Council Minutes
PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF GRAND FORKS, NORTH DAKOTA
March 2, 2009
The city council of the city of Grand Forks, North Dakota met in the council chambers in City Hall on Monday, March 2, 2009 at the hour of 5:30 o’clock p.m. with Mayor Brown presiding. Present at roll call were Council Members Bjerke, McNamara, Gershman, Christensen, Bakken, Kreun - 6; absent: none.
The city council led the audience in the pledge of allegiance to the flag.
Mayor Brown announced that anyone wishing to speak to any item may do so by being recognized prior to a vote being taken on the matter, and that the meeting is being televised.
Mayor Brown commented on various items during the past week and upcoming events:
Congratulations to Red River hockey teams for their 13th State Championship and to the Grand Forks Central team for their third place finish - and congratulations to the Night Rider Gymnastics team that placed third in the state this weekend in Bismarck - and a special congratulations to Alex Braaten, who won the State All Round title in gymnastics and to Russell Crary and Erin Melland for being named all round senior athlete in state hockey and tournament most valuable player.
Thanks to Sioux hockey team for an incredible series this past weekend.
It is time for the Annual ArtWise event at the Alerus Center, that the elementary art show and exposition is great way to celebrate our children and their talents - and a great way to contribute a couple hours for the Mayor's Million Hour Challenge. They are looking for volunteers and implementing a new program that the business with the most volunteer hours will win a free business lease, which has value of about $600 to $700 per year. Several art pieces are in the lobby of City Hall.
The Miss Grand Forks scholarship competition was held this weekend - Jacki Stofferahn won Miss Empire and she will compete along with Miss Grand Forks, Justine Kirkeide, the scholarship program put on by the Miss America organization.
ND LEGISLATIVE UPDATE
Pete Haga, Community/Government Relations Officer, reported a busy week coming up in Bismarck - on Wednesday along with Chamber and Economic Development Corp. have organized Grand Forks Day and there will be number of business and community members and legislators meeting with representatives of state government, including Governor Hoeven, Chancellor Goetz, members of Commerce Department and other administrative departments. Several bills are on tap for committee hearings - one that deals with University funding and BRIC funding request, another providing testimony opposing sales tax exemption for clothing, also bills re. Red River water supply and providing support of flood protection funding for several areas throughout the state that allow for greater level of flood protection funding. Rep. Glassheim's bills to allow MPO to participate in NDPERS and a study on the commission of a state landfill siting board will be heard on Thursday and Friday.
Council Member Glassheim reported present (teleconference)
DENY APPEAL BY GRAND FORKS CEMETERY
ASSOCIATION FROM SPECIAL ASSESSMENTS AND
ADOPT FINDINGS
The staff report from the city auditor on behalf of the finance committee relating to Grand Forks Cemetery Association's appeal from special assessments for the flood protection project, with recommendation to deny the Grand Forks Cemetery Associations' appeal from special assessments and adopt Findings prepared by the City Attorney's Office.
It was moved by Council Member Kreun and seconded by Council Member Bakken to approve the recommendation from the finance committee.
Dr. Gordon Iseminger, president of the Grand Forks Cemetery Association, reported he had viewed tape of the proceedings and reviewed comments, discussion, findings and statutes and keeps coming back to the Supreme Court decision of 1970. He stated that the Supreme Court decision is there - this is not an appeal but a protest and are protesting on the basis of the Supreme Court decision of 1970.
He reviewed information that was discussed at the last meeting of the council, that the Cemetery Association researched and found information re. the Supreme Court decision of 1970 in the legislative records of what the legislature did and intended to do in 1959, checked with the City of Bismarck on the Supreme Court decision of 1970 to determine whether or not cemeteries pay special assessments, reviewed affidavits and certificates that state that the City of Bismarck exempts cemetery associations from special assessments due to the 1970 ND Supreme Court decision; and suggested that the city council get this material and study it very carefully before deciding what to do about their protest.
