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SP85-01 to • CITY OF FRIOI.EY, SUBJECT ' 6431 UNIVERSITY AVE. NE. SPECIAL USE PERMIT SP wlb5-0 FRIDLEY, MN. 5543e I61Z),571-3450 ADDRESS 5.3 7 g — 5 3 K-1 El'-P#4 DATE Grp p� PLANNING COMMISSION: APPROVED DISAPPROVED DATE NO. CITY COUNCIL: APPROVED DISAPPROVED DATE NO STIPULATIONS: NAME l FEE RECEIPT NO�? STREET LOCATION OF PROPERTY _ 3V-1 F LEGAL DESCRIPTION OF .PROPERTY j j 5 l PRESENT ZONING CLASSIFICATION EXISTING USE OF RR CSU �It� ) ACREAGE OF PROPERTY j�DESCRIBE BRIEFLY(�1 THE SPECIAL USE APPLIED FOR: J�Id��_��7 c rd�� p��,�h ��_ TTn/ !'t Nd k•Ce. �° �!w Section of the Code: Has the present applicant previously sought to rezone, plat, obtain a lot split or variance or special use permit on the subject site or part of it? ,yes X no. What was requested and when? The undersigned understands that: (a) A list of all residents and owners of proper- ty within 200 feet will be attached to this application. (b) This application must be signed by all owners of the property, or an explanation given why this is not the case. (c) Responsibility for any Jefect in the proceedings resulting from the failure to list the names and addresss of all residents and property owenrs of propprty in question, belongs to the undersigned. A sketch of proposed property and structure must be drawn and attached, showing the following: 1. North direction. 2. Location of the proposed structure on the lot. 3. Dimensions of property, proposed structure, and fron and side setbacks. 4. Street names. 5. Location and use of adjacent existing buildings (within 350 feet) . The undersigned hereby declares that all the facts and respresenta ti ons stated in this application are true and correct. fy DATt QA,J1 �, /Q �_ SIGNATURE 2 ADDRESS TELEPHONE /� _ _ _ ar • I -,-z 19 i ssio 1 j `' �?. ' s COMA ITY.'OPTIONS: LTDui too. -- - _ AW op AVOW t II __ ar*s 414A01•-fs ~ s • ia.�r �..�r fRr, '.•,,, 4u, ' . 5 54)0 `r mo si39 . 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I ( i N x �' w r v 2G'-O i-p" L'6 W-`, 0QJ `SNOII O iii f1WW00 ------_-- _--- -- --'� COMMUNITY OPTIOt4LTD. -- — TH'- -ST'. -nA ' FL t f� � iNiS,.♦►R h C �DM1�OIf iRD ur •r MM9lDMp11>i w ur MMOR LIVING — -1-- ✓. i -, ROOM i �� NYL tl►i /CON Iwo[ e�Fe sac -m. rWv64T-wND S iM I Goq rn o _ +TAII .AITglE c, 1 I o ' _ 6inCE yOfi" ::�c.w .,�Nics #FILE REDY `� L W"REIN WALL N.WALL W ML TWAIN WAL(- "o C I II ISLALKYOP PARKING. I I F-- I CONC. CURB tRi IY DIA. 'muD. TRE[ i --LAWN I �► i ,rn p— 7r — — —b I 1 6peEEFFCD ARIA FOR Dumomw, -CLOTHES LINE Ir IN.EVIEV&KEL-A SLovE =iLALKTo► ALLEY 0 0 0 0 PLOT PLAN S It FLOOR PLA 1 APARTMENT _IBLDG ui tDIU ce7-11 � S1. r Z � �''E. Zk C it ` jt V va S - � �� : ;' • ten.••- - - �• c - L k j LP tp . Z i lua �•• °, ��' '`F..� � '. to - n•- r- tLCkclI tp Z LIP . C, WE ... LP D � 14Z W 7 K U 2H _e"64�- OP&M 5384 NE FIFTH STREET FRIDLEY, MINNESOTA 55421 612-572-0009 Dear Community Options , located at 5384 N. E . 5th Street , is a treatment residence for adult persons with mental health problems . We have been in the neighborhood since May 1986. We want to be contributing members of the community by be- ing a good neighbor and by helping others understand the work we do . Sometimes , misunderstandings or concerns arise . We would like to make sure that all our neighbors have a contact person so that problems can be dealt with immediately . Mr . Dick Byers , a neighbor and a member of our Advisory Council , has offered to be available to answer any such needs . Mr . Byers lives at 5300 N . E . 5th Street . His telephone number is 572-1653 . Patrick Donahue , Roberta (Bobbe ) Veech , and myself are staff members that are also available . At least annually, we have an "Open House" . Relatives , friends and neighbors are all invited to meet our residents and staff , and become better aquainted with the facility and what we do . Again, thanks to those neighbors who attend- ed the May 1986 , and January 1987 , open houses . We would be pleased if you would join us at the next open house sched- uled for the fall of 1987 . Please do not hesitate to contact us directly or through Mr . Byers . May is Mental Health Month - have a good summer . Sincerely, Diane M . 011endick Wright Administrator DW/PD/ls PROPOSED STIPULATIONS SP #85-01 COMMUNITY OPTIONS, LTD. 1. OPERATION TO BE REVIEWED ANNUALLY WITH A PUBLIC HEARING FOR THE FIRST TWO YEARS , Z. RESIDENTS ► AUTOMOBILES BE RESTRICTED TO FIVE OR LESS . 3 . REAR YARD TO BE FENCED WITH SIX FOOT HIGH SOLID WOOD FENCE . THIS IS TO BE COMPLETED PRIOR TO OCCUPANCY . 4 . PETITIONER TO PROVIDE A LANDSCAPING PLAN AND INSTALL PRIOR TO OCTOBER 31, 1985. 5. PROPOSED ADVISORY COMMITTEE TO INCLUDE CITY REPRESENTATIVES I . E . HUMAN RESOURCES COMMISSION MEMBER AND/OR POLICE SPECIAL OPERATIONS DIVISION STAFF) . 6. CONTINGENCY PLAN BE INITIATED WITH UNITY HOSPITAL TO COVER ANY EMERGENCIES . 7 . FACILITY WILL COMPLY WITH ALL STATE AND COUNTY RULES AND LAWS AND BE FULLY LICENSED . 8. FACILITY WILL COMPLY WITH THE LOCAL AND STATE FIRE CODES . 9. CLIENT CHARACTERISTICS WILL BE CONSISTENT WITH -RULE 36 PROGRAM , GUIDEt-INES I . E . INDIVIDUALS WHO DO NOT EXHIBIT BEHAVIOR THAT IS HARMFUL TO THEMSELVES OR OTHERS) . to/ A'noK-o' -. Zvok , Civ PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT, made and entered into by and between the COUNTY OF ANOKA, through the Anoka County Community Health & Social Services Department, 325 E. Main St., Anoka County Courthouse, Anoka, Minnesota, herinafter referred to as the "County" and COMMUNITY OPTIONS, LTD., a Minnesota Corporation, 5328 Fifth Street, Fridley, Minnesota, hereinafter referred to as the "Contractor." WITNESSETH: WHEREAS, pursuant to the Community Social Services Act, Minn. Stat. Section 256E.03, Subdivision 2, and Section 256E.08, Subdivision 1, the County has identified a need for Rule 36 Category I mental health residential services; and, WHEREAS, the County wishes to purchases services related to the development of a Rule 36 Category I mental health residential program; and, WHEREAS, the Contractor is qualified to furnish said services, and WHEREAS, pursuant to Minn. Stat. Sections 245.61 and 245.64, the County Board has allocated funds and is authorized to make grants to support these services; and WHEREAS, pursuant to Minn. Stat. Section 245.73, (1984) and Minn. R. Parts 9535.2000 to 9535.3000, grants for services to adult mentally ill persons in residential facilities have been made available for the period ending June 30, 1985; and - WHEREAS, the County and the Contractor anticipate that the State of Minnesota will continue to fund these Mental Health Services after June 30, 1985; NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties do agree as follows: 1. TERM: a. The term of Agreement is from March 1, 1985 to May 31, 1985, the date of the signatures of the parties notwithstanding, unless the Agreement is terminated earlier as provided herein. b. Upon mutual consent of the parties hereto, this Agreement may be renewed for successive periods of one month each upon the same terms and conditions in all respect as hereinafter set forth, and upon such other terms and conditions as they shall mutually agree in the manner set forth below, provided that any such other terms and conditions shall be in writing. Notice of desire to renew this Agreement shall be given by the County Board to the Contractor, in writing, not less than ten (10) days prior to the expiration of the term of this Agreement. -2- 2. DEFINITIONS: The definitions of terms contained in Minn. R. Parts 9520.0510 and 9535.2100 shall apply in this Agreement where those terms are used. 3. SERVICES TO BE PROVIDED: a. The Contractor will provide services in accordance with the program work plan identified as Attachment 1, which is incorporated into and considered a part of this Agreement. The parties understand and agree that only those tasks or duties identified in Attachment I shall i be reimbursable under the terms of this Agreement. Such services shall hereinafter be referred to as "Purchased Services". b. In the event of any modification which will change the Purchased Services being provided, the Contractor agrees to notify the County in writing of the proposed modifications fifteen (15) days prior to modification. Any such modifications shall be subject to the provisions of clause 10 (MODIFICATION). c. The Contractor shall within three (3) days notify the County in writing whenever it is not able to provide the quality or quantity of Purchased Services. Compliance with the foregoing condition shall not affect the County's right under clause 11 (TERMINATION) of this Agreement. d. The Contractor agrees to obtain all supplies and equipment for use in the performance of this Agreement at the lowest practical cost. 4. REIMBURSEMENT: a. PROGRAM COSTS: In accordance with the proposed three (3) month budget of the Contractor as stated in the Line Item Budget identified as Attachment II, which is incorporated into and considered a part of this Agreement, the County shall pay no more than $15,000 for total program costs. Notwithstanding any provisions in this Agreement, the County shall pay no more than twenty-five (25) percent of the total amount reimbursed to the Contractor under this Agreement for Purchased Services categorized as other new program expenses pursuant to Minn. R. 9535.244, Subdivision 6. The Contractor shall be reimbursed only for those Purchased Services identified in Attachment 1, based on a cash accounting system as of the end of the contract period. Such costs eligible for reimbursement must be consistent with the Line Item Budget identified as Attachment Il. All payments made pursuant to this Agreement shall be for program costs only. 1) Pursuant to the authority of Minn. Stat. Section 245.61 (1984), reimbursement for services provided by the Contractor under this Agreement shall be made monthly, and shall be based on the submission by the Contractor of a monthly invoice to the County. Payment by the County shall be made in accordance with the usual payment procedures of the County. -3- b. GENERAL PROVISIONS: 1) All expenditures governed by this budget and all payments for program costs may be subject to audit at the discretion of the County, which shall be the final determination of allowable program expenses. 2) The Contractor agrees to furnish the County with information regarding any revenue received from sources other than the County. If the Contractor receives revenue other than from this Agreement and such revenue is used to provide any or all of the actual program costs for purchased services, then such excess revenue shall be deducted from Actual program costs in computing allowable program expenses. 3) Notwithstanding other provisions of this Agreement, if the State of Minnesota or other source of funds used by the County to provide any portion of the funding under this Agreement requires the return of any money paid under this Agreement, the Contractor shall return to the County any funds which must be repaid to the source of the funds. 4) The Contractor agrees to submit a written request to the County for approval of budget changes. The Director of Anoka County Community Health and Social Services, or his designee, may approve changes of up to ten (10) percent in line items of the budget identified as Attachment II. Nothing in this clause shall be interpreted as giving the Director the authority of approving changes which would allow reimbursement in excess of the contract maximum of $15,000. All other budget modifications must be approved by the County Board. 5) The Contractor agrees to meet the definition of eligible facility as defined in Minn. R. Part 9535.2200, Subdivision 5, throughout the term of this Agreement. 5. REPORTING: a. The Contractor agrees to furnish the County with expenditures and/or other reports in formats and at frequencies requested by the County for billing and program management purposes. Expenditure reports will be submitted on a cash accounting basis, to the County no later than ten (10) calendar days following the close of each month. The County may request additional information and reports when the County deems it to be appropriate. Within forty-five (45) days after the termination of this Agreement, the Contractor shall furnish a Revenue and Expense Statement and a Balance Sheet, both of which shall be completed both on an accural basis as of the effective date of termination, together with a report of the service provided through the effective date of termination. -4- b. The County reserves the right to withhold payments pending the timely receipt of any information required to be submitted under this Agreement. In the event of a decision to withhold payments, the County shall furnish written notice to the Contractor prior to the date of the next scheduled payment. 6. RECORDS: The Contractor agrees to maintain books, records, documents, and other evidence required by Minn. R. Parts 9520.0500 to 9520.0690 and 9535.2000 to 9535.3000. These records shall be subject at all reasonable times to inspection, review or audit by employees or agents of the County and the { State of Minnesota, including but not limited to the Office of the State Auditor and the Department of Human Services. The Contractor shall maintain summary reports relating to the facility and records of specific payments made and income received for at least ten (10) years for audit purposes. The Contractor agrees to maintain all other records for five (5) years for audit purposes. The County may duplicate, use and disclose all data delivered under this Agreement in any manner consistent with laws, and have others do so. 7. COMPLIANCE WITH THE REQUIREMENTS OF LAW: a. SERVICE STANDARDS: The Contractor shall comply fully with all of the obligations imposed by the Minnesota Department of Human Services rules contained in Minn. R. Parts 9520.0500 to 9520.0690 and 9535.2000 to 9535.3000 and all other applicable State and Federal laws, rules and regulations, and local ordinances. Any changes in the following areas shall be reported in writing to the County at least fifteen (15) days prior to change: 1) A change in licensed capacity; 2) A change in the program director or administrator; 3) A change in ownership, or 4) A change in programming. b. FAIR HEARING AND GRIEVANCE PROCEDURES: The Contractor agrees to establish and use a fair hearing and grievance procedure in conformance with the Fair Hearing and Grievance Procedures established by the Minnesota Department of Human Services. c. DATA PRIVACY: All data collected, created, received, maintained or disseminated for any purpose by the activities of the Contractor because of this contract is governed by the Minnesota Data Practices Act as well as all other applicable Federal and State laws, regulations, and rules. 1 -5- In accordance with Minn. Stat. 13.46, subd. 10 (1984), the Contractor's administrator shall be designated as the Contractor's responsible authority for purposes of the Minnesota Data Practices Act. The administrator shall allow the responsible authorities in the welfare system access to data classified as restricted when access is necessary for the administration and management of programs or is authorized or required by State or Federal law. d. AFFIRMATIVE ACTION POLICY STATEMENT: 1) In accordance with the County's Affirmative Action Policy and its policies against discrimination, no person shall illegally, on the grounds of race, creed, color, religion, sex, marital status, public assistance status, sexual preference, handicap, age or national origin, be excluded from full employment rights in, participation in, be denied the benefits of, or be otherwise subjected to unlawful discrimination under any program, service or activity hereunder. 2) No qualified handicapped person, as defined by United States Department of Health and Human Services regulations, Title 45 Part 84.3 (3) and (K), which implements Section 504 of the Rehabilitation Act of 1973, 29 U.S.C., 704 under Executive Order No. 11914 (41 FR 17871, April 28, 1976): (a) Shall be denied access to or opportunity to participate in or receive benefits from any service offered by the Contractor under the terms and provisions of this Agreement, nor (b) Shall any qualified handicapped person be subject to discrimination in employment under any program or activity related to the services provided by the Contractor. 8. INDEMNITY AND INSURANCE: a. INDEMNITY: The Contractor agrees that it will hold harmless, indemnify, and defend the County, its commissioners, officers, agents, employees, and volunteer workers against any and all claims, expenses (including attorney's fees), losses, damages or lawsuits for damages, arising from or related to providing or failing to provide services hereunder, including but not limited to the negligence of the Contractor. b. INSURANCE: 1) The Contractor agrees that to protect itself as well as the County under the indemnity clause in this Agreement, it will at all times during this Agreement have and keep in force the following insurance: I -6- (a) Comprehensive general liability insurance with minimum coverage of at least $1,000,000 per occurrence; (b) Automobile liability insurance with minimum coverage of at least $1,000,000 per occurrence; (c) Workers' Compensation and employer's liability insurance in the required statutory amounts; and (d) Unemployment Compensation in the required statutory amounts. 2) If the Contractor has insurance coverage which exceeds the minimum coverage specified in this Agreement, the Contractor agrees that it will continue to provide coverage in the higher amount throughout the term of this Agreement. 3) The Contractor further agrees that it will not voluntarily reduce, cancel or materially alter its insurance coverage during the term of this Agreement without the written consent of the County. The Contractor and its insurance carrier shall notify the County in writing at least fifteen (15) days prior to any reduction, cancellation or material alteration of its insurance coverage. 4) As evidence of satisfaction of this term of the Agreement, the Contractor agrees to secure certificates of insurance and to present said certificates to the County within fifteen (15) days of the date this Agreement is entered into by the parties. The certificates of insurance shall provide that the insurance carrier will notify the County in writing at least fifteen (15) days prior to any reduction, cancellation, or material alteration in the Contractor's insurance coverage. c. BOND: The Contractor shall obtain and maintain at all times during the term of this Agreement a fidelity bond in the amount of at least $15,000.00 to cover the activities of Provider's personnel and agents who shall be authorized to receive or distribute monies and property. The Contractor shall provide evidence of said bond within fifteen (15) days of the date this Agreement is entered into by the parties or prior to the first payment under this Agreement, whichever occurs first. d. FAILURE TO PROVIDE CERTIFICATES OF INSURANCE AND BONDING: The County may withhold payment for failure of the Contractor to furnish certificates of bonding and/or insurance as required above. 9. INDEPENDENT CONTRACTOR: a. The relationship of the Contractor to the County is that of an -7- independent contractor. Nothing in this Agreement shall be construed as creating the relationship of co-partners, joint ventures, or an association with the County and the Contractor, nor shall the Contractor, its employees, agents, and representatives be considered employees, agents or representatives of the County. No tenure or any rights or benefits, including Worker's Compensation, Unemployment Insurance, medical care, sick leave, vacation leave, severance pay, PERA, or other benefits available to County employees, shall accrue to the Contractor or employees of the Contractor performing services under this Agreement. b. The Contractor shall maintain in all respects its present control over and autonomy with respect to the details and manner of performing services, except as set forth in this Agreement. 10. MODIFICATION: Any alterations, variations, modifications, or waivers of this Agreement shall be valid only when they have been reduced to writing, duly signed, and attached to the original of this Agreement. 11. SUBCONTRACTING: The Contractor agrees that it will not enter into any subcontracts or assignments with respect to the subject matter of this Agreement without prior written approval of the County. The Contractor shall be responsible for the performance of all such contracts and shall ensure that the subcontractors perform fully the terms of the subcontract. The Agreement between the Contractor and a subcontractor shall obligate the subcontractor to comply fully with the terms of this Agreement 12. OWNERSHIP OF DOCUMENTS All materials prepared by the Contrator or Contractor's subcontractors in the performance of its obligations under this Agreement shall be the property of the County, and shall be promptly provided to the County upon their completion. 13. TERMINATION: This Agreement shall terminate under the following circumstances: (a) By mutual written Agreement of the parties; (b) By either party giving not less than fifteen (15) days written notice, delivered by mail or in person to the other party, specifying the date of termination; (c) In the event that any of the Contractor's licenses for providing purchased services under this Agreement are denied by the Minnesota Department of Human Services, or the Minnesota Department of Health, effective immediately without notice to the Contractor; -8- (d) If the Contractor shall fail or refuse to fulfill any obligations under this Agreement, effective immediately upon written notice thereof to the Contractor by the County; (e) In the event that funding from the State of Minnesota is not obtained and continued at an aggregate level sufficient to allow for the purchase of services under this Agreement, the obligations of each party hereunder may thereupon be terminated immediately upon notice. The County shall notify the Contractor as soon as possible upon receipt of a notice from the State of Minnesota that funding has been decreased or terminated; (f) This Agreement shall automatically terminate without notice on May 31, 1985, unles the termination date is extended, pursuant to clause 1 (TERM). In the event this Agreement is terminated, for any reason, the Contractor shall be entitled only to compensation for Purchased Services performed and reimbursable expenditures made prior to the effective date of such termination. 14. ENTIRE AGREEMENT: It is understood and agreed that the entire Agreement of the parties is contained herein and that this Agreement supersedes all oral Agreements and negotiations between the parties relating to the subject matter hereof, as well as any previous Agreements presently in effect between Contractor and the County relating to the subject matter hereof. 15. SECTION HEADINGS: Section headings regarding the content of the particular sections of this Agreement are for convenience only and are no way to be construed as part of this Agreement or a limitation of the scope of particular sections to which they refer. 16. EVALUATION OF PERFORMANCE: The Contractor agrees to provide the County with such information regarding the qualifications of its staff including professionals, volunteers and others as is requested by the County to verify that the present and subsequent services are being rendered by competent and trained personnel. The County reserves the right to monitor and evaluate the Contractor's services provided under the terms of this Agreement. -9- IN WITNESS WHEREOF, the County and the Contrctor have executed this Agreement as of the dates written below: APPROVED AS TO FORM: COUNTY ANOKA Br- AssistInt Anoka County Attorney Mbeyt or iak, Chairman pnoka County Board of Commissioners Dated: �J � b �— Dated: j C_) 8 By. e ohn "JAY" VcLinden Anoka County Administrator Dated: 51Q 3 k 5 COMMUNITY OPTIONS, LTD. By: Title:, Y"6 Dated: Z i By: GCJ Title: Dated: Title STATE OF MINNESOTA ) )ss. COUNTY OF On this ^=l day of 9}�a �, 19 85 , before me appeared. ,,.« to be personally kno nv4 , who being by me duly sworn did say that he/she ' is the of the corporation described in and Who executed the foregoing instrument; and that said instrument was executed in behalf of said corporation by authority of its e,m.,j C61'atz"1e ; and said GAa*_kt— acknowledges said instrum nt to be the free act and deed of said corporation. 1 Notary Public My Commission Expires 7 ^ .. RITA WILLIAtv!S NOTAR) FUELIC • MINNESOTA �:..� kkG ,A CCUF:7Y � yComrr,s_,�❑cxp res'May29.j 967 X 1 ATTACHMENT I RULE 36: INTERIM CONTRACT/WORK PLAN March 1 - May 31, 1985 * 1. Complete Rule 12 application to the State Department of Human Services for State fiscal years 1985-86 and 1986-87. * 2. Revise Program description and Budget for July 15th or later start-up date. * 3. ' Develop medical and medication policies for residents (for supervised living facility license). * 4. Develop admissions packet for residents. i * 5. Develop emergency program related procedures for residents (for supervised living facility license). **6. Develop food and kitchen policies for residents (for supervised living facility license). * 7. Develop Independent Living Skills program for residents. * 8. Develop resident medical records (for supervised living facility license). **9. Obtain estimates regarding: - fire alarm system - van - office equipment - phone system - medications, charts cabinet and medical supplies - room furnishings **10 ok for potential program site locations other than the City of G Fndle * 11. Finalize program insurance policies. 12. Hire temporary secretary to work on a part-time basis (10 hrs./week) to complete applications for licensing, policies, etc. * 13. Develop supportive programming contracts (interface agreements) with various mental health agencies, i.e. RISE, Inc., Mercy Hospital (required by Rule 36 license). 14. Finalize personnel policies. 15. Develop Individual Program Plan formats (IPP's) and other client records. * 16. Develop Advisory Council policies. *To be completed by the end of the contract period. **)'aid out of 25% County share (remaining items are paid out of the State share o the Rule 12 grant) INTERIM CONTRACT ATTACHMENT II COMMUNITY OPTIONS, LTD. FINANCING Interim Line Item Budget March through May, 1985 Program- 100% Salary Allocation $14 ,746.00 Program Budget $11 ,130.00 New Direct Service $3,614.00 Other New Program Name and Description Program- New Direct Other New TOTAL Salaries 8,045 1,918 9,963 Full-tme Administrator: 40 hrs./wk. , $14.18/hr. Quarter-time Corporate Administrator: 10 hrs./wk. , $14.18/hr. 30% Teaporary Secretary: 15 hrs./wk. , $6.25/hr. Group Life and Disabilit4y 100 100 Term Life and Disabilty for 1.33 employees @ $30/month X 3.33 months FICA 567 .135 702 7.05% of salaries Unemployment 335 ;83 418 Federal 9,237 @ 0.016 State 9,963 @ 0.027 Worker's Compensation 55 13 68 $0.68/$100 slary SUBTOTAL 9,102 2,149 11,251 --------------------------------------------------- Office Supplies 222 78 300 For paper products, computer disks, copy paper, legal pads, typewriter ribbons, correcting tape, pens, and copying SUBTOTAL 222 78 300 ------------------------------------------------------ 6t 56� 4637 DEPARTMENT OF PUBLIC WELFARE 245.812 4636 If, upon reinspection, it is found that the operator has not corrected the deficiency or deficiencies specified in the correction order, the operator may be al facility or agency required to forfeit to the state within 15 days a sum of up to $250 for each Z52-28, subdivision 2 deficiency not corrected. A forfeiture order may be appealed in accordance with not more than $300• the procedures set forth in section 245.801. All forfeitures shall be paid into the t court against the general fund. Any unpaid forfeitures may be recovered by the attorney general. agency: History: 1976 c 243 s 10 5.781 to 245.812 and sated by the cotes- 245.81 [Repealed, 1976 c 243 s 15] ain 30 days of receipt 245.811 FEES. f license or renewal of The commissioner may charge a reasonable fee for the issuance or renewal of a license except that no fee may be charged to a day care or residential facility for the attorney general, the mentally retarded. In no event shall the fee exceed $150. Fees may be waived at the discretion of the commissioner. gquired to be licensed History: 1976 c 243 s I1 lbdivision 2 prior to 245.812 LOCATION AND ZONING. to 245.812 and 252.28, Subdivision 1. No license or provisional license shall be granted when the ied as restricting any issuance of the license would substantially contribute to the excessive concentra- tion of residential facilities within any town, municipality or county of the state. Subd. 2. In determining whether a license shall be issued, the commissioner shall specifically consider the population, size, land use plan, availability of community services and the number and size of existing public and private community residential facilities in the town, municipality or county in which an renewing, suspending, applicant seeks to operate a residence. Under no circumstances may the commis- sioner shall study and stoner newly license any group residential facility pursuant to sections 245.781 to 245.812 and 252.28, subdivision 2 if such residential facility will be within 1,320 TY out these duties the y ,-. nsofar as possible, aie feet of any existing group residential facility unless the appropriate town, munici- aracters of facilities and pality or county zoning authority grants the facility a conditional use or special use 1 f the commissioner may permit. With the exception of foster family homes the requirements of this time during the howl of subdivision apply to all licensed residential facilities, and for cities of the first class I conducting evaluations appl} even if a facility is considered a permitted single family residential use of eceive appropriate assist- pruperty according to subdivision 3. prized fields. Inspections Subd. 3. A licensed residential facility serving six or fewer persons or a perator. lkensed day care facility serving ten or fewer persons shall be considered a e with the evaluation and permitted single family residential use of property for the purposes of zoning. t �s, and staff. Failure to Subd. 4. Unless otherwise provided in any town, municipal or county ger in connection with the zoning regulation, a licensed day care or residential facility serving from seven ense or for a denial of through sixteen persons shall be considered a permitted multi-family residential onsideration of any facts. use of property for purposes of zoning. A township, municipal or county zoning the day care or residential authority may require a conditional use or special use permit in order to assure )n of a facility or seroce• proper maintenance and operation of a facility, provided that no conditions shall and qualifications of the imposed on the homes which are more restrictive than those imposed on other cooditional uses or special uses of residential property in the same zones, unless wch additional conditions are necessary to protect the health and safety of the reaknts of the facility. Nothing herein shall be construed to exclude or prohibit residential homes from single family zones if otherwise permitted by a local zoning tion of a facility. that the Subd. 5. Notwithstanding any law to the contrary, no license or provisional tw or rule or regulatiOtL a 6e21se shall be issued under sections 245.781 to 245.812 and 252.28, subdivision 2 ; correction order shall staK •:trout 30 days written notice from the commissioner to the affected municipality y7olated or regulations + °� Other political subdivision. l�ka` 462357 HOUSING, REDEVELOPMENT, PLANNING, ZONI77"reasonable NG T1q avoe"kSubd. 1 a. Aug and adjustments conditions imposed th veers zoning h ordinance. to thezoningordinance general welfare, to g g land,to preserve ag (1)To hear and decide appeals where it is alleged that there is an error in am bit to persons an order, requirement, decision, or determination made by an administrative officer provision for trans in the enforcement of the zoning ordinance. grounds, and othet (2) To hear requests for variances from the literal provisions of the ordinance ado t subdivision in instances where their strict enforcement would cause undue hardship because of p for the review and circumstances unique to the individual property under consideration, and to grant conn varied pr such variances only when it is demonstrated that such actions will be in keepingclimes or kinds of with the spirit and intent of the ordinance. "Undue hardship" as used in kind of subdivisic connection with the granting of a variance means the property in question cannot A municipals be put to a reasonable use if used under conditions allowed by the official regulations to un' controls, the plight of the landowner is due to circumstances unique to his direction but not property not created by the landowner, and the variance, if granted, will not alter that where two c the essential character of the locality. Economic considerations alone shall not four miles apart constitute an undue hardship if reasonable use for the property exists under the distance from its terms of the ordinance. Undue hardship also includes, but is not limited to. } inadequate access to direct sunlight for solar energy systems. Variances shall be Subd. 2. (1 granted.for earth sheltered construction as defined in section 116J.06, subdivision Subd. 2a• he overn ng bodharmony aswith thethe case rmay be, may board permit appeals variance dany use that regulations mal is not permitted under the ordinance forpropertyyin the zone where the affected improvement of person's land is located. The board or gveinbody as the case may be, may and gutters, w9 permit as a variance the temporary use of a one family dwelling as a two family other utilities; dwelling. The board or governing body as the case may be may impose protection and energy, air qu' conditions in the granting of variances to insure compliance and to protect require that su adjacent properties. exists and its Subd. 7. Permitted single family use. In order to implement the policy of controls and tt this state that mentally retarded and physically handicapped persons should not be or kinds of su y excluded by municipal zoning ordinances from the benefits of normal residential hensive plan surroundings, a state licensed group home or foster home serving six or fewer agricultural la mentally retarded or physically handicapped persons shall be considered a permit- for the purpo5 ted single family residential use of property for the purposes of zoning. systems. The Subd. 8. Permitted multi-family use. Unless otherwise provided in any tracts, lots, < town, municipal or county zoning regulation as authorized by this subdivision, a obtained. TI state licensed residential facility serving from 7 through 16 mentally retarded or on the consti physically handicapped persons shall be considered a permitted multi-family water faciliti, residential use of property for purposes of zoning. A township, municipal or receipt by th county zoning authority may require a conditional use or special use permit in credit, or bo order to assureP,ro er maintenance and operation of a facility, provided that no p p p Y the municiF conditions shall be imposed on the homes which are more restrictive than those installed acc imposed on other conditional uses or special uses of residential property in the permit the same zones, unless the additional conditions are necessary to protect the health requirement and safety of the residents of the residential facility for the mentally retarded or developmen the physically handicapped. Nothing herein shall be construed to exclude or municipalit: prohibit residential homes for the mentally retarded or physically handicapped and equital from single family zones if otherwise permitted by a local zoning regulation. Subd. f History: 1965 c 670 s 7: 1969 c 259 s 1: 1973 c 123 art 5 s 7: 1973 c 379 s 4: tion of any 1973 c 539 s 1: 1973 c 559 s 1,2: 1975 c 60 s 2: 1978 c 786 s 14,15: Ex1979 c 2 s use as strec 42,43: 1981 c 356 s 248: 1982 c 490 s 2: 1982 c 507 s 22 and holdir 462358 PROCEDURE FOR PLAN EFFECTUATION; SUBDIVISION REG In ad proposed ULATIONS. parks, pla Subdivision I. [Repealed, 1980 c 566 s 351 ( CITY OF FRIDLEY. COMMISSION APPLICATION FDep7 MINNESOTA REVIEW orlmegt sron NumOerlRewPogo Approved by JAPnj I j )a —J FILE NO/ AOORCUS I i'. 3 �� FILE DATE COMPLETE REVIEW CHECKLIST I-of�b I g`�"�,��-�1,3��i__p�cx,Iy, Harm k�'S 31(0 / RETURN TO PLANNING AW a) iyiL►X-¢�io5ville,Ar n DUE OATE Mei�fzr i ties(tom fb" I�E 1, 3/I e, �5 COMMENTS Darrel • -fid ( Mark [TClyde UY/Qohn Q Le n Okd r r � (:Oti✓'� a.. • .s?��t�( o-rL iYwv�,e-Z�► a� �!%�'�Q'• �t��l'' A 9 PUBLIC HEARING BEFORE THE PLANNING COMMISSION Notice is hereby given that there will be a Public Hearing of the Planning Commission of the City of Fridley in the City Hall at 6431 University Avenue Northeast on Wednesday, April 3, 1985 in the Council Chamber at 7 :30 P.M. for the purpose of: Consideration of a Special Use Permit, SP #85-01 , by Community Options, Ltd . , per Section 205.09.1 , C , 5 , of the Fridley City Code, to allow Rule 36 Residential Mental Health Program for Anoka County, in a 4-plex located on Lots 1 and 2, Block 14, Hamilton's Addition to Mechanicsville, the same being 5378-5384 5th Street N.E. Any and all persons desiring to be heard shall be given an opportunity at the above stated time and place. VIRGINIA SCHNABEL CHAIRWOMAN PLANNING COMMISSION Publish: March 18, 1985 March 25, 1985 icial PUBLICOHIEARINGIBEFORE THE PLANNING COMMISSION Notice is hereby given that there will be a Public Hearing of the Plan- ning Commission of the City of Fridley in the City Hall at 6431 Uni- versity Avenue Northeast on Wednes- day 3, 1985 in the Council of: Chamber at 7:30 P.M.for the purpose Consideration of a Special Use Permit,SP#85-01 by Community 205.09.1,Options,,5,tof the Frider Section ey C ty Code,to allow Rule 36 Residential Mental Health Program for Anoka County,in a 4-plex located on Lots 1 and 2,Block 14,Hamil- ton's Addition to Mechanicsville, the same being 5378-5384 5th Street N.E. Any and all persons desiring to be heard shall be given an opportunity at the above stated time and place. VIRGINIA SCHNABEL Chairwoman Planning Commission (March 18&25,1985)-FRID. i 11 Planning Commission March 15, 1985 Mailing List for SP #85-01 by Community Options, Ltd. Mr. Herbert A Zwirn Patricia J Siedlecki 5§00 - 3rd Street N.E. 5380 - 6th Street Fridley, MN 55432 Fridley, MN 55421 Wayne A Johnson Gary R Stockwell 11610 - 53rd Avenue North 5372 - 6th Street Plymouth, MN 55442 Fridley, MN 55421 Don E Klostreich Walter Galay 2509 Hillview Road 5329 - 5th Street N.E. Moundsview, MN 55432 Fridley, MN 55421 ` John Jensen Aner D Sturgill 6070 - 6th Street N.E. 5331 - 5th Street N.E. Fridley, MN 55432 Fridley, MN 55421 James S Burman Dallas H Schute 20980 Sycamore Street N.W. 5365 - 5th Street N.E. Cedar, MN 55011 Fridley, MN 55421 Eugene F Welter Raymond J Lafave Jr. 5704 - 56th Avenue North 5375 - 5th Street N.E. Minneapolis, MN 55429 Fridley, MN 55421 Michael J Anderson Polish Catholic Church 5360 - 5th Street N.E. 2200 - 5th Street N.E. Fridley, MN 55421f-rift} q, MN 55421 Steven W Soderholm 5336 - 5th Street N.E. Fridley, MN 55432 Larry Nelson 5323 - 4th Street N.E. Fridley, MN 55421 William J Frawley 169 Crown Road Fridley, MN 55421 Duane L Schwartz 2525 - 118th Avenue Coon Rapids, MN 55433 Allan A Swenson 1865 County Road E White Bear Lake, MN 55105 Stephen T Lischalk 5357 - 4th Street Fridley, MN 55421 • i T CI OF F14DLEY CIVIC CENTER 6431 UNIVERSITY AVE. N.E. FRIDLEY, MINNESOTA 55432 PHONE(612)571-3450 May 7, 1985 PW 85-66 N 0 T $ C E Regarding the Proposed Mental Health Facility 5378 - 5384 Fifth Street Fridley, Minnesota The above mentioned item, scheduled for the May 20, 1985 Council Agenda has been changed. This item has been placed on the agenda of: June 3, 1985 7:30 p.m. City Hall Council Chambers John G. Flora Public Works Director JGF:jmo iOJ Ir 1�1 HAR I ZO N• ••,4 v"il•_ ��,: • }` �'o ',� �' S • ` �• � •� '�'y.rir �it: if'. X41 ••� ♦••��. '�••`'� � � �� 1 ^. '4 • tML��= s 1R: •� ~� i '�` M�bl ► w G ' t`V1�- • �l\!