HomeMy WebLinkAboutSP May 15, 1979
·
~ o¡ ANDOVER
SPECIAL CLOSED CITY COUNCIL MEETING - MAY 15, 1979
MINUTES
A Special Closed City Council Meeting of the Andover City Council was called to
order by Mayor Jerry Windschitl on May 15, 1979, 6:38 p.m., at the Andover City
Hall, 1685 Crosstown Boulevard NW, Anoka, Minnesota, to meet with Jeff Carson, City
Attorney for Mayo-Bankey vs. City of Andover lawsuit to discuss the court findings.
Councilmen present: Jacobson, Lachinski, Orttel, Peach
Councilmen absent: None
Also present: City Attorney, Jeff Carson; and City Clerk, P. K. Lindquist
Mr. Carson - I recall that the litigation involved personal suits against members of
the Council and asked for damages in addition to all the other things they were asking
permission to do including condemnation. At the outset of the litigation, the court
dismissed the individuals and held in abeyance any issue of damages or condemnation.
In other words, the court was only deciding whether or not to issue aWrit of Mandamus
or not. And that was the court's only perogative. For example, the court could not
have altered the plat or compromised the case in any way. The court had the authority
to either order it or not. And that is basically statutory requirement of that type of
action. I don't think it is necessary to go through each finding of fact. There are
some that we would not disagree with and some that we would disagree with. I think
the essence of the case is whether or not the findings that the court makes are
supported by the testimony. I feel some of the findings are and some, perhaps,
aren't. In almost any case, when it gets to litigation, there is more than one
theory of law on which a court, after digesting all the testimony, can make findings;
and, therefore, order judgement. In this case, it is clear that the court, rather
than holding more sacred the powers and duties of the Council and a literal reading
of Ordinance 10, chose to find that the petitioners had complied with all of the then
(1974) requirements and were relying, to their detriment, on that history, and
therefore ought to be able to finish the Fourth. Had the court chosen to honor the
City's perogative in rejecting the additional six-month period requested by petitioner,
I think they would have, but for a few findings, found almost the same findings and then
denied petitioner's request based on literal reading of Ordinance 10. From time to
time, reference was made to the fact that petitioners were stymied, in effect, by
their inability to get things done. I think that those findings that relate to their
ability to get things done are unfair, and I think they are wrong. I think that what
really happened is the petitioners failed to act for great periods of time; and when
they did act, ultimately didn't act appropriately. My own opinion is that the denial
of the extension of time and the ordering them back through Planning and Zoning, which
was not a flat denial of their platting process, was appropriate, given the facts.
The court said what you must do to abide by the order is to permit a filing of Cedar
Crest Fourth, and we may still order compliance with the four criteria set out back
in r~ay, 1974. Also, any portion of Cedar Crest Fourth not so recorded is not subject
to all appropriate amended ordinances. My reaction based on testimony from the trial
is that I don't think the petitioners ever believed that they could find a performance
bond for 110 percent of the suggested improvements in Cedar Crest Fourth, and I would
also guess that they couldn't set down a cash escrow, as much of their testimony was
involved with their desire to approach the City with some alternative means of financing
improvements, which the City does not have to approve. If you choose to abide by this
order, you must draw up a contract. You must tell your Engineer to estimate the costs
of all improvements necessary under the conditions existing at that time (specific
engineering requirements), and then the development contract must be prepared in the
name of the fee owner; and they must provide the City with either a cashiers check for
that amount or a cash bond. A title opinion will also be required and engineering and
legal fees incurred by the City must be paid. Question arises which legal and engineering
fees are they talking about? Do we clean up this whole mess with that or not? I
do not think that it is a reasonable interpretation; I do not think the petitioner could
be required to pay fees incurred in the litigation. These would be fees incurred by
--
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May 15, 1979 - Minutes
Page 2
(Mr. Carson, Continued) the City in the normal operation in dealings with the City
Attorney prior to litigation -- anything incurred by the City in preparing these final
documents. Should the City choose to reject the court's contention, the appeal would
be essentially an allegation that the testimony found in the transcript of that trial
does not support the findings and the law that is applicable to the facts would support
the City's position that we took when we denied their extension. Question of what are
the chances of winning an appeal. You can never predict the outcome. I think there's
a law that supports what the City did, but you never give any appeal better than a
50-50 chance, certainly not any appeal when you are in a position of an appellate
asking a higher court to overturn a lower court's decision. Nevertheless, I think
there is a substantial body of law that supports action taken when that petition was
denied. The court seemed to favor the theory of law that if a petitioner does all in
their power and relies to their detriment the acts of Councils and previous Councils,
and if their plat substantially complied with all the requirements then required, then
they, therefore, ought to be able to plat. So there are theories of law that the
higher court could now choose to review and apply these facts, and I think that they
could apply the theories of law to the facts most favorable to the City's position,
because those facts do exist. I think in reviewing the findings and recalling the
testimony at the trial, the court seems to be relying an awful lot on the petitioner's
inactivity, and I feel that it is unwarranted by the facts that I heard at that trial.