He stated it is understandable that the council wants clarification of the 1970 Supreme Court decision, that might want a declaratory judgment or a judiciary review, or an Attorney General's opinion, or take the Cemetery Association to court - that cost of a declaratory judgment or other action could cost thousands of dollars and force the Cemetery Association to spend dollars that they don't have to defend itself when they didn't break any laws and could take up to one or two years. He stated they intend to have a bill introduced in the Legislature in 2011 that will clarify the Supreme Court decision of 1970, that Mr. Mac Schneider, lawyer and member of the Legislature who represents the part of Grand Forks in which the cemetery is located, and Mr. Ray Holmberg of the Senate stated they would assist in drafting legislation to restore the exemption at the next legislative session; and in two years will have an answer by going through the legislature with little cost. that the City cannot take cemetery property, and that they believe the Supreme Court decision rules that they do not have to pay.
Robin Purcell, Administrator of Grand Forks Cemetery Association, read letters of members of the Grand Forks Cemetery Association from Walter I. Swingen and from Margaret Sullivan protesting the special assessments to the Cemetery Association for flood control and for lift station rehabilitation. He reported that the had received information from the finance department as to the amounts of the special assessments: flood control for Phase I is $85,042.76, Phase II assessed in 2003 is $65,929.84, totaling $150,972.60; an assessment in 2008 for Lift Stations 182 and 188 in the amount of $87,187.15 and total of all assessments equals $238,159.75, and that he was also provided an estimate for Phase III which would be assessed in 2010 of $118,657.75, with grand total of $356,817.50. He also noted that there currently is precedence established by the ND Supreme Court which only exempts cemeteries in ND from special assessments, but no statute or law exempting churches or other non-profits from special assessments and is quite clear that cemeteries in ND are singled out from other non-profits re. paying special assessments - but until the law isn't the law, it is the law and should be obeyed.
Barbara Knipe, member of Cemetery Association, protested any assessment and questioned how they plan to collect it and doesn't believe that cemeteries should be assessed and the law should be honored.
Raymond German, attorney representing the Grand Forks Cemetery Association, that members of the Association have done a good job of briefing the law and not much he can add without being redundant, and asked that the council consider the practicality of the situation, the Cemetery doesn't have the income to pay the assessments, City can't take the property nor the trust fund money, not without a court order, and forced to find the assessment money some place else. It is a practical matter and rather than spending money the City doesn't have and that the Cemetery Association doesn't have to pursue legal or other matters, better to find finances elsewhere and let the Legislature clarify the law at the next session.
Council Member Gershman stated that the public needs to understand that the $356,000 that we're talking about is money that the citizens of Grand Forks will have to pay from other funds. Dr. Iseminger stated that if these assessments had not been assessed to the Cemetery Assoc. as they deem they are not required to pay, the citizens would have paid these assessments in the first place.
Howard Swanson, city attorney, responded to comments and that he had provided each one of the council members a copy of the Supreme Court decision, which was read verbatim as to what the law is - "for the reason stated in this opinion, it is held that cemetery property, lawfully held by a non-profit corporation is exempt from special assessments for street improvement purposes."; and does not extend to all special assessments, the law of the land as written by the Court is very clear that their decision was based only upon special assessments for street improved projects. He stated that he had reviewed minutes of the Legislative Research Committee of their meeting on February 18, 1959, that minutes are sketchy and did repeal the specific exemption for cemeteries, in addition they repealed/reworked and readopted a model non-profit corporation act. He advised the council that on more than one occasion they have the legal authority to adopt an exemption for cemeteries, that is what the Cities of Bismarck and Jamestown did, and can do that based upon the 1970 ruling, have the authority as a Home Rule City to adopt an ordinance, and if want to make a policy decision the opportunity is there. That he was asked following the 2001 special assessment hearings whether or not the city council had the basis to assess the Cemetery, and his answer is yes, there is both a factual basis and legal basis to special assess a cemetery. He also stated re. discussion whether or not the City should bring an action against the Cemetery or seek declaratory judgment, and that he advised orally and in writing that is not his recommendation; and that he believes with the information he and the Cemetery representatives have presented, council can address it as a policy question.