�• ' ,•• � POP , i N A , i, �T • r� •7 T � E ' �I 711 � I►M � ~ W� ..� ��• 1�\•M/�� ' �a• • -Lao • r a•.t• � � � a .�� ...A.A L URA .. �. .. �� h r�;,`-. •,••►� ;�� ,moi �' .� ' t, � � s w N. WRQ �., !Na �s ,J ; 'YIw•' to 000mmolplawpoo CD TRUNK H►.G HWAY N.E r ST ATE TR AVE, ' ' x•' UNIVERSITY* �. i•'ir 1 �.,}' i: . .w •�' w 453+5 ,`• . • j " ' t .. �1. �: I0, t•� ''~y r'r « i � �- 't � _C,r .. �� '; � _J„ �'. •.w�•` '+ I. to 1. AOP 4TH. � ` •- h 40 r r i t , too �vNN W. � �► o'f`t \ _ , •I►f� �ll• '•� • * •s .1r .��,r, rte,- ,./I'.` vi L '�1" .` � f/. �_��''{{((��((.: '�. '1A\ r . ;` . �.� - \ \ .,•. -�.. -... . It 5TH. Ug Ar Ili ,!s•� .�, l .�`' Vf- `� • � �l�y ', - n+ 'b, �` Mr. Herbert A. Zwirn 5900 - 3rd Street N.E. Fridley, MN 55432 Frances Rodgers 5350 - 5th Street N.E. Fridley, MN 55421 Mr. Wayne A. Johnson 11610 - 53rd Avenue North Plymouth, MN 55442 Mr. Don E. Klostreich 2509 Hillview Road Moundsview, MN 55432 Mr. John Jensen 6070 - 6th Street N.E. Fridley, MN 55432 Mr. James S. Burman 20980 Sycamore Street N.W. Cedar, MN 55011 Mr. Eugene F. Welter 5704 - 56th Avenue North Minneapolis, MN 55429 Mr. Michael J. Anderson 5360 - 5th Street N.E. Fridley, MN 55421 Mr. Steven W. Soderholm 5336 - 5th Street N.E. Fridley, MN 55421 Mr. Larry Nelson 5323 - 4th Street N.E. Fridley, MN 55421 Mr. Wiliam J. Frauly 169 Crown Road aasuicy , VAII JJ`1GI Mr. Steven R. Smith 5423 - 4th Street Fridley, MN 5421 Mr. Timothy Fietek 15 - 102nd Avenue N.W. Coon Rapids, MN 55433 Mr. Richard Blank 5360 - 6th Street N.E. Fridley, MN 55421 Wesleyan Church 5315 - 5th Street N.E. Fridley, MN 55421 Mr. Dallas Ramsey 5336 - 6th Street N.E. Fridley, MN 55421 Mr. Duane L. Schwartz 2525 - 118th Avenue N.W. Coon Rapids, MN 55433 Mr. Allan A. Swenson 1865 County Road E White Bear Lake, MN 55105 Mr. Stephen T. Lischalk 5357 - 4th Street N.E. Fridley, MN 55421 Ms. Patricia J. Siedlecki 5380 - 6th Street N.E. Fridley, MN 55421 Mr. Gary R. Stockwell 5372 - 6th Street N.E. Fridley, MN 55421 Mr. Walter Galay 5329 - 5th Street N.E. rrapley, MN 5D4e 1 Mr. Aner D. Sturgill 5331 - 5th Street N.E. Fridley, MN 55421 Mr. Dallas H. Schute 5365 - 5th Street N.E. Fridley, MN 55421 Mr. Raymond J. LaFave Jr. 5375 - 5th Street N.E. Fridley, MN 55421 Polish Catholic Church 2200 - 5th Street N.E. Minneapolis, MN 55418 Mr. Jerry Skaare 5380 - 5th Street N.E. Fridley, MN 55421 Ms. Sandy Lewis 5323 - 6th Street N.E. Fridley, MN 55432 Ms. Jane Jaskulka 1059 - 121st Lane N.E. Blaine, MN 55434 Mr. Elmer Davis 19020 Flamingo Street N.W. Cedar, MN 55304 Ms. Mary Erickson 1023 Adams Street Anoka, MN 55303 Mr. Bob Myhre 2614 Branch Street Anoka, MN 55303 Ms. Betty Swanson 5609 - 5th Street N.E. r t's•uic'y Ms. Doris Gritti 6690 Lucia Lane N.E. , #10 Fridley, MN 55432 Ms. Patricia Siedlecki 5380 - 6th Street N.E. Fridley, MN 55421 Mr. Anthony Siedlecki 5380 - 6th Street N.E. Fridley, MN 55421 Mr. Richard L. Byers 5300 - 5th Street N.E. Fridley, MN 55421 Ms. Myrna Byers 5300 - 5th Street N.E. Fridley, MN 55421 Mr. Elroy Huffman 509 - 53 1/2 Avenue N.E. Fridley, MN 55421 V. Hoium & D. Otterness 925 Dain Tower Building Minneapolis, MN 55402 Mr. Paul Sery 1048 - 87th Avenue N.E. Blaine, MN 55434 Ms. Barbara Glommen 1048 - 87th Avenue N.E. Blaine, MN 55434 Mr. Yacoub M. El-Zig 13129 Parkwood Drive Burnsville, MN 55337 Mr. James L. Peng 6 West Logan 1/)P,+ Mr. Richard Kappes 3129 Webster Avenue Minneapolis, MN 55416 Mr. Gordon & Ms. Marie Graham 5334 - 4th Street N.E. Fridley, MN 55421 Ms. Yuanita Cederstrom 5331 - 6th Street N.E. Fridley, MN 55421 Mr. Bill Cederstrom 5331 - 6th Street N.E. Fridley, MN 55421 Ms. Ruth Huss 501 - 63rd Avenue N.E. Fridley, MN 55432 Ms. Darlene Rusch 561 - 63rd Avenue N.E. Fridley, MN 55432 Ms. Marlene O'Donnell 5300 - 4th Street N.E. Fridley, MN 55421 Ms. Margaret Otten 5311 - 4th Street N.E. Fridley, MN 55421 M. J. Otten 5311 - 4th Street N.E. Fridley, MN 55421 Teryl M. Buckeridge 6365 - 5th Street N.E. Fridley, MN 55432 Ms. Laura Vogovich 5400 - 4th Street N.E. Mary Ann Vagovich 5400 - 4th Street N.E. Fridley, MN 55421 Irene Vasecka 5427 - 4th Street N.E. Fridley, MN 55421 Ms. Doreen Lischalk 5357 - 4th Street N.E. Fridley, MN 55421 Mr. Dallas Schute 5365 - 5th Street N.E. Fridley, MN 55421 Mr. Herbert Ledo 5326 - 4th Street N.E. Fridley, MN 55421 Mr. Henry Saffert 521 - 54th Avenue N.E. Fridley, MN 55421 Ms. Clarice Saffert 521 - 54th Avenue N.E. Fridley, MN 55421 Mr. Tom Gliadon 6230 Sunrise Drive N.E. Fridley, MN 55432 Mr. Homer Melton 5330 - 4th Street N.E. Fridley, MN 55421 Mr. Rogert Stene 870 Pandora Drive Fridley, MN 55432 Ms. Penny Landborg 5400 - 5th Street N.E. Y1'1.0 1Cy, 1'YY Jj4G1 Ms. Janet Taylor 5400 - 5th Street N.E. Fridley, MN 55421 Mr. Gary Ellestad 5400 - 5th Street N.E. Fridley, MN 55421 Ms. Sue Jensen 5384 - 5th Street N.E. Fridley, MN 55421 Ms. Vicky Otis 5378 - 5th Street N.E. Fridley, MN 55421 Mr. Peter Treuenfels 5248 Horizon Drive N.E. Fridley, MN 55421 L. Keating & C. Jones Rise, Inc. 8490 Spring Lake Road Moundsview, MN 55432 A.J. Haechrel 5367 - 5th Street N.E. Fridley, MN 55421 Ms. Marian Crandall 5370 - 5th Street N.E. Fridley, MN 55421 Ms. Linda Anderson 5360 - 5th Street N.E. Fridley, MN 55421 Mr. Michael Anderson 5360 - 5th Street N.E. Fridley, MN 55421 Ms. Rhonda Peterson 1 4 71n - 7yLY1 HYCYIUC 1�.L' . Fridley, MN 55421 Ms. Lana Freeburg 301 Rice Creek Terrace N.E. Fridley, MN 55432 Mr. David Hart 7525 Tempo Terrace N.E. Fridley, MN 55432 Ms. Jan Hebeisen 901 West Moore Lake Drive N.E. Fridley, MN 55432 Ms. Jackie LaFave 5375 - 5th Street N.E. Fridley, MN 55421 Mr. Ray LaFave 5375 - 5th Street N.E. Fridley, MN 55421 Mr. Will Lynn 7370 Memory Lane N.E. Fridley, MN 55432 Ms. Dee Lynn 7370 Memory Lane N.E. Fridley, MN 55432 Mr. Steve Soderholm 5336 - 5th Street N.E. Fridley, MN 55421 Ms. Linda Soderholm 5336 - 5th Street N.E. Fridley, MN 55421 Mr. John LaBreche 1381 Onondaga Street N.E. Fridley, MN 55432 Mr. Patrick Breitkreutz Fridley, MN 55421 Ms. Joyce Zimmerman 5380 - 4th Street N.E. Fridley, MN 55421 Mr. Lawrence Zimmerman 5380 - 4th Street N.E. Fridley, MN 55421 Mr. Glen Douglas 871 - 66th Avenue N.E. Fridley, MN 55432 Mr. Wayne Johnson 5400 - 5th Street N.E. Fridley, MN 55421 Roma & Tim Maloy 7995 Broad Avenue N.E. Fridley, MN 55432 Mr. Scott McKinney 6343 Highway #65 N.E. , #7 Fridley, MN 55432 Mr. Alan Swenson 5353 - 4th Street N.E. Fridley, MN 55421 Ms. Lucy Mickman 1631 - 66 1/2 Avenue N.E. Fridley, MN 55432 D. Stang & J. Yantos Anoka Co. Social Services 325 East Main Anoka, MN 55303 Ms. Kathie Prieve Mental Health Advocates Coalition 8406 Sunset Road N.E. Spring Lake Park, MN 55432 I COUNCIL M=nC OF MAY 20, 1985 s Mr. Blanchard stated they are a unique company as have no marketing and no sales representatives in the field. He stat they receive customers through their awn recognition. He stated they a been delivering products to IBM for two years without any rejects and a received a Vendor of the Year Pward frau IBM. Mr. Blanchard stated ite-Anderson delivers quality merchandise in a minimum amount of time. Mr. Blanchard stated, with their pro d addition, they plan to lease space to satellite vendors who are spe alists in their field. He stated Minneapolis Engineering would be ne of the vendors and these companies would be doing the engineering d Strite-Anderson the die casting. Mr. Blanchard stated he felt Fri is a good place to work and thrive. He stated the states of Nebr a, South Dakota, and North Dakota have all visited their plant seeki heavy industry in the high tech area for their states. He stated ti Anderson likes Minnesota, however, he would like to see some changes the workmen's compensation laws. He stated they have /en to change ere they are frau or where they are going. stated e felt bringing in the satellite companies was a marvelous pe sons in the audience spoke regarding the proposed issuance of ria1 development revenue bonds. Councilman Fitzpatrick to close the public hearing. Seconded by n Goodspeed. Upon a voice vote, all voting aye, Mayor Nee declared n carried unanimously and the public hearing closed at 7:58 p.m. D BUSINESS: 2. _ 1TO ALIDW RULE 36 5378-5384 5TH STREET NE, BY RANAE HANSON (TABLED 4/15/85) : Mayor Nee stated a request was received by ODuncilman Schneider to postpone this until the June 3, 1985 meeting. MJTION by Councilman Goodspeed to continue this item to the June 3, 1985 meeting and notify, by mail, interested parties. Seconded by Councilman Barnette. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. Ms. Margaret Otten, 5311 4th Street, stated she will be gable to attend the June 3 meeting so wished to make some comments regarding this proposed mental health facility. Ms. Often requested the Council take into consideration interpretation of exemptions from the Human Rights Act, Article 12 of the Minnesota Constitution, and Amendment 9 of the U.S. Oonsti tuti on, which she read. She stated unless the words mean something other than what she has read, it appears all persons are equal. -3- 1 OOUN(ILLL MEETING OF MAY 20, 1985 Mr. Ot-ten stated the people in this residential area claim their right not to hm-e an industrial medical facility placed in their neighborhood. She stated they object to any industry in their residential area. She stated the mentally ill already have the right to live here or they can go to a treatment facility. She stated they do not have the right to demand their awn industrial medical facility in a residential area where residents oppose it. She stated this facility could be located in an industrial or commercial area, as their neighborhood doesn't want to become an industrial zone. Ms. Otten stated the question was asked if property values would go down if this facility is located in the residential area. She cited a case in Greenwich, Connecticut where this has occured. Ms. Otten asked the local officials to defend them and their right to preserve their residential area. 3. TION OF AMM OF WATER AND S&T.R PRWECT #150 (FROM MFMING OF MA Mr. FLora, Public Works Director, stated the Council received these bids at the 1 ting, but the contract was not adarded pending notif ication by Burlingto rthern Railroad whether they wished to proceed. Mr. Flora stat\mation on Northern has decided to proceed with the project and staff woulthe hid be awarded to the low bidder, Hydro-Con, Inc. in the a123,456.78. MJTION rh' Countrick to award the contract to the law bidder, Hydro-Con, Inct of $123 ,456 .78 for Water and Sewer Project #150. Secondel Barnette. Upon a voice vote, all voting aye, Mayor Nee decltion rried unanimously. 4. CONSIDEMTION OF AWAM OF SMEET PRDJEa ST 1985 - MEETING OF MAY 6 . 1985) : Mr. Flora, Public Works Director, stated e Council received these bids at the last meeting, but did not award the co tract pending notification by Burlington-Northern Railroad whether they wi to proceed. He stated the railroad has responded and they wish to procee ith the project He stated staff would recommend the contract be aw d to the law bidder, H &S Asphalt in the amount of $337,565.25. MOTION by Councilman Barnette to award the bid for S eet Improvement Project ST 1985 - 1 & 2 to H & S Asphalt, Inc. in the amount of $337,565.25. Seconded by Councilman Fitzpatrick. Upon a voice vote, al voting aye, Mayor Nee declared the motion car ri ed unanimously. -4- J T CONSIDERATION OF FIRST RMnINC O£ AN ORDINANCE AMENDING THE' F gT r) EY ML cT pAL CODE RELATM TO PEDDLERS• A_MFNpNG SEC'T'ION 14.09. ADDING SECTION 14.09.2 "EXCEPTION FOR FOOD/BEVERAGE VEHICLES"_ POTION by Councilman Schneider to waive the first reading and approve the ordinance upon first reading. Seconded by Councilman Barnette. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. mli1 LFAJl N f FIRST. READING OF AN ORDINANCE AMENDING THE ELMLF,y Mtn.ICIPAL CODE RELATED TO STREVE"MING: AMENDING $ECTIOti 16 .05 .4 : ADDING SECTION 16 .05 .5. "EXCEPTION FSR FpMY REVFRaLF VEHT(7 FS" MOTION by Councilman Schneider to waive the first reading and approve the ordinance upon first reading. Seconded by Councilman Barnette. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. W. Herrick, Qty Attorney, asked if there was arV problem for Blue Bell to begn their operation since the hearing and f irst reading have been held. MDTION by OD ncilman Barnette that food and beverage vehicles may sound the { manually operated bell between the hours of 10: 00 a.m. and 4: 30 p.m. , and 6:00 p.m. to 8:00 p.m., in any area zoned coranercial or industrial, and only between the hour s of 1:00 p.m. and 4: 30 p.m. and 6: 30 p.m. to 8 : 00 p.m. in an}, area zoned residential or other than commercial or industrial which produces a noise level measured at a distance of 50 feet f ran the source no greater than 65 decibels. Seconded by Councilman Fitzpatrick. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. 4. CQNS[DERATI4fi OF A M= FOR SPECIAL USE P�.. ►�T. SP #85-01,�2�LL�_BLILE 16 RFS IDPr1"ZAL lZ� BEALM_pBXEAM. FOR ANOKA COUI.''I'Y. CONt11:iZTY OPTIO::S LTD., 5378-5384 5Th S'i?= N Es. BY R_L%kF FLA4gk4 (TABU 4/15/85 & 5/20/85) : Mayor Nee stated action on this item had been tabled from the previous meetings and asked that testimony submitted this evening be 1 invited to any new developments which the Council had not heard at the other meetings. Mrs. Joseph Vasecka, 5427 4th Street, stated the question had been asked how many children were in their neighborhood and stated they have well over 250. She stated there are also residents in this area who have resided here 30 and 40 years. W. Richard Byers, 5300 5th Street, stated Article 12 of the Minnesota Constitution and Article 9 of the U.S. Constitution provides rights to people and no laws can be passed to abridge these rights. He stated the people in their neighborhood are just asking for their rights and :omm un i ty Options are the ones asking for special privileges. He stated the Council should represent the people and what they want and felt it was a clear mandate to the Oouncil to deny this request for a special use permit. -5- rnr 14M MEEZ= op .7rp4F 1, 1985 W. Wayne Johnson, 5400 5th Street, stated he visited two existing facilities, one on 69th Avenue in Brooklyn Center and one on 12th Avenue in rdrmeapolis, who are under the Rule 36 program. He stated he talked to property owners adjacent to these facilities and the information he received is there has been as many as 12 cars parked at the facility. He stated at both places the grass was torn up and a neighbor had taken a loss on his hame when he sold it. W. Johnson stated a resident in the area of the 12th Avenue facility stated they have police ambulances arriving at this facility at different times in the night. He stated he didn't think the location of these f a ci l i ti to s compares to the pr opo se d facility on 5th Street, as these zoning areas are not similar to their residential area. Ms. Terri Buckeridge, 6365 5th Street, stated she was at the meeting on behalf of her mother, mrs. Merge otter, 5311 4th Street, who was unable to attend. Ms. Buckeridge again reviewed the caments made by her mother at the Council meeting on May 20, 1985. Ms. Mtichelle Kurak, 112 Panorama Avenue, stated Cum unity Options had stated there wouldn't be persons in this Rule 36 facility who would be dangerous, violent or chemically dependent. She stated, Lzider the law, they cannot discriminate and will admit clients with chemical dependency, if they pose no signi f i cant threat. Ms. Kurak stated Cocanunity options stated their clients would be living at this Rule 36 facility in order to make the transition to, living independently. She stated this is a definition of a half-way house. Mts. Kurak stated Cawunity Options indicated priority would be given to Anoka County residents, but others who do not live in the County may be admitted. She read a def irition of mental di cease and stated a- ler son such afflicted requires care for his own welfare or the welfare of the eormunity. MLS. Vicky Otis, 5378 5th Street, stated the question has been raised how rrary persons live in the building which is being proposed to become a Rule 36 facility. She stated there are 10 peoFle living in this building. Cbuncilrran Schneider asked if persons with certain types of mental illness could be excluded from this facility. Ms. Renae Hanson, Community options, stated they are deciders of their admission policy and there is nothing that can force them to take people whoa, they do not wish to adr,it. She stated the type cE people they admit is stipulated in their license and they must meet these requirements in order to keep their license. Cbuncilrran Fitzpatrick asked if a referral was made to then fram the County Welfare Department, if they could reject that referral. Ms. Hanson stated def initely. Councilman Schneider stated he would agree with the philosophy that this meatal health facility should be run by a private organization, but his concern is if they do rot Hake a prof it if they woul d be tempted to alter QF JQF 3, 1985 their standards. Mus. Hanson stated generally speaking they wouldn't have such an option because it would increase their liability or risk the loss of their license. She stated it would be more likely they would 9D beck to the Cbuhty and reclassify their heeds assessment. Mr. Toy LaF'ave, 5375 5th Street, stated there is a State commitment act which indicates they cannot discriminate against anyone that seeks help. Me. Wright, Community options, stated there is a comm i tin ent act to comm i t people with mental illness that are considered dangerous to State Hospitals but a judge cannot commit a client to their facility. Mus. Hanson stated their facility would not come under this commitment law and they can refuse to take peopl a they do not wish to admit. Councilman Schneider stated the building they are prolosing to purchase is owned by a relative of a County Commissioner and while there may not be anything wrong with that, it might indicate a conflict of interest. He felt becaLse they are not willing to state the purchase price of the building, it puts a cloud over their integrity. Ms. Hanson stated, at the last Council meeting, there was some insinuation that sorr,ethinc was going on. She stated they contacted the Commissioner from whose neibew they have a purchase agreement for the building,' and was told he hasn' t spoker. with his nephew for several years. She stated trey did not know any thing of this before the last meeting. { Cbuncilrran Schneider asked if they would give the purchase price for this building. Nis. Wright stated she would prefer not to give the price, at tris point, since it is just a purchase agreement. She stated at tine time of sale, the purchase price becomes public record. Cbuncilrran Schneider stated the relevance this has to the issue is the integrity of their organization. He stated the appearance cf impropriety is heightened because they are not willing to disclose the Furdnase price. W. Gene Wright stated they worked through an agent to purchase this property and if there is anything under the tatle, it is not to their knowledge. He stated he felt it was unfair to categorize them as a related party transaction. councilman FYtzpetrick asked if this property was on the open market. Ms. Wright stated, to the best of her knowledge, it was not. Myor Nee stated the question seems to come down to who is for treating mentally ill people and who is scared of them. He stated this really is not the issue. He stated the issue is the appropriate use of the land. Mayor Nee stated a letter was received from Cornissioner Rordiak in which he stated this was a bad location for this facility and offered to help find an appropriate location. He asked if this offer was accepted. Ms. Hanson stated she called Coami ssi over Kor di ak and asked if they sh o ul d meet to talk about r eq ui r en ent s for a site and they were told he didn't want to talk to then until the City had made a decision and he was not involved in the issue. She stated her feeling was he rescinded his offer because he didn't want to meet with her. i -7- i [rt rrarrt, t+n:<r-rrtar; OF JINN 3. 985 Mayor Nee stated staff was asked to make a survey of Fridley where criteria could be met and where there would be acceptance of such a facility. He stated staff did identify a number of locations where they felt it would be more appropriate. W. Qureshi, Qty Manager, stated he talked to Renae Hanson and discussed the possibility of looking at other sites in the ==unity. Basically, the Cbunty sets the criteria for such a facility and the site has to be in a residential area, have transportation available, and should be operational as soon as possible. He stated he asked if they would be willing to look at other sites that may be acceptable. He stated Ms. Hanson indicated not at this time bemuse they already have a purchase agreeerent contingent on these obtaining the special use permit. He stated their contract with the County was that the facility was to become operational as soon as possible and another site would take a much longer process. He stated Ms. Hanson felt at this time it wouldn't be practical to review any other sites because of this situation. Mayor Nee stated this Council is not opposed to the proposal and has identified locations where it may be acceptable. He stated the issue is really the land use. He stated he takes the conflict with the neighborhood very seriously. He felt there are other locations in the City which would be more appropriate and hoFed if the special use permit is denied, they may help then find another site. Q:>uncilrran Schneider stated he fully supports the need for this type of facility. He stated the problem he has is most people are willing to negotiate, discuss, and core to a omprmise. He stated nothing is being cone to correct the appearance of improprieties. He also stated they were told nothing could be cone to compensate the people who would have to move from this building and Cacrunity Option is also milling to discuss other possible locations. He stated in almost every instance, the petitioners cannot agree. Ms. Wricfit stated on the contrary, they feel they have been very open. She stated they accepted the Planning Commission ' s rew=endations and does not feel they conducted thernselves in an improper manner with the seller cf this property. She stated they have: a legal and binding purchase agr eenent and they are not free to explore other sites. Mr. Byers stated it is strictly a matter cf constitutional rights and does the Council give thein to a few or to the people they rel.resent. Mr. Andy Haechrel, 5367 5th Street, asked Ms. Wright if she owns the property where the Brooklyn Center facility is located. Ms. Wright statea she was the owner. It. Haethrel stated this is a very hard issue for him, however, he has decided to take a stand in his own best interests. He stated he didn' t believe a "no" vote means a person is opposed to the mentally ill issue. He stated he would urge the Council to vote their conscience and what the oarmunity wishes thein to do. Councilman F7tzpatrick stated he believed what Mayor Nee has stated, that the question is really a matter cf land use. -8- ti CCXM T M'EME OF JUM 1. 1985 MJ aN by Fitzpatrick to receive the petition presented by Kathy Prieve urging the approval of this special use permit. Seconded by Schneider. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. KMCN by Councilman Fitzpatrick to deny special use permit, SP f85-018, for the following reasons: (1) This is a business with a dozen or more employees in a totally residential area; (2) It would be incompatible with several existing licenses of day care centers in close proximity to the proposed site; (3) That the immediate neighborhood has been an economically marginal neighborhood that needed redevelopment. In recent years, owners of property within the neighborhood have started making improvements. The location of the proposed facility will have an adverse affect on the continued improvements needed in the neighborhood; (4) That the proposed facility would have an adverse affect on property values because both landlords and tenants indicated that if the facility is located on the proposed site, that many of the tenants in the multi-residential properties would no longer rent these properties; (5) That the location of the proposed f aril ity on the si to woul d have an adv er se of f ect on the heal th and saf ety of the facility residents because of the very substantial neighborhood opposition to its location. The record contains petitions and testimony indicating that a substantial majority of the neighborhood residents are opposed to the facility being located on this site. This opposition creates an atmosphere that is not conducive to the health and safety of the facility residents. Seconded by Councilman Barnette. ( Cbuncilman Goodspeed stated he represents the First Ward and may have a slightly different perspective simply becaLse it might be easier to talk about when it isn't going to be in your wn backyard. He stated he would disagree with the notion. He didn't think it is unusual to put facilities of this nature in residential neighborhoods. He stated there are similar ones in the City all located in the First Ward, such as Unity Hospital, Fridley Convalescent Home, the counseling clinic on University and the Central Dental Lab. Councilman Barnette stated this question has been the most difficult one for him and he has heard f ran people cn both sides of the issue. He stated he works in the same field as the people from Community Options and many families that called him have menbers of their family who are probably in need of such a facility. He stated others have called him and urged hire to dery this request. He stated he personally feels he is at the very grass roots of the political process and feels he has to respond to many of the people present. He stated the 0,>uncil represents all people, but mostly the people who have elected then. He stated be feels strongly an this issue and would vote in favor cf the motion for denial. He stated as a City, Fridley is not going to turn its back on any mentally ill person. He stated alternative sites have been identified, but didn't know what it meant to the petitioner. Councilman Schneider stated this has been the hardest question to decide since he has been on the Council. He stated he believed it would be better to approve the special use permit with a number of stipulations, some of -9- COLS ZL. MEZM= OF JUNE 3� 1985 which the Community Options people do not agree with. He felt certain sti;ulations would protect the neighborhood and provide a facility tiAt was r very much needed. ftor Nee stated he intends to vote in favor of the motion. He stated ev;ary time a menber of the Oouncil votes, they help somebody and harm somebodl•, and that is almost without exception. He stated you try to weigh the relative good and the relative harm. He stated there never is a question where there isn't a 'gray' area. He stated he is convinced this kind of intensive :. a at this particular location would have a serious impact on the neighbonccy , and create damage. He stated it is a neighborhood the Council haf been i—n-erested in over the last several years in trying to stimulate leadershi, and activity, and it appears this facility would come into co:-.flict with the program they have been supporting to improve the neighborhood. URN A ROLL allL VCIiE, Mayor Nee, Councilman Fitzpatrick and Counciln.an Barrette voted in favor of the motion. Councilman Schneider and Councilman Goodspeed voted against the motion. Mayor Nee declared the motion carried by a 3 to 2 vote. 5. CONS ANON OF SPECIAL USE PERT:IT. SP 084-07 TO VARY BUILD NG LOCATION, 6875 MMd.R.5TTY AVENa._ N_F__ wmrx tFsr BAPT'IS'T C1ilIFm_ (TABLED 5/20/85) : (buncilman Barnette stated meetings were held with the Woodcrest Baptist Church and residents of the neighborhood regarding the Church' s proposed addition and its 1 ocati on on their property. He stated because of the sanitary sewer pipe, this addition cannot be constructed, as proposed, when the special use permit was issued. He stated at thise meetings a number of alternatives were explored and they have oome up with a workable agrea►ent between the cnurcn and the neighborhood. MTICN by (3:)uncilman Barrette to reapprove special use permit, SP 084-07 with the following stipulations: (1) That the location of the addition is to be 40 feet from the lot lire to the southeast corner of the building; (2) That the building be 1 ow er ed four feet from. the or i gi nal pr opo se d elevation; (3) Any lighting installed on the back of the building should not infringe on the neighbor's property Line; (4) The green area behind the building on the east side should be maintained with appropriate landscaping; (5) A landscaping ng pl an should be submitted and approved by the City staff ; (6) Appropriate exterior wall finishing should be approved by the City staff ; (7) That the landscaping and exterior walls be coordinated with the adjoining property owners; (8) That the roof ing be similar to the sanctuary; and (9) That a utility easement, to be determined by the City, be provided for the sanitary sewer line currently located on the property. Seconded by (buncilman Goodspeed. Oouncilman Barnette stated he appreciated the neighbor's and churcra' s cooper ate c n. it. Rodateugh, represent]ng the church, thanked the neighbors for working -io- MEMORANDUM CITY OF FRIDLEY OFFICE OF THE CITY MANAGER 6431 UNIVERSITY AVE. NE. NASIM M. QURESHI FRIOLEY. MN. 6543E (61aj 571-3450 MEMDRANTUM TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: NAS IM M. QURESH I, CITY MANPG ER DATE: FEBIUARY 12, 1986 SUBJECT: JUDGES ORDER REGARDING COMMUNITY OPTIONS See the attached memo frau the City Attorney's oftice which I had requested regarding the Judges Order for the special use permit to Community Opti ons. We Have nad inquiries from newspapers and my guess is that there should be articles both in the Minneapolis and St. Paul newspapers in the next day or so. Unless the majority of the City Council desires the City Attorney's oftice to appeal this decision, we will put this item on the agenda for the February 24th meeting for action by the City Council. NMS/la rmcl osur e HERRICK & NEWMAN. P.A. VIRGIL C.HERRICK 6279 UNIVERSITY AVENUE N.E. DAVID P.NlWMAN ATTORNEYS AT LAW FRIDLEY.MINNESOTA 55432 ., JAMES E. SCNMECKPEPER 571-3850 February 12 , 1986 _P 1 Mr. Nasim M. Qureshi City of Fridley ' Civic Center 6431 University Avenue Northeast Fridley, MN 55432 RE: Community Options Dear Nasim: On February 11 , 1986 , Judge Kammeyer issued a Preemptory Writ of Mandamus and Order for Judgment Related to Issuance of a Preemptory Writ of Mandamus . These documents were then served upon your office and mine on the same date. You will note that under the Order the City has been directed to issue the special use permit on or before February 26 , 1986 at 9 : 00 A.M. You should also note that this Order is directed only to the questions surrounding the issuance of the special use permit. The Judge has not yet made a determination on the questions of attorneys fees , monetary damages and the plaintiffs costs and disbursements. In the Court Order the Judge indicates that he will be issuing a separate decision on those items . The City, at this time, has essentially two options . First of all, the City can comply with the Court Order and issue the special use permit on or before the required date. I have briefly discussed this matter with one of the attorney' s for the plaintiffs and they are, of course, anxious that this special use permit be issued as soon as possible so as to avoid further adverse neighborhood reaction. The second option is to appeal the Judge' s decision. Under the Rules of Civil Procedure this Order may be appealed to the Court of Appeals on or before March 13 , 1986 . However , the general procedure is that on appeal, the lower court' s order will still continue in effect unless a stay has been obtained. Consequently, for all practical purposes, if this Order is to be appealed, a stay of the Trial Court' s Order must be obtained prior to 9 : 00 A.M. , February 26, 1986 . As a practical matter, the decision to obtain this stay should be made in a reasonable amount of time before the 26th so that our office will have an adequate opportunity to prepare the necessary documents and to schedule an appearance before the Judge. J I believe that Virgil has already presented to you his opinion on the likelihood of succeeding in this matter . I would suspect that the likelihood of success on appeal is even further decreased due to the tendency by the Court of Appeals to defer to the Judgment of the Trial Court, except in those circumstances where the Trial Court has clearly abused his discretion in making a factual determination) or has acted in clear violation of the Law. As noted above, the Trial Court has not yet rendered a decision on the issues of monetary damage and attorneys fees . Theoretically, whether or not you appeal should have no bearing on the decision that the Trial Court will reach on these remaining issues . As a practical matter, though, once an appeal is made the Trial Court will be aware of this fact and will have that information prior to rendering its decision on these remaining items . I suppose a final option which is available to the City would be to do nothing. In such an event then I would anticipate that the plaintiffs would return to Court seeking contempt charges against the City and further requesting an order issuing the special use permit. I would strongly recommend against this alternative. However, if the City elects to follow this procedure, then you can be reasonably certain that the City will have to pay to the plaintiffs their attorneys fees incurred in bringing the susbsequent action. Additionally, the Mayor and City Council should be cognizant of the fact that the Court could hold them in Contempt. In summary, the Order issued by the Court only refers to the question of the special use permit and requires that it be issued on or before 9: 00 A.M. , February 26, 1986 . If the City elects to appeal this decision, then that determination should be made in a prompt fashion so that our office will have ample opportunity to attempt to obtain a stay before the Order takes effect. If I can be of any further assistance, please do not hesitate to contact me . Sincerely yours, DPN:JJH David P. Newman DISTRICT COURT STATE OF MINNESOTA - - » 5 � TENTH JUDICIAL DISTRICT COUNTY OF ANOKA F E B 11 IL Community Options, Ltd., t;,'; L; .`:. a Minnesota Corporation, Eugene Wright, Diane O. ORDER FOR JUDGMENT Wright, RELATED TO ISSUANCE T. H., K. W., and OF A PEREMPTORY WRIT Kurt N esset, OF MANDAMUS Plaintiff- Petitioners, -vs- The City of Fridley, a Municipal Corporation, Anoka County District Court File #B-85-4539 Defendant- Respondent. Summary Statement permit application of The Fridley City CatnaiCdynCounc 1 meeting special of 6/3/85. The requested petitioner Community Options permit would allow Community Options to establish a so-called Rule 36 facility, or ' tin apartment building in the City. Petitioners p presently existing P mentally ill adults, in a p y Eugene and Diane Wright have an option app to purchase that ed by Council or ordered by building, his Court,the the special use permit were to building to Community Options so that the Wrights would lease the apartment latter entity could establish and conduct the Rule 36 facility in that building.Mandamus and On 8/l/85 this Court directed et at an up nithe City. Writ hat AlternativelWrit Order to Show Cause be issued to a uested special use permit commanded the respondent City to either issue the req immediately or show cause why it had no e )n one.ofT he Judges. of this Court,andamus or uon hearing was held before me (Judge Ka Y 10/3/85, 10/4/85, and 10/15/85. It was tried to the Court without a ury' the plaintiff- As part of their Application for a Writ of Mandamus, (1) Community also included a Complaint for money damages, as follows: Petitioners rofits on account of its inability to operate a Rule 36 facility Options for loss of p ncurred on under a full contract with Anoka County. of 2 he aparTtment building? on l account of account of delay in closing is the Permit to Community Options, including such item the City's denial of the special use pT. H opportunity to live as additional financing costs. (3) Petit;nnu rs from.the denial of the opp set on account of emotional and mental distress and injury at the proposed Rule 36 facility and becnuseOO tions discrimination allegedly use permit.exercised y the City against them in denying Community P Y+ STATE OF MINNESOTA DISTRICT COURT COUNTY OF ANOKA TENTH JUDICIAL DISTRICT J Community Options, Ltd., a Minnesota Corpora ' INTERLOCUTORY ORDER - £ugeno Mg , fine O. CONFIRMING PREVIOUSLY- Wright, ISSUED WRIT OF MANDAMUS T. H., K. W., and AND RESOLVING REMAINING Kurt Nesset, ISSUES OF ATTORNEY FEES, DAMAGES, AND COSTS AND Plaintiff- DISBURSEMENTS do Petitioners, ACCOMPANYING MEMORANDUM VS. The City of Fridley, a Municipal Corporation, Anoka County District Defendant- Court File #B-85-4539 Respondent. ATTORNEY APPEARANCES PETITIONERS T. H., K. W., AND KURT NESSET: Susan L. Lentz, attorney at law, Law Offices of the Legal Aid Society of Minneapolis, Inc., 222 Grain Exchange Building, 343 Fourth Avenue South, ?:linneapolis, MN 55415. PETITIONERS COMMUNITY OPTIONS/W RIGHTS: Mary Benjamin Trevor, attorney at law, Leonard, Street do Deinard, 100 South Fifth Street, Suite 1500, Minneapolis, MN 55402. RESPONDENT CITY OF FRIDLEY: Virgil C. Herrick, attorney at law, Herrick be Newman, 6279 University Avenue NE, Fridley, MN 55432. s s s s s SUMMARY STATEMENT By Order of this Court dated 2/11/86, the Court directed the issuance of a Peremptory Writ of Mandamus, commanding respondent City of Fridley to give a Special Use Permit to petitioner Community Options. The permit would allow Community Options to establish a so-called Rule 36 facility for mentally ill adults at a certain location in the City. • 3 -2- The Fridley City Council denied the special use permit application of petitioner Community Options at a City Council meeting of 6/3/85. The requested permit would have allowed Community Options to establish a so-called Rule 36 facility, for mentally ill adults, in a presently-existing apartment building in the City. Petitioners Eugene and Diane Wright had an option, at that time, to purchase that apartment building, and, if the special use permit were to be approved by the Council or ordered by this Court, the Wrights would exercise that option (to purchase the building) and then lease it to Community Options so that the latter entity could establish and conduct the Rule 36 facility in that building. On 8/1/85 this Court directed that an Alternative Writ of Mandamus and Order to Show Cause be issued to and served upon the City. That Alternative Writ commanded the respondent City to either issue the requested special use permit immediately or show cause why it had not done so. The mandamus or show-cause hearing was held before me (Judge Kammeyer), one of the Judges of this Court, on 10/3/85, 10/4/85, and 10/15/85. It was tried to the Court without a jury. As part of their Application for a Writ of Mandamus, the plaintiff- petitioners also included a Complaint for money damages, as follows: (1) Community Options, for loss of profits, on account of its inability to operate a Rule 36 facility under a full contract with Anoka County. (2) The Wrights, for losses allegedly incurred because of delay in closing on the purchase of the apartment building, due to the City's denial of the special use permit to Community Options, including such items as additional financing costs. (3) Petitioners T. H., K. IV. and Kurt Nesset, for emotional and mental distress caused by the denial of the opportunity to live at the proposed Rule 36 facility and because of discrimination allegedly exercised by the City against them in denying Community Options the special use permit. In addition, all of the plaintiff-petitioners prayed for other associated relief, including an award of their costs and disbursements -- and, very importantly, a reasonable amount of attorney fees. Only plaintiff Community Options still seeks an award of damages (plaintiff T. H., K. W., and Kurt Nesset and plaintiffs Eugene and Diane Wright having waived their damages claims). All of the plaintiffs still are seeking an award of attorney fees and costs. This present document provides support for that 2/11/86 Peremptory Writ Order in the form of factual findings and legal conclusions and a Memorandum, and also resolves remaining issues of damages, attorney fees, and costs. -3- sssss Based upon the evidence presented to the Court at the mandamus/show- cause hearing, certain stipulations of fact made by the parties, the written and oral arbuments of counsel, and upon all the records, files, and proceedings herein, the Court now makes an Interlocutory Order which: (1) confirms this Court's previous issuance of the writ of mandamus, on 2/11/86; (2) establishes the petitioners' threshold entitlement to an award of attorney fees; (3) provides procedures for determination of the actual amount of those fees to be awarded; (4) determines that petitioner Community Options is not entitled to damages for lost profits; and (5) establishes the petitioners' entitlement to their costs and disbursements. The present Order is interlocutory in nature; the Court, upon determination of the actual amount of the attorney fees award, will enter a Final Order for Judgment. FINDINGS OF FACT [ NOTE: In connection with the trial of this lawsuit, the parties entered into an extensive stipulation or agreement concerning certain facts which the Court could consider as having been established without the need for supporting evidence. See: Court's Exh. "A." We set forth those stipulated facts in 11 11's 1-42, immediately below. The Court's own factual findings and legal conclusions, based on the evidence presented at the mandamus/show-cause hearing, appear throughout the accompanying :Memorandum — pursuant to Rule 52.01, Minn. R. Civ. P. The parties jointly requested that the Court take judicial notice of the following Ordinances of the City of Fridley (pursuant to Rule 201, Minn. R. Evid.): Fridley Ordinance § 205.05.4, "Special Use Permit" and Fridley Ordinance § 205.09, "R-3 General Multiple Dwelling District Regulations." The Court has judicially noted those ordinances, and we set forth one of them — the "Special Use Permit" Ordinance — in full in an Appendix to this present Order/Memorandum. The facts stipulated to by the parties, as recited immediately below, have organizing section headings which are the Court's, not the parties'. -4- Facts Stipulated to by the Parties The Parties: Community Options, the Wrights, City of Fridley 1. Petitioner-plaintiff Community Options, Ltd. ("Community Options") is a Minnesota corporation organized and existing under the laws of the State of Minnesota. Community Options desires to operate a group home for mentally ill adults in the City of Fridley. 