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CHA 01/28/2002 TO: Charter Commission Members FROM: Deb Skogen, City Clerk and Staff Liaison Date: January 25, 2001 CITYOF Re: Charter Meeting of Monday, January 28, 2001 FRIDLEY The new year has come around and I just realized I needed to get the agenda out by today. Sorry for the delay. The next Charter Commission meeting will be held on Monday, January 28, 2002, in Meeting Room 1 in the lower level of City Hall. I have included the minutes of November 26th and definitions of eminent domain that were discussed during the meeting. In addition, I have included the letter written by Chairperson Gordon and Elizabeth Moore in reference to the legality issue of preparing a glossary and index. If you cannot attend,please contact me at 763-572-3523. CITY OF FRIDLEY CHARTER COMMISSION AGENDA MONDAY, JANUARY 28, 2002 7:00 P.M. LOCATION: Fridley Municipal Center Meeting Room 1 (Lower Level) CALL TO ORDER: ROLL CALL: APPROVAL OF AGENDA: APPROVAL OF MINUTES November 26,2001 1. Administrative Matters A. Recruiting New Members 2. Discussion of how issues come to Charter Commission for discussion 3. Discussion of Glossary/Index 4. Consideration of items for future discussion ADJOURNMENT Next regular meeting: February 25,2002 at 7:00 p.m. in Meeting Room 1 in the Lower Level CITY OF FRIDLEY P"‘, CHARTER COMMISSION MEETING November 26,2001 CALL TO ORDER: Chairperson Gordon called the Charter Commission meeting to order at 7:16 p.m. ROLL CALL: Members Present: Craig Gordon,Bill Holm,Cindy Soule,Francis Van Dan,Suzanne Warren,and Harry Heck Members Absent: Don Findell,Carter Hendricks,Nancy Jorgenson,Deborah Monden,Maynard Nielson, and Regina Querimit Others Present: Deb Skogen,City Clerk/Staff Liaison,and Dale Warren,Guest APPROVAL OF AGENDA: MOTION by Commissioner Warren seconded by Commissioner Heck to approve the agenda. UPON A VOICE VOTE,ALL VOTING AYE,CHAIRPERSON GORDON DECLARED THE MOTION CARRIED UNANIMOUSLY. APPROVAL OF NOVEMBER 25,2001,CHARTER COMMISSION MINUTES: Commissioner Van Dan requested that the minutes pertaining to Item 5 be amended by deleting the sentence that is currently in the minutes and amended as follows: "That government and governance should be executed in such a fashion as to impartially and equally enforce the laws among all citizens. MOTION by Commissioner Van Dan seconded by Commissioner Heck to approve the October 29,2001 Charter Commission Minutes as amended. UPON A VOICE VOTE,ALL VOTING AYE,CHAIRPERSON GORDON DECLARED THE MOTION CARRIED UNANIMOUSLY. 1. ADMINISTRATIVE MATTERS A. Recruiting New Members Dale Warren was a guest interested in becoming a member of the Commission. He was given an application to complete and there was consensus that Mr.Warren be appointed to the Commission if he completed the application. 2. DISCSSUION ON HOW ITEMS ARE PLACED ON CHARTER COMMISSION AGENDA Due to the absence of the Commissioner who brought this question forward,the item was tabled. CHARTER COMMISSION MEETING OF NOVEMBER 26,2001 PAGE 2 3. DISCUSSION OF GLOSSAR/INDEX Chairperson Gordon wondered if everyone had time to review the minutes to decide which defmition they prefer to use. Commissioner Heck said he preferred a citizen initiated action as he felt an unregistered voter could initiate the action through others. Commissioner Van Dan said the only reason that registered voter was used previously was for the convenience of the staff. She felt,philosophically,that eligible voter was adequate and that if a new person moves into the city before they registered to vote they should be qualified to sign a petition. Chairperson said neither perspective was wrong depending on how it was interpreted. Commissioner Holm said the City Charter calls,in the area of initiative,referendum and recall,specifically calls for action by the voters. In terms of providing a defmition for the glossary he felt that action by voters was appropriate. Commissioner Warren was concerned about the potential for changing or re-writing the charter based on the defmitions and felt that they needed to be careful about what language was used to defme the words. Chairperson Gordon said that Attorney Moore had called him to let him know she had thought it was a good idea and felt there was no liability with creating it. She thought it would be more beneficial if it was made part of the Charter vs.using it as a tool of the Commission so that the public would have the same understanding as the Commission. She said she would put a letter together with more thoughts about how it could be done. Commissioner Van Dan respected what Commissioner Warren said and agreed that she did not want to make any changes to the Charter without the proper procedure. She felt if it was part of the Charter,it would help the pubic understand the Charter better because of the defmitions. Commissioner Gordon said that after the terms were defmed the Commission would most likely forward the glossary to the Charter attorney for her review and then the glossary would be referred to the city council for their review. Commissioner Soule said that in going forward the Commission did not want to reinterpret or expand on the actual meaning of the Charter,but we are using the glossary to clarify the terms. Chairperson Gordon said that was correct and hoped to create an index as