There was a period of time, for example, between May '74 and March of '75, by their
own admission, the petitioners did nothing for one reason or another, mostly personal.
So you have by their own admission great blocks of time wasted. The judge decided
against the City; and, therefere, it's our burden to bring appeal or agree to comply
with the judgement that is entered.
Mayor Windschitl - The key, which is something the Council had little feeling for when
we were considering this item before, is how the testimony of Bill (Hawkins) was going
to be interpreted. Basically, Bill testified that he had met these people once, which
was really the key to the judge's decision. And basically they contended that they
had been with Bill and Bill wouldn't get the work done for them. And Bill's testimony
was very direct. He had only met them once and had done whatever it was that was
available to him, (?) furnish him with the abstract so he could do things,
and that type of thlng. But at the end, there are some unusual comments for a judge
to make. He's making a statement that it gets down to the question of my believing
Mayo and Bankey, who tried to do all these things, which is obviously which he ends
up doing, or do I believe what the City Attorney testified to. The whole park issue
and all those extraneous issues that we faught through here once before, in the final
packet, nev~r exist. It got down to who the judge was believing, what efforts had
been expended on the who 1 e th i ng. If you get an appeal, is there any degree of certainty
that a higher court would believe anything different than the lower court?
Mr. Carson - No, I don't think there's any degree of certainty in that. Because a
hlgher court generally tends to support the fact findings of a lower court. They do
that because, they say, the lower court was there in person when the testimony was
given and can, therefore, weigh all factors that do not appear in black and white. I
think that Jerry's right saying that the court did tend to ramble, actually after
testimony was closed; and I don't think it's on the record. I haven't seen a transcript
and would be surprised if it was, because he (the judge) was sort of thinking out loud.
The first thing he thought about following testimony was something about some form of
negotiated settlement and seemed to be favoring that right from the inception saying,
"I wish I could draw this up the way I wanted to." perhaps pursuant to a stipuated
agreement that has somehow made its way into the court's file. As I indicated in the
opening day of trial, he was perusing the proposed stipulation and perusing it
favorably. So the mood was there for some kind of resolution -- one that would permit
development. The court was troubled about the testimony of the developers and their
efforts to complete this versus Bill's testimony regarding their lack of contact with
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May 15, 1979 - Minutes
Page 3
(Mr. Carson, Continued) him. The court did not want to choose between the different
pieces of testimony. Certainly the developer's testimony was lengthier and more
detailed about their efforts. Bill's testimony really wasn't much because there wasn't
much for him to testify about. So I don't know if the court is really choosing to
disbelieve Bill as much as it is choosing to believe, in its own mind, that unsophisticated
developers did what they thought they were supposed to do approximately when they
thought they were supposed to do it and sort of plowed ahead. And the fact that it
took them seemingly forever is unfortunate but should not preclude them from going
forward. That, coupled with testimony that the physical drawings were appropriate
at the time they were approved. I think he keyed heavily on the fact that final plans
had been prepared and approved and so the rest was really administerial and something
that should not preclude the filing of the plat, even though to that extent he choose
to ignore the literal language in Ordinance 10, Section 11. He says it doesn't apply.
That's something that a Supreme Court of an Appeals Court would say. Given all the
testimony, I think it does apply. That, coupled with the theory of law that support
municipal actions. I think there was nothing wrong with the action of denying their
request to extend the time. That action was seemingly governed by the facts that
existed on that date in time. And those facts almost mandated what happened there.