2. Petitioner-plaintiffs Eugene Wright and Diane 0. Wright presently have a contract to purchase a property located at 5378-5384 5th Street N.E. in Fridley, contingent upon petitioner Community Options' obtaining a special use permit to operate a group home on the property. 3. Defendant-respondent City of Fridley is a 'Minnesota municipal corporation. 4. The Mayor of the City of Fridley has as his constituency the population of the City of Fridley as a whole. William Nee is presently the Mayor of Fridley. 5. The Fridley City Council has a "member-at-large" whose constituency is also the population of the City of Fridley as a whole. Robert Barnette is presently the member-at-large of the Fridley City Council. 6. The site of Community Options' proposed facility is located in the Third Ward of the City of Fridley, presently represented at the City of Council by Edward Fitzpatrick. Proposed Use in General 7. Community Options intends to, and has entered into an agreement to lease the 5th Street property from the Wrights, contingent upon the obtaining of a special use permit. 8. Community Options seeks to use the property as a state licensed group home for 14 adults whose ment il illness is in sufficient remission to make community- based group living necessary and appropriate. Community Options has entered into a contract with Anoka County to ,provide this service; the contract will expire if the site is not in operation by the end of 1785. -5- Application for Special Use Permit 9. In March, 1985, Community Options and the Wrights applied to the City of Fridley for a special use permit to allow use of the property as a group home. 10. The intended use of the property by Community Options is a permitted special use in the R-3 zone in which the property is located, as set forth in applicable ordinances of the City of Fridley. 11. On 3/28/85, employees of Community Options held a meeting with neighbors of the proposed facility to inform them of the nature of the group home and to answer questions regarding the program. Planning Commission and Human Resources Commission 12. On 4/3/85, the City Planning Commission of Fridley, after a public hearing, unanimously voted to recommend the issuance of the permit, subject to nine enumerated stipulations with which Community Options was and is willing to comply. The enumerated stipulations read as follows: 1. Operation to be reviewed annually with a public hearing for the first two years. 2. Residents with automobiles be restricted to five or less. 3. Rear yard to be fenced with six foot high solid wood fence. This is to be completed prior to occupancy. 4. Proposed advisory committee to include City representatives (i.e. Human Resources Commission member and/or Police Special Operations Division Staff). 5. Petitioner to provide a landscaping plan and install prior to 10/31/85. 6. Contingency plan be initiated with Unity Hospital to cover any emergencies. 7. Facility will comply with all State and County rules and laws and be fully licensed. 8. Facility will comply with the Local and State fire codes. 9. Client characteristics will be consistent with Rule 36 Program guidelines (i.e. individuals who do not exhibit behavior that is harmful to themselves or others). -6- 13. On 4/4/85, the Human Resources Commission of the City of Fridley unanimously voted to support the issuance of the special use permit requested by Community Options. 4/15/85 City Council Meeting 14. On 4/15/85, The Fridley City Council met and considered the special use permit for Community Options. 15. Although much testimony in favor of the proposed group home was given at the 4/15/85 meeting, there was also vociferous opposition from neighborhood residents, many of whom expressed stereotypes about mentally ill persons and/or an unwillingness to have a home for mentally ill persons in their neighborhood. At the conclusion of the testimony the City Council determined to postpone a decision until 5/20/85. 16. Subsequently, the matter of the issuance of the special use permit was further postponed to 6/3/85. 6/3/85 Council Meeting/Denial of Special Use Permit 17. On 6/3/85, the City Council voted, by a vote of 3 to 2, to deny the requested special use permit. 18. Mayor Nee, Councilman Barnette and Councilman Fitzpatrick cast the three votes in favor of denying the special use permit requested by Community Options. 19. & 20. (NOTE: The parties' written stipulation indicates that another Stipulation would supplement these two 11 numbers. No such Supplemental Stipulation was mentioned or otherwise brought to the Court's attention at the hearing). Information, Data, Studies, Surveys Available/Not Available to City Council 21. No group home for mentally ill adults presently exists anywhere in Anoka County, Minnesota. Anoka County has identified the establishment of a group home as a primary unmet need for mentally ill adults in Anoka County. 22. At the time the Fridley City Council voted to deny the issuance of the special use permit, the City of Fridley had not conducted any surveys or done any studies regarding the effect on property values when a group home for mentally ill persons is located in a residential neighborhood. -7- 23. At the time the Fridley City Council voted to deny the issuance of the special use permit, the Council did not have in its possession and did not have any knowledge of any historical data which showed that property values of homes in residential neighborhoods declined when a group home for mentally ill persons was located there. 24. At the time the Fridley City Council voted to deny the issuance of the special use permit in question the Council did have in its possession and have knowledge of several studies showing that property values in residential neighborhoods did not decline following location of a group home for mentally ill or mentally retarded people in the neighborhood. Copies of these studies ( were attached to and made a part of the parties' Written Stipulation of Fact] as Exhibits 21-24. Wording of the Denial Motion 25. The operative wording of a motion that has been made and voted upon by the Fridley City Council is contained in the official minutes of the meeting at which the motion was made. 26. The official motion at issue, constituting the reasons relied upon by the City council in denying the special use permit is contained at page 9 of Exhibit 29, and it reads as follows: MOTION by Councilman Fitzpatrick to deny special use permit, SP ;#85-01, for the following reasons: (1) This is a business with a dozen or more employees in a totally residential area; (2) It would be incompatible with several existing licenses of day care centers in a close proximity to the proposed site; (3) That the immediate neighborhood has been an economically marginal neighborhood that needed redevelopment. In recent years, owners of property within the neighborhood have started making improvements. The location of the proposed facility will have an adverse effect on the continued improvements needed in the neighborhood; (4) That the proposed facility would have an adverse effect on property values because both landlords and tenants indicated that if the facility is located on the proposed site, that many of the tenants in the multi-residential properties would no longer rent these properties; (5) That the location of the proposed facility on the site would have an adverse affect on the health and safety of the facility residents because of the very substantial neighborhood opposition to its location. The record contains petitions and testimony indicating that a substantial majority of the neighborhood residents are opposed to the facility being located on this site. The opposition creates an atmosphere that is not conducive to the health and safety of the facility residents. -8- Plaintiff-Petitioner T. H. 27. Plaintiff T. H. is a 25-year old woman with a diagnosis of chronic schizophrenia who is disabled in that she has a mental disability which substantially limits one or more major life activities and has a record of such impairment. She receives Supplemental Security Income for her disability. 28. Plaintiff T. H. has been a resident of the City of Fridley since the age of 13. Plaintiff T. H.'s parents and other family members continue to reside in Fridley. Plaintiff T. H. is presently residing in an adult foster home in Anoka County. 29. Placement in a suburban residential treatment program is an appropriate course of treatment for plaintiff T. H. and is supported by her caseworkers at Anoka County Social Services. 30. Plaintiff T. H. believes that it would be beneficial to the course of her treatment to receive that treatment in a group home in Fridley, even though she may have to contend with discrimination and opposition from neighbors. 31. Plaintiff T. H. meets the admission guidelines for Community Options' proposed facility, is presently in need of placement in a group home, and desires to reside at Community Options. Plaintiff-Petitioner K. W. 32. Plaintiff K. W. is a 32-year old man with a diagnosis of manic- depression and schizophrenia. He is disabled in that he has a mental disability which substantially limits one or more major life activities and has a record of such impairment. He receives Supplemental Security Income for his disability. 33. Plaintiff K. W. is a resident of Anoka County and is from the City of Anoka. Although plaintiff K. W. is temporarily receiving treatment at a facility in St. Paul for mentally ill people, he continues to have immediate family in Anoka County and would like to return. An application for admission to Community Options will be made pending the opening of the group home. 34. The course of plaintiff K. W.'s treatment would be enhanced if treatment could be provided in the local community with which K. W. is familiar and in greater proximity to his family. 35. Plaintiff K. W. believes it would be beneficial to the course of his treatment to receive that treatment in a group home in Fridley, even though he may have to contend with discrimination and opposition from neighbors. -9- 36. Plaintiff K. W. meets the admission guidelines for Community Options' proposed facility, is presently in need of placement in a group home, and desires to reside at Community Options. Plaintiff-Petitioner Kurt Nesset 37. Plaintiff Kurt 'vesset is a 21-year old man with a diagnosis of schizophrenia. He is disabled in that he has a mental disability which substantially limits one or more major life activities and has a record of such impairment and receives Supplemental Security Income for his disability. 38. Plaintiff Kurt Nesset is a resident of the City of Anoka. His immediate family continues to reside in Anoka. 39. Plaintiff Kurt Nesset expects to be discharged within the next month from Anoka State Hospital; his discharge plan includes placement in a suburban residential treatment program, with placement in Anoka County preferred. 40. Plaintiff Kurt Nesset's course of treatment would be enhanced by placement in a local community with which he is familiar and which would allow access to interaction with his immediate family. 41. Plaintiff Kurt Nesset believes that it would be beneficial to the course of his treatment to receive that treatment in a group home in Fridley, even though he may have to contend with discrimination and opposition from neighbors. 42. Plaintiff Kurt Nesset meets the admission guidelines for Community Options' proposed facility, will very shortly be in need of placement in a group home, and desires to reside at Community Options. s s s s s Based on those stipulated facts, the factual findings and legal conclusions made by the Court within the Body of the attached Memorandum, and upon all of the files, records and proceedings M this matter, the Court now makes the following: ORDER L The Court's 2 11 96 Order, directing the issuance of a writ of mandamus, is confirmed. Issuxioc of that writ was based upon Minnesota case law related generally to special a<v ,wrmit.s, Minnesota's Mandamus Statute (Minn. Stats. Ch. 586), and the Minnesota Iiu:nan Rights Act (Minn. Stats. Ch. 363). -10- EL Petitioners have established their entitlement, on a threshold basis, to an award of attorney fees, both under 42 U.S.C.A 5 1988 and the :Minnesota human Rights Act. HL The Court will allow respondent City to present written input (memorandum, affidavits, etc.) touching solely on the amount of such attorney fees — the same to be supplied to the Court by the City no later than April 24, 1987. The Court has previously received, from the petitioners, such written input and, accordingly, no additional memorandum or affidavits on petitioners' behalf (on the question of the amount of attorney fees) will be entertained by the Court. Determination of the amount of attorney fees will be made by the Court (in the Final Order for Judgment) on the basis of the written input of the parties, without a formal hearing. IV. Petitioner Community Options is not entitled to an award of damages in connection with its claim for lost profits, and the Court's Final Order for Judgment will direct that petitioner Community Options have and recover nothing from respondent City on that claim. V. Petitioners are entitled to their costs and disbursements, and the Final Order for Judgment will include such a provision. VL The Clerk of this Court is directed to advise the parties of the present Order, by providing copies of the same to their attorneys, whose names and addresses are set forth above. BY THE COURT: r� r Dated this dayj of April, 1987. Daniel M. Kammeyer J Judge of Anoka County District Court Tenth Judicial District MEMORANDUM In this Memorandum, we devote almost all of our attention to the issues surrounding denial of the special use permit and an award of attorney fees. At the end of the Memorandum, we discuss the one damages issue remaining (Community Options' claim for lost profits), and costs. [ L] DENIAL OF SPECIAL USE PERMIT; ATTORNEY FEES (A_) Summary of Issues In the present case, the petitioners have alleged that the Fridley City Council's denial of a special use permit is actionable under 3 bodies of law. First, that the denial was not justified under the substantive law of this state — mostly applicable appellate case law -- related to special use permits. Second, that the denial constituted a deprivation of petitioners' rights under federal law, particularly under 42 USCA § 1983. Third, that the denial was an actionable violation of a state statute, Minnesota's Human Rights Act, :Minn. Stats. Ch. 363. Although the standards for each one of those bodies of law have differences, they also tend to overlap. To the extent that those three standards can be stated separately and distinctly, they are as follows: MINNESOTA CASE LAW: Whether denial of the special use permit was justified by reasons that were both legally sufficient and factually supported. 42 USCA § 1983: Whether denial of the permit deprived petitioners of certain constitutional protections: equal protection of the laws and substantive due process. 6 MINN. STATS. CH. 363: Whether denial of the permit constituted discrimination against petitioners in the full utilization of or benefit from a public service because of a disability (mental illness). We conclude that denial of the special use permit in this case: (1) under Minnesota Case Law, was done by the City of Fridley for reasons that either were not legally sufficient and/or were not factually supported; and (2) under M.S. Ch. 363, discriminated against petitioners (T. H., K. W., and Kurt Nesset), because of a disability, in their full utilization of and benefit from a public service. However, for -12- reasons stated later in this Memorandum, we do not decide the constitutional issues under 42 USCA § 1983. Because of those conclusions, petitioners were entitled to have the Court compel the issuance of a special use permit, a remedy we instituted in the previous order. That equitable remedy — mandamus -- is contemplated by each one of those three bodies of law. The mandamus remedy is generally authorized in Minnesot, by the :Mandamus Statute (Minn. Stats. Ch. 586) and in particular is the usual judicial method employed by Minnesota courts to remedy the unjustified denial of a special use permit. The other two bodies of law, 42 USCA § 1983 and Minnesota's Human Rights Act (Ch. 363), provide a state district court with broad enough equitable powers to easily contemplate and authorize the court's use of mandamus to redress a deprivation of constitutional rights or statutory disability rights.I Because we are not resolving the constitutional issues in this case under § 1983, that body of law did not serve as a basis for issuance of the writ of mandamus. Rather, the basis for issuance of the writ was the Human Rights Act and traditional "special use permit law" in Minnesota. Aside from the remedy of mandamus which is authorized under all three bodies of law, two of them also provide for an award of attorney fees to a successful or "prevailing" petitioner. A complementary section to the federal Civil Rights Act makes that provision (see: 42 USCA § 1988), as does Minnesota's Human Rights Act (see: Minn. Stat. 9 363.14, subd. 3). Based on considerations discussed in the ;Memorandum, we conclude that petitioners are also entitled to an award of attorney fees, both under federal law (§ 1988) and state law (the Human Rights Act). (B.) Some Important Background Consideration Discussion of the issues raised by petitioners' allegations can only be done against the backdrop of several important considerations, which we recite here. First, IThe federal Civil Rights Act provides that a deprivation of constitutional rights subjects the defendant to liability in a "suit in equity, or other proper proceeding for redress" of that deprivation. 42 USCA § 1983. "The courts' powers to fashion equitable relief in civil rights litigation is, in a word, broad. And this broad judicial power is not limited to 9 1983 litigation but is found in public law generally." Rotunda, Nowak & Young, Treatise on Constitutional Law: Substance and Procedure (1986), Vol. 2, § 19.35, p. 809. Minnesota's Human Rights Act allows a court, upon finding that an unfair discriminatory practice has occurred, to issue an "order directing appropriate relief", including an order directing defendant to "take such affirmative action as . . . will effectuate the purposes of [ the Act I." See: Minn. Stat. §§ 363.14, subd. 2 and 363.071, subd. 2. -13- a United States Supreme Court decision, Cleburne v. Cleburne Living Center, 473 U.S. , 87 L.Ed.2d 313, 105 S.Ct. 3249 (1985). Second, a Minnesota Appeals Court decision, Northwest Residence, Inc. v. City of Brooklyn Center, 352 N.W.2d 764 (Minn. App. 1984). Third, a state policy concerning residential group homes, codified at Minn. Stat. § 245.812. Fourth, the reasons -- six in all — given by the Fridley City Council for denying the special use permit to Community Options. Cleburne, the United States Supreme Court decision, involved a factual situation not unlike our own. As in our case, Cleburne involved a denial by the governing body of a municipality of a special use permit to establish a residential group home. The Court found that denial of the permit made the local city zoning ordinance in that case to be violative of constitutional equal protection rights and invalid "as applied" (that is, as applied to the particular applicant in that case). 87 L.Ed.2d at 317, 105 S.Ct. at 3252. There are some differences between our case and Cleburne, though, which may — or may not — be significant. That case involved persons whose disability was that of mental retardation; our case involves persons whose disability is mental illness. Also the local Texas city zoning ordinance in that case is considerably different than the local Fridley city zoning ordinance in our case. Northwest Residence, the Minnesota Appeals Court decision, is closer — factually — to our case than is Cleburne. Our case and Northwest Residence both involved applications for a special use permit to establish a residential group home for mentally ill persons. The same petitioners (the Wrights) made the permit applications in both cases. About the only difference between the cases lies in some of the reasons articulated by the two respective cities (Brooklyn Center, Fridley) in denying the applications. The Appeals Court in Northwest Residence defined the issue as being whether the "findings" (the reasons stated by the Brooklyn Center City Council for denying the special use permit) were "legally and factually sufficient." 352 N.W.2d at 767. The Court found that those reasons lacked such sufficiency, and ordered the permit to be issued. The third background consideration that we need to note here is a certain policy of this state, clearly enunciated by the Minnesota Legislature. That policy, codified at Minn. Stat. S 245.812, subd. 4, specifies that a residential group home for mentally ill persons "shall be considered a permitted . . . use for purposes of zoning" in Minnesota municipalities. That stated policy was a critical factor in the Appeals Court's decision in Northwest Residence ("state policy in favor of residential treatment", Id. at 773) related just to "state law" issues concerning Minnesota's special use permit law. ( -14- The fourth and last background consideration is a more particular one, and really becomes the centerpiece of most of our analysis — namely, the reasons stated by the Council when it denied the special use permit to Community Options. Those reasons "are recited (in the actual language of the Council itself) in the Findings, at 1(26. We paraphrase them here, adding a sixth reason that was only articulated, after the fact, by one of the Council members (the Mayor) during the trial of this matter: 1. The proposed use is a business with a dozen or more employees in a totally residential area. 2. Incompatibility with day care centers in the immediate area. 3. Adverse effect on continued and necessary improvements in the immediate area. 4. Adverse, detrimental effect on property values. 5. Adverse effect on the facility's residents because of the very substantial neighborhood opposition. 6. Adverse effect on the health, safety and general welfare of non-facility residents (neighbors). s s s s s In the next several sections of the Memorandum, we consider those aspects of the case which involve only "state law issues" and Minnesota decisional law on the subject of special use permits -- without regard, for the moment, to constitutional issues and without regard to ".Iinnesota's Human Rights Act. This discussion, in other words, proceeds along as though the petitioners had only brought a traditional "mandamus permit action", and had not joined causes of action under 1983/1988 or the Human Rights Act. (C.) Scope of Review: Denial of Special Use Permits The scope of review, when considering state law issues on special use permits, is well-stated in <t Number of Minnesota appellate decisions. We can conveniently summarize that scope of review in the following two-part standard: (1) If the city did not contemporaneo:i;ly record the reasons for its denial of a special use -15- permit, that failure will be prima facie evidence of arbitrariness on the City's part. That is not the case here; the Fridley City Council, contemporaneously with its denial of the permit, stated five reasons for the denial. (2) Where the City Council did contemporaneously record such reasons -- as in our case — it merely avoids a finding of prima facie arbitrariness. Once the reviewing court has identified those reasons, the court must go on to determine whether the reasons given are legally sufficient and factually supported. A succinct statement of that two-part standard of review was provided by the Minnesota Supreme Court in Corwine v. Crow Wing County, 244 N.W.2d 482 (1976): "If the decision-making body does not state reasons contemporaneously with its action, its decision will be prima facie arbitrary, and it will bear the burden of persuading the reviewing court that the facts and circumstances before it gave rise to legally sufficient reasons for denial or revocation. If the decision-making body does state reasons, review will be limited to the legal sufficiency and factual basis for those reasons." Corwine, 244 N.W.2d at 486. (Emphasis added). The Fridley Council minutes in our case did record at least five reasons — contemporaneously stated — to avoid a finding that the Council's action was "prima facie" arbitrary. Accordingly, as to those five reasons, we must "assess the legal sufficiency of the reasons given by the council and . . . determine, whether legally sufficient, they had a factual basis." C R Investments v. City of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981). The sixth reason (adverse effect on the health, safety, and general welfare of non-facility residents or neighbors) — because it was not contemporaneously stated — comes in for a different standard or review. That sixth reason is prima facie arbitrary, and the City bears the burden of overcoming that prima facie arbitrariness. Corwine, supra. (D.) Reason #1: "A Business With 12 or More Employees" Much of our discussion of this first reason is devoted to interpreting exactly what the City Council may have meant by it. The word "business" was an unfortunate word-choice in the Council's statement of this first reason, and has resulted in some confusion in considering issues arguably raised by that reason. For one thing, applicable state statutes would not possibly allow for characterizing the proposed use in that way — as a business — if by -16- that characterization the Council meant to preclude locating the facility within a residential zone. A residential group home for the mentally ill, however characterized ("business", "commercial", "residential", etc.), is a permitted use, in light of Minnesota's Public Welfare Licensing Act: "Unless otherwise provided in any . . . municipal . . . zoning regulation, a licensed residential facility serving from seven through sixteen persons . . . shall be considered a permitted multifamily residential use of property for purposes of zoning. A . . . municipal . . . zoning authority may require a . . . special use permit in order to assure proper maintenance and operation of a facility, provided that no conditions shall be imposed on the facility which are more restrictive than those imposed on other . . . special uses of residential property in the same zones, unless such additional conditions are necessary to protect the health and safety of the residents of the facility." Minn. Stat. S 245.812, subd. 4. Fridley did not "otherwise provide in any municipal zoning regulation", and accordingly the proposed group home is a permitted use. The minutes of the Council meetings (at which the Council considered Community Options' application) make it clear that the Council was aware of the provisions of the State Licensing Act. Therefore, this first reason stated by the Council should not be interpreted as somehow referencing or implicating any particular ordinance which would make the proposed use a prohibited one on a threshold basis (there is no such ordinance and no such threshold prohibition). Rather, by this first reason — "a business with 12 or more employees in a totally residential area" — the Council meant that the proposed use of the building as a group home would increase or intensify zoning density. More specifically, as the City argued in its Post-Trial 'Memorandum, p. 8, the combination of 14 residents and 12 employees is "[ c ]ertainly a far different and more intense use of the facility [ the apartment building] than is presently in existence" thereby increasing the "zoning density, to the detriment of the neighborhood." An increase in zoning density, if it were factually established, would be a legally sufficient reason for denial of a special use permit. That conclusion seems implicit from the Appeals Court's discussion of the "zoning density factor" in Northwest Residence, 352 N.W.2d at 770. Nor would S 245.812, subd. 4 (presumptively making a group home a permitted use) preclude a city council from denying a special use permit on account of increased zoning density. But — because of the state policy -17- embodied in the Licensing Act (§ 245.781 through § 245.312) — any city will face a difficult evidentiary hurdle if it seeks to tie "increased zoning density" to the number of the group home's employees. (And that is apparently what the City meant to do here by-this stated reason — "a business with 12 employees or more"). That is so because the Licensing Act and supplemental state administrative regulations are the "last word" on this subject, and establish the minimum number of employees required of a group home. See: Minn. Rules § 9520.0660, subpart 10 "Staffing ratios." Those minimum staffing ratios apparently convert, in our case, to at least 12 employees at the group home, providing 24-hour coverage of the facility and "more staff per number of residents during hours of concentrated programming." Id. The point here is that state law has established the requisite number of employees for licensed residential group homes. Accordingly, a local municipality is without power or authority to deny a special use permit to a proposed group home, based on the number of employees — once it has been shown that a given number of employees is required for licensing of that group home by the state law staffing ratios. The City might be able to deny a special use permit to a proposed group home where the number of employees would substantially exceed the number required by state law. That is not our present case, however. The doctrine at play here is "preemption", and was also applicable — in a different context — in Northwest Residence. In that case, the City didn't object to the number of employees but to the number of residents (or occupants) of the group home. The Appeals Court rejected the City's authority to advance that "occupancy restriction" as a reason for denial of a permit, because the State had preempted the field: " . . . [ T]he City lacked authority to establish a stricter occupancy standard for mentally ill adults since special care of the mentally ill has been made a matter of state concern and the state has preempted local regulation in this field." Northwest Residence, 352 N.W.2d at 773. That same doctrine, preemption, precludes the City from advancing, as a reason for denial of the special use permit, that the number of employees — specifically required by state law — will increase or intensify zoning density. Obviously, if the City were able to dictate a maximum number of permitted employees for a group home, the City "could effectively bar establishment of such facilities or -18- make them economically infeasible. This result would be contrary to the state policy in favor of residential treatment." Id. This first reason stated by the City for denial of the special use permit —"a business with 12 or more employees in a residential area" -- fails, then, on two grounds. Generally that reason is without legal sufficiency, because state law has preempted staffing requirements for licensed group homes. This first stated reason also lacks factual support, that is: the City did not establish that the number of employees on Community Options' staff would so greatly exceed minimum state law requirements as to allow the City's intervention. (E.) Reason #5: Ilealth and Safety of the Facility's Residents Another one of the Council's reasons also fails for lack of legal sufficiency due, in part again, to the State Licensing Act and the state policy favoring residentially-based treatment which is embodied in the Act. Spelled out in full, this reason (the fifth one stated by the Council) reads as follows: "That the location of the proposed facility on the site would have an adverse affect on the health and safety of the facility residents because of the very substantial neighborhood opposition to its location. The record contains petitions and testimony indicating that a substantial majority of the neighborhood residents are opposed to the facility being located on this site. The opposition creates an atmosphere that is not conducive to the health and safety of the facility residents." Council Minutes, Exh. 29, at p. 9 (emphasis added). That kind of generalized concern for the health and safety of prospective residents of the facility is not a legal ground — it lacks legal sufficiency — for denial of a special use permit, given the State Licensing Act and the state policy. Possibly, if the Council's concerns for the facility residents had related to "characteristics of a particular site [ which are ] at the the heart of municipal land use regulation", Northwest Residence, at 773, then maybe such a more particularly-stated concern might have had legal sufficiency. For example, concerns bearing that kind of legitimacy and related to matters well within traditional municipal land use regulation would include concerns about the program building's plumbing, heating, or electrical service or "over-occupancy" (too many residents per number of bedrooms, e.g.). Even -19- where those kinds of specific concerns exist, the City could not impose overly- restrictive special or additional conditions.2 None of those kinds of particular concerns — within the province of traditional municipal land use regulation — are brought into play by this stated reason. That is clear from the language of the Council's motion itself. The real concern (at least in regard to this reason) was "neighborhood opposition" which the Council felt would create "an atmosphere that is not conducive to the health and safety of the facility residents." That kind of concern for the facility residents is beyond the City's province, by virtue of state preemption. Northwest Residence, 352 N.W.2d at 773. ("[ S]pecial care of the mentally ill has been made a matter of state concern and the state has preempted local regulation in this field"). If neighborhood opposition could be used as a basis for the City to "look after" the health and safety of prospective facility residents — and to exclude them on that basis -- state preemption and state policy would be undermined. In that regard, again, what the Appeals Court stated in Northwest Residence, 352 N.W.2d at 773, is applicable. (Minn. Stat. 5 245.812 "cannot be interpreted in a manner that would . . . undermine the state policy of favoring the establishment of community residential facilities"). That concern for the facility's residents probably also runs afoul of constitutional equal protection. In Cleburne, the council was concerned, among other things, that students of an adjacent junior high school might harass the residents of the proposed group home for mentally retarded persons. The Court said that "denying a permit based on such vague, undifferentiated fears is again permitting some portion of the community to validate what would otherwise be an equal protection violation." Cleburne, 87 L.Ed.2d at 326, 105 S.Ct. at 3259. Hence, this stated concern for the facility's residents -- in Reason #5 — lacks legal sufficiency: it is a -natter preempted by state policy and (probably) beyond the City's reach because of constitutional considerations of equal protection. 