well. Chairperson Gordon wondered if there was consensus about the verbiage, "an action by the voters." Commissioner Soule felt that the three terms should be similar because they were from the same section of the Charter and not use different words in each definition. Commissioner Van Dan agreed and said the action was identical and agreed that the term should be the same by defming it as an action by the voters. Commissioner Holm also agreed that recall should be defmed as an action by the voters. Skogen said that Commissioner Jorgenson had also requested at the last meeting the word municipal be placed between elected official so that voters understood it was just in reference to a city official. The rest of the Commissioners also agreed. The Commission then discussed trying to defme what eminent domain was. It was suggested that the Commissioners review MN Statute Section 465.01,465.16 or 465.29 or the West Legal Dictionary. It appeared the Commission was not interested in changing the Charter language to eminent domain but only to include a clear definition of what the term meant. CHARTER COMMISSION MEETING OF NOVEMBER 26,2001 PAGE 3 T' 4. CONSIDERATION OF ITEMS FOR FUTURE DISCUSSION New Chapter 7's are needed for Commissioners Soule,Van Dan and Warren. Skogen will make them available at the next meeting. The Commission will continue to address the Glossary and how items are placed on the agenda for the Commission. ADJOURNMENT: MOTION by Commissioner Holm seconded by Commissioner Warren to adjourn the meeting. UPON A VOICE VOTE,ALL VOTING AYE,CHAIRPERSON GORDON DECLARED THE MOTION CARRIED AND THE MEETING WAS ADJOURNED AT 8:10 P.M. Respectfully submitted, Debra A.Skogen, Deborah Monden, Secretary City Clerk/Staff Liaison n 3 r-� CITYOF FRIDLEY FRIDLEY MUNICIPAL CENTER•6431 UNIVERSITY AVE.N.E.FRIDLEY,MN 55432•(763)571-3450•FAX(763)571-1287 November 5, 2001 Elizabeth Moore Terpstra,Black,Brandell&Kaminsky 913 Main Street Elk River, MN 55330 Dear Ms. Moore, The Fridley Charter Commission is presently in the process of developing a glossary and index with plans to have it become a permanent addition to the Fridley Charter. The intent behind the glossary and index is to clarify terms within the charter to create a better understanding of the charter itself. The index would let people know where the term could be located in the charter. The Fridley Charter Commission is asking for your input and legal opinion regarding this undertaking. Could you please tell us if there is anything that would legally prohibit a glossary or index to become a part of the charter? Do you have any suggestions on how one might proceed with this undertaking, such as,but not limited to, the definition of words? We look forward to your response at your earliest convenience. If you have any questions, please feel free to contact me at my office phone (763)571-4959. Sincerely, 0443iLy Craig Gordon Fridley Charter Commission Chairperson TERPSTRA, BLACK & MOORE, LTD. ATTORNEYS AT LAW RONALD G.BLACK ELIZABETH K.MOORE BRIAN A. PARK JAMES A. BUMGARDNER RHONDA J.MAGNUSSEN JOHN W.TERPSTRA(RETIRED) January 21 , 2002 Mr. Craig Gordon Fridley Charter Commission Chairperson Fridley Municipal Center 6431 University Avenue N.E. Fridley, MN 55432 Re: Addition of Glossary / Index to the Fridley City Charter Dear Mr. Gordon: I am wiring in response to your correspondence, as well as in follow-up the messages left with your office shortly after receipt of the same, regarding my general opinion as to the addition of a Glossary / Index to the Fridley City Charter. As I indicated by telephone, I am not aware of any Minnesota Statute provision, state constitutional provision or line of Minnesota caselaw which legally prohibits addition of the same to the Charter. A logical place to begin such a large undertaking, which appears to be the approach members of the Charter Commission have suggested, is first narrowing a list of words and terms in the Charter deemed appropriate for listing and definition. In terms of actually drafting definitions, it must be kept in mind that the Charter must be in harmony with and is subject to the constitution and laws of the state. As such, it is appropriate that Minnesota Statutes and constitutional provisions be consulted in drafting and assigning the definitions. I am certainly available to work with the Charter Commission, at any and all stages, on this significant project. Again, thank you for your patience regarding my response, as we have recently reorganized our firm and relocated to new office space. Please feel free to contact me at any time with questions you may have regarding this project. Thank you. City Clerk's Office Date Received Forward to / ■, Copy to ___ — FIRST NATIONAL FINANCIAL CENTER, SUITE 102 812 MAIN STREET • ELK RIVER • MINNESOTA • 55330 TELEPHONE (763) 441-7040 • FACSIMILE (763) 441-0901 January 21 , 2002 Mr. Craig Gordon Page Two Sincerely, TERPSTRA, BLACK & MOORE, LTD. /-7 Eliz th K. Moore EKM:jIm Enclosure /"\ FIRST NATIONAL FINANCIAL CENTER, SUITE 102 81 2 MAIN STREET • ELK RIVER • MINNESOTA • 55330 TELEPHONE (763) 441-7040 • FACSIMILE (763) 441-0901 FRIDLEY CITY CHARTER CHAPTER 9. EMINENT DOMAIN Section 9.01. SET FORTH BY STATUTES OF THE STATE OF MINNESOTA. The City of Fridley shall have the power of Eminent Domain as set forth by the Statutes of the State of Minnesota. 