And the court didn't really speak to that. So, I am satisfied there are facts in the
transcript that would support the type of appeal I am talking abf¥tdothat is an appeal
alleging that the testimony as a whole is not supportive of the/ n lngStoupled with
the legal theories that are appropriate. There are other legal theories that apply.
Those that deal with compliance and detriment to the district. They (the Supreme
Court) could certainly choose to support the lower court. I think it is also a fair
statement that fewer cases are overturned than are affirmed. I still put it in a
better than 50-50 category. I'm a little bit prejudiced about the thinking in the
case because I've heard all the facts and I, myself, choose, unavoidably, to believe
certain things in the facts that we were presented.
Mayor Windschitl - On #26 it says "The Town Attorney at no time presented to petitioners
a proposed development contract or discussed such contract with petitioners", and he
follows "A performance bond or other security could not be arranged for until the details
of such contract were completed." And then the judge says at the end, almost avoiding
the issue, he's not going to rule in favor of these people; and here he says he's not
going to believe the City Attorney.
Mr. Carson - He certainly did meander.
Mabor Windschitl - If that's the type of thing we're fighting, we could have everything
10 percent correct here, and a higher court will take that same philosophy. That they
couldn't do what they were asked to do because the City Attorney didn't do it.
Mr. Carson - And, unfortunately, the judge did say that, but I doubt very seriously
whether that's in the official record because testimony had closed. As I perceive
the emotion of the case, he was for the developer sort of from the first time I sat
down with him, that is when he was perusing the stipulation and saying "What's so
wrong about this, fallas?" You get a feel for his leaning during the trial. I think
he was more than a little sympathetic with the amount of time that had lapsed. I do
think he struggled a great deal, though, after hearing the City's testimony. And that's
where, at the end, he was saying its not so clear anymore because there was testimony
that a half plat that I can identify with was presented to the Planning Commission.
The Planning Commission directed it to the Engineer and the Engineer had some reservations
about the north half because it had been cut off. What's going to happen to this
drainage in this street? And I think he even questioned the Engineer himself following
the Engineer's testimony and asked, aside from the fact that it was cut in half, was
there anything different that had not been approved before. So he was trying to find,
I perceive, a situation where the developer had still complied with all the literal
requirements of the ordinance for development purposes and hadn't changed anything
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May 15, 1979 - Minutes
Page 4
(Mr. Carson, Continued) there. The discussion afterwards showed that he was still
emotionally favoring the developer but troubled by some of the testimony that occurred,
and I think also troubled by the setting of the case where we did not really reject
the plat but we had ordered it back through. And that, of course, would be one of our
strong points in appeal. We didn't reject it, and most of the cases that deal with
subjects like that deal with plat rejections. The question of Mandamas is whether
or not that was a reasonable and prudent act of the Council. The judge didn't really
answer that in my opinion. True, the Supreme Court very often chooses to side with
the trial court in the fact finding area. And our question would be aimed at, given
the facts and even those that weren't found, was the act of the Council really arbitrary
and capricious such that it ought to be reversed by the trial court.
Councilman Jacobson - If we go to the Supreme Court, they can even refuse to hear it?
Mr. Carson - They could, but they wouldn't in this case.
Councilman Jacobson - As I read this, it is saying that we must accept the Fourth
Addltion, and lt lS not subject to the extension of time only. This does not apply
to any other plats. This is limited to this Cedar Crest Fourth Addition. How many
lots are we talking about?
Mr. Carson - About 43 lots in the Fourth Addition, all one-acre lots in a non-sewered
area.
Mayor Windschitl - After the trial was over, Mayo walked up to me and said "When we
come to the Flfth Addition, of course we'll have to comply with all of the ordinances
you have in effect to date." The Fifth is at most 20 acres with one street going
through it.
Mr. Carson - Based on the testimony at the trial, they spent a great deal of the
wlnter between '74 and '75 seeing what they could do about bonding and contacting
bonding companies. A lot of the testimony was about a desire to participate with the
City with some alternative method of financing. I have no reason to believe they are
in better financial condition now, but I don't know.
Mayor Windschitl - At that time the streets were required to be blacktopped. The thing,
at least ln my mind, is not the escrow but that they just didn't run the thing through.
