes and discussion.