10/05/89 Eminent Domain Page 1 ofy Ht•lp About For Media ContocP Us Site Mop Horn: \:\ St Lc12,;tI l)ircctory Home: About the Law: Areas of Law Practice: Real Property EMINENT DOMAIN attorney in ice area. The following article is excerpted from West's Encyclopedia of American Law. (Ordering information here.) The power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. Federal, state, and local governments may take private property through their power of eminent domain or may regulate it by exercising their police power. The Fifth Amendment to the U.S. Constitution requires the government to provide just compensation to the owner of the private property to be taken. A variety of property rights are subject to eminent domain, such as air,water, and land rights. The government takes private property through condemnation proceedings. Throughout these proceedings, the property owner has the right of due process. Eminent domain is a challenging area for the courts, which have struggled with the question of whether the regulation of property, rather than its acquisition, is a taking requiring just compensation. In addition,private property owners have begun to initiate action against the government in a proceeding called inverse condemnation. History The concept of eminent domain is not new. It has existed since biblical times, when King Ahab of Samaria offered Naboth compensation for Naboth's vineyard. In 1789, France officially recognized a property owner's right to compensation for taken property, in the French Declaration of the Rights of Man and of the Citizen, which reads, "Property being an inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity." Shortly after the French declaration, the United States acknowledged eminent domain in the Fifth Amendment to the Constitution, which states, ". . . nor shall private property be taken for public use, without just compensation." The Fifth Amendment grants the federal government the right to exercise its power of eminent domain, and the Due Process Clause of the Fourteenth Amendment makes the federal guarantee of just compensation applicable to the states. State governments derive the power to initiate condemnation proceedings from their state constitutions, except North Carolina,which gains its power through statute. The constitutional and statutory provisions require federal, state, and local governments and subdivisions of government to pay an owner for property taken for public use at the time the property is taken. Eminent domain was created to authorize the government or the condemning authority, called the condemnor, to conduct a compulsory sale of property for the common welfare, such as health or safety. Just compensation is required to ease the financial http://www.wld.com/conbus/weal/wemindom.htm 4/24/01 Eminent Domain Page 2 of/ burden incurred by the property owner for the benefit of the public. Elements of Eminent Domain To exercise the power of eminent domain, the government must prove that the four elements set forth in the Fifth Amendment are present: (1)private property(2)must be taken(3) for public use(4)and with just compensation. These elements have been interpreted broadly. Private Property The first element requires that the property taken be private. Private property includes land as well as fixtures, leases, options, stocks, and other items. The rifle that was used to kill President John F. Kennedy was considered private property in an eminent domain proceeding. Taking The second element refers to the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value. Property value may be reduced because of noise, accessibility problems, or other agents. Dirt,timber, or rock appropriated from an individual's land for the construction of a highway is taken property for which the owner is entitled to compensation. In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property. Some property rights routinely receive constitutional protection, such as water rights. For example, if land is changed from waterfront to inland property by the construction of a highway on the shoreline,the owners of the affected property are to be compensated for their loss of use of the waterfront. Another property right that is often litigated and routinely protected is the right to the reasonable and ordinary use of the space above privately owned land. Specifically, aircraft flights over private property that significantly interfere with the property owner's use may amount to a taking. The flights will not be deemed a taking unless they are so low and so frequent as to create a direct and immediate interference with the owner's use and enjoyment of the property. Actions by the government that courts do not consider takings include the publication of plans or the plotting, locating,or laying out of public improvements, including streets, highways, and other public works, even though the publicity generated by such actions may hinder a sale of the land. The courts have traditionally not recognized the regulation of property by the government as a taking. Regulating property restricts the property owner's use and may infringe on the owner's rights. To implement a regulation, the state exercises its police power and is able to control the use of the property. Although the courts recognized a regulation as a taking in 1922, they have been inconsistent in their later rulings on this issue. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,43 S. Ct. 158, 67 L. Ed. 322 (1922),the Supreme Court ruled that coal mining under an owner's property was not a taking, despite a subsidence, or settling, of the property's surface. In 1987, the Supreme Court stated that regulations that are excessive require compensation under the Fifth Amendment (First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 [1987]). More recently, the Court determined that regulations that strip property of value or that do not substantially advance legitimate state interests are takings for which compensation is n required (Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 [1987]). http://www.wld.com/conbus/weal/wemindom.htm 4/24/01 Eminent Domain Page 3 of,8/ Public Use The third element,public use,requires that the property taken be used to benefit the public instead of specific individuals. Whether a particular use is considered public is ordinarily a question to be determined by the courts. However, if the legislature has made a declaration about a specific public use, the courts will defer to legislative intent (Hawaii Housing Authority v. Midkiff 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 [1984]). Further, "[t]he legislature may determine what private property is needed for public purpose . . . but when the taking has been ordered, then the question of compensation is judicial" (Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 [1893]). To determine whether property has been taken for public use, the courts first determined whether the property was to be used by a broad segment of the general public. The definition of public use was later broadened to include anything that benefited the public, such as trade centers, municipal civic centers, and airport expansions. The Supreme Court continued to expand the definition of public use to include aesthetic considerations. In Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954), the Court ruled that slums could be cleared in order to make a city more attractive. The Court in Berman stated further that it is within legislative power to determine whether a property can be condemned solely to beautify a community. State courts have also expanded the definition of public use. The Michigan Supreme Court even allowed property to be condemned for the private use of the General Motors Company, under the theory that the public would benefit from the economic revitalization a new plant would bring to the community(Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N.W.2d 455 [1981]). Just Compensation The last element set forth in the Fifth Amendment mandates that the amount of compensation awarded when property is seized or damaged through condemnation must be fair to the public as well as to the property owner(Searl v. School District No. 2 of Lake County, 133 U.S. 553, 10 S. Ct. 374, 33 L. Ed. 740 [1890]). Because no precise formula for determining it exists,just compensation is the subject of frequent litigation. The courts tend to emphasize the rights of the property owner in eminent domain proceedings. The owner usually has not initiated the action but has been brought into the litigation because her or his property is needed for public use. The owner must participate in the proceedings,which can impose an emotional and financial burden. The measure of damages is often the fair market value of the property harmed or taken for public use. The market value is commonly defined as the price that could have reasonably resulted from negotiations between an owner who was willing to sell and a purchaser who desired to buy. The value of real property is assessed based on the uses to which it can reasonably be put. Elements for consideration include the history and general character of the area, the adaptability of the land for future buildings, and the use intended for the property after its taking. Generally, the best use of the land is considered to be its use at the time it was condemned, even though the condemnor may not intend to use the land in the same manner as the owner. Crops, grass, trees, minerals, rental income, and all other items that fairly enter into the question of value are taken into consideration when determining just compensation. The amount of compensation should be measured by the owner's loss rather than the condemnor's gain, and the owner should be placed in as good a financial position as he or she would have •'■ been in had the property not been taken(Monongahela). The compensation should be paid in cash, and the amount is determined as of the date title vests in the condemnor. Interest is paid on the award until the date of payment. http://www.wld.com/conbus/weal/wemindom.htm 4/24/01 Eminent Domain Page 4 of Condemnation Proceedings Condemnation proceedings vary according to individual state and federal laws. In general, the proceedings should be conducted as quickly as possible. A proceeding does not require court involvement if the condemnor and landowner enter into a contract for the taking of the property for a public use. A seizure pursuant to such a contract is as effective as if it were done through formal condemnation proceedings. Condemnation usually consists of two phases: proceedings that relate to the right of the condemnor to