At that point in time they would have an additional three percent park dedication and
there may have been a question as to the acre-size of the lots. A new Planning
Commission might have raised the issue of the acre lots and the small streets.
Councilman Lachinski - They were changing from a 50-foot right of way to a 66-foot that
could make the lot a little bit undersized.
Mayor Windschitl - As near as I can see, that would have been the only two issues that
would have been raised by a 1975 Planning Commission.
Councilman Jacobson - If we allow them to do this, can we reasonably set a time limit
on them now saying you have so long to get the financing, etc., in line?
Mr. Carson - My reading of this, if you choose to abide by the findings of the court,
lS ln a motion, set out specifically what you want done. By this and a reading of
Ordinance 10, I think it is reasonable to require that the City Engineer estimate the
cost of improvements. I think that is a reasonable instruction of Ordinance 10; in
fact, I think that is what is intended. Multiply the cost by 110 percent; present
that amount in the form of a standard development agreement to Mayo and Bankey. We
have enough testimony and fact finding to prepare the contract in the names of Mayo
and Bankey. We still have to get a look at the abstract. The first thing that I would
recommend is that the Engineer make the estimate; that the contract be drawn up and
presented with the requirement that they present the contract and the bond or cash to
the City together with the abstracts so the title opinion can be given. And at the
same time it would be prudent to collect the engineering/attorney's fees that have
Special Closed City Council Meeting
May 15, 1979 - Minutes
Page 5
(Mr. Carson, Continued) been spent by the Attorney's office prior to litigation and
any time spent in preparing the documents here. Present all that to them in the
shortest possible time -- as soon as the Engineer can get it done and as soon as the
Attorney can put the information into standard performance contract. I think it would
be presented to them with the requirement that they do the following: 1) Present
the escrow or bond; 2) The abstract; 3) Payment of these fees.
Councilman Jacobson - But it would not be unreasonable to give them the time in which
that can be done. The way this reads, you can almost say here it is two years from
now and you still haven't filed the form.
Mayor Windschitl - I don't think you can put a time limit on these people.
Councilman Lachinski - It seems to me that he's eliminating Section 11 only for the
period of time that they have spent, that its been in.
Councilman Orttel - The whole thing goes back further than that. In this Article 19,
he's saying that the Town Board approved the Final Plat in May of 1974; and I know
that has always been a bone of contention. Because everybody says no they never did.
They are saying it was filed. Once a plat is filed and accepted, there is no time
limit.
Mr. Carson - Final Plat filing is required six months after approval.
Mayor Windschitl - As I understand it, the reason that the settlement that the Council
presented at that time blew up was because of the storm drainage. Now we're going to
get right back into that storm drainage hassle with this. Norhing has changed. Their
proposal is to use the parkland for drainage pond as well; and I don't think this Council
or our Engineer has to accept that. I think we can still demand that they go across
the road with a pipe. That's an issue that must be resolved.
Mr. Carson - I don't think that you can require that they alter anything on their
plans, but I think that the part and parcel of the development contract would be
those things that the Engineer feels are going to be necessary to finalize, to put the
plat into production.
Councilman Orttel - There's no real difference between what the judge is ordering and
that stlpulatlon agreement.
Mr. Carson - If the City Engineer incorporates the cost of doing whatever it is that
has to be done properly in the estimate of things to be done, if that is possible, I
don't really fully understand the need.
Mayor Windschitl - There is a drainage problem up there. We've had a real substantial
dralnage problem with the developments there now. The problem is what to do with the
water that sits there. TKDA feels there are two possibilities, pipe it out of there
or pump it into the parkland. Any other developer we don't allow them to use parkland
as a ponding area.
Councilman Orttel - The whole point is that we couldn't be expected to approve a
plat that would not be acceptable as a living area.
Mr. Carson - In trying to define what mayor may not be included in the contract, go
back to the beginning of Section 10, in which the Court excluded 10, subdivision 11;
all of those things and the installation of these improvements shall be part of the
contract.
Councilman Jacobson - Look at #31 ...at the time of approval of the final plat of
fourth Addltion, said plat conformed to the applicable ordinances in all respects.