2 "Even though Minn. St it. 5 245.812(1982) permits municipalities to impose special conditions on residential f icilities if the additional conditions are necessary to protect the health and safety of facility residents, this provision constitutes a narrow grant of authority and cannot ')c interpreted in a manner that would . . . undermine the state policy of favoring the c�t.i'.)liihment of community residential facilities. Rather, it must be read to permit municipalities to impose only special health and safety standards appropriate to the characteristics of a particular site." Northwest Residence, 352 N.W.2d at 773. -20- s s s s s The remaining four reasons stated by the Council for denying the special use permit deal with matters which, at least, have not been preempted by state policy. To that extent, then, these four remaining reasons have threshold or superficial legal sufficiency, because they deal with factors which the City at least was able to consider or take into account. That is: the factors involved in these four remaining reasons touch upon the "internal standards" of the City's own ordinance. however, although these four remaining issues may have that threshold or superficial legitimacy, they nonetheless fail — either because ultimately they lack, upon closer analysis, such legal sufficiency and/or lack factual support. The "internal standards" that we refer to include such general considerations as the "effect of the proposed use upon the health, safety and general welfare of occupants of surrounding lands, . . . the effect on values of property in the surrounding area", [ Fridley Ordinance 205.05.4, part 4, subpart F.(1) ], and "the nature of the land upon which the use is to be located [ and] the nature of the adjoining land or buildings." [ Id., subpart A. ] The four remaining reasons generally do touch upon those internal standards of the ordinance. Those reasons are: Reason 2, incompatibility with existing day care centers in the area; Reason 3, adverse effect on continued improvements needed in the surrounding neighborhood; Reason 4, adverse impact on property values in the area; and Reason 6 (as stated at trial by Mayor Nee), adverse effect on the health, safety and general welfare of occupants of surrounding lands. (F.) Reasons 2, 3, and 4: Day Care Centers, Needed Improvements, and Property Values We consider these three reasons together because they were all stated by the Council contemporaneously with the Council's decision to deny the permit. Since those reasons were stated contemporaneously, they are subject to a different burden of.proof and a different standard of review than Reason #6, which was only first stated after the fact at trial, months after the Council's denial decision had already been made.3 3 Reasons that are not stated contemporaneously are prima facie arbitrary, and the City has the burden of establishing their legal and factual sufficiency, in order to overcome that prima facie arbitrariness. Reasons that are stated contemporaneously are not prima facie arbitrary; the burden of proving that such contemporaneously- stated reasons are arbitrary or lack legal and factual sufficiency -- is the petitioners'. ' -21- These three reasons may also be conveniently considered together here because they have a common thread running through them: each one is implicitly based — in varying degrees -- on "neighborhood sentiment" or neighborhood opposition to the proposed use. That is not readily apparent from the actual language used by the Council in articulating these three reasons, but a review of the Council minutes and of the trial testimony indicates that to be the case. For example, Reason #2 was stated as follows: "It [ the proposed group home ) would be incompatible with several existing licenses of day care centers in a close proximity to the proposed site." The Council's findings of "incompatibility" can be perceived, though, as really being based on "neighborhood sentiment" or opposition: representations were made at the Council meeting that parents would remove their children from nearby day care centers if the group home was permitted by the Council; similar comments were made at the meeting regarding girl-scout facilities in the neighborhood (namely, that parents would not send their children to near-by girl scout facilities if the group home were established in that neighborhood). The "neighborhood opposition" here, then, came from parents of day-care-age children and girl-scout-age children. Reason #3 was stated by the Council, in pertinent part, as follows: "The location of the proposed facility will have an adverse effect on the continued improvement [ i.e., up-grading] needed in the neighborhood." Although nobody at the Council meeting talked about this reason, Council members testified at trial that the needed improvements and the physical up-grading of the neighborhood would be jeopardized, because neighboring property owners would not be motivated to do the improvements/up-grading if the group home were established in the area. Again, neighborhood opposition appears to underlie this stated reason — now from neighboring property owners. The language of Reason 1#4 makes it fairly explicit that the basis underlying this reason was neighborhood opposition: "That the proposed facility would have an adverse effect on property values because both landlords and tenants indicated that if the facility is located on the proposed site, that many of the tenants in the multi-residential properties would no longer rent these properties." In other words, the neighborhood opposition here came from tenants (and their landlords). The Court has taken the time to point out that neighborhood opposition, either in whole or part, underlay these three reasons — because the Council's -22- implicit/explicit consideration of "neighborhood opposition" brings into play a doctrine bearing on the Court's review of those three reasons. The doctrine involved has two contrasting aspects. Generally, "neighborhood sentiment may be taken into consideration in any zoning decision." Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979). But, "neighborhood sentiment . . . may not constitute the sole basis for granting or denying a given permit." Id. (emphasis added). The rationale for each contrasting part of the doctrine seems obvious enough: the democratic process mandates that, on the one hand, a governing body hear from its constituents but, on the other hand, that the constituents' wishes not be implemented at the expense of a permit applicant's rights — especially where the applicant is a member of "a vulnerable class of people, such as those who are mentally ill." Northwest Residence, 352 N.`ti'.2d at 767. The United States Supreme Court said essentially the same thing in Cleburne: " . . . [ T]he City may not avoid the strictures of [ the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic." Cleburne, 87 L.Ed.2d at 326, 105 S.Ct. at 3259. Hence, to the extent that these three reasons are based solely on neighborhood sentiment or opposition, they lack legal sufficiency because the "law cannot, directly or indirectly, give them effect." Cleburne, Id. These three reasons also lacked factual sufficiency. Reason #2 — "incompatibility with day care centers" (and girl scout facilities) — apparently invokes a concern for the safety of young children (girl scouts, day-care-age children), simply on account of there being a group home for mentally ill persons in the neighborhood. However, there was no evidence, either at the Council meetings or at trial, to warrant that concern. In that regard, the state of the record is like that in Cleburne, where the council was concerned, among other things, with the "fears of elderly residents of the neighborhood," if the group home for mentally retarded persons was established. 87 L.Ed.2d at 325, 105 S.Ct. at 3259. The Court observed that "mere . . . fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, [ is] not [ a] permissible [ basis] for treating a home for the mentally retarded differently from apartment houses, multi;)le dwellings, and the like." Cleburne, 87 L.Ed.2d at 326, 105 S.Ct. at 3259. And more than there simply being a lack of factual substantiation for that concern in our case [ for children's safety], petitioners affirmatively established by their evidence that such fears would not be warranted. The residents who will be -23- living at the group home in our case will be carefully screened and selected; none of them will be convicted criminal offenders or otherwise dangerous. See: Findings, t 12. They will be carefully supervised, on a 24-hour basis, by trained personnel. Screening, selection and supervision will all be done pursuant to state licensing requirements. The state of the record is the same when we consider Reasons #3 (needed improvements) and #4 (property values). There was no evidence presented at the Council meetings that property values would decline if a group home were established in the neighborhood. No market data studies or surveys were presented at the meetings to substantiate that concern. But there was evidence — in the form of studies — presented by petitioners at the meetings, indicating that property values in any given neighborhood do not decline upon the establishment of a residential group home. See: Findings, 11 1('s 22-24. And although at trial the City did muster some evidence concerning a decline in property values, petitioners' trial evidence — from a series of well-informed experts --decidedly overcame that contrary evidence presented by the City. Evidence concerning needed improvements -- and the allegation that neighbors around the group home would not be motivated to do those improvements — was even sparser. There simply was no discussion or representations at the council meetings that addressed that point. Such "evidence" there was at trial (about neighbors' lack of motivation to do those improvements) was really not so much evidence as it was conclusory opinions by the council member-witnesses. In summary, then, as to Reasons #2 (incompatibility with day care centers), #3 (needed improvements), and #4 (property values): those reasons lacked legal sufficiency and factual support. (G.) Sixth Reason: Adverse Impact on Health, Safety & General Welfare of Occupants of Surrounding Lands This sixth reason was not one of the reasons that were specifically articulated in the Council's denial motion. Rather, it was advanced for the first time by the City, through Mayor Nee's testimony of trial. For reasons previously stated (see pp. 14 - 15 of this Memorandum), our review of this sixth reason must be done differently than the other five -- simply because it was not stated contemporaneously with the Council's decision to deny the permit. As a result, it is the City (not petitioners) who must man the laboring oars of proof and persuasion. -24- That is: the City had the burden to establish the legal and factual sufficiency of this reason; it was not the petitioners' obligation to overcome this later-announced reason. From whatever perspective we do approach this sixth reason, there is no factual support for it. Though Mayor Nee and the City may have genuinely entertained a concern about the occupants of surrounding lands, this last reason nonetheless gives the appearance of having been put forward as an after-thought. Other than simply stating that reason during his testimony, Mayor Nee provided no factual support for his conclusory reason that the proposed facility would adversely affect the "occupants of surrounding lands." Because there was, quite literally, no factual elaboration whatsoever on this reason at trial, the Court is somewhat at a loss as to how this reason should be assessed. At any rate, without any definite "bill of particulars" concerning Mayor Nee's concerns for the occupants of surrounding lands, and without any evidentiary support for that concern, we rather easily conclude that the City (which has the burden on this previously-unstated reason) has not demonstrated the factual sufficiency for this sixth reason. Stated another way, in the language of the Minnesota Supreme Court, this sixth reason — because it was not stated contemporaneously with the Council's denial motion -- must be considered as "prima facie arbitrary." Corwine, supra, 244 N.W.2d at 486. The City did not overcome that prima facie arbitrariness because it did not meet its "burden of persuading the reviewing court that the facts and circumstances . . . gave rise to legally sufficient reasons for denial." Id. (H.) 42 U.S.C.A. SS 1983/1988: Constitutional Issues and Attorney Fees We indicated earlier in this Memorandum that we are not deciding -- that we do not need to decide — the constitutional issues that are raised by petitioners' assertion of a cause of action under the Civil Rights Act, 42 U.S.C.A. § 1983. Nonetheless, even though we are not deciding the S 1983 constitutional issues, we also conclude that petitioners are entitled to attorney fees under a statutory complement to S 1983, namely: the Feder>>1 Civil Rights Attorney Fees Act, 42 U.S.C.A. S 1988. That approach by the Court, although it is one traditionally followed by courts in civil rights litigation, still warrants ,o no explanation. Petitioners' "constit itional claim" or cause of action under S 1983 will be successful if they demonstrate th it the City's denial of a special use permit was a "deprivation of rights secured '> t'ie Constitution." 42 U.S.C.A. S 1983. Petitioners -25- allege that the "rights" so deprived by the Council's denial of the permit were "equal protection of the laws" and "substantive due process." If the § 1983 cause of action were so established, § 1988 would entitle petitioners to an award of attorneys fees: "In any action or proceeding to enforce a provision of [ several federal statutes, including] § 1983 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C.A. § 1988. It would seem, then, that the first step we should take is to rule on the question whether petitioners have, in fact, established their "constitutional claim" on the § 1983 cause of action. That would require us to determine if the Council's denial of a special use permit was a "deprivation of rights secured by the Constitution", particularly equal protection of the laws and substantive due process. However, courts are generally reluctant to resolve such constitutional issues, if the lawsuit itself is capable of being resolved on the basis of the non-constitutional questions involved.4 In our case, the non-constitutional issues — traditional considerations related to the review of a denial of a special use permit under Minnesota's Mandamus Statute, Minn. Stats. Ch. 586 — are dispositive, and mandate the issuance of a writ of mandamus, which we directed in the 2/11/86 Order. More importantly, it is not necessary to resolve the constitutional questions in our case -- at least so far as petitioners' entitlement to attorney fees is concerned.5 As petitioners have pointed out: they are entitled to recover attorney fees under § 1988 if they prevail on an "non-fee" claim, as long as they have asserted a non-frivolous constitutional claim — even though the constitutional claim is not ruled upon by the Court. In our case petitioners have prevailed on the "non-fee claim" (the "state law claim" under Minnesota's Mandamus Statute, Ch. 586). The only inquiry to be made in that approach, once petitioners have prevailed on the non-fee claim, is: (1) whether the "constitutional claim" asserted by petitioners was, in fact, "non-frivolous", and (2) whether the constitutional claim and 4 "In some instances, . . . the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive." Maher v. Gagne, 448 U.S. 122, 132, (1980) at fn. 15. 5 Because we are not deciding the constitutional claim under 42 U.S.C.A. § 1983, the other remedy we granted in this case — issuance of a writ of mandamus -- is not based on § 1983. -26- the non-fee claim arose out of a "common nucleus of operative facts." If so, then petitioners are entitled to attorney fees under § 1988, even if the court doesn't rule on the constitutional (§ 1983) claim. That approach is a well-established one in federal civil ribhts litigation. See: 1'Jaher v. Gagne, 448 U.S. 122 (1980). We conclude that all of the petitioners' claims — both their constitutional claim under § 1983 and their non-fee state law claim — arose out of a common nucleus of operative facts. In that regard, we agree with petitioners' position that "[ a Ill of their claims arise from the denial of the permit by the City of Fridley and the invalidity of the [ Council's] reasons for denial." Petitioners' Post-Trial Attorney Fees Memorandum, p. 8. Further, petitioners' constitutional claim under § 1983 was "non-frivolous." Recent appellate decisions confirm the serious and genuine character -- the "non- frivolous" character -- of petitioners' constitutional claim. (Those decisions also implicitly address the "common nucleus" question, and suggest that a denial of a special use permit, especially in a case like ours involving the specially-protected rights of the mentally ill, will generate constitutional claims arising out of the same "common nucleus of operative facts" as non-fee claims that may be present). In Minnesota, those points were made, we think, by everything the Appeals Court said in Northwest Residence, supra. There the Appeals Court, although it (apparently) did not have constitutional claims before it, did point out that denial of a special use permit — in a case very similar to the present one -- implicates important constitutional considerations: "The standard of reasonableness [ to be used in reviewing all zoning matters, including denials of special use permits ] has constitutional importance when municipal action affects important rights of a vulnerable class of people, such as those who are mentally ill." Northwest Residence, 352 N.W.2d at 767. The Appeals Court resolved the Northwest Residence case on the basis of "non-fee" state law claims or issues.6 But the Court's observation about the "constitutional importance" of the "reasonableness standard" (in cases where municipal action impacts upon the rights of the mentally ill) suggests that 6 The "non-fee" state law claims or issues (upon which Northwest Residence was decided) included: the Mandamus Statute, Minn. Stats. Ch. 586; the Public Welfare Licensing Act, Minn. Stat. §§ 245.781 - 245.812; the Minnesota Commitment Act of 1982, Minn. Stats. Ch. 25313; and applicable Minnesota state appellate law concerning special use permit practice in general and the doctrine of "preemption" in particular. -27- denial of a special use permit can easily generate "non-fee" state claims and "constitutional claims" arising from the same "common nucleus of operative facts" — and that a constitutional claim made in that context will not be frivolous. Cleburne, the seminal United States Supreme Court decision we mentioned earlier, established the important non-frivolous character of a constitutional claim in this kind of case. In Cleburne — under factual circumstances not dissimilar from the facts of our case — the Supreme Court ruled that denial of a special use permit for the operation of a group home for the mentally retarded was invalid, based on the so- called "rationality" test, a traditional measure of whether government action violates constitutional guarantees of equal protection. Earlier decisions of the Minnesota Supreme Court also indicate that constitutional considerations of equal protection will undoubtedly always come into play in zoning matters, including denials of special use permits. That will be true even where the petitioner is not specially favored by state policy, such as the mentally ill. See: Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979); Hayy. Township of Grow, 206 N.W.2d 19 (Minn. 1973). Based on all of those considerations we conclude that petitioners, as prevailing parties on their non-fee claims, are entitled to a reasonable attorney fee, because they asserted non-frivolous constitutional claims that arose out of the same common nucleus of operative facts as the non-fee claim. By the Order and Memorandum, though, we establish only the petitioners' threshold entitlement to those fees. Since the City has not yet had an opportunity to address the amount of such fees, we provide that opportunity to the City, by appropriate provisions in the Order. W Minnesota's Human Rights Act The remaining cause of action by petitioners was brought within the purview of Minnesota's liuman Rights Act, Minn. Stats. Ch. 363. That statute prohibits and provides a cause of action for "unfair discriminatory practices", including such practices with regard to real property transactions (§ 363.02, subd. 2) and to the provision of "any public service" (§ 363.02, subd. 4). The parties in our case have argued back and forth as to whether the Act even applies on a threshold basis. We conclude that it does. The provision of the Act related to certain real property transaction (363.02, subd. 2) is not the applicable provision though. Rather, the applicable provision is § 363.02, subd. 4, which -28- makes it an unfair discriminatory practice "to discriminate against any person in the access to [ and l full utilization of or benefit from any public service because of . . . disability." (Emphasis added). The City argues that a city council is not a "public service" within the contemplation of the Act. We disagree. The Minnesota Supreme Court, in City of Minneapolis v. Richardson, 239 N.W. 2d 197 (1976), had occasion to construe the phrase "in the access to [ and] full utilization of or benefit from any public service." Id. at p. 203. There the Supreme Court rejected any "narrow construction of the statute", and indicated that the "intent of the legislature [ is J that the Human Rights Act be liberally construed to aid in the elimination of discrimination in public services." Id. Based on that view, the Court concluded that the "Minneapolis police department is a public service" and that "non-discriminatory treatment of citizens by police is an important part of the full utilization of and benefit from police services." Id. Consistent with that view by the Supreme Court, we conclude that a city council is a "public service" within the contemplation of § 363.02, subd. 4, and that non- discriminatory treatment of a special use permit application is an important part of the full utilization and benefit from the council's services. "Any other construction would defeat the intent of the legislature." Richardson, 239 N.W.2d at 203.7 In deciding whether denial of the special use permit in our case may have been discriminatory under the Act, we are aided by an "explicit standard", adopted by the Court in Richardson, supra. There the Court adopted the following standard for determining when an unfair discriminatory practice has occurred in the area of public services: "A finding that an unfair discriminatory practice has occurred may be made when the record establishes (1) an adverse difference in treatment with respect to public services of one or more persons when compared to the treatment accorded others similarly situated except for the existence of an impermissible factor such as race, color, creed, sex, etc.; or (2) treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation." Richardson, supra, 239 N.W.2d at 202. 7 To eliminate any doubt on this issue, the Court in Richardson catagorically stated that "Municipalities are proper parties to Human Rights Act proceedings involving public services as defined in 5 363.01, subd. 19." Richardson, 239 N.W.2d at 203. -30- [ ELI 30- [ IL] COMMUNITY OPTIONS' LOST PROFITS CLAIM As noted earlier, the only damages claim remaining in the case is that of petitioner Community Options. (The other petitioners -- the Wrights, and T. H., K. W., and Kurt Nesset — have withdrawn their claims for damages). Compensatory damages are cognizable within each one of the three bodies of law relied upon by petitioners — Minnesota's Mandamus Statute (Minn. Stats. Ch. 586), 42 U.S.C.A 1983, and the Human Rights Act (Minn. Stats. Ch. 363). However, we conclude that, even though each one of those bodies of law may generally provide for an award of compensatory damages and even though petitioners have made out a cause of action (at least under two of them, Chs. 586 and 363) for wrongful denial of the special use permit, Community Options has nonetheless not established its entitlement to damages in this case. Community Options' damages claim is for lost profits, more specifically: that, because the Fridley City Council (wrongfully) denied the special use permit, Community Options lost the profits it would have reaped under a projected contract with Anoka County to operate the Rule 36 group home facility. If the special use permit had been issued by the City in June 1985, Community Options would have formally entered into a "full" contract with the County. (For several months prior to June 1985 and during the months thereafter until issuance of the special use permit was ordered in February 1986, Community Options was operating under an "interim" contract with the County). The proposed budget to fund the "full" contract with the County — the one Community Options would operate under had the special use permit been approved in June 1985 — had already been worked out between the County and Community Options prior to June 1985. Implementation of that full contract and the County's funding were approved by the County, subject to Community Options' obtaining a special use permit from the City. The budget for that full contract contained various line items of expense which Community Options would incur in operating the facility, and which would be reimbursed by the County. One such line entry -- the critical one here — was for a "management directive fee"; Community Options has characterized that entry as the "profit" it would realize under a full contract.$ $There was no "profit" or "management directive fee" in the interim contract between Community Options and the County. Under the interim contract, Community Options personnel worked on a part-time basis — without "profit" — to develop the project and look for a suitable building/facility in which to locate the group home. -29- in our case, we find and conclude that denial of the special use permit was an unfair discriminatory practice within the contemplation of the Act. That finding/conclusion is supported by the record which established at least the second aspect of the explicit Richardson standard. We have already observed that neighborhood opposition, of one kind or another, was an implicit basis underlying Reasons #2, 3, and 4 for denial of the permit (incompatability with day care centers, needed improvements, property values). Reason #5 explicitly incorporated the fact of such opposition: "the very substantial neighborhood opposition" which "creates an atmosphere that is not conducive to the health and safety of the facility residents." Those reasons, to the extent they were based solely on neighborhood opposition, could not serve as criteria for issuance or denial of the permit. Further, those reasons were also discriminatory, because they were based on differential treatment of mentally ill persons who would be prospective residents of the group home. Those reasons, to the extent based on neighborhood opposition, could not be legitimately advanced to deny a permit to an apartment building, day care center or hotel -- all permitted uses under the Fridley ordinance. Furthermore, none of those reasons were advanced by the City's own Planning Department, Human Resources Commission, or Planning Commission, all of which recommended approval of the permit. In light of that record, it seems apparent that denial of the special use permit in this case was "so at variance with what would reasonably be anticipated about discrimination that discrimination is the probable explanation." Richardson, supra. Because a cause of action under the Human Rights Act was established, petitioners are and were entitled to both remedies contemplated by the Act — mandamus and attorney fees. Ilence, the Act served as one of the bases for our 2/11/86 Order directing issuance of the special use permit. (The other basis was the Mandamus Statute itself -- `.)inn. Stats. Ch. 586 — and traditional Minnesota case law concerning special use permits). The Act also now serves as one of the bases, along with 42 U.S.C.A. § 1988, for an award of attorney fees. As indicated in the preceding section which discussed 42 U.S.(--.A §§ 1983/1988, the amount of those attorney fees will be determined later, pursuant to procedures set forth in the Order. -31- Under the full contract with the County, that line entry for a "management directive fee" would be 7 1/2% of the total of all the other line items of expense. Based on the projected total of all those other line items of expense, the 7 1/2% would convert, in Community Options' view, to "profit" of $1,954.14 per month for operation of the group home. Community Options argues that, on account of the City's wrongful denial of a special use permit, it is entitled to recover its lost profits, in this action against the City, for those months during which the special use permit was wrongfully denied -- June 1985 through February 1986, when the Court ordered issuance of the permit. Those lost profits calculations would generate, in Community Options' view, an award of damages of almost $18,000.00. (9 months times $1,954.14/month equals $17,587.26). But -- that 7 1/2% or $1,954.14/month cannot simply be translated into a damages award for lost profits. The cross-examination testimony of Diane Hanson (secretary-treasurer and administrator of Community Options) made that clear. Ms. Hanson, on cross-examination, had to make a series of admissions that severely diminished and — ultimately — eliminated Community Options' claim. Among other things, she acknowledged: that the 7 1/2% did not represent a "guaranteed" profit; that whether Community Options actually realized a profit during any given month depended entirely on how Community Options administered the facility and managed its finances; and that if Community Options ran the facility improvidently (on a financial basis), it could conceivably lose money -- even with the 7 1/2% "profit" provision in place. Those admissions were obviously not very helpful to Community Options' lost profits claim. Nor was it helpful to that claim that Community Options was a new business without a track record for past profitability. Leoni v. Bemis, 255 N.W.2d 824, 826 (Minn. 1977): "Although the law recognizes that it is more difficult to prove loss of prospective profits to a new business than to an established one, the law does not hold that it may not be done." (Emphasis added). The Minnesota Supreme Court, in an important lost profits case, Cardinal Consulting Co. v. Circo Resorts, 297 N.W.2d 260 (1980), suggested some evidentiary "substitutes for past profitability that will remove a plaintiff's anticipated profits from the realm of speculation", Id. at 267.9 Community Options either was unable or chose not to use those evidentiary substitutes at trial. 9 Among other such "substitutes for past profitability", the Court suggested: "past performance as employee plus subsequent success"; "other examples of that type of business"; and "plaintiff's skill and expertise together with proven existence of a market for the product." Cardinal Consulting, 297 N.W.2d at 267. -32- Based on those considerations, we conclude that Community Options' lost profits claim was speculative and conjectural, and cannot be granted. Cardinal Consulting Co., supra. 297 N.W.2d at 267: "The controlling principle is that speculative, remote, or conjectural damages [ for lost profits] are not recoverable." [ HL] COSTS AND DISBURSEMENTS All three bodies of law relied upon by petitioners in this case provide for the prevailing party to be awarded costs and disbursements. See: Minn. Stat. § 586.09; Minn. Stat. 363.14, subd. 3; and 42 U.S.C.A. S 1988. The Court's Final Order for Judgment will make specific provision for petitioners to be reimbursed for their costs and disbursements, upon a proper application for taxation of the same with the Clerk of this Court. i r � 205.0! 1. SPECIAL USE PERKIT SPECIAL USE A. Purpose. PEST The purpose of this Section is to provide the City of Fridley with a reasonable degree of discretion in determining the suitability of certain designated uses upon the general welfare, public health and safety. In making this determination the City many consider the nature of the land upon which the use is to be located, the nature of the adjoining land or buildings, the effect upon traffic into and from the premises or on any adjoining roads, and all such other factors as the City shall reasonably deem a requisite of consideration in determining the effect of such use. B. Application. Whenever this Chapter requires a Special Use Permit, an application in writing must be filed with the City together with such filing fee as may be established by the City Council and shall be acoanpanied by a site plan or other documentation as required by the City. C. Referral Tb The Planning Commission. The application and related file shall be referred to the Planning Commission for study concerning the effect of the proposed use on the Comprehensive Plan and on the character and development of the neighborhood. The Planning Commission shall hold an official public hearing within sixty (60) days of the date of filing such petition. D. Bearing. A notice of public hearing shall be published in the official newspaper at least ten (10) days but not more than thirty (30) days prior to the date of the hearing. E. Action By The Planning Commission. (1) Notices shall be mailed to all owners of property within 200 feet of the parcel included in the request not less than ten (10) days nor more than thirty (30) days prior to the hearing. Failure of a property owner to receive notice shall not invalidate any such proceedings as set forth within this Chapter. (2) The Commission shall make its recommendation to the City Council within sixty (60) days of the date of hearing of the petition to the Planning Carmssion or within sixty (60) days of any continuance of such matter granted at the applicant's written request. F. Council Action. (1) Approval: in considering applications for Special Use Permits under this Code,, the City Council shall consider the advice and recarmendations of the Planning Commission and the effect of the proposed use upon the health, safety and 205@ general welfare of occupants of surrounding lands, existing and anticipated traffic conditions and the effect on values of property in the surrounding area. If it is determined that the proposed use will not be detrimental to the health, safety or general welfare of the vamwnity, nor will cause serious traffic congestion nor hazard, nor will seriously depreciate surrounding property values, and that the same is in harmony with the general purpose and intent of the Zoning Code, the City Council may grant such permit and may impose conditions and safeguards therein by a favorable vote of a majority of all members of the Council. (2) Agreement: The City Council may require a written agreanent, deposit of oertif ied check or funds, a bond or other assurance of faithful observance of conditions, the violation of which shall invalidate the permit and shall be considered a violation of this Chapter. (3) Denial: Special Use Permits may be denied by notion of the Council and such motion shall constitute that conditions required for approval do not exist. No application for a Special Use Permit which has been denied wholly or in part, shall be resubmitted for a period of six (6) months from the date of said order of denial, except on new ground or new evidence or proof of changes of conditions found to be valid by the planning Cormrission. G. Lapse Of A Special Use Permit By Norr-Use. Whenever within one (1) year after granting a Special Use Permit, the recipient of the Special Use Permit shall not have oa-. menced the work as required by the permit, then such permit shall became null and void unless a petition for an extension of - time in which to complete the work is granted. Such extension shall be requested in writing and filed with the City at least twenty (20) days before the expiration of the original Special Use Permit. The request for extension shall state facts showing a good faith attempt to complete the work. Such petition shall be presented to the City Council for final action. CITY OF FW DLEY CIVIC CENTER 6331 UNIVERSITY AVE. N.E. FRIDLEY, MINNESOTA 55432 PHONE(612)571-3.15O 01 February 13, 1986 Subject: Court Order Requiring The City of Fridley to Issue a Special Use Permit Dear Resident: Enclosed you will find a copy of a judge's order which requires the City of Fridley to issue a special use permit to Community Options , Ltd. , to operate a residential mental health program in the apartment building at 5378-5384 5th Street N. E. Last June the Fridley City Council voted to deny the special use permit, and Community Options , Ltd. , brought suit in course to reverse the Council 's action. The enclosed order decides in favor of Community Options , Ltd. , and requires the City Council to approve the special use permit. Sincerely, Nasim M. Qureshi City Manager MEMORANDUM CITY OF FRIDLEY OFFICE OF THE CITY MANAGER 6431 UNIVERSITY AVE. NE. NASIM M. QURESHI FRIDLEY. MN. 55432 (6127 571-3450 TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: NASIM M. QURESHI , CITY MANAGER DATE: FEBRUARY 11, 1986 SUBJECT: JUDGES ORDER I have just received a judges order this afternoon and I am mailing it to the City Council members right away. Virgil Herrick is out of town, but Dave Newman indicated that it is futile for the City to proceed with any appeal action. NMQ/la cc: Department Heads William Hunt STATE OF MINNESOTA DISTRICT COURT COUNTY OF ANOKA TENTH JUDICIAL DISTRICT Community Options, Ltd., a Minnesota Corporation, Eugene Wright, Diane O. Wright, PEREMPTORY WRIT T. H., K. W., and OF MANDAMUS Kurt Nesset, Plaintiff- Petitioners, -vs- Anoka County District The City of Fridley, Court File #B-85-4539 a Municipal Corporation, Defendant- Respondent. THE STATE OF MINNESOTA TO THE CITY OF FRIDLEY AND MEMBERS OF ITS CITY COUNCIL, GREETINGS WHEREAS, plaintiff-petitioner Community Options, Ltd., has made a proper and lawful application to the City Council of the City of Fridley for a special use permit, and WHEREAS, the application for such a special use permit was denied by action of the Council, and WHEREAS, this Court has determined that denial by the Council of that application was arbitrary, unreasonable and otherwise contrary to law; THEREFORE YOU ARE COMMANDED upon receipt of this Writ, but not before February 26, 1986 at 9 o'clock a.m. (unless that specified effective date and time of the Writ shall be stayed by other Order of this Court) to issue a special use permit to Community Options, Ltd., consistent with Community Options' application of March 1,1985 (said application being further identified as "SP #85-01" and being otherwise verified and acknowledged by "Receipt No. 15708", mentioned in that application) for purposes of allowing Community Options to establish and operate a so- called Rule 36 Residential Mental Health Program at the following-described location: that apartment building and appurtenant land situated at 5378-5384 Fifth Street N.E. in the City of Fridley, County of Anoka, State of Minnesota, and described legally as Lots 1 and 2, Block 14, Hamilton's Addition to Mechanicsville. WITNESS the Honorable Daniel M: Kammeyer, Judge of the Anoka County District Court, Tenth Judicial District, and Seal thereof, this 11 th day of February, 1986. Jane F. Morrow Court Administrator Anoka County District Court