take the property, and proceedings to set the amount of compensation to be paid for the property taken. The commencement of the proceedings does not curtail ordinary use of the condemned property by the owner as long as the use does not substantially change the condition of the property or its value. States require special procedures for certain cases categorized by either the purpose for which the property is sought or the character of the party seeking to take it. For example, a special procedure is required when property is to be taken for a street, highway, park, drain, levee, sewer, canal, or waterway. In a procedure called a quick taking, the condemnor is permitted to take immediate possession and use of the property, and the owner must receive cash compensation in advance of the proceeding. The owner has the right to due process during condemnation proceedings. The owner must be notified in a timely manner and given reasonable opportunity to be heard on the issues of whether the use for which the property is expropriated is public and whether the compensation is just. Due process mandates that the landowner receive an opportunity to present evidence and to confront or cross-examine witnesses. The owner has an automatic right to appeal. Due process does not require a jury trial in condemnation proceedings, although various state constitutions and statutes provide for assessment by a jury. Absent contrary state provisions, a court has the discretionary power to grant or refuse a motion for view of the premises by a jury. A condemnation judgment or order must be recorded. Inverse Condemnation An increase in environmental problems has resulted in a new type of eminent domain proceeding, called inverse condemnation. In this proceeding, the property owner, rather than the condemnor, initiates the action. The owner alleges that the government has acquired an interest in her or his property without giving compensation, such as when the government floods a farmer's field or pollutes a stream crossing private land. An inverse condemnation proceeding is often brought by a property owner when it appears that the taker of the property does not intend to bring eminent domain proceedings. Articles from West's Encyclopedia of American Law are published on West Legal Directory with the understanding that the publisher is not engaged in rendering legal or other professional advice.If legal advice or other professional assistance is required,the services of a competent professional person should be sought. "^\ Help I Contact Us I Site Map I Home O 1998 West Group I West Group'WEST GROUP http://www.wld.com/conbus/weal/wemindom.htm 4/24/01 Minnesota Statutes Display Document 130 of 170 Page 1 of 1 Minnesota Statutes 2000 Display Document 130 of 170 111-11 IIIIIIIIIIIIIIII Chapter Title: RIGHTS, POWERS AND DUTIES; MUNICIPALITIES Section: 465.01 Text: IR 465.01 Right of eminental Uldomainl8. All cities may exercise the right of 3eminent® ©domain® for the purpose of acquiring private property within or without the corporate limits thereof for any purpose for which it is authorized by law to take or hold the same by purchase or gift and may exercise the right of Illeminent111 ®domain for the purpose of acquiring a right of way for sewerage or drainage purposes and an outlet for sewerage or drainage within or without the corporate limits thereof. The procedure in the event of condemnation shall be that prescribed by chapter 117, or that prescribed by the charter of such city. HIST: (1829) RL s 766; 1917 c 424 s 1; 1973 c 123 art 5 s 7 http://www.revisor.leg.sta.../Ascend%26M%3D 130%26K%3D465.01%26R%3DY%26U%3D 4/24/01 Minnesota Statutes Display Document 131 of 170 Page 1 of 1 Minnesota Statutes 2000 Display Document 131 of 170 i1J 41j Chapter Title: RIGHTS, POWERS AND DUTIES; MUNICIPALITIES Section: 465.16 Text: 465.16 Right of eminent Odomainm. In the event that the chief governing body, city council or board of park commissioners of such city shall exercise such right by condemnation such body may do so under any laws provided for the condemnation of real property or Ellendawintil MIdomain® or under any provision of the charter of such city granting to such body the right of condemnation or ®eminent® ll♦domain; or, it being for the best interests of such city, such chief governing board, city council, or board of park commissioners shall have the power and authority to acquire the rights by purchase, /'"\ taking into consideration the present worth of such right to exemption and the probability or improbability that such exemptions would ever be used as an offset to future assessments for benefits. HIST: (1541-2) 1931 c 385 s 2 http://www.revisor.leg.sta.../Ascend%26M%3D131%26K%3D465.16%26R%3DY%26U%3D 4/24/01 Minnesota Statutes Display Document 132 of 170 Page 1 of 1 Minnesota Statutes 2000 Display Document 132 of 170 Chapter Title: RIGHTS, POWERS AND DUTIES; MUNICIPALITIES Section: 465.29 Text: GI 465.29 Condemnation; special assessments. The power of eminent® domain and the power to levy special assessments for benefits are hereby delegated to such cities for the purposes of sections 465.26 to 465.48, to acquire the lands and rights needed or any of them, to be exercised as follows. HIST: (1512) 1905 c 18 s 4 http://www.revisor.leg.sta.../Ascend%26M%3D132%26K%3D465.29%26R%3DY%26U%3D 4/24/01