Mr. Carson - They are not going to have to change the plat; but they are going to have
to put up the costs in bond or cash of the improvements which will make the necessary
improvements, whatever the Engineer would require.
Special Closed City Council Meeting
May 15, 1979 - Minutes
Page 6
Mayor Windschitl - These plans were drawn up by another engineer, and the question
that TKDA has is what is it that is supposed to be estimated; what type of drainage
system are we dealing with, because these plans are not all that specific. What I'm
concerned with here is if we accept this and are just creating water problems up there
because of a misinterpretation on our part; can we go back and get a judge to clarify
what he means on this?
Mr. Carson - I think if these plans existing at that time show the water going into
the park, that those are the plans.
Ma¥or Windschitl - To my knowledge there is no pipe that goes into the park as is
belng proposed now. Natural run-off, yes; but no pipe. Drainage easement, yes.
Councilman Orttel - (Looking at a copy of the final plat) There isn't a single thing
ln there for storm sewer in the construction plans. Councilman Lachinski - They talked about putting in a street that allows you to dump
the water out into the lots without catch basins.
Mayor Windschitl - At this period in time that was allowed.
Councilman Lachinski - I think that is the problem with the fact that at that time
they were approved.
~ayor Windschitl - Meadowood was done at that same time. It has underground pipe,
curb, gutter, blacktop streets, same size lots.
(General discussion by Council and Attorney on drainage while viewing the copy of
the final plat)
Mr. Carson - Certainly from time to time a judge is asked to clarify a motion. I
thlnk lf we go back in time to 1974 and have the Engineer estimate the cost of im-
provements, which encompass all the things that are found in 10.01, that would satisfy
him for drainage of streets, for all those things, present that in some organized
fashion and arrive at a figure. Whether the figure is high or not is not particularly
of concern to us; it has to be reasonable. I think if he doesn't like that, then it
is fairly encumbent upon the developer to either do it as the Engineer would want
it to satisfy these requirements at that time or complain about it. If we present
them with ,the type of thing I am suggesting, and it does what would have been done
back then and would not add 1976 or 1979 requirements, then I think we are doing
what is intended. If we are not, then let the judge tell us at a later time that we
are not. I can't imagine that the judge would say that if the only plan you have in
front of you would create a flooding situation, you are not going to be permitted
under any reasonable interpretation of the law to rectify that in an engineering sense.
Because that is what you do in any development. It says Section 11 of Ordinance 10
does not apply. It doesn't say that you can't require improvements for streets,
sidewalks, public water, sanitary sewers, storm drainage -- all the things it is
talking about.
Councilman Lachinski - Don't you think that those things should be on the final plans
already?
Mr. Carson - It would be nice if they were, if we could see it in the plans. Dewey
Kasma may have more complete plans than we have here.
Councilman Orttel - There is a drainage plan I saw at one time.
Mr. Carson - So I think he (Kasma) can prepare an estimate of cost based on the plans
that he has for the things that are committed. We're abiding by the literal reading
of the order; and not only that, but it is reasonable. I supposed there are some
plats that may lay there for years and are not done with no harm done. I can't tell
you what the court is going to, at some arbitrary point in the future, say okay, there
is no homes there, you're done, because I'm not sure they would. I think that if
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May 15, 1979 - Minutes
Page 7
(Mr. Carson, Continued) they haven't entered into the contract and haven't taken the
steps that they are ordered to take by the court within a reasonable period of time,
I think it would not be unreasonable for us to go back in and say "Your Honor, we
have abided by the court's order; we have presented everything that is required; and
we are still waiting." The judge at this court is going to keep continuing jurisdiction
over this matter until it is resolved. We don't have to bargain with them. If
there is any bargaining to be done, the whole thing opens up again. That's what
they said they were trying to get together the winter of '74/'75.
Councilman Lachinski - The whole point of a development contract, the whole purpose
behind the performance bond is if they don't get it done in a certain amount of time,
we will get it done.
Mr. Carson - That is probably answered in here. The performance contract shall provide
a completion date on which all of the required improvements shall be fully installed.
What you will do there is use whatever is used on every other contract back then.
Mayor Windschitl - At that time I think the maximum was 6 months, a year, and maybe in
some cases staged a year and a half. Here it says supply a bond of 110 percent.