STATE OF MINNESOTA DISTRICT COURT COUNTY OF ANOgA F E B 1 ► 12 5 2 TENTH JUDICIAL DISTRICT Community Options, Ltd., a Minnesota Corporation, Eugene Wright, Diane O. Wright, ORDER FOR JUDGMENT T. H., K. W., and RELATED TO ISSUANCE Kurt Nesset, OF A PEREMPTORY WRIT OF MANDAMUS Plaintiff- Petitioners, -vs- The City of Fridley, a Municipal Corporation, Anoka County District Defendant- Court File #B-85-4539 Respondent. Summary Statement The Fridley City Council denied the special use permit application of petitioner Community Options at a City Council meeting of 6/3/85. The requested permit would allow Community Options to establish a so-called Rule 36 facility, for mentally ill adults, in a presently existing apartment building in the City. Petitioners Eugene and Diane Wright have an option to purchase that apartment building, and, if the special use permit were to be approved by the Council or ordered by this Court, the Wrights would lease the apartment building to Community Options so that the latter entity could establish and conduct the Rule 36 facility in that building. On 8/1/85 this Court directed that an Alternative Writ of Mandamus and Order to Show Cause be issued to and served upon the City. That Alternative Writ commanded the respondent City to either issue the requested special use permit immediately or show cause why it had not done so. The mandamus or show-cause hearing was held before me (Judge Kammeyer), one of the Judges of this Court, on 10/3/85, 10/4/85, and 10/15/85. It was tried to the Court without a jury. As part of their Application for a Writ of Mandamus, the plaintiff- petitioners also included a Complaint for money damages, as follows: (1) Community Options for loss of profits, on account of its inability to operate a Rule 36 facility under a full contract with Anoka County. (2) The Wrights for losses incurred on account of delay in closing on the purchase of the apartment building, on account of the City's denial of the special use permit to Community Options, including such items as additional financing costs. (3) Petitioners T. H., K. W., and Kurt Nesset on account of emotional and mental distress and injury from the denial of the opportunity to live at the proposed Rule 36 facility and because of discrimination allegedly exercised by the City against them in denying Community Options the special use permit. i -2- In addition, all of the plaintiff-petitioners have prayed for other associated relief, including an award of their attorney fees and costs and disbursements. ATTORNEY APPEARANCES PETITIONERS T. H., K. W., AND KURT NESSET: Susan L. Lentz, attorney at law, Law Offices of the Legal Aid Society of Minneapolis, Inc., 222 Grain Exchange Building, 343 Fourth Avenue South, Minneapolis, MN 55415. PETITIONERS COMMUNITY OPTIONS/H RIGHTS: Mary Benjamin Trevor, attorney at law, Leonard, Street & Deinard, 100 South Fifth Street, Suite 1500, Minneapolis, MN 55402. RESPONDENT CITY OF FRIDLEY: Virgil C. Herrick, attorney at law, Herrick & Newman, 6279 University Avenue NE, Fridley, MN 55432. s s s s s Based upon the evidence presented to the Court at the mandamus/show- cause hearing, certain stipulations of fact made by the parties, the written and oral arguments of counsel, and upon all the records, files, and proceedings herein, the Court now makes the following Order for Judgment, pursuant to Rule 54.02, Minn. R. Civ. P., disposing of one — but less than all -- of plaintiff-petitioners' multiple claims or prayers for relief, that is: the Court is ordering judgment that a Peremptory Writ of Mandamus be issued by the Court Administrator of this Court, directed to and commanding the respondent City of Fridley to issue a Special Use Permit to Community Options, Ltd., as described more fully in the Order itself. Resolution of the other prayers for relief made by the plaintiff-petitioners — for money damages, attorney fees, and costs and disbursements — is reserved by the Court at this time, and will be the subject of a subsequent Order for Judgment. This present Order for Judgment, related to issuance of the Peremptory Writ of Mandamus, is based upon this Court's determination that denial of the application for a special use permit by the City Council was arbitrary, unreasonable, and otherwise contrary to law. That determination by the Court will be supported by documents to be filed by the Court within 10 days of this present Order, including Findings of Fact, Conclusions of Law, and an Accompanying Memorandum of Law. The fact that those supporting Findings, Conclusions and Memorandum will be filed separately from and later than this present Order shall neither affect nor impair the full force and effect of the Order, nor in any way stay its operation beyond the 15-day stay recited more fully in the Order below. Likewise, no stay of this present Order and no impairment shall result — either in this present Order related to the Peremptory Writ of Mandamus or in the Order related to the plaintiff-petitioners' other prayers for relief — simply because of those Orders being filed separately and on different dates. Finally, pursuant to Rule 54.02, Minn. R. Civ. P., the Court expressly directs the entry of a final judgment as to one, but fewer than all of the prayers for relief of plaintiff-petitioners, upon an express determination that there is no just reason for delay in the entry of the Order for Judgment related to the Peremptory Writ of Mandamus (subject to the 15-day stay recited in the Order, below). sssss -3- ORDER FOR JUDGKENT RELATED TO ISSUANCE OF A PEREMPTORY WRIT OF MANDAMUS IT IS HEREBY ORDERED: pa That the Court Administrator of this Court is hereby directed to enter an Order for Judgment for plaintiff-petitioners and against respondent City. That Judgment shall state the following: That a Peremptory Writ of Mandamus shall be issued upon this Order of the Court, commanding the respondent City of Fridley to issue a Special Use Permit to Community Options, Ltd., consistent with Community Options' application of March 1, 1985 (said application being further identified as "SP# 85-01" and being otherwise verified and acknowledged by "Receipt No. 15708", mentioned in that application) for purposes of allowing Community Options to establish and operate a so-called Rule 36 Residential Mental Health Program at the following described location: that apartment building and appurtenant land situated at 5378-5384 Fifth Street N.E. in the City of Fridley, County of Anoka, State of Minnesota, and described legally as Lots 1 and 2, Block 14, Hamilton's Addition to Mechanicsville. RIa That service of such Peremptory Writ of Mandamus shall be effected in the following manner, as directed by the Court pursuant to Minn. Stat. S 586.05, namely: by delivering to and leaving with both the Fridley City Manager and the Fridley City Attorney (or responsible agent-employees of those officials) copies of the Peremptory Writ of Mandamus. [IIIJ That the Court Administrator of this Court shall stay entry of this present Order relating to the Peremptory Writ of Mandamus until February 26, 1986 at 9 o'clock a.m., except that service of the Writ, as specified in 4 [M, above, shall be made forthwith, and the Peremptory Writ of Mandamus shall become immediately effective as of February 26, 1986 at 9 o'clock a.m., unless there shall have been an Order before that time, further staying the effective date and time of that Writ. BY THE COURT: M! Dated this day IDA I" of February, 1986. Daniel M. Kammeyer Judge of Anoka County District Court Tenth Judicial District COUNCIL MEETING OF FEBRUARY 24, 1986 Mr. Weir stated, even though they are requesting an S-2 zoning, the uses permitted are the same kinds of uses permitted under the current commercial zoning. Several questions were rasied on the height of the buildings and the screening. Mr. Weir stated the building height would range from six to eight stories, with each floor roughly 13 feet. He stated, whi0 the height of the screening is important, he felt the placement of the ildings in relation to the hones was even more important and the bui ings would be built farther to the south and closer to the freeway. In answer to a question regarding the length of co truction, Mr. Weir stated they intend to have the entire site prepa d this construction season, but it would be limited to individual building pads and it may be between five to nine years before total completion f the entire plan. He stated an element relevant to the construction pr ess is the timing of the intersection improvement scheduled for completi in 1987. Councilman Goodspeed asked if there would be d on the building sites until they are ready to build on then. Mr. Weir ated they have a phasing plan for development of the landscaping. He st ed, as far as the environment, they would control any dust over the vacs t sites. He stated they wanted the landscaping around the general peri ter, but would not have the final landscaping for each individual buildi until they were constructed. Mr. Dick Schultz, a neighboring resi ent, voiced his concern with separation of this property from the resident' properties. He felt they would have more traffic in the area such as ers and people walking their dogs on this site. Mr. Weir stated they are just s concerned as the residents, but felt their landscaping plan would pr ide the necessary control since there is a variety of plantings and buffer area was widened f ram 20 to 40 feet. Mr. Qureshi, City Manage , stated staff would work with the developer to make sure there is pro r landscaping, berming, and screening and to make it aesthetically pleasin both to the developer and the neighboring property owners. No other persons ' the audience spoke regarding this proposed rezoning. MXION by Counc' man Goodspeed to close the public hearing. Seconded by Councilman Sch ider. Upon a voice vote, all voting aye, Mayor Nee declared the motion ried unanimously and the public hearing closd at 8:03 p.m. 2. PUBLIC ON THE MATTER OF A FINAL PLAT P. S. #85-07, LAKE POINTE CORPORATEICENTER/100 TWIN DRIVE-IN, BY HRA IN COOPERATION WITH WOODBRIDGE PROPEIUIg, INC. f_ IWION/by Councilman Goodspeed to waive the reading of the public hearing notic and open the public hearing. Seconded by Councilman Schneider. Upon a vice vote, all voting aye, Mayor Nee declared the motion carried -3- COUNCIL MEETING OF FEBRUARY 24, 1986 unanimously and the public hearing opened at 8:03 p.m. Mr. Flora, Public Works Director, stated this plat is for th development of the 100 Twin Drive-In property. He stated the plat identi es nine parcels associated with the plat and four outlots. He stated ere is a lot for every building and its associated parking. Mr. Flora stated a public hearing was held before e Planning Conmission on January 22 and they recommended approval with ree stipulations which he outlined. Mr. Flora stated once the roadway is fi ly designed, there would be a little different realignment of the roa ay to coincide with the entrance into the development. Mr. Dave Weir, Woodbridge Propertie , stated they had a few items to add and asked Mr. Eric Nesset to review se changes. Mr. Nesset stated they intend o change the right-of-way of Lake Pointe Drive to make it consisten at 60 feet wide. He stated the other item concerns a lot line going rough a parking lot. He stated they intend to make a separate lot for e parking structure and separate lots for the buildings. Mr. Nesset fated the physical composition of the site didn't change, but only the f rm in which it is characterized legally. No other persons in e audience spoke regarding this proposed plat. MJTION by Counci man Goodspeed to close the public hearing. Seconded by Councilman Sch ider. Upon a voice vote, all voting aye, Mayor Nee declared the motion Tied unanimously and the public hearing closed at 8:10 p.m. Mr. Weir ated the neighboring residents gave then a lot of support and he wished thank than for their involvement. He also recognized the City staff ho worked very hard to make this all happen in a short period of time He stated it makes a difference to do business in a City where ev one is cooperating to make this development possible. OLD BUSINESS: 3. OGNSIDERATION OFA SPECTAL USE PERMI P #85-014 TO OPERATE A RESIDENTIAL MENTAL HEALTH PROGRAM IN AN AP UILD7P.GNERALLY LUXATED AT 5378-5384 5TH STRELT N. E. , BY COMMUNITY OPTIONS, LTD: Mr. Qureshi, City Manager, stated there was a request last June for a special use permit ty Community Options to open a mental health facility on 5th Street. He stated the Council denied this request which was challenged in Disrict Court. Mr. Qureshi stated a court order was received last week which directs the Council to issue the special use permit. Mr. Herrick, City Attorney, stated it is rather difficult for him to give any specifics because, even though the judge issued the order, the findings and conclusions have not as yet been received. He stated his recommendation -4- COUNCIL MEETING OF FEBRUARY 24, 1986 would be for the Council to issue the special use permit, with the same stipulations contained in the discussions when it was previously before the Council. Mr. Herrick stated he would not recommend appealing this decision as he felt the Appelate Court would uphold the District Court's decision and, therefore, would not warrant the cost of the appeal. MOTION by Councilman Fitzpatrick to approve special use permit, SP #85-01, with the following stipulations: (1) Operation to be reviewed annually with a public hearing for the first two years; (2) Resident automobiles be restricted to five or less; (3) Rear yard to be fenced with a six foot high solid wood fence which is to be completed prior to occupancy; (4) Proposed Advisory Committee to include City representatives, for example, Human Resources Commission member and/or Police Special Operations Division staff; (5) Petitioner to provide a landscaping plan and install prior to May 31, 1986; (6) Contingency plan be initiated with Unity Hospital to cover any Emergencies; (7) Facility will comply with the local and State fire codes; and (9) Client characteristics will be consistent with petitioner's contract with Anoka County. Seconded by Councilman Goodspeed. Ms. Vagovicyh, 5400 4th Street, felt the only thing that could be done is to have the law changed and contact their State representatives. Ms. Vaserko, 5427 4th Street, stated she went to court twice and it was postponed both times, and felt they should have been notified. Mr. Herrick, City Attorney, stated the City had no control over when this case was heard. Mr. Qureshi, City Manager, stated the issue wasn't decided on the feelings of the neighborhood and the Council ' s action has been pre-empted by the State statute. He felt State representatives would have to be contacted to change the law. UPCN A VOICE VOTE TAKEN CN SIE ABOVE MDTION, ALL VOTED AYE, AND MAYOR NEE DECLARED THE MOTION CARRIED UNANIMOUSLY. Mr. Herrick stated he would send copies of the findings and conclusion to the Council when they are received. i 4. CONSIDERATION OF CITY COUNCIL APPOINTMENTS TO CITY COMMISSIONS:/' HOUSING AND REDEVELOPMENT AUTHORITY: Mayor Nee stated he would appoint John Meyer to replace Mr. Pri edi ti s, who requested he be replaced. Mayor Nee felt--Mr. Meyer has substantial expertise in evaluating planning in th -fedevelopment area. Mayor Nee stated Mr. Meyer was previously a member' of the HRA and District 14 School Board. MOTION by Councilman Fitzpatuok to concur with Mayor Nee's appointment of John Meyer to the HRA. Seconded by Councilman Schneider. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. -5- de COUNCIL MEETING OF FEBRUARY 24, 1986 MJTION by Councilman Fitzpatrick to table the other appointments to the City Commissions. Seconded by Councilman Schneider. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. Cbuncilman Schneider requested copies of the applications received from persons interested in serving on the City Commissions. NEW BUSINESS: - 5. CDNSIDERATION OF FIRST READING OF AN ()RDINANCE RECODIFYI THE FRIDLEY CITY CODE AMENDIW,3 APPENDIX F PROVIDING ADJUSTMENr OF SAIJ�RIES FOR MAYOR AND COUNCILMEMBERS: MDTION by Councilman Schneider to waive /EF01R ng and approve the ordinance upon first reading. Seconded byan Barnette. Upon a voice vote, all voting aye, Mayor Nee the motion carried unanimously. 6. MNSIDERATION OF FI READING OFA RDIEZONI G REQUEST, ZOA #85- 04 REZONE THE PROPERTY GENERALLY &CATED BETWEN 81ST AVENUE AND 83RD AVENUE AND BETWEEN MAIN STREET ANY UNIVERSITY AVE UE BY VANTAGE PROPERTIES, INC. : Mr. Flora, Public Works Director, sated this is a request to rezone property where the Fridley Driving ge is currently located and it also includes two parcels immediately o the north. He stated rezoning is requested frau M-1 and C-2 to C-3 d C-2. He stated the property to be designated as C-2 is about one a half acres at the intersection. Mr. Flora stated an Envirornent Assessment worksheet was completed for the developer by the consulting fi of BRW. He stated this was reviewed by staff and then forwarded t the Environmental Quality Board and the Department of Natural Resou s. He stated they have received telephone responses and they have no bjection to the development. He stated this Worksheet was also submit ed to the Metropolitan Council, but, as yet, no response has been rece' ed. Mr. Flora stated he felt the Metropolitan Council would have no problems with the development and anticipates a written statement shor Y. Mr. Flora reviewed he seven stipulations addressed by the Council and stated several hav already been completed and the developer is working on the others such the storm drainage plan and landscaping. Mr. Kelly Doran representing Vantage Properties, presented drawings of the proposed site d a sample of construction materials to be used. Mr. Qureshi, City Manager, stated they are proposing metal for the canopies and the fr t of the retail area will be all glass and brick. Mr. Qure hi stated, if it is the Council ' s desire to proceed with the rezoni , he would suggest first reading of the ordinance. He stated, hoax , before the second reading of the ordinance, the City would want to -6- 1R CRYOF FM DLLY CIVIC CENTER 6431 UNIVERSITY AVE. N.E. FRIDLEY. MINNESOTA 55432 PHONE(612)571-3450 Ranae Hanson CITY COUNCIL February 25,11986 Community Options, Ltd . 4408 - 69th Avenue North ACTION TAKEN NOTICE Brooklyn Center, MN 55429 On February 24, 1986, the Fridley City Council officially approved your request for a Special Use Permit, SP #85-01 , to allow Rule '36 R?sidentiwl Mental Health - Program for Anoka County in a 4-plex located on Lots 1 and 2 , Block 14, Hamilton' s Addition to Mechanicsville, the same being 5378-5384 - 5th Street NE with the following stipulations : 1 . Operation to be reviewed annually with a public hearing for the first two years . 2. Resident automobiles be restricted to five or less . 3. Rear yard to be fenced with six foot high solid wood fence. This is to be completed prior to occupancy. 4. Proposed advisory committee to include city representatives . (i .e. Human Resources Commission member and/or Police Special Operations Division staff. 5. Petitioner to provide a landscape plan and install prior to May 31 , 1986. 6. Contingency plan be initiated with Unity Hospital to cover any emergencies . 7. Facility will comply with all State and County rules and laws and be fully licensed. 8. Facility will comply with the Local and State fire codes . 9. Client characteristrics will be consistent with petitioner' s contract with Anoka County. If you have any questions regarding the above action, please call the Planning Department at 571-3450. Sincerely,`' James L. Robinson �c oncur with action taken Planning Coordinator JL R/dm Please review the noted stipulations , sign the statement above and return one copy to the City of Fridley Planning Department by March 11 , 1986. '.709871 STATE OF MINNESOTA CITY COUNCIL PROCEEDINGS COUNTY OF ANOKA CITY OF FRIDLEY In the Matter of a special use permit, SP -#85-01 y located at 5378-5384 - 5th Street N.E. SPECIAL USE PERMIT Community ti ns , Ltd. , Owner The above entitled matter came before the City Council of the City of Fridley and was heard on the 24th _ day of February _— , 19 86 , on a petition for a special use permit pursuant to the City of Fridley' s Zoning Ordinance, for the following described property: To allow Rule 36 Residential Mental Health Program for Anoka County in a 4-plex located on Lots 1 and 2, Block 14, Hamilton' s Addition to Mechanicsville, the same being 5378-5384 - 5th Street N.E. IT IS ORDERED that a special use permit be granted as upon the following conditions or reasons: See City Council minutes of February 24 , 1986. STATE OF MINNESOTA ) COUNTY OF ANOKA ) OFFICE OF THE CITY CLERK CITY OF FRIDLEY ) I, Shirley A. Haapala, City Clerk for the City of Fridley with and in for said City of Fridley, do hereby certify that I have compared the foregoing copy and Order granting a special use permit with the original record thereof preserved in my office, and have found the same to be a correct and true transcript of the whole thereof. IN TESTIMONY WHEREOF, I have hereunto subscribed my hand at the City of FriWinnesota, in the County of Anoka on the �� day of 19 DRAFTED BY: City of Fridley 6431 University Avenue N.E. Fridley, MN 55432 SHIRLEY A. �HAAPALA, CITY LERK r „ 709871. C Numerical C�rraatac Granwe Re00rdod Checked CMarytn Tr. Index a ca 0> in Ln i 00 01 sx 0 40 OFFI E OF COUNTY RECORDER STATE OF MINNESOTA, COUNTY OF ANOKA 1 hereby certify that the within instru- CL ment was filed in this office for record on the W �S,�qR,_, __A.D., 19 9= o'clock 19M.,and was duly recorded in book page! County Rec rder By �Q e uty 1•: rc ..c r"rj tztric:., C/o ::re sh! V^• t• �. r c Cf f-Cc + F �d - - '32 i" r-u_ Com• , 1•.��- i�`'i LEsr sir: in rendir.7 t::C artic' t ir. t E lazt W ck ccr.cErr,- ir� 1f%..*a-: rc..se ir, Frid'_e;; , it T e wry s: to s,:-- F t-F ccr:s I'd er: tier. :--ititr. to t t 7:nr.t tEr. r,ts. Cr.t of t CE6 ttr :. s is 8 `riErG , c' sE t _r t^ � i`.t is c � iV+:" fcry^Ersclf L-rd C:rr E"rs. E W 2 s1•srcz of t: as 1 1 _it' t_.iE r.� '_. trEr. t f: irk_ t' t - -__c did T.. ;, :.d ttLt rE , t;:c ru ilii fr� ..- it t.._ . f t v r t: c rn I t sh r: c n r c< wn-' c:. u!. z - _vc ^n t .-,-: r c.r Fride; , F-- k- �r._ �. 2 tiff_ s .,r:E r tic.. �+�_ cr. i .. .E t tc c.-.: c= is f:rc--- t, t- .., t d . . . trig _ tisn. n s is ti:.:- cfi..0 Sc. . .. - _E _ ...-c '.i... It S t- t_ter. : 't t... Q, Iii-tu-„ ....�. �-,LY✓t. .... (X,rs. ) X.La r.r.e .._n _ : e'Dr. 57--i 3492 * * * NOTE A letter regarding "Court Order Requiring the City of Fridley to Issue a Special Use Permit” was sent to: Jensen: 5384 - 5th Street N.E. DeAnna & Tim Norling: 5382 - 5th Street N.E. Vicky Otis : 5378 - 5th Street N.E. Residents of the fourplex Jerald $ Carol Skaare: 5380 - 5th Street N.E. in question. This letter was sent on February 13, 1986. The court order was issued on February 11, 1986. James L. Robinson Planning Coordinator J' Community Options 5384 NE Fifth Street Fridley, Minnesota 55421 March 27 , 1986 James Robinson, Planning Coordinator City of Fridley ' Civic Center 6431 University Avenue NE Fridley , Minnesota 55432 Dear Mr . Robinson: I wanted to let you know what our progress is on stipulations of the Special Use Permit granted to us by the City or Fridley . As I explained to you last week , we have begun working on building preparations with the Anoka County Community Action Program as general contractor . They will be handling the direct construction to meet some of the City 's conditions and will be meeting with City officials along with us for building permit clearance . The first condition, that our operation be reviewed annually with a public hearing for the first two years will, of course, be accomp- lished during March of the next two years . Resident automobiles will be restricted to five or fewer . The Program Director , Roberta Veech , will be ensuring compliance with this request as applicants are accepted to the program and during residents ' stays with us . The rear yard will be fenced with a six foot high solid wood fence prior to occupancy. CAP will be doing the construction of the fence . Our advisory committee has already had initial meetings . We will be meeting again during April . Current committee members are myself as program administrator , Kathy Prieve and Barbara Koropchak as other service providers , Mary Anne Kennedy and Linda Sodderholm as neighbors of the facility , and a Fridley Human Services Council member ( the committee has indicated that they would name one of their members to our committee ) . We will be requesting that a member of the Fridley Police Special Operations Staff also join our committee . In addition, we will have a program resident and a parent of a program resident on the committee . Other members may be asked to join in the near future, particularly business or religious leaders from the area. The purpose of the advisory committee as stated in our Rule 36 license material is as follows . "The Advisory Committee will meet at least quarterly to offer a forum in which facility , staff , resident , family, neighborhood, and professional community representatives can discuss ways in which the program can achieve and maintain excellence in service provision and in neighborhood and community interaction . The Committee will provide suggestions , consultation , and resources to the program. It will have a Chairperson and a Secretary elected by its 1 membership. " Rule 36 specifies that the advisory committee have at least three members--the program administrator , a program resident , and a community representative . Residents must have access to the committee and minutes must be kept on file at the facility . We have proposed one landscape plan and your office is drawing up a revision of that for us . The plan will be instituted, with plantings done before May 31, 1986 . We will have a contingency plan with Unity Hospital to cover any emergencies . This plan will be called an Interface Agreement and is being developed by our agency and the hospital . (We will have other Interface Agreements , such as with Mercy Medical Center and other community agencies and groups . ) We will comply with all State and County rules and laws and be fully licensed. Licensure will be issued by the Minnesota Rule 36 'Licensing division (Virginia Presley Jackson is our licensing examiner ) and by the Minnesota Health Department for the Supervised Living Facility ( SLF) license ( I am not yet sure who that examiner will be but can inform you later ) . Diane Stang at Anoka County is in charge of en- suring that we are in compliance with our Anoka County contract . We will comply with the Local and State fire codes . This compliance will be ensured before occupancy and through periodic checks after that . CAP and I have met and will be meeting again with the appro- priate officials prior to building alterations to make sure we plan for all fire requirements . The State Health Department will not grant us an SLF license until they receive clearance from the State Fire Marshall . Fridley will not okay the building permit until they have received the okay of their fire safety engineers . Client characteristics will be consistent with our contract with Anoka County . Diane Stang will be checking to ensure for the county that we meet there requirements . Virginia Presley Jackson will be checking for Rule 36 that we accept only clients who meet our admission cri- teria . If at any time, changes are proposed in admission criteria, these changes will be discussed with the advisory committee and will have to be cleared by both the Rule 36 examiner and the county board . Those are the nine stipulations required by Fridley; I will let you know when they have all been met . If at any time you require further information or clarification, please feel free to contract me at Community Options , 572-2437 . I would urge anyone with questions or concerns to call or write to me; I will be happy for any input we receive . Si, cerely, / Ranae Hanson, Administrator Community Options 2 NOTICE OF PUBLIC HEARING Please take notice that a public hearing will be held by the Fridley City Council on May , 1987 at 7:30 p.m. in the City Council Chambers at the Fridley City Hall , 6431 University Avenue N.E. , Fridley, Minnesota 55432. This public hearing is being called pursuant to the terms of Special Use Permit SP #85-01. Testimony and public comment at this hearing shall be limited to whether the facility located at 5378 - 5384 - 5th Street N.E. , Fridley, and located on Lots 1 and 2, Block 14, Hamilton ' s Addition to Mechanicsville, is in compliance with the following stipulations of Special Use Permit SP #85-01: 1. No more than five resident automobiles on the site. 2. Completion of construction of a six foot high solid wood rear yard fence. 3. Whether a community Advisory Committee has been created and is being allowed input in the operation of the facility. 4. Has landscaping been completed in accordance with the previously submitted plans. 5. Has an adequate contingency plan been implemented for dealing with medical emergencies. 6. Is the facility licensed and is it being operated in accordance with all applicable State and County rules and regulations. 7. Is the facility in compliance with the fire code. 8. Are the characteristics of the facility' s clients consistent with the facility' s contract with Anoka County. (Official Publication) PUBLIC HEARING BEFORE THE CITY COUNCIL NOTICE IS HEREBY GIVEN that there will be a Public Hearing of the City Council of the City of Fridley in the City Hall at 6431 Universrty Ave- pue Northeast on Monday, May 4, 1987 in the Council Chamber at 7:30 p.m.for the purpose of: Review of a Special Use Per- mit, SP #85-01, Community Op- tions.This public hearing is being called pursuant to the terms of SP#85-01.Testimony and public comment at this hearing shall be limited to whether the facility located at 5378-5384 - 5th Street N.E., Fridley, located on Lots 1 and 2.Block 14,Hamilton's Addi- tion to Mechanicsville,is in com- Pliance with the following stipu- ations of the Special Use Permit: 1.No more than five resident auto- mobiles on the site. 2.Completion of construction of a six fool high solid wood rear yard fence. 3.Whether a community Advisory Committee has been created and is being allowed input in the opera- tion of the facility. 4.Has landscaping been completed in accordance with the previously submitted plans. 5.Has an adequate contingency plan been implemented for dealing with medical emergencies. 6.Is the facility licensed and is it being operated in accordance with all applicable State and County rules and regulations. 7.Is the facility in compliance with the fire codes. 8.Are the characteristics of the facil- ity's clients consistent with the fa- cility's contract with Anoka Coun- ty. Any and all persons desiring to be heard shall be given an opportunity at the above stated time and place. WILLIAM J.NEE Mayor (April 20&27.1987)-FRID May 8, 1986 Ranae Hanson Community Options, Ltd. 5378 - 5th Street NE Fridley, M 55421 Dear Ms. Hanson: This is to inform you that Claudia Dodge, a member of the Fridley Human Resourses Commission, has been appointed to serve on the Community Options Advisory Committee. Ms. Dodge is a resident of the City of Fridley and works in the area of community education for the Anoka Hennepin School District in the City of Ramsey. You may wish the follaving information for your records: Claudia Dodge 701 Rice Creek Terrace NE Fridley, MV 55432 571-8890 (home) 422-5199 (work) I am sending Ms. Dodge the materials that were handed out at the April 21 meeting of the Advisory Committee and the minutes of that meeting. Please except my best wishes for the success of the Advisory Committee. Sincerely, William C. Hunt Assistant to the City Manager cc: Claudia Dodge WCH/mb 15/6 r � May 9, 1986 Claudia Dodge 701 Rice Creek Terrace NE Fridley, MN 55432 Dear Claudia: Thank you very much for agreeing to serve on the Community Options Advisory Committee. I am enclosing some background information on the Advisory Committee and a copy of the letter I sent to -Ms. Ranae Hanson. If you have any questions about service on the Community Options Advisory Committee I will be happy to do my best to respond to then. My best wishes for the success of the committee. Sincerely, William C. Hunt Assistant to the City Manager cc: Susan Sherek WCH/mb 15/13 ® PLANNING DIVISION ' MEMORANDUM CITYOF FM DLEY MEND TD: Jock Robertson, Community Development Director MEND FROM: Jim Robinson, Planning Coordinator_., fEMD DATE: April 1, 1987 REGARDING: Community Options Special Use Permit Review On February 24, 1986, after a lengthly review and adjudicatory process, the Fridley City Council officially approved a request for a special use permit, SP X85- 01, to allow a Rule 36 Residential Mental Health facility to be located in the four plex at 5378-5884 - 5th Street N. E. The Special Use Permit was issued with nine stipulations. The first stipulation states that the operation should be reviewed annually with a public hearing for the first two years. We have reviewed the facility as to the other eight stipulations and found that they are in compliance. In addition, with the help of Tim Turnbull of the Police Department, we have reviewed the police files in an effort to determine any adverse effect on the neighborhood. Although there have been numerous calls, none of the calls reflected a problem where the residents of the facility were impacting the neighbors. Most of the calls dealt with are medical type problems which would be expected in a facility of this type. At this time the main question which needs to be considered is whether to have a formal public hearing with publication and notices sent to the neighbors or simply to have a public meeting with a publication. If notices are sent, should we go out the normal 200 feet or use the petition which was submitted during the process. If we were to use the petition, it would b(--- 197 e197 names. If we were to use the normal 200 feet, it would be 20 names. I am assuninc also that Council will want to hold this hearing rather than the Planning Commission. Attached are the stipulations as approved by Council and a letter from Pat Donahue, the Community Options administrator. JLF/dm N-87-79 A/k ewwt� p , 5384 NE FIFTH STREET FRIDLEY, MINNESOTA 55421 612-572-0009 April 22 , 1987 Dear Advisory Council Member, Becky and John : Just a brief note to let you know two important things : One - the Judge has issued his memoradum in regard to Community Options verses the City of Fridley . Great news ! City of Fridley is ordered to pay attorneys ' fees for Community Options and Legal Aide . We won on a land use issue and descrimination . Two - The public hearing for review of the Special Use Permit is set for May 4 , 1987 , 7 : 30 p.m. , Fridley City Hall . In the course of the next few weeks , City Councilpersons and City Planners will be visiting the agency for an on-site visit and program explana- tion . We are looking forward to their visit . We would appreciate your personal attendance at the public hear- ing . The scope of the review is limited to the conditions of the original issuance of the permit . (Please refer to the enclosed letter . ) Thank you for your continued support . Please let Pat Donahue or ,myself know if we can count on your attendance and favorable support of the program . Sincerely , n �'/�ti�, Taj C✓'��x-�,c�- �� /�` Diane M . 011endick Wright, Administrator CC : Advisory Council Members Becky Fink, Anoka, McKnight CSP 2423 Central Ave . N.E . , Mpls 55418 John LeBreche , Alliance for the Mentally Ill 1381 Owondaga St . NE , Fridley 55432 Enc . DW/ls 2F p 5384 NE FIFTH STREET FRIDLEY, MINNESOTA 55421 612-572-0009 April 28 , 1987 James L . Robinson 6431 University Ave . NE Fridley, MN 55432 Dear Mr . Robinson : This letter is sent to respond to the terms of our Special Use Permit #85-01 : 1 . We currently have three residents who own automobiles and park them at the residence . 2 . A six foot high privacy wood fence was constructed around the back yard . This was completed approximately in September of 1986 . 3 . The Advisory Board was established and has met quarter- ly since April 21 , 1986 . The committee is composed of Dick Byers , a neighbor; Barb Koropchek, Director of Social Service at the Anoka Metro Regional Treatment Center; Kathy Prieve , Mental Health Division Coordina- tor with Rise Inc . ; Tim Turnbull , Police Special Oper- ations with the City of Fridley; Claudia Dodge , Fridley Human Resource Commission member ; and Judy Yantos , an Anoka County interested person . Also three members of Community Options are on the board : Diane 011endick Wright , owner and Administrator; Patrick Donahue , Assis- tant Administrator; Roberta Veech, Program Director . One Community Options ' resident is also elected by the resient council to sit on the Advisory Committee meet- ings . Linda Soderholm, a neighbor and secretary for Community Options attends meetings to transcribe the minutes . Copies are sent to all members of the committee . 4 . All landscaping has been completed in accordance with the previously submitted plans . The exterior of the building was painted and the roof reshingled . In addi- tions the parking lot will be resurfaced in July 1987 . 5 . Contingency plans to deal with medical emergencies have been initiated . On May 15 , 1986, an interface agreement was signed with the Fridley Plaza Clinic to arrange hos- pitalization or emergency room care at Unity Hospital . An agreement was also signed with Health Center Ambulance signed on June 3 , 1986 . They will provide emergency med- transportation . Psychiatric emergencies are handled by each residents ' individual psychiatrist who is responsi- ble for psychiatric admissions . When this occurs , they make the arrangements at the hospital in which they have admission rights . This includes Unity and Mercy hospitals. 2G page 2 Interface Agreements have also been signed with North Suburban Counseling Center , (May 7 , 1986 ) and Central Center for Family Resources , (April 18 , 1986) . Both agencies will accept referrals for services and cooper- ate in effectively coordinating services to residents . Dr . J .M . LaPinski signed an interface agreement on June 19 , 1986 . Dr . LaPinski will provide emergency dental care for our residents , and regular service if the need arises . 6 . The facility is licensed and is operated in conformance with all state and county rules and regulations . A Rule 36 Program license was approved in May 1986 . This is an annual review that will occur again in May 1987 . The Minnesota Department of Health reinspected the facility in March 1987 . They again approved the Supervised Living Facility license , unconditionally . 7 . A Fire Inspection was completed in May 1986 . Community Options is in compliance with all fire codes . 