Council Member Christensen stated that had they known there was a 1970 Supreme Court decision that precluded the levying of special assessments against Cemetery property, and would have had clarification or knowledge of the City of Bismarck vs. St. Mary's Church, and that the City of Jamestown is obeying that law, never would have voted for special assessments against cemeteries. He questioned what is council going to do when levy our third assessment this year in August of 2010. He also reviewed various statutes back to 1885, 1887 and 1889 had provision that all of the property of every benevolent corporation and the lots sold by it to individual proprietor shall be exempt from taxation, assessment, lien, attachment and from levying sale upon execution; and all such real property shall be exempt from appropriation for streets, roads or other public purposes - that law found its way through every codification of our laws in the state of ND, including the Revised of 1943, which was amended every two years until 1959, and until we amended and deleted that statute in its entirety and enacted a new one for non-profit corporations in 2001. That leads him as the Legislature doesn't meet before August of 2010 and have a State Supreme Court decision that says cemeteries are exempt from special assessments.
It is unfortunate that they will be subject to a declaratory judgment action, and question is are cemeteries subject to special assessments, have the law and the law is the St. Mary's case, and district court judge can decide that, no jury involved, put issues up to the court and court makes a decision; and moved to amend Mr. Kreun's motion to adopt the Findings and direct our city attorney to seek declaratory judgment action as to the power of the City of Grand Forks to levy special assessments against a non-profit cemetery association. Council Member Gershman seconded the motion.
Howard Swanson, city attorney, stated he would do that but that he doesn't recommend it , but agrees with Mr. German's comments that doesn't know that you solve anything by that, but if you believe as you have articulated, that the appropriate action would be to pass a motion to cancel special assessments assessed in 2001 and 2003, to refund the payments and to adopt a policy to be incorporated by ordinance exempting in the city of Grand Forks cemeteries from all special assessments, not spend any municipal dollars on litigating the issue nor forcing this cemetery to spend any dollars in litigating the issue, or other cemeteries who haven't appeared or participated in this appeal or protest but if this carries with the majority, he will do that and does have two legal concerns, that statute requires that there be a justifiable issue. In this case there is no justiciable issue because of the passage of statute of limitations and there is case law right on point involving Stutsman County in which the ND Supreme Court wrote "the source and limits of subject matter jurisdiction cannot be conferred by consent of the parties", and doesn't know that the Court will render an opinion because he doesn't know that they will have subject matter jurisdiction over disputed special assessments; and that it is an advisory opinion and doesn't know that the Court will give an advisory opinion, but if you pass this by majority vote he will proceed with a declaratory action and name all of the cemetery associations and will go to District Court and should ultimately be prepared to go to ND Supreme Court.
Council Member Christensen stated he read the declaratory judgment statute and disagrees with Mr. Swanson's opinion, but a declaratory judgment opinion is always advisory, and are asking a Court if there is a dispute between the parties and declare the rights of the parties, this is not whether we have the power to do that , and if we have to, move it back to a committee for study, don't have to make the decision but it seems that we have some legal issues here to clarify - doesn't want to take it upon himself to carte blanc waive all the special assessments, $350,000, that makes him think there's got to be a reason why the Legislature never sought to clarify this since 1970 - that the Supreme Court ruled in 1970 that they are exempt from special assessments - and wants the council to vote on that motion, his appeal will be that it doesn't matter if untimely, void as a matter of law - it is time to get it decided.
There were comments from the other members of the city council relating to issues before them, the original motion which is a policy issue and the amendment was to get a ruling or resolution of the issue. Several members stated that everybody should pay their fair share of the flood assessments.