Councilman Lachinski - If they have the bond, obviously they will want to get it done
as quickly as possible.
Councilman Orttel - They have to; they have to have a completion date to get the bond.
Mr. Carson - The way it reads is that we put an upper limit on it; they either do it
or we can do it. These guys are in the position that 1) They are not going to get the
bond because it is like cash money and those companies hate those things; or 2) The
thought that they would come in with that amount of money and tie it up in certified
money, a trust account, is almost inconceivable. What they are wanting to do is get
that money from their lender, put it in escrow with the City pursuant to the requirement,
have it approved, and then use that same money to pay for what they have just done.
That's all right if eveything is done. But a lot of times they need it. You don't
have to do that; in fact, you can't.
Mayor Windschitl - Our position has been that we'll reduce the bond amount down to
an approprlate maintenance-type in time.
Mr. Carson - I think if you exercise the remainder of Section 10, the construction of
lmprovements, literally, then you are going to put the burden on them. If they object
to what is required and go back into court saying yes there is something that would
alleviate flooding but we don't think we should have to do it, I think at that time the
court might say, "Now wait a minute." At that point I think the court might shift
its gears and say, "Look, you've got your plat with one-acre lots; you're not going to
create a horrible situation because it is cheaper." We have that power, and I think
we have to exercise it to the benefit of the City. You can't really enter into a
contract that you know is detrimental to the development out there.
Councilman Orttel - The physical design of the plat really doesn't vary much from
the orlglnal to what the stipulation agreement said; it's just when it came time to
make the improvements, they said "No, we can't afford it."
Mr. Carson - Their position was they got mad. I don't know whether that question is
ever answered, as to whether or not they believed that or just got angry.
Councilman Jacobson - What I think I hear is do not appeal this but let the Engineer
and Attorney gather the engineering costs. Say here it is; here's what you have to do;
and if they don't want to do it, let them go back to the judge and say they are being
unreasonable and let the judge decide then.
Mr. Carson - I think from a tactical standpoint, that's the best.
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May 15, 1979 - Minutes
Page 8
Councilman Peach - On the other hand, if we require anything that isn't on the
prellminary plat, the judge is going to say stop harassing these people and let them
do what they said they were going to do.
Mayor Windschitl - There is what's on the preliminary plat. In my mind, that's not
the issue here. But what isn't here is the overall storm drainage easement.
Mr. Carson - I think the Engineer has the complete plans. And if he doesn't, I
thlnk between the two of us we have all plans. And I think we can support any
requirement that he is going to make. I think we would have to support any concerns
that he has. I think it is encumbent upon us to take those steps that we feel is
not desired to put the burden on them. Present them with a contract with the terms
with the Engineer's report of costs; in turn they provide us with the bond. If they
can do it, they can do it. If they can't, they can't.
Mayor Windschitl - Is there anybody here that feels strongly that this should be appealed?
Councilman Peach - Yes; I'd like to know what it costs.
Councilman Lachinski - No, I think we should put the monkey on their back. I don't
think this plat will ever go through.
Councilman Orttel - I agree with Ted (Lachinski). They didn't have the money then; I
don't think lt wlll change.
Councilman Jacobson - No.
Maaor Windschitl - I fought this thing for so long and had I not listened to what the
JU ge was saYlng or read some of these comments about what he was believing as far as
our Attorney goes, I would have been the first one in line to appeal. I just don't
understand. But having listened to what the judge had to say, if that would prevail
at the Appeals Court, I don't know if the decision would be any different.
Mr. Carson - At the Appeals Court, you provide a transcript; prepare a memorandum.
The cost would be $2,000 to $3,000. There would be no expert witnesses on appeal.
The only thing that happens on appeal is that the transcript is provided to the court.
There are costs of having the transcript made up. And we present our legal argument
based on the literal reading of the transcript as to why that is in error. So it is
really costs for typing, copying, and cost of fees for preparing the memorandum to
present this in court. The timing, a year and a half to two years is not uncommon.
Damage against the City -- that action has been severed from this and presumably could
only be considered if this action was successfully defeated.
Mayor Windschitl - If we would choose to abide by this agreement, would that prejudice
any future action as far as for damages, etc.?