8 . The characteristics of the facility ' s clients are consistent with the facility ' s contract with Anoka County . If you have questions , please contact me . I have also enclosed a copy of a letter we will be mailing all neighbors within the immediate area . Thank you, 0_�o,_ Patrick Donahue Assistant Administrator Enc . PD/ls PLANNING DIVISION 2 MEMORANDUM CITYOF FRI DLEY MEND TO: Jock Robertson, Corm unity Develognent Director MEMJ FROM: Jim Robinson, Planning Coordinator MEMO DATE: April 29, 1987 REGARDING: Caauuxdty Options Special Use Permit Review PROPOSAL: A public hearing is scheduled for the May 4, 1987 Council to conduct the first of two required annual reviews of the project. Public notification includes the residential properties south of 694, north of 53rd Avenue, west of 7th Street and east of University Avenue. BACKGROUND: On February 24, 1986 after a lengthly review and an adjudicatory process, the Fridley City Council officially approved a request for a special use permit, SP #85-01, to allow a Rule 36 Residential Mental Health facility at 5384 - 5th Street N.E. The first of nine stipulations required two annual public hearings. David Neenan has suggested that the review should be limited in scope to address conformance with the Council ' s adopted stipulations. These stipulations are listed in the attached public hearing. CONCLUSION: Staff has reviewed the project and found them to be in compliance. In addition, the administrators held an open house for staff and Council to address any concerns. Pat Donahue, the program administrator, has provided a detailed description of their efforts to canply with the stipulations. Finally, the attached letter from Community Options to the neighborhood advises local residents of the accessibility of the C u minty Option staff as well as Dick Byers who is a neighbor now serving on the Advisory Council. Neighbors are encouraged to express their concerns or questions. M-87-101 1E COC'f► IL mEETING OF mAY 4. 1987 MDTION by Councilman Fitzpatrick to adopt the agenda with the above addition and changes. Seconded by Councilman Goodspeed. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. OPEN FQEUM, VISITQR_. . " Mrs. Irene Vasecka, 5427 4th Street, appeared before the Council regarding the problems in the alley between 4th and 5th Streets. She presented photos of the debris and trash and stated there is only one dumpster for the two apartments at 5420 and 5428 5th Street. Mr. Bob Schmidt, 6001 4th Street, representing the Fridley Jaycee ' s, requested a waiver of the fees for a softball tournament in conjunction with the Fridley Hockey Association. He stated the tournament is scheduled for the last weekend of this month and they have their own dram shop insurance. Mayor Nee stated this was not an agenda item for this evening and since there will be another Council meeting on May 18, he stated the Council would consider the item at that meeting. PUBLIC HEWN 2. REVIEW OF A SPECIAL USE PERMI-T1 SP #85-01, BY COMMUNITY OPTIONS, TO DE,-TZRMINE WHETHER IT IS IN COMPLIANCE WITH THE STIPULATIONS OF THE SPECIAL USE PERMIT:. MDTION by Councilman Fitzpatrick to waive the reading of the public hearing notice and open the public hearing. Seconded by Councilman Goodspeed. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously and the public hearing opened at 10:03 p.m. Mayor Nee stated the purpose of this public hearing is to review the special use permit for Community Options to determine if the applicant has complied with the stipulations. Mr. Robertson, Cbmmunity Development Director, reviewed the stipulations as follows: 1. No more than five resident automobiles on the site. 2. Qompletion of construction of a six foot high solid wood rear yard fence. 3. Whether a Community Advisory Committee has been created and is being allowed input in the operation of the facility. 4. Landscaping completed in accordance with the previously submitted plans. 5. Adequate contingency plan been implemented for dealing with medical emergencies. 6. Facility licensed and being operated in accordance with all -3- 1F couWIL MFLMM QF MAY 4r 1987 applicable State and County rules and regulations. 7. Facility in compliance with the Fire Code. 8. Are the characteristics of the facility' s clients consistent with the facility' s contract with Anoka County. He stated staff has reviewed all these stipulations, inspected the premises and consulted with the organizations, and Community Options is in compliance with the stipulations. Mr. Bill Hunt, Assistant to the City Manager, reviewed a letter dated April 20, 1987 received from Patrick Donahue, Assistant Administrator of Community Options, which indicated compliance with these stipulations. Councilman Fitzpatrick stated the scope of review by the Council is limited to the stipulations, but stated the neighboring residents wished to express some of their concerns. Mrs. Marge Otten, 5311 5th Street, presented photos showing the parking around Community Options at various times and dates. She stated there were delivery trucks parked on both 4th and 5th Streets and one of the visitors at Community Options parked in front of a resident' s driveway and blocked the access. Mrs. Otten stated at the time Community Options applied for the special use permit, residents were told this was not going to be an intensive care facility. She stated in the program proposal from the County, they wanted an intensive treatment facility for individuals 18 and over who have a primary diagnosis of mental illness that prohibits their admission to less restrictive facilities. Mrs. Otten stated there has been a problem of a runaway from Community Options and it was necessary to call the Police Depa rtment. Mrs. Otten stated residents in their area have relocated and there have been at least four raids in apartments where new residents have moved. She stated the criminal element in their neighborhood is prevalent as all the persons who cared about their properties have left. She stated residents have installed greater security measures as they are of raid of the transients in the neighborhood. Ms. Terry Buckridge, daughter of Mrs. Otten, stated the children in the area are afraid to go to the neighboring park as now they don' t know their neighbors. She stated the area used to be peaceful and quiet, but there is increased criminal activity where the Police Department has to be called. Ms. Buckridge stated parking is a problem and one day there were about 18 cars parking on the street. She stated Community Options promised not to change the neighborhood, but to enhance it and felt they have destroyed it. Mrs. Vasecka, 5427 4th Street, stated St. William' s Church was providing drivers to transport residents of Community Options to church, however, when they found out this was not a non-profit organization, it was discontinued. -4- 1G 4OtNCL M= OF MAX-4. 1982 Ms. Wright, representing Community Options, stated she was aware of the incident where a resident's driveway was blocked and stated this occurred when they were in the process of re-roofing the building. Ms. Wright stated as far as the additional parking, this may have occurred when they had their open house. She also 'stated weekly f ran 3:00 to 4:30 p.m. , there is a staff meeting which increases their parking needs during this period. Councilman Fitzpatrick felt perhaps the minutes of the Advisory Board could be more widely distributed to keep residents informed of the activities at Community Options. He stated the purpose of the Advisory Board was to serve as a liaison with the community. Ms. Wright stated fir. Dick Byers serves as the communty liai Y n and felt the residents may be more comfortable approaching Mr. Byers and he could share the minutes. Councilman Fitzpatrick felt the appearance of the structure which houses Community Options has not changed. Ms. Wright stated they have repainted and installed landscaping and fencing. Councilman Fitzpatrick stated the structure improved somewhat, but felt there was still room for additional improvement. Yxs. Vasecka stated there should be a way to inform residents that Community Options is in the neighborhood. She stated new residents who moved into the area relocated to another area, once they found out Community Options was in the neighborhood. Councilman Fitzpatrick stated the residents have stated there is a great deal of change in the neighborhood and an increased number of police calls, however, there is no argument that Community Options is in compliance with the stipulations which is the scope of this public hearing. A gentleman in the audience stated this is a classic case of slum dispersal. MDTION by Councilman Fitzpatrick to close the public hearing. - Seconded by Councilman Goodspeed. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously and the public hearing closed at 10:44 p.m. OLD BUSINESS• 3. ORDINANCE NO. 881 RECODIFYING THE FRIDLEY CITY COD E BY ADOPTING ANEW SER 30 ENS T�T�j,1,�°S��RjTALE I,IM", REPEALING OLD CHAPTER 24 ENTITLE "BINGO". AND OLD CHAPIER 31 ENTITLED_ GA BLINu DEVICES" AND FURTHER AnMjkV CHAZMR 11 ENTILED "GENERAL PR(JJISIONS AND FEES" SECTION 11.10: Mayor Nee stated this ordinance was amended on the first reading, as outlined in the April 20 minutes, and another minor change under Section 30.03, Item 8, is to delete the words "$5.00 per hour" and substitute the words, "50% above Federal mini►num wage". Mr. Hill, Public Safety Director, stated the Lions Club has expressed an interest in two premises to operate the chartiable gambling. He stated the -5- REPCIPT DATE 05/06/87 PAGE 1 CITY OF FRIDI_E Y RESIDENTIAL ~ALES DATA FOR 1986 SORTED BY: P.fN LIMBER S T Y L E B EXTRA LOT 1/4 LEGAL R X S S 2 T A B A T H BAS CENT FLR YEAR SIZE I-OC MO RATE AREA PIN M P E L S H S GAR UP DOWN FP FIN AIR PCH AREA BLT WIDE DEEP INF PRICE EMV RATIO 5 27 1 23340067 Y 2 N N N N 2 2 D 0 0 0 N N N 864 80 80 130 N 62,500 60,900 97.44 TOTAL PRICE = 62500 AVERAGE PRICE = 62500.000000 TOTAL EMV = 60900 AVERAGE ENV = 60900.00000 TOTAL RATIO = 97.4400000 AVERAGE RATIO = 97.44000000 TOTAL YEAR BUILT = 030 AVERAGE YEAR BUILT = 080.07000000 TOTAL FLOOR AREA = 364 AVERAGE R OOR AREA = 864.00000000 TOTAL LOT SIZE = 10400 AVERAGE LOT SIZE = 10400.00000000 t4UMBER OF SALES = 1 COEFFICIENT OF DISPERSION BY MEAN = 0.00000000 �( v� �, � I -� .�---. :HE_RR ICK & NL EIT L-ANT P.A. ATTORNEYS AT LA«I Virgil C. Ilcrrick August 6, 1987 Da\id I'. Nc\%man ' James U. l loeft Nasim M. Qureshi City Manager City of Fridley Civic Center 6431 University Avenue Northeast Fridley_,.... mN.-.5.543.2__\ RE: Community Options s . City of Fridley Dear asim: For your information, enclosed please find a copy of the Final Order For Judgment regarding the above matter. Sincerely, / VCH:JJH Virgil C. Herrick Enclosure Suite 205, 6401 University A,,,enue N.E., Fridley, Minnesota 55432, 612-571-3850 I � STATE OF MINNESOTA DISTRICT COURT cuU6 J Of r►NCjKA TENTH JUDICIAL DISTRICT Community Options, Ltd., a Minnesota Corporation, Eugene Wright, Diane O. Wright, T. H., K. IV., and Kurt Nesset, Plaintiff- FINAL ORDER Petitioners, FOR JUDGMENT VS. The City of Fridley, a Municipal Corporation, Defendant- Anoka County District Respondent. Court File #B-85-4539 This Court has issued previous Orders in this case, resolving most of the issues involved in this litigation. The present Order and attached Memorandum resolves the sole remaining question, namely, the amount of attorney fees to which plaintiffs are entitled.This present Order also incorporates some provisions of the previous orders into the final judgment. sssss FINAL ORDER FOR JUDGMENT L The Clerk of this Court is directed to enter a Final Judgment in this matter which will state the following: A. Plaintiffs Community Options, Eugene Wright, and Diane O. Wright shall have and recover from defendant City of Fridley as and for attorney fees the amount of $6,050 [ Attorneys: Leonard, Street be Deinard]; and plaintiffs T. H., T. W., and Kurt Nesset shall have and recover from defendant City of Fridley as and for attorney fees the amount of $9,800 [ Attorneys: Legal Aid Society of Minneapolis]. -2- B. 2- B. Plaintiffs shall have and recover their costs and disbursements from defendant City of Fridley upon a proper and timely application for taxation of the same. C. Plaintiffs shall have and recover nothing from the City of Fridley on any other of the plaintiffs' claims or causes of action. D. The Court's 2/11/86 Order, directing the issuance of a writ and mandamus, is confirmed and made a part of this Judgment. That writ of mandamus has already been issued. EL The Clerk of this Court is directed to advise the parties of the present Final Order for Judgment, by providing copies of the same to their attorneys. BY THE COURT: N& �4 0 1✓" *'0*+R 'IL Dated this ✓ day Daniel M. Kammeyer of July, 1987. Judge of Anoka County District Court Tenth Judicial District MEMORANDUM The Court, by its 4/3/87 Interlocutory Order, determined that plaintiffs — as prevailing parties — had established their threshold entitlement to attorney fees, under 42 U.S.C.A. S 1988 (Civil Rights Attorney's Fees Award Act of 1976) and Minn. Stat. § 363.14, subd. 3. (Minnesota's Human Rights Act). We consider and resolve here the amount of those fees. Earlier, plaintiffs had submitted written materials (affidavits, time records, etc.) to support their claim for a specific amount of attorney fees, if the Court determined they were entitled to fees in the first instance. By those written submissions, plaintiffs request attorney fees in a total amount of $32,685, calculated as follows: Community Options, Eugene Wright, and Diane O. Wright [ Attorneys: Leonard, Street be Deinard] Att'y. Richard Rapson 8.75 hours at $80/hour. . . . . $700.00 Att'y. Mary B. Trevor 177.50 hours at $70/hour. . $129425.00 13,125.00 T.H., K.W. and Kurt Nesset [ Attorneys: Legal Aid Society of Minneapolis] Att'y. Susan L. Lentz 158 hours at $100/hour. . . .$15,800.00 Att'y. Patricia M. Siebert 47 hours at $80/hour. . . . . $3,760.00 $19,560.00 Plaintiffs support their request with time records of their attorneys. (Copies of those time records are attached to this Memorandum). They argue, in their Joint Memorandum in Support of Notion for Attorney's Fees, that they have thereby established a so-called "lodestar" figure. They further argue that certain factors — such as the results the attorneys acheived in the instant litigation — mandate that the Court make an award of attorney fees in at least that "lodestar" amount of $32,685. -2- DISCUSSION 2-DISCUSSION i The Lodestar Figure and the Court's Discretion The so-called lodestar figure, once it has simply been calculated from the attorney time records of a successful or prevailing civil rights litigant, does not end the inquiry. The lodestar figure is nothing more than the mathematical result of multiplying the number of billable hours that the prevailing party's attorneys have spent on the case by the hourly rate normally charged for similar work by attorneys of like skill in the area. At best, the lodestar figure merely represents a starting point: "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Hensley v. Eckerhart (1983) 461 U.S. 424, 433 (emphasis added). And that lodestar figure, once established, cannot simply be converted, dollar for dollar, into the ultimate fee award. The trial court has to consider whether adjustments -- including the possibility of a downward adjustment — should be made to that lodestar figure: "After [ that] base fee has been calculated, using these relatively objective factors [ hours x hourly rate], the district court has the discretion to adjust the fee award upward or downward in light of one or more subjective factors." McKenna v. Peekskill Housing Authority, 573 F. Supp. 976 (S.D. N.Y. 1983), citing Bensley, supra (emphasis added). That particular inquiry by which the trial court "adjusts the fee award [ or lodestar figure] upward or downward" must necessarily be guided by the trial court's own good judgment and discretion. That particular principle is but an extension of the more general proposition that any claim for attorney fees under 42 U.S.C.A. § 1988 involves the discretion of the trial court. Hensley v. Eckarhart, supra, 461 U.S. at 437: "We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation. . . . " (Emphasis added). The same is true with a claim for attorney fees under Minnesota's Human Rights Act: "In any action or proceeding brought pursuant to this section, the court, in its discretion, may allow the prevailing party. . . a reasonable attorney's fee. . . . " Minn. Stat. S 363.14, subd. 3. (Emphasis added). i -3- in 3-In exercising that discretion, a trial court may take many factors into account. The most frequently cited factors in civil rights litigation are those identified by the Fifth Circuit Court of Appeals in Johnson v. Georgia Highway Express 498 F.2d 714 (5th Cir. 1974). We set forth those factors — 12 in all — in the footnote below.i Not all of those factors will be applicable in every case. We consider the following set of factors to be especially pertinent: the time and labor required; the novelty and difficulty of the questions or issues involved; the skill requisite to perform the legal services properly; the undesirability of the case; and preclusion of employment by the attorney due to acceptance of the case. This first set of factors, as applied to our case, mandates a reduction of the "lodestar figure" submitted by plaintiffs. A second set of factors tends, at best, to keep the award from being reduced any further. That second set of factors includes: the customary fee and awards in similar cases; the results obtained; the experience, skill and reputation of the attorneys; and certain time limitations imposed by the circumstances. Although these factors are of some importance in this case, they are not so substantial as to overcome the need for the reduction mandated by the first set of factors. 11me and Labor Required From my vantage point, both as a former litigator and now as a trial judge with some insight into what it takes to prepare a case for trial, the number of hours expended by plaintiffs' attorneys in preparing this case for trial seems excessive.2 1 The 12 factors identified by the Fifth Circuit Court of Appeals in Johnson v. Georgia Highway Express, Inc., 488 F. 2d at 717-719, are: (1) the time and labor required; (2) the novelty and difficulty of the questions [ or issues] involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 2 The Fifth Circuit Court of Appeals expressly urged that the "trial judge should weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities." Johnson v Georgia Highway Express, Inc., supra, 488 F. 2d at 717. ` -4- That observation is made, for the moment, without regard to other factors that may be involved — such as the relative difficulty/simplicity of the legal and factual questions in the case. That amount of hours seems to bear little relation to the short and straight-forward trial I presided over. The trial took only about 14 actual hours in the courtroom, over the course of 3 trial days. Away from trial, plaintiffs attorneys expended about 350 hours in trial preparation, a lop-sided ratio of approximately 25 hours of out-of-court preparation for every 1 hour of trial. Looked at another way, those figures would mean that if that work had been done only by one attorney, he or she would have spent about 3 full work months to get ready for a three-day trial. (Six hours per day times 20 days per month times 3 months equals 360 hours). That's excessive, right on its face, for virtually any litigation. Those figures make real the possibility suggested by the United States Supreme Court, namely, that in some instances "[ c lases may be overstaffed." Hensle supra, 461 U.S. at 434. Plaintiffs argue that such "over-staffing" did not occur in our case, but rather that their "counsel arranged their work in an efficient and cost-effective manner" and that "[ t]asks performed in preparation for trial were divided, and efforts and hours were not duplicative." Plaintiffs' Joint Memorandum in Support of Motion for Attorney's Fees, at p. 12. That may be true for some aspects of the trial preparation done by the various attorneys for the plaintiffs.- But it also appears that other aspects of the trial preparation and in-court work were 'overstaffed" in this case and that there was duplication of effort. For one thing, there was a lot of "conferencing" that occurred among co- counsel for the plaintiffs, almost on a daily basis during some stretches of the pre-trial stages of the case-3 The Court appreciates that conferences between and among co- counsel can be necessary, even vital, for a variety of reasons (to plan tactics and trial strategy, to discuss the applicable law, to co-ordinate the gathering of evidence, etc.). But we seriously question whether the relatively straight-forward facts and well- settled law of our case justified the extensive conferencing between and among co- counsel that took place here. 3 The time-sheets submitted by the plaintiffs' co-counsel shows that such pre- trial and post-trial conferences between or among co-counsel took place on the following days in 1985: June 5 and 28; July 3, 18, 29, and 31; August 1, 2, 6, 12, 22, 23, 28, and 29; September 4, 5, 6, 7, 11, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25; October 1, 2, 10, and 24; November 14 and 15. [n 1986: March 11 and 17. =5- That extensive amount of conferences by plaintiffs' attorneys, we conclude, was duplicative of some of their legal efforts and an instance of over- staffin- the case. So too was the appearance, at every one of the pre-trial depositions, of two plaintiffs' attorneys, one for the Wrights/Community Options and another for the prospective residents of the group home (T.H., K.W., and Kurt Nesset).4 And finally, plaintiffs had two atorneys in the courtroom throughout the three day trial -- again, one for the Wrights/Community Options and another for the prospective residents. Plaintiffs note that "[ s]eparate representation was necessary and appropriate for a number of reasons, including. . . the strictures of the Code of Professional Responsibility" and because "the Wrights and Community Options had interests differing from or potentially differing from those of would-be residents of the Community Options facility. . . . " Plaintiffs' Joint Memorandum in Support of Motion for Attorney's Fees, fn. 4 at p. 10. All of that is true — so far as it goes — but it bears some comment. First of all, it is true that some interests of the various parties differed: at one time the Wrights pressed a claim for damages in their own name, and so did Community Options (for lost profits) — claims which had nothing to do with the other plaintiffs. Likewise, plaintiffs T.H., K.W. and Kurt Nesset at one time pressed a claim for damages that had nothing to do with the Wrights and Community Options. But on the critical civil rights claims or issues that entitled all of the plaintiffs to a fee award in the first instance (the so-called "fee-generating claims"), the interests of all the plaintiffs were identical and were not "differing or potentially differing." And it is the work of plaintiffs' attorneys on those mutually-shared, identical civil rights claims which we view as having been duplicative and over-staffed. 4 It is difficult to determine exactly how many hours were spent by the plaintiffs' attorneys in attending the various depositions; but as best we can determine from the submitted time sheets, the appearances, length of the depositions, and requested fees are as follows: Barnette and Nee depositions: a total of 3 hours in length. Attended by attorney Siebert and attorney Trevor. Total fees requested $450. Fitzpatrick deposition: 2-1/2 hours long. Attended by attorney Lentz and attorney Trevor. Total fees requested $425. Flora and Robinson depositions: a total of 6 hours in length. Attended by attorney Siebert and Trevor. Total fees requested $900. Hanson deposition: 3 hours long. Attended by attorney Lentz and attorney Trevor. Total fees requested $510. -6- Secondly, although there is no denying the right of the various plaintiffs to separate representation, that is not the issue before us. Rather, the issue is one of reasonableness: what amount of legal work was reasonably necessary to expend on the fee-generating civil rights claims. The mere right to separate representation does not entitle plaintiffs to 100% reimbursement for legal work which, among their various separately-engaged attorneys, may have been duplicative and over-staffed as to those fee-generating claims. I take it that whether plaintiffs are represented by one attorney or by more than one attorney, in regard to a single indivisible fee-generating claim, the same standard of reasonableness prevails: "The district court also should exclude from this initial fee calculation [ the lodestar figure] hours that were not 'reasonably expended'. . . Cases may be overstaffed. . . Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary. . . . " Bensley v. Eckerhart, supra, 461 U.S. at 434. "If more than one attorney is involved, the possibility of duplication of effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted." Johnson v. Georgia Highway Express, Inc., supra, 488 F. 2d at 717. Third, some of the time and work of plaintiffs' attorneys was spent in regard to purely economic claims. The Wrights claimed that they had incurred losses because of delay in closing on the purchase of the apartment building, due to the City's denial of the special use permit to Community Options, including such items as increased or additional financing costs. Community Options made a claim for loss of profits, on account of its inability to operate a Rule 36 facility under a full contract with Anoka County. The Wrights dropped their claim shortly before trial, but Community Options pressed its lost-profits-claim to trial. Both of those claims were non-fee generating, and hence no attorney fees should be awarded for any part of the attorneys' time and labor devoted to those purely economic claims. That principle, though it may be obvious enough in theory, is difficult to implement in practice. As best we were able, though, the Court's final adjustments to the attorney fees award in this case incorporates an adjustment to account for the fact that some of the attorney time and work went toward purely economic, non-fee generating claims. -7- Our review of this first factor (time and labor required) leads us to conclude, then, that some reduction and discounting must be done to plaintiffs' submitted lodestar figure to account for duplicative efforts and over-staffing. Novelty and Difficulty of the Questions; Skill Requisite to Perform the Legal Service Properly I suppose that there might be a mandamus case, implicating civil rights questions of such novelty and difficulty and requiring such lawyer skill, as to justify a 25-1 trial preparation ratio. For example, "[ c lases of first impression generally require more time and effort on the attorney's part." Johnson v. Georgia Highway Express, Inc., supra. 488 F.2d at 718. This was not such a case. This was not a difficult case for plaintiffs; they were not faced with any complex problems —whether on the substantive law, the facts, procedure, or evidence. Substantively, the law of the case was well settled, involved no novel issues, and was entirely in plaintiffs' favor. That was so particularly because of some strong appellate precedent: the United States Supreme Court's decision in the Cleburne case and the Minnesota Appeals Court's decision in the Northwest Residence case — both of which were (understandably) relied upon heavily by plaintiffs. In that regard, our case was virtually a carbon-copy of the Northwest Residence case, a precedential similarity which we have already noted.5 Also, the plaintiffs' position on the substantive issues in this case was firmly supported by a virtual presumption — explicitly .enunciated as a matter of public policy in ;Minnesota's Statutes — in favor of group home residential treatment for the mentally ill. See: Minn. Stat. § 245.812, subd. 4 and Northwest Residence, supra, 352 N.W.2d at 773 ("state policy in favor of residential treatment"). Hence, none of the substantive issues in our case were "of first impression", and plaintiffs had no new trails to blaze. All of that had been done a long time previously, either by appellate courts or in statutory pronouncements. 5"Northwest Residence, the Minnesota Appeals Court decision, is closer — factually — to our case than is Cleburne. Our case and Northwest Residence both involved applications for a special use permit to establish a residential group home for mentally ill persons. The same petitioners (the Wrights) made the permit applications in both cases. About the only difference between the cases lies in some of the reasons articulated by the two respective cities (Brooklyn Center, Fridley) in denying the applications." Court's 4/3/87 Interlocutory Order at p. 13. -8- On the facts and the evidence, the plaintiffs also confronted few, if any, problems. The facts of the case were not in dispute; much of the testimony consisted in simply having witnesses recount the chronology of events surrounding application for and denial of the special use permit. In fact, the parties entered into a detailed stipulation of agreed-upon facts. (See: the Court's 4/3/87 Interlocutory Order, at pp. 4-9, where we adopted all 42 paragraphs of that factual stipulation). The willingness of the City of enter into that stipulation reduced the amount of pre-trial preparation that would otherwise have been required of plaintiffs' attorneys to establish those stipulated facts at trials Given the relative simplicity of the law and facts in this case, and given that plaintiffs were virtually assured of prevailing (and obtaining a peremptory writ of mandamus), our first impression about the excessiveness and duplication of hours expended by plaintiffs' attorneys is confirmed and amplified. Taken together, these factors — the time and labor required, difficulty (or'simplicity) of the issues involved — clearly mandate a substantial reduction in plaintiffs' lodestar figures. Such reduction is required, for otherwise "[ f Iee awards based upon an excessive number of hours would encourage overpreparation of often relatively simple cases." Bonner v. Coughlin, 657 F.2d 931, 935 (7th Cir. 1981). "Undesirability" of the Case; Preclusion of Employment by the Attorney Due to Acceptance of the Case Much civil rights litigation is perceived as dirty business by the pubic and as distasteful legal work by the bar (for example, litigation to vindicate the civil liberties of alleged pornographers or of neo-fascist, para-military organizations). As the Fifth Circuit court of Appeals put it, "Civil rights attorneys face hardships in their communities because of their desire to help the civil rights litigant . . . Oftentimes his decision to help eradicate discrimination is not pleasantly received by the community or his contemporaries. This can have an economic impact on his practice which can be considered by the Court." Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 719. A trial court should be reluctant to discount an attorney's fee in such cases, for fear that no attorney 6The Court recognizes that some time and effort was spent by plaintiffs' attorneys away from the courtroom in putting that factual stipulation together in the first place. -9- would otherwise come forward as an advocate for an aggreived -- but unpopular --civil rights plaintiff. There is little risk of that happening in our case, were we to discount --and adjust downward — the requested attorney fees (if such a downward adjustment is otherwise appropriate in the exercise of our discretion). If anything, championing the rights of the mentally ill has generally become a popular course. The public's support in particular of residential treatment for the mentally ill has found expression in the highest forums of our state: Minnesota's appellate courts and legislature. Litigation to vindicate the rights of a vulnerable group such as the mentally ill is not frowned upon by the public nor considered unpleasant legal work by attorneys. Accepting such cases is unlikely to taint the attorney in the public's eyes, thereby precluding the attorney's ability to attract other clients — or in other words, to have an "economic impact" on the attorney's practice. Admittedly, there was some opposition and resentment by neighbors in our case. But that local opposition was not directed generally against the mentally ill; in fact, there was genuine sympathy for the plight of the mentally ill, expressed both by local citizens and city officials. Such "opposition" as there was took the form, rather, of a contention by neighbors that it was inappropriate to locate a group home in the particular location or neighborhood in question. Given our perception of how the public and Vie bar view this kind of litigation, we do not see it as being either "undesirable" or as likely to preclude other employment by the attorney, due to acceptance of such a case. Hence, we have little concern that discounting the requested amount of attorney fees (a reduction we find to be mandated by other factors) would have the effect of discouraging attorneys from accepting such cases. Other Factors As previously noted, a second set of factors (from the list identified by the Fifth Circuit Court of Appeals in Johnson v Georgia Highway Express, Inc.) tend to keep the award from being reduced beyond that mandated by the first set of factors we have discussed above. CUSTOMARY FEES; AWARDS IN SIMILAR CASES: We have reviewed the materials supplied by plaintiffs in support of their reliance on this factor. We have also considered the range of fees in many other civil rights cases, around the country, -10- not cited or documented in plaintiffs' submitted materials. See, for example: the cases collected and discussed at 43 ALR Fed. 243 "Construction and Application of Civil Rights Attorney's Fees Award Act of 1976", and at 42 USCS S 1988. We conclude that the award of attorney fees we make in this case is consistent with the "customary fee" and "awards in similar cases." THE RESULTS OBTAINED: Plaintiffs characterize the results they achieved in this litigation as being "excellent", echoing the language of appellate decisions in cases where substantial attorney fee awards have been made. But that's a little deceptive, and requires some further analysis. Certainly, plaintiffs prevailed on the important remedy they prayed for — a writ of mandamus compelling the City to issue the special use permit. But that result or remedy was limited. There was not present in this case a wide panoply of actual or even potential remedies; plaintiffs were either going to obtain a writ of mandamus as a result of the litigation — or not. That procedural scenario differs considerably from many other cases where the civil rights plaintiff really does achieve "excellent" results or success across a broad spectrum of potential remedies: damages, injunctive relief, sweeping changes in departmental practices and procedures, and even the instigation of new legislation and new administrative regulations. Without doubt, the result or remedy which plaintiffs achieved in this case is significant: implementing the general state-wide policy of residential treatment in a particular locality. But the significance of that result inheres in the simple fact of plaintiffs having prevailed in the first instance. We take it that something beyond merely prevailing in the lawsuit is necessary before the results achieved can be characterized as "excellent." Otherwise this present factor (results achieved) would add nothing to the threshold requirement that the plaintiff prevail in the first place to be entitled to an attorney fees award. EXPERIENCE, SKILL AND REPUTATION OF THE ATTORNEYS: We have little quarrel with plaintiffs' reliance on this factor. Plaintiffs' attorneys clearly do have considerable experience and skill in those areas of the substantive law that governed the lawsuit -- civil rights and constitutional rights generally and the rights of the mentally ill in particular. However, given our impression of the relative simplicity and well-settled character of the substantive issues in our case, we do not see the experience and skill of plaintiffs' attorneys weighing as heavily in this case as they might in another, where novel and different civil rights questions are presented. -11- TIME 1,1MITATIONS IMPOSED BY THE CIRCUMSTANCES: We find this factor to weigh in plaintiffs' favor, concerning one aspect of their case at least. It was necessary that the mandamus trial be tried and resolved as quickly as possible, to meet Llie Saeed for immediate residential treatment of the mentally ill in Anoka County. That circumstance, involving vindication of the civil rights of the mentally ill, was true however only for those plaintiffs in our case who were in that status: T. II., K. W. and Kurt Nesset. The other plaintiffs — the Wrights and Community Options —may also have felt it necessary and important to have the mandamus trial proceed on an accelerated basis. But the time constraints imposed by those plaintiffs' needs were purely economic in nature; Community Options alleged that it was losing profits and would continue to do so until a special use permit was issued, thereby enabling it to operate a residential facility under a full contract with the County. That kind of circumstance, although it may have been perceived as critical by Community Options, does not implicate the human rights and civil rights upon which the applicable attorney-fee-statutes are premised (Minnesota's Human Rights Act and the federal Civil Rights Attorney's Fees Award Act). Accordingly, this factor requires some adjustment to reflect that significant difference between the litigation interests of the various plaintiffs. Adjusting the Lodestar Figure It is difficult, once all those factors have been individually weighed and considered, for the trial court to state with any degree of precision the exact process by which it arrived at its final attorney fees award. Generally, though, we conclude that when those factors are taken and balanced together, reduction of plaintiffs' lodestar figure is mandated in this case. It is probably unrealistic to expect much more specific explication of that balancing process, given the discretionary nature of the process in the first instance. Certainly we do not believe that a line-for-line, point-for-point evaluation and adjustment of each and every hour of the attorneys' time records is required before such a reduction of the lodestar figure can be made by the trial court. Or, as one court put it: "It is impossible to pick out here and there hours found to be excessive. Hence, we conclude a percentage reduction for both duplicative and excessive hours is appropriate." Hickman v Valley Local School Dist. Board of Education, 513 F. Supp. 659, 663 (S.D. Ohio 1972). (Emphasis added). -12- A percentage reduction is the approach we have chosen to follow in this case. The same approach has been followed by many other courts in arriving at attorney fee awards in civil rights litigation, in cases where the trial court has determined that a reduction was mandated. The following are but a few representative examples: Patrick v Board of Trustees of Mineola Ind. School Dist., 603 F. Supp. 754, 760 (E.D. Tex. 1984): "reduced by one-half." Kindem v. City of Alameda, 502 F. Supp. 1108, 1117 (N.D. Calif. 