Upon call for the question on the amendment to the motion, and upon roll call vote, the following voted "aye": Council Members McNamara, Gershman, Christensen - 3; voting "nay": Council Members Bjerke, Glassheim, Bakken, Kreun - 4. Mayor Brown declared the motion denied.
Mr. Swanson reported there were two minor amendments, Finding 31, page 9, should indicate that St. Mary's Church was a street improvement project, and that the good faith arguments for the limitation modification or reversal of the prior holding; that they don't make any substantive changes other than identifying the street improvement projects, and asked that they be incorporated into the draft of Findings. Council Members Kreun and Bakken accepted the changes to the Findings.
Upon call for the question on the original motion and upon roll call vote, the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried.
AWARD CONTRACT FOR PROJECT NO. 6374, 2009
ADA CURB RAMPS
The staff report from the engineering department relating to consideration of bids for construction of Project No. 6347, 2009 ADA Curb Ramps, with recommendation to award contract to low bidder, Tony Anderson Construction, in the amount of $40,180.00, and to return non-conforming bids to bidders unopened.
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the contract awarded.
APPROVE ENGINEERING SERVICES AGREEMENT
FOR PROJECT NO. 6433, PERMANENT LIFT STATION
NO. 37
The staff report from the engineering department relating to design and bidding engineering services agreement for Project No. 6433, Permanent Lift Station No. 37, with recommendation to approve agreement with Webster, Foster and Weston for design and bidding engineering services in the amount of $70,747.00.
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the agreement approved.
APPROVE AGREEMENT FOR PROJECT NO. 6303,
RECONSTRUCTION OF ENGLISH COULEE SHARED
USE PATH
The staff report from the engineering department relating to Cost Participation, Construction and Maintenance Agreement for Project No. 6303, Reconstruction of English Coulee Shared Use Path from 24th to 17th Avenues South, with recommendation to approve the Cost Participation, Construction and Maintenance Agreement for Project No. 6303, Reconstruction of English Coulee Shared Use Path from 24th to 17th Avenues South (Project TEU-6-986(085)089). Total cost of project is estimated to be $247,800 with federal share capped at $148,000 and local share estimated to be $99,800 with local share funded entirely by the Park District per executed Joint Powers Agreement between the Park District and the City.
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the agreement approved.
APPROVE AGREEMENT FOR PROJECT NO. 6393,
FORCEMAIN REPAIR AT COLUMBIA ROAD AND
10TH AVENUE NORTH AND 6TH AVENUE NORTH
The staff report from the engineering department relating to design, bidding and construction administration engineering services agreement for Project No. 6393, Forcemain Repair at Columbia Road and 10th Avenue North and at Columbia Road and 6th Avenue North, with recommendation to approve agreement with Webster, Foster and Weston for design, bidding and construction administration engineering services in the amount of $40,655.00
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the agreement approved.
AWARD CONTRACT FOR PROJECT NO. 6363, 2009
FLOOD PREPARATION AND DEBRIS CLEANUP
The staff report from the engineering department relating to bids for Project No. 6363, 2009 Flood Preparation and Debris Cleanup, with recommendation to award contract to low bidder, Gowan Construction, in the amount of $323,340.
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the contract awarded.
AWARD COST PARTICIPATION AND MAINTENANCE
AGREEMENT FOR PROJECT NO. 6429, MICRO-
SURFACING OF US2 BUSINESS LOOP
The staff report from engineering department relating to Cost Participation and Maintenance Agreement for Project No. 6429, Micro-Surfacing of Grand Forks US2 Business Loop, North 5th Street and DeMers Avenue from Gateway Drive to Sorlie Bridge, with recommendation to approve agreement with NDDOT for Project No. 6429, Micro-Surfacing of Grand Forks US2 Business Loop North 5th Street and DeMers Avenue from Gateway Drive to the Sorlie Bridge (Funding split is 90% State/Federal and 10% Local, estimated cost is $110,290 with City's share est. to be $11,029).