Mr. Carson - I think that there can be no award for damages out of the lawsuit that
they started. That's my feeling, and I think that the court agreed. First of all
they sued the Council personally; and that, in my opinion, was wrong. Secondly, they
sued for damages and their request for condemnation. Damages they could have kept
in, but they didn't. Condemnation legally isn't proper in a Mandamus action. It's
either issue a Writ plus damages or not. I think that the court wisely severed the
damages issue to permit this type of plat. You could not consider doing anything with
those damages. The emotion of it alone. You recall the thought process that came
out of the court at the end of the trial ,"That to be consistent, I think I'll set this
thing up so that I can present something that can be swallowed." That's what I think
he was saying. Severing damages is a little unclear. They can't talk about it without
litigating it allover again. And I think my position would be that if we were to
refuse to abide by this and do nothing, then I think the court might reconsider and
award damages as part of their motion asking the court to hold us in contempt for not
acting. We must act. Barring that, I don't think there is ever going to be an opportunity
to talk about damages. It would take another lawsuit; for all practical purposes it is a
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May 15, 1979 - Minutes
Page 9
(Mr. Carson, Continued) dead issue. They never wanted damages. The action that the
Council takes has to be done at a public meeting. I think it should be acted upon
toni ght. Courts don't deal very well with municipal bodies and don't really care
whether you only meet so often. They can't understand what part-time government is.
I think if you deal with this tonight, it would be part and parcel of our ?
activity to deal with this, one way or the other.
Mayor Windschitl - So everybody is clear, it says that the final plat of Cedar Crest
Fourth Addltlon, filed with the Clerk or any part thereof is not subject to Section 11
of Ordinance 10 relating to extension of time. What that statement is saying is that
this plat will never be subject to that section and that it can sit in limbo for 20
years.
Mr. Carson - If they put in improvements and get ready for building permits, that's
nothlng more; nobody has to sell lots.
Mayor Windschitl - That isn't what that is saying. It's saying it is not subject to
the Slx-month's renewal coming back in for filing.
Councilman Jacobson - What he is saying is if you present them with the development
contract and they don't sign it for six months or a year, you could go back and say
they haven't done their portion of this, therefore...
Mr. Carson - You would be preparing their development for them out of funds provided
by them. If they are going to come up with bonds or cash...
Councilman Jacobson - If they don't sign the development contract.
Mayor Windschitl - I think this could sit there forever. Whenever it is that they
complete the four conditions, then they are entitled to record it because there is
nothing that governs'.their length of time because they are not subject to the length
of time.
Mr. Carson - There is no time limit set on it. In construing this, nobody, probably
not even the judge, can answer those questions. I think the only way to construe
any sentence is to construe it reasonably. Presumably they are interested in entering
into a performance bond to get this under way, or this is what they said. If we
present them with one and they don't object to it but they refuse to enter into it,
at some point we are going to go to the court and say "You've got continuing jurisdiction
over this thing; you've got to relieve us or amend this to reflect the situation.
We simply are sitting on our closed contract and in limbo. What are we supposed to do?"
Councilman Lachinski - This apparently is the whole reason why they have been awarded
this ln the first place. That is, we did not present them with a development contract.
Now we present them with a development contract and they don't sign it; the monkey is
on their back.
Mr. Carson - If they don't sign it or they don't object to it formally. They have to
do somethlng with it. Because we have time limits provided in the contract section
of the ordinance itself; we can put some time limits on it. We can put the same time
limits that we could on any contract.
Councilman Peach - I see us back in district court again on this. They are not going
to like the way we prepare this. I think it is almost inevitable. They won't like
our development contract or else they'll delay it. They have been doing that since 1973.
Councilman Orttel - This is basically the same thing offered them in the stipulation
agreement. And they didn't have the money to do it with so they went to court with it.
(General discussion on events that happened in the past and speculation as to how
petitioners might respond to City's action.)
Special Closed City Council Meeting
May 15, 1979 - Minutes
Page 10
Mr. Carson - If we presented them with a development contract and they did not present
us with the cash or signed contract, I supposed our initial reaction would be nothing;
but at some point in time it would not be unreasonable to react and formally say
enough is enough, that we feel we are entitled to an order, whatever that would be at
the time.