1980): "reverse multiplier [ that is, a reduction] of one third." Harris v. McCarthy, 790 F.2d 753, 758 (9th Cir. 1986): "reducing plaintiffs' requested hours by two-thirds." Premachandra v. Mitts, 548 F. Supp. 117, 122 (E.D. Mo. 1982), modified on other grounds, 727 F. 717 (8th Cir. 1984): "necessary to reduce the hours expended by . one third." Hoppe v. 11.1 a , 496 F. Supp. 88, 92 (E.D. Wisc. 1980): "the total number of hours should be reduced by two-thirds." Snyder v. Shearer, 575 F. Supp. 156, 159 (S.D. Iowa 1983): "an appropriate fee in this instance is 50% of that requested." Laie v. Thomason Gen. IIosp., 502 F. Supp. 185 (W.D. Tex. 1980): Trial court made a reduction of 100% for one time period or "unit" of the litigation, 50% for another unit, and 33-1/3% for another unit. Hickman, supra, 513 F. Supp. at 663: "a percentage reduction for both duplicative and excessive hours is appropriate. . . by 20%." Barrett V. Kalinowski, 458 F. Supp. 689 (M.D. Pa. 1973): Trial court made a 25% reduction for one factor,, and then applied a further 25% reduction for another factor. We conclude that a 50% reduction in attorney fees is required in this case, after first deducting out $1000 for the Leonard, Street be Deinard fees for plaintiffs Wrights and Community Options. That $1000 is about as close as we can come to quantifying the amount of time expended by those attorneys on the purely "non-fee generating" claims of the Wrights and Community Options. The 50% reduction combines and balances our consideration of the individual factors from Johnson v Georgia Highway Express, Inc., that we find to be pertinent in this case. That 50% figure is also consistent with the same percentage reduction in many cases, including some of those cited above, and most notably also in -13- Ga ne v. Maher 594 F 2d 336, 345 (2d Cir. 1979), affirmed 448 U.S. 122 (1980) (trial i; court properly disallowed half the hours claimed in civil rights case where issues were relatively simple and most attorneys would not have spent as much time on the case). Applying that percentage reduction to the lodestar figure results in the following final attorney fee award: Plaintiffs Wright and Community Options [ Attorneys: Leonard, Street be Deinard]. . . $13,125.00 H 1,000.00 12,125.00 X .50 $6,062.50 Plaintiff T.H., K.W., and Kurt Nesset [ Attorneys: Legal Aid Society of Minneapolis]. . . . $19,560.00 x .50 $9,780 We have rounded those adjusted figures to $6,050 and $9,800 respectively, for a total fees award of $15,850 — as opposed to plaintiffs' submitted lodestar figure of $32,685. + ANOKA COUNTY COMMUNITY ACTION PROGRAM, INC. 8008 N.E. HIGHWAY 65•SPRING LAKE PARK, MN 55432•PHONE 784-2443 Management Services August 12, 1987 Dear Fridley Neighbor, The Anoka County Community Action Program (ACCAP) invites you to an informational -meeting to discuss the proposed Elim Transitional Housing Project to be located in Fridley. The -meeting will be held on Wednesday, August 19, 1987 at 7:00 PM in Community Room #1, at Fridley CitVHall F Representatives from Elim TrAn t Pg �lougng, the North Suburban Hospital District Board, and-A )w � e at the meeting to provide you with information and to address your concerns. Ann Wallerstedt, Executive Director of Mediation Services, has agreed to facilitate the meeting. We are interested in your concerns and consider your input an im- portant part of making this project an asset to the neighborhood � and to the City. We look forward to -meeting with you on the 19th. Sincerely, an--A-t ��4 Patrick McFarland Executive Director enclosure EQUAL OPPORTUNITY HOUSING In June of 1987, the Fridley City Council reviewed a proposal from . Elim Transitional Housing, Inc. .to establish a transitional housing project in the City of Fridley. After review of the City's ordinances, it was determined that the project did not require action by the City, as it was a permitted use. The project will be located in the two (2) houses at the intersection of Osborne Road and 5th. Street, and adjacent to the present site of the Fridley Assembly of God Church. _ The purpose of this correspondence is to give you some background in- formation on the project's sponsor, Elim Transitional Housing; to ex- plain transitional housing to you; to let you know what you can expect from the Fridley project; and to explain the position of the North Suburban Hospital District Board's position in the project. ORGANIZATIONAL BACKGROUND Elim Transitional Housing, Inc. is the product of a program developed at Elim Baptist Church in November of 1983. The program was -designed to respond to the numbers of individuals and families in need of low cost housing and services to assist them in becoming self-sufficient. The program is available to people who are able to- live independently and who have made a committment to acquiring employment and/or educa- tional opportunities to assist them in becoming self-sufficient. During its 312 years of experience, Elim has assisted over 2,500 people through a variety of services. Elim's overall success rate in assisting people to move beyond the program and into their own housing is 88% (1986). Presently, Elim Transitional Housing, Inc. rents 7 duplexes in North- east Minneapolis and 3 townhomes in Brooklyn Center. Other transit- ional programs are located in St. Paul, Richfield, Bloomington, and St. Louis Park. In addition to the Fridley project, another Anoka County project is being initiated. The Blaine City Council has approved the development of a program in the Rectory of St. Timothy's Catholic Church. It is anticipated that the Blaine project will become oper- ational in the fall of 1987. ELIM TRANSITIONAL HOUSING IS. . . . Elim's program is designed to provide low cost housing to individuals and families who are temporarily unable to afford market-rate housing due to unemployment, underemployment, or family crisis. In addition to the housing program itself, Elim staff assists program participants in locating and obtaining needed supportive services, such as: educa- tion and training programs, counseling, job search resources, dependable child care, transportation, and affordable and appropriate, long term/ permanent housing. HOW THE FRIDLEY PROJECT WILL OPERATE In compliance with the City's Zoning Ordinance, there will be no more than five (5) unrelated individuals, or a total of no more than six (6) occupants in each of the units/houses. Participants will be a part of the program for up to six (6) months. During that time, they must be actively seeking employment or involved in an education/training program that will enable them to be employed. No on-street parking will be allowed. Additionally, off-street parking will be limited to no more than three (3) vehicles per unit. Priority for participation in the project will be given to families and to residents of Anoka County. WHAT IS THE PART OF THE NORTH SUBURBAN HOSPITAL DISTRICT BOARD IN THIS PROJECT ? In the spring of 1986, the North Suburban Hospital District Board acquired a piece of property immediately adjacent to Unity Medical Center. This property includes the present Assembly of God Church and two (2) , 3-bedroom houses at the intersection of Osborne Road and 5th. Street in Fridley. Ownership of the houses is complete at this time. Ownership of the Church will be complete April 1988. The property was purchased to develop a program or programs that would meet a ctitical need in the community. Elim Transitional Housing and Anoka County Community Action Program (ACCAP) presented a proposal . to the Board that would utilize the two (2) houses to provide short- term, transitional housing for people in the community who are exper- iencing economic hardship or family crisis that has left them without a place to live. (A community needs study to determine the use of the Church structure will be completed in early 1988.) ACCAP will facilitate the program by rennovating the houses to meet all code requirements and will serve as the general management agent project during its operation. Elim Transitional Housing will for the p sect g p operate the actual housing and support services program. Because these two (2) agencies have successful records of experience with this type of program and the Hospital District Board has not, the agencies will operate the program. The Hospital District Board will retain ownership of the houses. The project will be operated under a lease agreement, with the Hespital Board having deciplinary power, with a thirty (30) day notice period for termination, should any problems/questions arise in the project. The Hospital District Board strongly supports this project as a pos- itive response to an identified community need. Case Number : 87039 Date : August . 19, 1987 Initiating Partv(s) : Anoka County Community - Action Program, Inc ./Steve Klein , Elim Transitional Housing/Sue Philips, and North suburban Hospital District Board/Betty Wall . Other Partv(s) : Fridley residents including Roland and Evans Vern Godeen Loretta Walhstrom, Mike and Terry Karen , ,z,k � � Flaten , Bonn�i* p Little , Nancy Jorgenson , Alice Johnson , Eva Shear , Susan VVillhite , Frank Waks , Harold Dorenson , Steve ( 'CK Billings, Marge Otten , Rosemary Esler , Ronald and Carol r Gabr i e I son , Mr . and Mrs. Kurak , St't't'-9 , Tony Shr i er ,, -St-eA;-e- ked Bi 1•l.inM, and several who were not identified. Summary of mediation session : Mediators for the session were : Lonni McCauley , Glen Jacobson and Ann Wallerstedt . The nature of the complaint was: to disseminate and gather information regarding a proposed housing project for providing low cost housing and support services to individuals who are unemployed or have experienced other family crises. The session began at 7:05 p .m. The discussion may be summarized as follows: The first issue discussed and disposed of was the role and responsibility of the North Suburban Hospital District . Initiating parties responded by giving a brief history of the body , its mission , the geographic setw+ee are , means of selecting representatives to the body , its programs personnel and funding sources. The mission of the special Task Force for the NSHD was explained and questions about the nature and purpose of the survey mailed to residents were answered. Anyone wishing to bring current issues before the NSHD was invited to be present at the next board meeting on September 9, 1987 at 6:30 p .m. in the Unity Hosiptal Board room or to call Betty Wall . Subsequent issues and discussion centered around the following: ( 1 ) Entrance qualifications of residents accessing program; (2) Who monitors resident behavior and by what standards; (3) Transient nature of residents thereby changing character of neighborhood; (4) Grievance procedure for neighborhood as well as residents; and (5) Fear of diminution in property values. Initiating parties responded to the first issue by describing who the housing program hoped to serve and what thein e s w leY also assured the group that ? E wou d no e chosen to reside in homes; Elim is not a treatment facility for the mentally ill , chemically dependent , mentally retarded or a half-way house for ex-offenders. The second of these issues was dealt with by initiating parties explaining the conditions by which the residents agree to abide . A contract between Elim and the residents is signed outlining acceptable behavior and results of breaching the contract . Anyone wishing to express concerns regarding behavior may call initiating parties. Initiating parties responded to the third issue by reminding the group that the`$ rehabing of the homes into quality homes has changed the complexion of the neighborhood and that the* homes would be maintained in much better condition than they had been for many years. The issues of grievance procedures for both neighbors and residents was addressed by initiating parties and the community group by agreeing to a meeting again in six months to evaluate progress. The issue of diminution of property values was addressed by initiating parties -tty- citing several studies and research of the question which showed no such occurrence . The session was concluded at 9:30 p .m. Follow up for MSAC staff : To contact parties in February to ascertain need for second meeting. CITY OF FW DLEY CIVIC CENTER • 6431 UNIVERSITY AVE. N.E.. FRIDLEY, MINNESOTA 55432 PHONE (612) 571-3450 November 2, 1987 Steve Kline Anoka Community Action Program 8008 Ray #65 N.E. Spring Lake Park, MN 55432 RE: mmunity Options Progr Joint Certificate Of Deposit. Dear Mr. Kline: I apoligize, once again, for the delay in getting this release to you. The City of Fridley releases its interest in the above reference Certif iicate of Deposit. The terms and conditions of this surety have been met to the satisfaction of the City. Zhe effective slate of this release is November 2, 1987. If you are in need of any addi ti onaal information, please feel free to contact the undersigned at, 571-3450, ext. 168. Sincerely, Lisa Campbell Planning Associate C-87-548 Friday/December 4/1987/Star Tribune .Nccording to the Hennepin County suburb Mental Health Association, which also supports the move,the Bill Kelly House is Minnesota's only treatment center specializing in both the men- attling t4lly ill and retarded. Ome for Supporters cite studies they say prove that such facilities have no effect on property values or the risk of crime. Opponents cite studies that mentall ill they say show the opposite, that home values suffer and the mentally ill are more likely than others to B� Sam Newlund commit crimes. Staff Writer ' Last week the protest group sued the A plan to move a halfway house for city of Brooklyn Center, which had the mentally ill from a south Minne- granted a conditional use permit for apolis "mental health ghetto" to a the new location. It became the sec- northern suburb has generated a opd recent court battle involving es- storm of protest. ttlblishment of a halfway house for the mentally ill in Brooklyn Center. And powerful support. Ii 1983 a judge refused to order the city to allow Northwest Residences Biooklyn Center residents say mov- I c. to set up a facility. The state iilg the Bill Kelly House into their Court of Appeals reversed that deci- neighborhood from 2544 Pillsbury sion and the Supreme Court declined Av. would threaten children in a tq review the case. nearby elementary school and lower property values. The move to 5240 Jill Sherritt, who lives cater-comer Drew Av. N. would involve 23 peo- from the new Bill Kelly site, is presi- ple who are both mentally ill and dent of the opposition group. She c(iemically dependent. s�id the owners have misrepresented + the chemical-dependency problems "t have to ask myself—I've got kids or the home's residents and misled do I want this thing next door to Brooklyn Center people about police me?" Hennepin County Commis- problems at another home they oper- sioner John Derus said Thursday. ate in Golden Valley. "Do 1 want people who have mental ' ptoblems or drug problems next door Skid Henry Norton, Kelly-Norton td my children?" But Derus said he president:"There never has been any opposes the move into his district incident in Hennepin County or the primarily because the operator, Kel- state of Minnesota whereby any resi- ly-Norton Programs Inc.,planned the dint of a Rule 36(mentally ill)treat- n)ove without telling him. ri�ent center has ever injured or harmed or abused in any way any The house's Minneapolis location is n*ighbor of such facility." in an area sometimes called a mental The lawsuit asks for a restraining health ghetto because of its concen- tration of halfway houses for the order to prevent the move.It says the mentally ill and retarded. council exceeded its authority in gtanting a special-use permit because "To my knowledge, patients served city ordinance allows permits only by the Bill Kelly program have re- for nursing homes, maternity care, caved good care and have never .. . boarding care and child care. The menaced the neighborhoods in whichissue will come before the County they reside," said Dr. Lee Beecher, Board Dec.9. Board Chairman Mark president of the Minnesota Psychia- Andrew said yesterday that he will t6 Society. He said he has been"im- seek to delay action pending a court pressed with the quality of(the) pro- ruling on the suit.A hearing is sched- gram ... and the good results for uled for Dec.21 in Hennepin County pptients." District Court. Monday/December 21/1987/Stor Tribune Residential treatment facilities Number of facilities for six or more people Chemi- Mentally Mentally Couec- cally de- ' retarded ill Juveniles bons pendent Total Minneapolis 22 15 12 6 16 71 St. Paul 32 11 11 3 8 65 Anoka Co. 5 2 3 - 2 12 Carver Co. 2 - 1 - - 3 Dakota Co. 14 1 2 - 2 19 Hennepin Co. 43 7 7 1 10 68 (suburbs) Ramsey Co. 11 - 1 - - 12 (suburbs) Scott Co. 3 - - - - 3 Washington Co. 3 1 2 - 2 8 Source/Minnesota Department of Human Services,Minnesota Department of Corrections and county corrections authorities Battles brewing over relocation of treatment centers By Dennis Cassano Among residences of all kinds for Staff Writer six or more people, 71 are in Min- neapolis and 65 are in St. Paul, a Twin Cities suburbs are slowly little more than half of the 261 in accepting a state mandate to dis- the seven counties of the metro- perse residential treatment centers politan area. The other 125 are in rather than allowing them to be the suburbs. concentrated in the core cities,but in some cases the fight has been But some attempts to open facili- fierce. ties have run into lawsuits and political roadblocks set up by an- Centers for the mentally ill and gry and fearful neighbors. For ex- retarded, the chemically depen- ample: dent, and adult and juvenile of- fenders for years have been con- ■Alpha House,a program for sex centrated in south Minneapolis offenders in south Minneapolis, and the East Side of St.Paul. was rebuffed by the Plymouth City Council in January in its at- But with federal and state man- tempt to build a 48-bed facility on dates to take the retarded out of a 10-acre site on South Shore Dr. state hospitals and place them in near Hwy. 55. neighborhood residences, and with a 1984 state law requiring ■Although the Brooklyn Center wider distribution of all residen- City Council gave permission to tial treatment centers, some are relocate the Bill Kelly House there opening in suburbs, particularly from south Minneapolis, neigh- for the retarded and particularly in Hennepin County. Suburbs continued on page 4B Continued from page IB the counties to break up the ghettoesDiane 011endick Wright, director of of residential facilities Northwest Residence for the mental- bors filed a lawsuit to stop it and the ly ill in Brooklyn Center, said 68 Hennepin County Board, on a 3-3 In Ramsey County, Tom Fashing- percent of the facility's clients are vote,at least temporarily blocked the bauer, director of the county Com- om the northwestern suburbs. She move Dec. 9. The Bill Kelly House munity Human Services Depart- also is director of Community Op- serves people who are mentally ill ment,said his staff is encouraging the tions in Fridley, where nearly all the and chemically dependent. providers of foster and group care to clients are Anoka County residents, locate in the suburbs. she said. ■Northwest Residence, a facility for s the mentally ill, opened in Brooklyn There are now 106 foster care homes Similarly,Gerald Kaplan, director of ` Center in 1985 only after winning a in Ramsey County and 33 group Alpha House, the treatment center Minnesota Court of Appeals decision homes for six people or more. The for sex offenders, said his program ordering the City Council to accept latter include the large facilities that received three referrals of Plymouth the home. _ are reducing their populations. residents during the months-long TFridley ommunity Options another f But there is a feeling in St. Paul that fight that ended in January over the y for the mentally ill, opened in the foster homes — which are not unsuccessful proposal to build a new in 1986 after an Anoka Coun- covered by the mandate to disperse facility there. dge ordered the City Council to the concentrations of facilities—are pt it. concentrating on the East Side. While that proposal was stopped by - -- the City Council, the attempt to Residentialtreatment ceiiers histori- Nancy Homans, a staff worker fora move the Bill Kelly House to Brook- cally have been located in core cities task force of the St. Paul Planning , lyn Center was stalled,if not stopped, for a number of pragmatic reasons. Commission, said she is trying to by the Hennepin County Board after The older, larger houses with many find out where the foster homes are Commissioner John Derus objected, bedrooms that are relatively inexpen- located. "No one has been able to sive are typically found in the core come up with the data to dispel the Derus was out of town and could not cities. They are served by bus lines feeling," she said. She said she ex- be reached for comment last week, that provide transportation to ser- pects the commission will propose but Commissioner John Keefe, who vices the residents require and to rules to prevent the concentration of said he voted with Derus to stop the jobs. foster homes as well as group homes. plan out of courtesy to a fellow com- missioner, om- The theoryof community care is that In Hennepin County, the numbers by th n p said Derus was ble didn't the condition of the ent or client are somewhat different. There are 19 by the proposal because nt didn't pa know about it until residents called : will improve if he or she is function- foster care homes and 65 group to complain about it. ing in a "normal" neighborhood homes. Michael Mcgraw, manager of rather than in a hospital setting. But the mental retardation division of the The County Board provides the fi- the practice has become self-defeat- county's Community Services De- nancing to operate the facility be- ing on the near south side of Minne- partment, said one-third to one-half cause it contracts for its services. The apolis, where homes for people with of the people in the large institutions motion before the board was to a variety of needs are concentrated, in St. Paul are moving to Hennepin amend the contract to reflect the new and in the W. 7th St.area of St. Paul, County. He said his department pays suburban address. It lost on a 3-3 tie, where there is a heavy concentration - with Commissioner E.F. (Bud)Robb of residences for the mentally ill. attention to where the new facilities absent because of a long illness. norm ose neighborhoods are no longer locate, but doesn't necessarily en- courage them to open in the suburbs. Henry Norton,president of the group Several developments in recent years that runs Kelly House and other pro- Several said there has been no grams, said the state law and the changed the situation. Bus service county dispersal plan"were not con- 6 was extended to the suburbs. Jobs movement of facilities for other troversial at all, but now they're say- there became available with develop- groups l Ramsey County such as the ing,`Not in my back yard.'" tnent. And the cost of houses and chemically dependent or the mental- $mall apartment buildings began de- ly ill because "there has been no Kaplan said, "The county says, clining,at least in the older suburbs. push to do so." 'We'll support it except for where the { neighbors are opposed to it'—which )ks a result of lawsuits directed at $ In Hennepin County, six residential is everywhere." "warehousing" the retarded in the treatment facilities for thementally large state hospitals, there has, since ill have opened in the suburbs in the the 1970s, been a mandate to place last three years. Tish Halloran, man- them in the community instead.That ager of the mental health division of mandate has spread to the large, pri- the county's Community Services irately run residences for 100 to 200 Department,said that is because they ` people. Three in St. Paul — Green- were asked to open or relocate to the brier House, Nor-Haven Homes and suburbs because the County Board Wicklough —are now "downsizing" adopted in 1985 its dispersal plan. and more than 300 people are mov- ing tb foster homes of four or fewer She said none were asked to move to people and group homes of six or the suburbs of other counties because more. People from the state hospitals they are needed to provide services at Faribault and Cambridge still are Tyr suburbanites in Hennepin Coun- moving into residential facilities. There is another mandate as well. -Legislation enacted in 1984 requires rJA W PLANNING DIVISION MEMORANDUM CITYOF FM DLEY TO: Jock Robertson, Community Development Director Nasim Qureshi, City Manager FROM: Jim Robinson, Planning Coordinator, DATE: April 18, 1988 REGARDING: Community Options - Review of Special Use Permit As part of the original approval of Cammunity Option's special use permit, a stipulation was attached which called for an annual review with a public hearing for the first two years of operation. Last year on May 4, 1987, the City Council held the first review. In order to process the public hearing for a May meeting, it will be necessary to send the information to the paper next week. It may be advisable to poll the Council this evening or at the conference meeting on April 25 and get their informal approval to send the notice to the paper on April 27. Council would actually set the public hearing on May 2nd for their May 16th meeting. Last year the mailing list included the majority of the neighborhood (well beyond the normal requirement). Should we do the same mailing this year? Please advise as to your desire for processing this review. JR:l s M-88-89 d 1P From the desk of Una NASIM OURESHI MEMORANDUM JR-52 CITY MANAGER'S OFFICE DATE: April 19, 1988 TO ACT10N UPDATE SUBJECT: Jock Robertson 4/22/8 Review of Community Options The City Council advised that the staff should make an administrative staff report on the comunity options property as part of our annual special use permit review. If there are no serious problems at this time, they do not wish to have a public hearing. Thank you for your assistance. NMO/la TO: Nasim Qureshi, City Manager FROM: Jock Robertson, CD Director 4/ 18/88 Please see the attached memo. NOTE TO JIM: ON APRTL 19, THE CITY MANAGER WROTE A MEMO TO JOCK TO REVIEW THE PROPERTY AND IF THERE ARE NO SERIOUS PROBLEMS, A PUBLIC HEARING WOULD NOT HAVE TO BE HELD. UNLESS THERE IS AN UPDATE FOR COUNCIL, THIS ITEM CAN BE REMOVED FROM THE CONF. MTG. AGENDA FOR APRIL 25, 1988. THANK YOU. LYNDA rA PLANNING DIVISION MEMORANDUM CITYOF FW DLEY MEMO TO: Jim Robinson, Planning Coordinator NEMU FRCM: Kathlyn Castle, Planning Assistant REGARDING: Review of Community Options' Special Use PermiCIS P 85-01 5378 5384 5th Street N. E. NEMD DATE: April 28, 1988 As per your request, I have reviewed Community Option's Special Use Permit which allows a residential mental health program to be operated at 5378 - 5384 '-rh Street NE. After reviewing the site and speaking with Pat Donahue, Director of the Facility, I have found that all of the permit's eight stipulations are in compliance. In order to determine the affect this facility has had on the surrounding neighborhood, Tim Turnbull of the Fridley Police Department needs to be contacted. I will review the police files with him when he comes into the office on May 2, 1988. Until then, it cannot be identified whether or not a public hearing is needed. M-88-112 PLANNING DIVISION MEMORANDUM CITY OF FRIDLEY MEND M: Jock Robertson, Community Development Director MEND FRCM: Rathlyn Castle, Planning Assistant REGARDING: Review cf Community Crpticn's Special Use Permit, SP 85-01, 5378 - 5384 5th Street N.F. FEND DATE: May 2, 1988 As I stated in a previous memo regarding this item, I would review the police files on Community Options. This afternoon I spoke with Tim Turnball of the Fridley Police Department to determine the affect this facility has had on the surrounding community. A review of the site done in January by the Police Department determined that all police calls were in regards to the medical emergencies, miscellaneous information, mental illness emergencies and lock outs. The department has not responded to any calls which were out cf the ordinary, therefore, the facility has not had a detrimental affect on the ne i cfmborhood. M-88-117 i r 10 Optiw 5384 NE FIFTH STREET FRIDLEY, MINNESOTA 55421 612-572-0009 May 26, 1988 Kathleen Castle Planning Assistant Community Development Department 6431 University Avenue Northeast Fridley, Minnesota 55432 RE: Special Use Permit SP# 85-01 Dear Miss Castle: We have reviewed the stipulations that we were required to fulfill in order to be issued our Special Use Permit. We are in full compliance with the specified conditions for retaining the permit. If there are any questions, please telephone me at 572-0009. Thank you, &Xalt-4-� Patrick Donahue / Assistant Administrator PD/po Star Tribune/Friday/June 17/1988 78w Proposed group-home moratorium draws praise, criticism By Jean Hopfensperger if more group homes are allowed to said.To restrict their housing options The proposed group home that could ported their bid, which is the only values and to prevent incompatible Staff Writer open under the current "outdated" would be senseless and uncaring, be immediately affected by the mora- offer he's had on the building since it (property) uses," said Sue Girling, zoning ordinance, the homes would they charged,and not in keeping with torium is Reentry Services Inc., a went on the market in January.And organizer for the Second District A proposed moratorium on the start- continue to be unfairly concentrated the spirit of St.Paul's prior commit- nonprofit organization that has pro- county officials testified that Reentry Planning Council. up of group homes in St. Paul was in working-class neighborhoods near mens to the homeless. posed buying the former Greenbrier is a respectable organization that has criticized by social service providers downtown. This high concentration, Home at 941 Birmingham St. and run efficient programs in its three The Zoning Committee's staff paper and lauded by neighborhood leaders particularly on the East Side and in A moratorium also would prohibit converting it into a 94-bed facility for other St.Paul locations. said that although Reentry Services' during more than two hours of public the W.7th St.area,has led to declin- local housing providers from obtain- adult male ex-offenders. proposal complies with city codes,it testimony before the St. Paul City ing property values and lack of"in- ing much-needed federal funds, ser- But East Side residents and their city "would have a detrimental impact on Council Thursday. tegrity to the neighborhood," said vice providers said. More than 100 angry East Side resi- and state representatives said the size the residential character of the sur- Maureen Heap, Merriam Park com- dents turned out for a zoning com- of the proposed home is too large for rounding neighborhood." -The moratorium would restrict the munity organizer. "A moratorium denies the legitimate mittee meting of the St. Paul Plan- the area. Reentry director Bruce :establishment or expansion of com- needs of the homeless and people in ning Commission yesterday after- Clendenen admitted that it would be The full Planning Commission is ex- :munity residential facilities, transi- But social service providers argued need; it reduces options for housing noon to protest the home. the largest group home for ex-offend- petted to vote on the Reentry Ser- -tional housing, shelters for battered that the city should be looking at for the needy, and it may violate ers in the state. vices request at its meeting June 24. people and emergency housing until ways to improve and expand existing human rights statutes regarding dis- Reentry officials testified that they City Council action on the proposed -the city adopts its new comprehen- programs for the needy, not freeze abilities," said Morris Manning, di- would run a safe,professionally man- "It's in conflict with the intent and moratorium on group homes is'ex- sive zoning ordinance. them.The number of homeless peo- rector of housing services for the aged home that would cause no prob- purpose of the zoning code,which is petted next week. pie and individuals with special Wilder Foundation. lems to the neighborhood.Greenbri- to protect the general welfare of the Neighborhood activists testified that needs is growing every year, they er co-owner Robert VanSlyke sup- community...to conserve property :e'P. 1N CITYOF FRJDLEY CIVIC CENTER • 6431 UNIVERSITY AVE. N.E. FRIDLEY,MINNESOTA 55432 PHONE(612)571-3450 July 11, 1988 Ccnmunity Options Pat Donahue 5380 - 5th Street N.E. Fridley, NN 55421 RE: Review of Special Use Permit, SP #85-01, 5380 - 5th Street N.E. Dear Yx. Donahue: Special Use Permit, SP #85-01, which allows the operation of a residential mental health program at the above referenced address was reviewed as required by its stipulations. The review consisted of an on-site inspection, research, contact with the organization itself and an informal presentation to to City Council. The review clarified that Community Options has not violated any stipulations attached to the permit (see attached) . If you have any questions regarding this item, please call me at 571-3450 x 168. Thank you for your cooperation. Sincerely, Kathlyn Castle Planning Assistant KC/dn C-88-298 To JOCRohertson- Date-&ugus-L--1-'--19_88 Speed Message From- NASIM_QUAW , v(Titymm a_qqkr�sQffice Subject Community Opt-ions SpPe-i-al Use Permit the attached note re-&qrdi�-q_-tele-pbp_ne--qA_lI from Nancy Jorizenson. Reviewthe material and take appropriate action- Thank you for your assistance. a Wilson Jones company G"YLINE FORM"-899 2-1ART V 1983 PRINTED IN USA 86 AUGUST 1 , 1988 NOTE TO CITY MANAGER: NANCY JORGENSON TELEPHONED AT 11:05 TODAY TO STATE THAT SHE RECEIVED AN IRATE CALL FROM IRENE VASEKA REGARDING COMMUNITY OPTIONS. IRENE STATED SHE AND THE NEIGHBORHOOD ARE VERY UPSET THAT THEY WERE NOT INFORMED ABOUT THE V2, REVIEW FOR COMMUNITY OPTIONS. IRENE STATED THAT THE MAYOR ONCE INDICATED THAT THE NEIGHBORS WOULD BE NOTIFIED REGARDING ANY ISSUES ON COMM. OPTIONS. ON AUGUST 8, CHANNEL VS TWIN CITIES LIVE WILL HAVE A SESSION ON HALF WAY HOUSES. IRENE HAS TICKETS FOR 8 NEIGHBORS AND WANTS THE COUNCIL TO ATTEND. NANCY SUGGESTED THAT POSSIBLY A STAFF MEMBER SHOULD ATTEND. IRENE ALSO MENTIONED THAT SHE WILL BE POSTING SIGNS THROUGHOUT THE NEIGHBORHOOD INDICATING THERE IS A HOME FOR THE MENTALLY ILL ETC. THANK YOU, LYNDA TICKETS FOR THE SHOW - 641-1298 AUGUST 3, 1988 JOCK: PLEASE PREPARE A RESPONSE TO THE NOTE GIVEN ON AUGUST 1 REGARDING IRENE VASEKA AND COMMUNITY OPTIONS FOR FRIDAY'S COUNCIL PACKET. THANK YOU, NMQ/la 1L POLICE DEPARTMENT E` City of Fridley MEMORANDUM n4 fi'``t'; Minnesota DATE AUGUST 19 , 1988 FROM DEPTITY DIRECTOR TO ACTION INFO SUBJECT MR. HILL X OARHILLS NEIGHBORHOOD COMMUNITY OPTIONS I ran a check on police calls for service to the area bounded by 53rd ( south) , University (west) , 7th Street ( east) and I694 (north) for 1988 . I did nct include the apartment buildings at 5430 7th which has had 103 police calls for service so far in 1988 , none of which are related to Community Options in any way. There have been 128 police calls for service in the above named area (plus 103 at 5430/60 7th) in 1988 . Of that number there were 47 that were enforcement related. The remainder were service type calls or traffic (medicals , animal complaints , etc. ) . The 47 enforcement type calls are: Burglary 1 Disorderly conduct/ 6 Thefts 1 Public Peace No Pays (gasoline) 4 Ordinance violation 1 Assaults 7 Damage to Property 1 Domestics 8 Suspicious Person/ 11 TOTAL 47 Activity Criminal Sexual Cond 1 Harassing Phone calls 1 Warrant Arrests 5 Of the 47 listed cases uhere we know the perpetrator of the crimes none are from, or associated with Community Options. This includes the assault, the criminal sexual conduct, domestics, no pays, ordinance violation, harassing phone calls, warrant arrests , and the disorderly conduct/public peace. The other cases (burglary, damage to property, and theft) give no indication that there was any involvement from a resident of Community Options . There was one assist to Another Department which was continued l 1M MEMORANDUM August 19 , 1988 Director Hill Page #2 a search warrant and arrest on a narcotics violation. This had nothing to do with residents from Community Options . The only calls for service to 5384 5th (Community Options) in 1988 have been 3 medicals and one miscellaneous officer where one of the officers gave one of the residents a ride home from the bus stop. DHS/sa COMMUNITY DEVELOPMENT DEPARTMENT CITY OF FMDLU MEMORANDUM MEM M: City Council Members MEMO FRDM: Jock Robertson, Community Development Director MEND DATE: September 21, 1988 REGARDING: Community Option's Special Use Permit, SP #85-01, Review of 5378 - 5384 5th Street N.E. On February 24, 1986, the City Council approved a Special Use Permit for Community Options which allows the operation of a Residential Mental Health Program located in an apartment building at the above referenced property. This permit is to be reviewed annually for the first two years of operation. Staff has completed a review and found that Ccnvnuzity Options has not violated arr}, stipulations attached to this permit. The stipulations are as follows: 1. Operation to be reviewed annually with a public hearing for the first two years. 2. Resident automobiles be restricted to five or less. 3. Rear yard to be fenced with a six foot high solid wood fence which is to be completed prior to occupancy. 4. Proposed advisory ca -dttee to include City representatives, for example, Human Resources Commission member and/or Police Special Operations Division staff. 5. Petitioner to provide landscaping plan and install prior to May 31, 1986. 6. Contingency plan be initiated with Unity Hospital to cover any emergencies. 7. Facility will comply with the local and State fire codes. 8. Client characteristics will be consistent with petitioner's contract with Anoka County. A review of the site cone in august by the Police Department determined that all police calls were regarding medical emergencies, miscellaneous information, mental illness emergencies and lock outs. The department has not responded to any calls which were out of the ordinary, therefore, the facility has not had a detrimental affect on the neighborhood. JLR/kc M-88-141 COMMUNITY OPTIONS 5384 N.E. Street Fridley, MN 55421 Mr. James Robinson Planning Coordinator City of Fridley 6431 University Avenue N.E. Fridley, MN 55432 Dear Mr. Robinson: Our understanding is that our Special Use Permit (SP #85-01) is up for review. When the permit was issued, nine conditions were stipulated. We are in compliance with all of these conditions. The building remodeling and yard improvements have been completed, and we feel the improvements have resulted in a very attractive and pleasant physical arrangement. Continguency plans for service are in place with eleven Anoka County services agencies. This includes three hospitals: United Mercy and the Anoka Cout!