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the agreement approved.
APPROVE BID FOR PURCHASE OF SNOWBLOWER
The staff report from the director of public works relating to Public Works Department Street Division payloader mounted rotary snowblower bid, with recommendation to approve the bid to Sanitation Products in the amount of $111,703.00 as lowest and best bid.
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried.
AWARD SLOPE STABILIZATION CONSTRUCTION
BID AND APPROVE AMENDMENT TO ENGINEERING
SERVICES AGREEMENT, PROJECT NO. 6319
The staff report from the director of public works relating to Grand Forks landfill geotechnical evaluation results, slope stabilization construction bids and associated engineering services agreement Amendment No. 1, with recommendation to approve Grand Forks landfill slope stabilization bid of Robinson Excavating of Grand Forks in the amount of $723,352 as the lowest and best bid and to approve the Grand Forks landfill slope stabilization engineering services agreement amendment No. 1 in the amount of $177,484, Project No. 6319. The City of Grand Forks will continue to seek a resolution with the Grand Forks Regional Airport Authority and its affected interests regarding reimbursement of City of Grand Forks' expenses related to Grand Forks landfill slope stabilization issue. If needed, authorize the use of Water Enterprise Fund cash funds for interim financing for the construction and engineering services. If used, the Water Enterprise Fund cash funds will be reimbursed, once a resolution is concluded regarding the Grand Forks landfill slope stabilization issue.
It was moved by Council Member Gershman and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried, the contract awarded and the amendment to the agreement approved.
APPROVE BILL LISTING AND ESTIMATE SUMMARY
Vendor Payment Listing No. 09-05, dated February 26, 2009, totaling $1,244,972.56 and Estimate Summary dated February 28, 2009 in the amount of $484,258.59, were presented and read.
It was moved by Council Member Bakken and seconded by Council Member Bjerke that these bills and estimates be allowed and that the city auditor be authorized to issue warrants in payment of the same. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Glassheim, Gershman, Christensen, Bakken, Kreun - 7; voting "nay": none. Mayor Brown declared the motion carried and the bills ordered paid.
APPROVE MINUTES FEBRUARY 17 AND 23, 2009
Typewritten copies of the minutes of the city council held on Tuesday, February 17, 2009 and of the special meeting on Monday, February 23, 2009 were presented and read. It was moved by Council Member Bjerke that the minutes of February 17, 2009 be amended to include in his comments under Mayor and Council Comments relating to the stimulus plan after the words "public transit" to add "as it relates to fixed route expansion" and that the minutes be approved; seconded by Council Member Kreun. Carried 7 votes affirmative.
COMMENTS BY MAYOR AND COUNCIL
1) Council Member McNamara reminded citizens in Ward 2 that missed the meeting held by Urban Development regarding the 4 infill lots, 3 are on 24th between 6th and 7th Avenues North and 1 is on the corner of 25th Street and 10th Avenue North, and that there is information about what is being planned and if have interest in those lots to contact Urban Development Office. He complimented Todd Olson, athletic director of Grand Forks School District on the running of the EDC hockey tournament last week and the State hockey tournament and was handled very well with a lot of hard work. Congratulations to the School District and Mr. Olson.
2) Council Member Christensen reported there will be a finance/development committee meeting on Wednesday at 4:00 and an agenda will be sent out.
3) Council Member Kreun stated there is an infill lot available in the Riverside area, 1800 block of North 3rd Street, and asked for status on that lot. Greg Hoover, Urban Development, stated they will get an e-mail out to everyone as to the status of that lot. Mr. Glassheim stated that there was conversation a year ago and that some of the neighbors want to be involved in setting the kind of parameters there will be for the use of the lot.
ADJOURN
It was moved by Council Member Bjerke and seconded by Council Member Kreun that we adjourn. Carried 7 votes affirmative.
Respectfully submitted,
Saroj Jerath
City Auditor
Approved:
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Michael R. Brown, Mayor