Ms. Lindquist - When they refer to that list, the final plat as presented to the Clerk,
that is what has to be accepted with the 50-foot streets?
Mr. Carson - Yes.
Mabor Windschitl - It is just a question of the drainage. I don't disagree with you,
Bo ; I don't like this plat any more than you do.
Councilman Orttel - I don't either, and I don't like some of the things in here.
Councilman Peach - I sure don't want to see any more one-acre lots out there.
Maaor Windschitl - The problem as I see it could be if we are not going to appeal it,
an apparently there is a majority here who don't want to appeal it already, my
proposal would be to retain Jeff's firm for the duration of this simply because of
the familiarity with the thing right now plus of the issues of the questions in the
trial itself. Get the development contract drafted up and lay it on their doorstep.
And that at the end of six months or some time agreed on, that we're going to seek
some type of relief.
Mr. Carson - I don't think we need to say that. What we really should do is simply
say that pursuant to the judgement that has been rendered, we are performing. We have
elected not to appeal the decision and here is the proposed development contract.
If they want to negotiate that, we don't have to listen to them.
Mayor Windschitl - Let's do exactly what he says here, the four items to do. We don't
negotlate anythlng beyond that. They simply either perform as any other developer
would have had to perform back then.
Councilman Lachinski - Can we suggested a Council meeting date at which time we would
desire to have the development contract signed for approval. Then if they don't have
it back in time for that date, maybe continue it for two meetings and then go to the
judge and tell them what happened.
Mr. Carson - Mr. Hawkins received the abstract in 1977 and it will have to be updated.
I'm suggesting we'd have to procedurally go to the court and ask that at least that
be released. Since there's not going to be an appeal, I think the court could actually
release all the documents in evidence to their respective parties. Then we could have
the abstract brought up to date. The abstract could be after the fact. We have
testimony and findings that lead us to know that they own that property. But we still
have to look at the abstract. I think the key is not waiting for the abstract. That's
what we have been waiting for for a long time. The key is to have the Engineer do the
study to get the figures, get the contract to them, put the shoe on their foot. Here
it is; here is what is required; that is what the judge has ordered us to do. You've
got to provide us with a bond or escrow. You don't have to say it, but without saying
it, if they can't do that, then they are out of luck. I'm sure that the court would
agree.
Mayor Windschitl - The only other thing that could possibly be argued is the new
State law in metropolitan significance. I doubt if they have even considered the
significance. There probably isn't a worse place in the City to get this development
as far as the service standpoint. It is in an area that is small lots that should
have never been small lots.
Mr. Carson - I think that the size of the lots is unfortunate. We are stuck with that.
It they perform, the court says that they are entitled to those lots of that size.
Special Closed City Council Meeting
May 15, 1979 - Minutes
Page 11
(Mr. Carson, Continued) If they cannot, either weill have all 43 one-acre lots or
none. Because if they choose to alter it or attempt to negotiate, I think the
Council is going to have to be very careful about any changes about anything. I'd say
that it should be just the way it is. They probably aren't going to want to change to
2~-acre lots, but they may come in and say if we do the bond or escrow like this, you
know, and proposed something in simplier form financially. There is nothing that says
you have to do that.
Councilman Lachinski - They haven't been able to perform in the past; there's no
reason to glve them credit on that point.
Mr. Carson - They may have financing problems, you don't know; but they may be able
to dOJit. But by their own testimony, bonds were in short supply in '74/'75. The
bond will be based on current costs.
Mayor Windschitl - We will put this on tonight's agenda.
Mr. Carson - A motion is needed authorizing the Engineer to prepare the cost estimate
for purposes of that contract and direct me to present the contract once prepared to
the petitioners, Mayo and Bankey pursuant to the order; and I'd like you to identify
the action so it is clear that we are not to appeal it but to comply with it.
Ma~or Windschitl - I would suggest putting in the motion that we retain the firm of
5c ieffer and Carson for any appropriate legal services that might be required in
this case; to finalize for compliance with the judgement that was rendered.
MOTION by Jacobson, Seconded by Orttel, to adjourn. Motion carried unanimously.
Meeting adjourned at 7:53 p.m.
Respectfully s~
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\~ ~ G:- H:J
Mar lla A. Peach
Recording Secretary