�y Regional Treatment Center for emergency psychiatric care. All of the State and County licenses have been approved unconditionally. In March, 1987, we had our annual inspection from the Minnesota Department of Health. We were again approved unconditonally for licensing. The Advisory Board meets quarterly and includes, among others, one neighbor, one police officer from the city of Fridley, and one representative from the Human Resources office in Fridley. If there are any questions you wish answered, or if the council would like more details about the program, Diane 011endick Wright, the Administrator and owner of Community Options would be willing to appear and review all aspects of the program. One of our primary goals this year is to see if we can develop closer rela- tionships within our neighborhood and the community at large. Thank you. Sincerely, 1� )Tga-r— Patrick Donahue Assistant Administrator PD/po COMMUNITY DEVELOPMENT DEPARTMENT CITY OF FWDLEY MEMORANDUM TO: Nasim Qureshi, City Manager Jock Robertson, Community Development Director FROM: Kathlyn Castle, Planning Assistant DATE: September 23, 1988 REGARDING: Special Use Permit, SP #87-18, John Glynn The stipulations recommended for previous zoning permit questions for this property have been included in the City Council agenda for September 26, 1988. Attached is a memo from Jim Robinson regarding a previous special use permit request by John Glynn. KC/dn M-88-247 PLANNING DIVJ`;ION 9 MEMORANDUM CITYOF FRIDLEY MEMD M: City Council / MEND FROM: Jim Robinson, Planning Coordinator MEND DAM: November 3, 1987 RFGARDINU: Special Use Permit, SP #87-18, Jahn Glynn PROPOS Mr. Jahn Glynn has made application for a special use permit to allow sales and service of rhoto copy equipment in an S-1, Hyde Park zoning district, at 5973 - 3rd Street N.E. The property in question is the vacated Energy Shed building. There would be very little customer visits to the site and typically Mr. Glynn would have need of four or fewer parking stalls at one time. BACKSBQi�2 The Hyde Park zoning is an overlay zoning which was created to change the legal non-conforming staus that some residential dwellings had in the neighborhood prior to the enactment of the ordinance. This case is unique because the Hyde Park ordinance does not have a provision for commercial development, even though there are at least three commercial operations in the neighborhood. In the past, the Planning Commission and City Council have used the special use permit process in order to allow continuation of the limited commercial operations in the area while protecting the neighborhood character and interest. This particular property was the subject of a special use permit for Midwest Qassified printing in October of 1985. This special use permit was granted with stipulations, however, the petitioner never took occupancy of building. Mr. Glynn's operation is of a lower intensity use than the previously approved special us- permit. The previous petitioner required eight parking stalls whereas Mr. Glynn indicated that he will need four or fewer stalls. Due to the lesser need for parking, concrete curbing is not required. Improvements to the facade of the building and also landscaping will be required. 9R Planning Commission November 3, 1987 Page 2 Because the structure has been vacant for over one year, one could propose that the business has lost its legal non-conforming status and should revert to single family use. However, due to the fact that the owners of the property have been attempting to cooperate with the unique tus of fvthe property (by trying to secure only commercial tenants which present ery low prof ile in terms of intensity of use, and which would be compatible with the residential area) it has made itavex�extremely ffi It for ahem to varies sell the building. . I personally ooanmercial operations which would be allowed under the commercial sections of the Code but would not be desirable in this :articular area. ?bene requests to Yi have been discouraged and therefore the building heasst� empty.f fined by the owner's continuing efforts to secure an accepts City► we feel it wc,uld be inappropriate to designate the building as non-conforming for neighborhood commercial use at this time. We have spoken to the City attorney regarding this matter and he is in apparent concurrence with this determination. Planning Commission reviewed the application on October 21, 1987 and Zhe Pl g stipulations. recommended approval of SP #87-18 with the attached Enclosed is the lease agreement from the previous petition which provides for possible parking lot expansion. It would 1,600 sq. ft. of City property ace his be advisable to lease this property to Mr. Glynn row so that he can place landscaping in a fashion which leaves room for the parking expansion if needed. J 4 V dm m-87-208 CITY OF FRIDLEY STEVE BILLINGS COUNCILMAN WARD 1 M E M O R A N D U M DATE: 23 September 1988 TO: Nasim Qureshi , City Manager RE: Energy Shed Property Within the past eighteen months, there have been a total of three seperate requests for varriances and/or special use permits for the above property. The most current one is to come before the City Council in the immediate future. The two prior requests were withdrawn after Planning Committee and Appeals Committee action, but prior to being presented to the City Council . Please provide me with copies of any recommended stipulation that the appropiate citizen committees had recommended with the "Glynn Request" in 1987 , and the "Russian Orthodox Request" in 1988. Additionally, at the time of the "Glynn Request" in 1987, the City Attorney had prepared a memo relative to the appropiateness of the issuance of a special use permit for commercial use of this property. 'Please provide me with a copy of that memo. I 1A STAFF REPORT APPEALS DATE CI1Y OF PLANNING COMMISSION DATE FRIDLEY CITY COUNCIL DATE : September 26, 1988 REQUEST PERMIT NUMBER SP #85-01 APPLICANT Community Options PROPOSED REQUEST Review of Special Use Permit which allows the operation of of a residential mental health program. LOCATION 5378 - 5384 5th Street N.E. SITE DATA SIZE 10,349 square feet DENSITY PRESENT ZONING R-3, General Multiple Dwelling ADJACENT LAND USES N, R-3; S, R-3; E, R-3; w, R-3 PARK DEDICATION ANALYSIS FINANCIAL IMPLICATIONS CONFORMANCE TO yes ADOPTED LAND USE COMPATIMLITY WITH yes ADJACENT :,.I,SES & SERVICES ENVIRONMENTAL Safety considerations for surrounding neighborhood. CONSIDERATIONS - - - - - - - - - - - -- - - - - STAFF RECOMMENDATION APPEALS RECOMMENDATION PLANNING COMMISSION ECOI I.MENDATION 1S HERRICK & NEWMAN PA. ATTORNEYS AT LAW Virgil C. Herrick M E M 0 David P. Newman James D. Hoeft Gregg V. Herrick TO: FRIDLEY CITY COUNCIL FROM: DAVID P. NEWMAN OY`-- DATE: SEPTEMBER 23, 1988 RE: COMMUNITY OPTIONS Dear Honorable Mayor and Members of the City Council: I have been informed that there will be a public hearing for the purpose of reviewing Special Use Permit SP #85-01 for 5378 - 5384 5th Street Northeast. The City Council ' s authority in conducting this public hearing is limited to reviewing whether or not the property owner is in compliance with the stipulations which were contained in the original Special Use Permit. The Council is without authority to consider any evidence or items which do not directly relate to those stipulations. DPN: jeb Suite 205, 6401 University Avenue N.E., Fridley, Minnesota 55432, 612-571-3850 vo% PZBLIC HEARIW BEFORE THE CITY <� 0Di7NCIL Notice is hereby given that there will be a Public Hearing Ctx=i.l of the City of Fridley of the City at the (DIS M1W EDUCATDN ( NI'E L 6085 - TiH SI�EP N.E. on Monday, September 26, 1988 at 7:30 p.m. for the Purpose of: Review of a Special Use Permit, SP #85-01, carmunity options. This Public hearing is being called pursuant to the terms of SP #85-01. Testimory and public canment at this hearing shall be limited to whether the facility located at 5378-5384 - 5th Street N. E. j,Fridley, located on Lots 1 aryl 2, Block 14, Hamilton's Addition to Mechanicsville, is in canpliance with the following stipulations of the Special Use Permit: 1. No more than five resident autanobiles are on the site. 2• Construction of a six foot high solid wood rear yard fence is completed. 3. A canmunity Advisory CaTmittee has been created and is being allowed input in the operation of the facility. 4. Landscaping has been canpleted in accordance with the previous Submitted plans. 5. Adequate contingency plans have been implemented for dealing with medical Emergencies. 6. The facility is licensed and it is being operated in accordance with all applicable State and County rules and regulations. 7. The facility is in compliance with the fire codes. 8- The c:jaracteristics of the facility 's clients are consistent with the facility's contract with Anoka County. Ary arra all persons desiring to be heard shall be given an opportunity at the above stated time and place. WILL IAM J. NEE MAYOR Publish: September 14, 1988 September 21, 1988 Ary questions related to this item may be referred to the Fridley Cam�munity Develagnent Department, 571-3450. n 2B Plaruz:� _, 4/17/87 -Council Community Options MAILING LIST PAGE 1 OF 3 SP #85-01 Review of Stipulations Richard Tkaczik Johanna Luciow Resident 12323 Gladiola N.W. 3158 Arthur Street 453 - 54th Avenue N.E. Coon Rapids, MN 55433 Minneapolis, DST 55418 Fridley, MN 55421 Resident Harold Morrow Nedegaard Construction Cp 5450 - 5th Street N.E. Route 5, Box P 196 ' 3903 Foss Road �(� Fridley, MN 55421 River Falls, WI 54022 St. Anthony, MN 5542 G Harlan King Resident Polish Catholic Church V 5436 - 5th Street N.E. 5428 - 5th Street N.E. 2200 - 5th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Minneapolis, MN 55421 Charles Westling o� Resident Resident ,//5430 - 5th Street N.E. 5420 - 5th Street N.E. 5451 - 5th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Fridley, MN 55421 Jain Pankaj Residentnn �� Roscoe Smith 5430 - 5th Street N.E. 5480 - 7th Street N.E�I � 370 North Arm Lane Fridley, MN 55421 v Fridley, MN 55421 (\�� Mound, MN 55364 James Peng Resident I / I ", ( v James Weatherly 6 West Logan5460 - 7th Street N.E. 5114 Nicollet West St. Paul, MN 55118 �-- Fridley, MN 55421 Minneapolis, MN 55419 Yacoub M El-Ziq Resident Resident 13129 I� k 5401 - 4th Street N.E. 13129 Parkwood Drive ��5430 - 7th Street N.E. Burnsville, DSI 55337 Fridley, MN 55421 �/ Fridley, MN 55421 Herbert Zwirn Resident John Jensen 5900 - 3rd Street N.E. �U� 5402 - 7th Street N.E. 6070 - 6th Street N.E. Fridley, MN 55421 Fridley, MN 55421 ` Fridley, iMN 55432 _Reside Heaven's Gate Company Resident 5400 - 5th Street N.E. 8908 Nicollet Avenue #8 5419 - 4th Street N.E. �' ' Fridley, MN 55421 Bloomington, MN 55420 " Fridley, MN 55421 Resident P Resident Steven Smith % 5423 - 4th Street N.E. X410 - 5th Street N.E. � V5400 - 7th Street N.E. V Fridley, MN 55421 Fridley, MN 55421 Fridley, MN 55421 "'r K' /Y l(C,(71/J�1 , tesident Joseph Vasecka 6250 - 7th Street N.E. L 451 - 54th Avenue N.E. ,,-5427 - 4th Street N.E. Fridley, MN 55432 Fridley, MN 55421 Fridley, MN 55421 �� Naegele Inc. John Saccoman y uRo Kru�aiede � �435 - 4th. Street N.E. 7751 Flying Cloud Drive' 7616 Douglas Drive Eden Prairie, MN 55344 Brooklyn Park, MN 55443 Fridley, MN 55421 • 2C Community Options PAGE 2 OF 3 SP #85-01 Review of Stipulations John Vagovich Community Options Larry Nelson 5400 - 4th Street N.E. f 5384 - 5th Street N.E. 5323 - 4th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Fridley, MN 5542 . Joyce Anelersvn Resident Resident 5380 - 4th Street .N.E. /5380 - 5th Street N.E. 5339 - 4th Street N.E. V Fridley, DIN 55421 Fridley, MN 55421 Fridley, MN 55421 Resident 's• r ' sident William Frawley 5370 - 4th Street N.E. 5370 - 5th Street N.E. 169 Crown Road Fridley, MN 55421 Fridley, MN 55421 Fridley, MN 55421 Richard Kappes Eugene Welter Duane Schwartz 3129 Webster Avenue 5704 - 56th Avenue North 2525 - 118th Avenue ✓� Minneapolis, MN 55416 Minneapolis, MN 55429 Coon Rapids, MN 55433 Gordon Graham Resident 5334 - 4th Street N.E. Michael Anderson 5347 - 4th Street N.E. Fridley, MN 55421 5360 - 5th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Homer Melton- ,. Frank Nieland meet N.E. Steven Soderholm 122.1 Fillmore Street N.E. 10 �F,adley, MN 55421-" ,5336 - 5th Street N.E. Blaine, MN 55434 Fridley, MN 55421 Resident Resident 5330 - 4th Street N.E. Francis Rogers vlle'5353 - 4th Street N.E. Fridley, MN 55421 /5330 - 5th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Herbert Ledo Stephen Lischalk 5326 - 4th Street N.E. James Stevens 5357 - 4th Street . Fridley, MN 55421 5310 - 5th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Residents � Patricia Siedlecki 5320 - 4th Street N.E. Richard Byers --* 5380 - 6th Street N.E. Fridley, MN 55421 5300 - 5th Street N.E. Fridley, MN 55421 Fridley, DIN 55421 Gilbert Shipsock Gary-Stockw I" V1,2124 - 40th Avenue N.E. Richard Stanchfield 1.-•-•5372 - 6th Street N.E. Minneapolis, MN 55421 V�-5301 - 4th Street N.E. Fridley, MN 55421 Fridley, MN 55421 chard Hansen Richard Blank l 5310 - 4th Street N.E. Chris Donley 5360 - 6th Street N.E. Fridley, MN 55421 ` /5305 - 4th Street N.E. Fridley, MN 55421 1 Fridley, DSI 55421 Marlene O'Donnell Resident 5300 - 4th Street N.E. Merle Otten 5348 - 6th Street N.E. V Fridley, MN 55421 .5311 - 4th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Eugene Wright Timothy Fietek 1 1848 Pumice Point- Patrick Breitkreutz 15 - 102nd Avenue N.W. Eagan, DIN 55122 ,5315 - 4th Street N.E. Coon Rapids, MN 55433 Fridley, MN 55421 2D Community options PAGE 3 of 3 SP #85-01 Review of Stipulations Resident Richard Meuleners Resident 5346 - 6th Street N.E. ` J�360 - 7th Street N.E. V 5361 - 6th Street N.E. Fridley, DIN 55421 V Fridley, MN 55421 Fridley, MN 55421 Dallas Ramsey Robert Rice avid Lubet 5336 - 6th Street N.E. 5350 - 7th Street N.E. . Fridley, MN 55421 Fridley, MN 55421 t F 55421 X -Wesleyan-Methodist Church Mohan c_ Resident 5300 - 5th Street N.E. 340 - 7th Street N.E. 5373 - 6th Street N.E. Fridley, MN 55421 Fridley, DST 55421 Fridley, MN 55421 Wesleyan Methodist Church Frank Kowalski Resident 401 - 53rd Avenue N.E. / 5330 - 7th Street N.E. /'5381 - 6th Street N.E. VFridley, MN 55421 �' Fridley, MN 55421 Fridley, MN 55421 Wesleyan Methodist Church Resident 5315 - 5th Street N.E. ,,,,8310 - 7th Street N.E. 5383 - 6th Street N.E. Fridley, MN 55421 Fridley, NST 55421 Fridley, MN 55421 Ricky Kramer Jeffry Gardas 5329 - 5th Street N.E. ✓5315 - 6th Street N.E. 5298 Fillmore Street N.E. Fridley, MN 55421 Fridley, MN 55421 Fridley, MN 55421 Aner Sturgill �`� Terrance Lewis Resident I ' ' ! 5331 - 5th Street N.E 5323 - 6th Street N.E. 5348 - 6th Street N.E. V Fridley, MN 55421 Fridley, MN 55421 Fridley, MN 55421 Steven Heinecke William Cederstrom 5365 - 5th Street N.E. ( ,- 5331 - 6th Street N.E. Fridley, MN 55421 V Fridley, MN 55421 F�sit Edward Scholzen 375 . 117 Hartman Circle N.E. 5 _F' 55421 Fridley, MN 55432 Fredric Foster �(� Robert Huber 5375 - 5th Street N.E U` 1 .,-7744 Able Street N.E. Fridley, MN 55421 Fridley, 1,V 55432 Donna Schulte Resident , 5390 - 7th Street N.E. 5335 - 6th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Ronald Hoiby ( Resident , 5380 - 7th Street N.E. 5337 - 6th Street N.E. Fridley, MN 55421 Fridley, MN 55421 Melia Derrick David Lubet S. Bergman 2532 Joppa Avenue �--"5370 - 7th Street N.E. St. Louis Park, MN 55416 Fridley, MN 55421 I City of Fridley PUBLIC HEARING BEFORE THE CITY COUNCIL Notice is hereby given that there will be a Public Hearing of the City Council of the City of Fridley at the COMMUNITY EDUCATION CEN- TER, 6085-7TH STREET N.E. on Y,7Wed' September 26, 19M at 7es:36 p.m.forthe purpose of: Review of a Special Use Permit, SP *85-01, Community Options. This public hearing is being called ursuant to the terms of SP*85-01. thistlhea Ir ngnd halblic�c�nnmeennt tat o whether the facility located at 5378-5384-5th Street ME Fridley, Fridley, located on Lots 1 and 2, Block 14, Hamilton's Addition to Mechanicsville, is in compliance with the following stipulations of the special Use Permit: 1. No more than five resident automobiles are on the site 2.Construction of a six foot high solid wood rear yard fence is completed. 3.A community Advisory Com- mittee has been created and is being allowed input in the opera- tion of the facility. 4.Landscaping has been com- Pleted in accordance with the previous submitted plans. 5.Adequate contingency plans have been implemented for deal- ing with medical emergencies. 6.The faciilliity is licensed and it is wig all applicable t able Staaccordance with in and County rules and regulations. 7.The facility is in compliance with the fire codes, 8. The charactristics of the facili- wth the facility's contract t with Anoka County. Any and all Persons desiring to be heard shall be given an opportunity at the above stated time and place. WILLIAM J.NEE MAYOR Any questions related to this item may be referred to the Fridley Community Development Depart- ment,571-3450. (Published in Fridley Focus Sep- tember 14&21,1988.) 1B FRIDLE..Y CITY =CM M=IM OF AUGUST 22, 1988 i' or understood it. He stated after meeting with City staff, he fp'CLnd the ordinance is more flexible for permitting temporary signs than the./previous ordinance. He stated the question which arises is if businesses/could have some input into the ordinance. Mr. Ficken stated it is diff ' ult for the business owners to keep abreast of these items when they do t live in the City. He stated this sign ordinance really restricts the gns and hampers businesses in shopping centers where it is difficult to ertise. Mr. Ficken stated he would like to recommend a mmittee be formed to discuss any ordinances which affect the business ity and request that the Community Develognent Department advise and ssist them. He stated the Chamber of Commerce would also like a busines person from the community to attend the Planning Commission meetings as non-voting advisory member to offer the business person' s viewpoint. Mr. Ficken stated he wished to invi any members of staff or the City Council to attend any of their meeti gs each month. He stated even though he feels more comfortable with t ' s ordinance, he would still like some input from the business canmuni Councilman Billings stated h wanted the Chamber of Commerce to know that the sign ordinance relat' e to portable signs was a compromise on the Council ' s part. He stat the ordinance was passed by a 3 to 2 vote, with two Councilmembers voti g to ban portable signs altogether. He stated there is a problem with enf cement of these signs and at one time he observed five portable pane signs in a 25 foot strip of property advertising activities at Skyw ' Mall. Councilman Billings stated as far as a person fran the busines community attending the Planning a mission meetings, he would encourag these people to submit their names for appointment to the Commission, e stated he looks forward to better communications and more involvement tween the Chamber of Commerce and the City. Mr. Fic n stated he realizes the problem with enforcement of these signs. He sta ed if it creates a cluttered appearance, it gives the City a bad imag . or Nee stated staff would work out a plan to meet with the Chamber of rce regarding this subject. CTNITY OPTIONS: Ms. Irene Vasecka, 5427 4th Street, asked when the City renewed the special use permit for C mmunity Options. Mr. Qureshi, City Manager, stated the Council reviewed the stipulations attached to this special use permit to determine if Ccnurunity Options was in ccmpl iance with the stipulations. Ms. Vasecka stated the stipulations were to be reviewed at a public hearing. Mayor Nee stated staff felt an internal review would be sufficient; however, the question was raised if the stipulations were to be reviewed at a public -2- w • 1C FRIDLEY CITY a=CIL MEETING OF AUGUST 22, 1988 hearing and this was found to be correct. Mr. Herrick, City Attorney, stated everyone knows this matter went to court and the judge ordered the City to issue the special use permit. He stated he does not have a problem with the City conducting a public hearing to review the stipulations of the special use permit, but wanted Ms. Vasecka and the audience to know this matter is controlled by State law and the City has very little discretion. He stated the only way the special use permit could be revoked is if there were extremely serious violations and then he would not reccmmend it be done until it went back to the court. Ms. Vasecka stated she felt the Council should hold the public hearing which was part of the stipulations. MYrION by Councilman Fitzpatrick to instruct staff to schedule a public hearing for September 26, 1988, to review the stipulations of the special use permit for Crnmunity Options. Seconded by Councilwoman Jorgenson. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously. PROBLEMS ON HORIZON CIRCLE: Mr. Dzubak, 129 Horizon Circle, requested a progress report regarding the problems with the hones on Horizon Circle. Mr. Flora, Public Works Director, stated the City has retained the se ces of Braun Engineering to analyze the soil conditions in thisarea. e stated ten soil borings have been taken and are being evaluated. Mr. Iora stated upon oonpletion of these tests, it is hoped information can e obtained as to the location and extent of any materials in the ground d suggestions to deal with any soil problem. He stated preliminary find' gs indicate there was no clay in three of the soil borings and clay in e other borings. He stated a report on the soil analysis will probably be presented to the Council at their September 12 meeting. Mr. Flora stated the City of Champlin has experienced a similar problem and same soil geologists frrm the University of Minnesota will be meeting in Champlin. He stated the City of Fridley will have a representative at the meeting to discuss this issue and to try and determine same causes. Mr. Dzubak asked if the prcbl ens were due to the freeway construction. Mr. Flora stated the response the ity has received to this question is that it should have no effect. Mr. Dzubak asked if th e are City records which show if soil samples were taken when homes wer ilt in this area 30 years ago. Mr. Flora stated no soil samples were n. Mr. Dzubak d if he could obtain the name and address of the developer for this ar Councilman Billings stated the name and address of the contract is probably on the building permit, but that would not guarantee the actor could be located. -3- i- DLEY QTY COUNCIL NOTING OF AUGUST 22, 1988 Mr. Dzubak stated he would like to impress on the Council the sev rity of the problem. He stated one resident had a gas leak and another of close his door. He stated he would appreciate it if the City wou keep the residents updated on the progress. Councilman Fitzpatrick stated staff has advised them that ey would keep the residents informed when the City receives any inf ormati n. He stated he believes further information is expected by September 7. Mr. Rafferty, 148 Horizon Circle, stated when he questi ned why soil samples were not taken closer to the homes instead of on t e boulevard, he was advised that drilling could not be done on private p perty. He stated this could have been done, if permission was obtained f r the property owner. He stated he had a soil analysis clone on his prope and the results were that the boulevard tree was taking all the wat out of the ground. He stated the tree is still there and destroying hi home. Mr. Qureshi, City Manager, stated other hom are experiencing the same problem where there are no trees. He stated e City wants to determine the cause before cutting any trees. Mr. Steve Redert, 4539 2-1/2 Street, ated he purchased his home in October, 1982, and decided to sell in il, 1986. He stated they f ound a buyer in May and when this prospective uyer checked with the City, the City Inspector stated there was something ong with the foundation. He stated he then talked to his neighbor who s ted he knew that the- persons who owned the house in 1976-78 did a lotof tching on the house, particularly on the north side where there was a large crack in the foundation. He stated he also contacted the person acr s the street who advised him she knew something was wrong with the ho , but didn't know the details. Mr. Redert stated the City In ctor came out in 1973, at the request of the owners, and the City ordered the owner to have a soil test done. He stated it was found that because inadequate fill, it would be necessary to dig down 12 feet in order to rovide adequate fill. He stated the property owner was advised he had to do this work at his wan expense. Mr. Redert stated in 1 84 he had the City Inspector come out to check the footings for a c He felt if there was a major problem, the Inspector would not have appr ed it. Mr. Redert stat he did not feel the realty company was fair because everyone knew re was something wrong with this house and that a lot of patching had en cone to cover the cracks. Mr. Redert stated he can either pay to have the house fixed, give it up, or pay $5,000 t begin a lawsuit and then there would be no guarantee if he would win lose. He stated there is a list of ten different persons who owned the since it was built. He stated one of the owners told him to get rid it, as they had been in the house for a year when there were big crackse ntbasement. He stated the caner deeded the house back to HUD h and sold the house, as is, and believed it was sold to a realty company. -4- 1D FRIDT,F'Y CITY MiNCII, MEQ DU OF AUGUST 22, 1988 Mr. Dzubak stated he would like to impress on the Council the severity of the problem. He stated one resident had a gas leak and another c-q(not close his door. He stated he would appreciate it if the City wou keep the residents updated on the progress. Councilman Fitzpatrick stated staff has advised them that ey would keep the residents informed when the City receives any inf ormati n. He stated he believes further information is expected by September 7. Mr. Rafferty, 148 Horizon Circle, stated when he questi red why soil samples were not taken closer to the homes instead of on t e boulevard, he was advised that drilling could not be done on private pr perty. He stated this could have been done, if permission w/anined f r the property owner. He stated he had a soil analysis done prope and the results were that the boulevard tree was taking awat out of the ground. He stated the tree is still there and deg hi hone. Mr. Qureshi, City Manager, stated om are experiencing the same problem where there are no trees. He e City wants to determine the cause before cutting any trees. Mr. Steve Redert, 4539 2-1/2 Streeed he purchased his home in October, 1982, and decided to sell in1986. He stated they found a buyer in bay and when this prospectivchecked with the City, the City Inspector stated there was somethingith the foundation. He stated he then talked to his neighbor who s ated he knew that the persons who owned the house in 1976-78 did a lot of tching on the house, particularly on the north side where there was a large crack in the foundation. He stated he also contacted the person acr s the street who advised him she knew something was wrong with the hQ , but didn't know the details. Mr. Redert stated the City In ctor came out in 1973, at the request of the owners, and the City ordered the owner to have a soil test done. He stated it was found that because inadequate fill, it would be necessary to dig dawn 12 feet in order to rovide adequate fill. He stated the property owner was advised he had to do this work at his own expense. Mr. Redert stated in 1 84 he had the City Inspector come out to check the footings for a c He felt if there was a major problem, the Inspector would not have approved it. Mr. Redert stat he did not feel the realty company was fair because everyone knew th re was something wrong with this house and that a lot of patching had ben cone to cover the cracks. Mr. Redert stated he can either pay to have the house f ixed, give it up, or pay $5,000 to begin a lawsuit and then there would be no guarantee if he would win qY lose. He stated there is a list of ten different persons who awned the/home since it was built. He stated one of the owners told him to get rid df it, as they had been in the house for a year when there were big cracks ;in the basement. He stated the owner deeded the house back to HUD and HUD sold the house, as is, and believed it was sold to a realty company- -4- FRIDLEY CITY COUNCIL MEETING OF SEPTEMBER 26, 1988 Page 3 information, and lockouts. Mr. Hill, Public Safety Director, stated the stipulations on the special use permit did not address crime issues. He stated from a direct factual point of view, there have been virtually no police problems at Community Options. He stated relative to the calls to the facility, their cooperation with the Police Department has been excellent and these calls have been medical assistance to the residents. He stated in comparing this facility with nursing homes, the number of police calls is relatively the same. Mr. Hill stated there is in the area one particular apartment building which generates a lot of calls to the Police Department. He stated of crimes investigated in the neighborhood, none have been related directly to the residents of Community Options. Councilman Fitzpatrick asked if any comparisons were made on police calls in the area between now and earlier years. Mr. Hill stated these facts could be researched for the last several years, but would require a minimum of two days to compile the information. He stated he did not know what this would accomplish, because the figures would have to be compared with other statistics in the City. Ms. Diane 011endick-Wright, owner and administrator of Community Options, stated she was here this evening to answer any questions by the Council . Councilwoman Jorgenson asked how many residents of Community Options were from Anoka County. Ms. Wright stated all 14 residents were from Anoka County. Councilwoman Jorgenson asked if a breakdown was available for the number of residents from Columbia Heights and Fridley. Ms. Wright stated she did not have the information available this evening, but could obtain it. Councilwoman Jorgenson stated she would be interested as she had been told by the residents in the area that Community Options was not serving the residents of our area. Mrs. Marge Otten, 5311 4th Street, stated Hennepin County is conducting an audit to determine if it is a wise use of public funds to support these facilities. She stated she would like a similar study done in Anoka County. Mrs. Otten stated these facilities do not care for sick people who cannot pay their way. Mrs. Otten asked for a clarification of the status of a special use permit and if it is a legal binding document or if it can be cancelled. Mr. Herrick, City Attorney, stated this special use permit was issued by order of the District Court. He stated he would advise the Council that, in his opinion, they should not consider revoking this special use permit without concurrence by the District Court. He stated the special use permit is a legal document binding on both parties. He stated if there are violations that are serious in nature, it could be reason to request the Court to revoke this permit. FRIDLEY CITY COUNCIL MEETING OF SEPTEMBER 26, 1988 Page 4 Mr. Herrick stated when the special use permit was issued, both parties agreed it would be subject to those stipulations outlined in the permit. Mrs. Otten felt Community Options was operating without a license, as the special use permit has not been reviewed. Councilwoman Jorgenson stated the stipulation was not to re-issue the permit on an annual basis, but only to review it. Mr. Herrick stated he would agree that there was no termination of the special use permit. Mrs. Otten stated Community Options is accepting patients they are not licensed to treat who are chemically dependent. She stated residents from this facility have been taken to the detoxification center. She felt this is a violation of their contract with the County. Mrs. Otten stated there is a transient problem in this area and 74 out of 107 families have moved. She stated the families who have remained in the area are those who are retired and cannot move. She stated before Community Options moved to their area, they were a stable neighborhood. Mrs. Otten stated they are forming an Alliance Group with others in Brooklyn Center, St. Paul, Richfield, and Golden Valley to fight the State laws that take away the City' s authority. Councilwoman Jorgenson stated the Council did pass a resolution in support of Linda Berglund' s bill. She stated she wanted the residents of this neighborhood to be aware that the Council is concerned. Mr. Hill stated a resident of Community Options was taken to detoxification, but that is medical assistance, and not a criminal offense. Ms. Wright stated Community Options does have clients with backgrounds of chemical health problems. She stated their primary diagnosis has to be one of mental illness in order to be admitted to their facility. She stated she would estimate that probably 50 to 60 percent of their clients have had a history of difficulty with chemicals. Ms. Wright stated their clients do not carry a dual diagnosis of CDMI (Chemical Dependency/Mental Illness) . She stated they can only admit clients to their facility through referral by Anoka County. Mr. Herrick stated the Council does not govern the operation of this facility. He stated whether or not there are violations of the State law or Community Options ' contract with the County should be discussed with these bodies. Councilman Fitzpatrick asked Ms. Wright why Community Options accepts persons with a chemical dependency problem when their primary treatment is for mental illness. Ms. Wright stated she believed the number of clients that have chemical health problems, in relation to their mental illness, ranges between 60 to 70 percent. She stated they have a history of using chemicals and difficulty in dealing with their mental illness. She stated if a client comes to their facility and discloses that he has used chemicals, it is necessary for them FRIDLEY CITY COUNCIL MEETING OF SEPTEMBER 26, 1988 Page 5 to be checked by a doctor because of medications they may be given. Councilman Schneider asked why the police were involved. Ms. Wright stated it may be due to the fact the client does not want to be checked or because Community Options only has single coverage at the facility. Councilman Billings asked if the City staff checked with Anoka County to verify that Community Options is in compliance with their contract. Mr. Robertson stated staff has checked with the County and Community Options is in compliance. Mr. Haechrel, 5367 5th Street, stated Ms. Wright has abridged her contract by accepting people who are taking the cure for alcoholism and who are chemically dependent. Mr. Haechrel stated there are also vehicles parked at this facility in violation of the number restricted in the special use permit. He also submitted a photograph of a resident of Community Options on the roof of the facility and felt the residents were not properly supervised. Councilman Billings stated the Council voted against this special use permit, but was ordered by the District Court to issue the permit. He stated Anoka County has stated there is no violation of their contract. Councilman Billings stated as far as the vehicles, there is no way to know if these belong to the residents or visitors. Mrs. Vasecka, 5427 4th Street, stated Community Options should have contacted the City when their permit was to be reviewed. Councilman Fitzpatrick stated a new permit was not issued and the original special use permit remains in force. He pointed out the stipulation was only for an annual review for the first two years after the permit was issued. MOTION by Councilwoman Jorgenson to close the public hearing. Seconded by Councilman Schneider. Upon a voice vote, all voting aye, Mayor Nee declared the motion carried unanimously and the public hearing closed at 8: 50 p.m. NEW BUSINESS• 2 . CONSIDERATION OF FIRST READING OF AN ORDINANCE ADOPTING THE BUDGET FOR THE FISCAL YEAR 1989 : --'! MOTION by Councilman Schneider to waive the reading and approve the ordinance upon first reading. Seconded by Councilwoman Jorgenson. Councilman Schneider stated when the Council reviewed the Capital Improvement Plan, the Utility Fund i� 989 and 1990 provided for a water study and funds for additional wells,,, 6 serve the City, as well as stabilize the level of Moore Lake. .w Mr. Qureshi;City Manager, stated this information was for planning purposes and any- expenditures would be presented to the Council for their approval. UPON A VOICE VOTE TAKEN ON THE ABOVE MOTION, all voted aye, and Mayor Nee FRIDLEY CITY COUNCIL MEETING OF SEPTEMBER 26, 1988 Page 6 declared the motion carried unanimously. 3 . RECEIVING THE MINUTES OF THE PLANNING COMMISSION MEETING OF SEPTEMBER 14 , 1988 • A. CONSIDERATION OF A SPECIAL USE PERMIT, SP #88-12 , TO ALLOW AN AIR CONDITIONING, HEATING AND ELECTRICAL CONTRACTOR OFFICE IN AN S-1, HYDE PARK NEIGHBORHOOD ZONING DISTRICT ON LOTS 27 AND 28 , BLOCK 12 , HYDE PARK, THE SAME BEING 5973 3RD STREET N.E. , BY DONALD DICKISON• Mr. Robertson, Community Development Director, stated this is a request for a special use permit to allow an air conditioning, , heating and electrical contracting office in an S-1 zone in the Hyde Park eighborhood. He stated special use permits were previously granted for ifferent commercial uses for this property despite the fact that the us s did not comply with the intent of the Hyde Park special zoning area. M . Robertson stated staff is, therefore, recommending denial of this special- use permit based on the code which states that whenever a lawful non-conforming use of a structure is abandoned for a period of 12 months, any futuie use of said structure or land shall be in conformity with the provisions of the zoning code. Mr. Robertson stated the Planning Commission has recommended approval of the special use permit with the provision the permit is for this business only and, if the property is sold, the special use permit will expire. He stated in conjunction with the special use permit, several variances were requested which the Appeals Commission reviewed. He stated the Appeals Commission recommended approval of the variances, with one exception. Mr. Robertson stated the Planning Commission recommended to Council that either rezoning or modifying the S-1 zone in the Hyde Park neighborhood be considered to permit a wider range of special use permits than are allowed in the R-1 zoning district. e stated the S-1 zone is more restrictive than an R-1 zone and it does not allow non-residential uses with a special use permit. Councilman Schneider stated, as he recalls, the intent was if property in the S-1 zone was destroyed, it would lose its non-conforming status and revert to R-1. Councilman Fitzpatrick stated the purpose of adopting this S-1 zone was to ultimately work towards R-1 zoning in this area. Mr. Qureshi, City Manager, stated the intent was to convert this area to residential. He stated if, however, the use of the property remained the same, it would retain the non-conforming status. He stated if this lawful non-conforming use of a structure was abandoned for a period of 12 months, any future use shall be in conformity with the provisions of the Zoning Code. Councilman Billings stated this building is vacant and is an eyesore in the community. He felt even though it was vacant for a year or more, it probably would never revert to a residential use. Mr. Qureshi stated single family zoning does allow for other uses besides W CITY OF FMDLEY CIVIC CENTER • 6431 UNIVERSITY AVE. N.E. FRIDLEY, MINNESOTA 55432 PHONE(612) 571-3450 April 21, 1989 Community Options Attention: Pat Donahue 5384 - 5th Street N.E. Fridley, MN 55421 RE: Special Use Permit #85-01/Community Options, Ltd. Dear Mr. Donahue: The purpose of this letter is to confirm the information I provided to you in our recent telephone conversation. As I stated at that time, SP #85-01 (approved on February 25, 1986) has as one of its nine stipulations that the operation would be reviewed annually with a public hearing for the first two years. These reviews and hearings were conducted in 1987 and 1988 respectively. Both of these reviews revealed that Community Options was in full compliance with all of the stipulations contained in SP 085-01. No review or public hearing is planned for 1989 or any subsequent years as the two year annual review period has expired. Future reviews will only occur if it is brought to our attention that the terms of this special use permit are being violated. Please call me at 572-3595 if you have questions or wish to discuss this further. Sincerely, Steven Barg Planning Assistant SB: ls C-89-213