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Minutes of Grand Forks City Council/Committee of the Whole
Monday, February 23, 2009 - 5:30 p.m._________________ __

The City Council met as the Committee of the Whole on Monday, February 23, 2009 at 5:30 p.m. in the Council Chambers in City Hall with Mayor Brown presiding. Present at roll call were Council Members Bjerke, McNamara, Glassheim, Gershman, Kreun - 5; absent: Council Member Bakken - 1.

Mayor Brown commented on various items during the past week and upcoming events:
Congratulations to Dr. Mary Wakefield, director of UND Center for Rural Health, who was picked by the Obama administration to lead Health Resources & Services Administration as part of the Office of Health & Human Services.
Thank you to UND Student Senate for hosting the joint meeting with the city council last night, and appreciates ideas and interest they bring to the discussion about improving our community.
The National Weather Service will be holding informational meeting on spring flood outlook in the council chambers tomorrow at 10:00 a.m.
It is time of the year for the State of the City Address, thanks to Chamber and everyone who assisted with the speech and presentation. Important to give update on city activities and begin discussions about where the community should be going. The speech will be on the city's website www.grandforksgov.com and rebroadcast at 9:00 a.m. and 10:00 p.m. on GFTV2.

NORTH DAKOTA LEGISLATIVE UPDATE

Pete Haga, Community/Government Relations Officer, reported there was not an update as there was not a meeting last week of the Legislative Committee and no significant hearings this week that they will be attending; however, they will be publishing an updated tracking listing of the bills that were at the crossover, time to minimize the number of bills they can focus on.

Council Member Christensen reported present.

PRESENTATION RE. MINORS AND ALCOHOL -
ORDINANCES, POLICIES AND PROGRAMS

Information relating to compliance checks was presented by Detective Flannery, who explained the procedure - that compliance checks were put in place a few years back, that people under 21 go out with uniformed officers into various establishments in attempt to purchase alcohol. If rejected, that is a pass; if alcohol is served to them and first offense, get warning, second offense get citation which goes to the Attorney General's Office for their consideration and usually results in a license suspension for time determined by the Attorney General's Office. Compliance checks have been effective, that some businesses never have any problems and other businesses that are a problem and seem to be working at correcting that. He stated they feel this has been positive step in cutting down the alcohol that minors have access to, but still have ways of getting it through adults, or businesses in other cities that may not be following compliance checks. Since server training enacted compliance checks have been better and Hospitality Industry has worked closely with them. Council Member Bjerke asked for report on passage and failures of the compliance report.

Sharyl Simeone, Info. Center, presented information as to what is being done in the community, that Mayor put his "Its Not Okay" campaign into effect about a year ago, and Community Partnerships were established involving: City of Grand Forks, Altru Hospital/Northern Valley Safe Communities and Coalition; UND Counseling Center, Grand Forks Public Schools, Lutheran Social Services, Substance Abuse Prevention, ND Higher Education Consortium, UND, United Way, Fourteen & Youth for Christ, Drug Demand Reduction/Grand Forks Air Force Base, Park District, The Answer, YMCA and Gospel Outreach. She reviewed various programs by these organizations which can be seen on www.grandforksgov.com - a series of townhall meetings were held with students who have suffered alcohol or been in homes with alcohol; the Coalition has created brochures for athletes in high schools; server training brochure; Nite Life which are alcohol free and available things to do in our city. Info. to be sent out in March is a state-wide underage drinking campaign that will be done with students in grades 7 through 12, one item mailed to parents and one handed out to students in school. Organizations have many plans for prevention and things they want to work on - social norms, social serving and a plan to get their message out - things to do that do not involve alcohol - and many people in our community are working very hard to get their message out.

Howard Swanson, city attorney, reported that the City has a number of ordinances dealing with minors and alcohol and identified current ordinances in the City Code that the City does enforce relating to criminal violations - i.e., possession or mfg. of false i.d. card, attempting to use a false i.d. or false information in attempt to enter licensed premise, possessing alcohol or consuming alcohol, attempting to purchase but not successful, adult to purchase alcohol for a minor (minor is anyone under the age of 21 years + 1 day), adult to provide money to another to purchase alcohol for a minor and if a minor provides funds to an adult to purchase alcohol, if minor located on the licensed premises.

He reviewed licensing issues and identified types of licenses and changes in licensing in1989 to 2008; in 1993 the City terminated the restriction on limitation of licenses and eliminated all caps and put into effect a substantial issuance fee for new licenses. In 1993 there were 24 Class 1 On/Off Sale licenses and in 2008 there are 28 plus 2 which have been approved but not yet issued. Class 2 (Off Sale Liquor) in 1991 had 4 and in 2009 6, Class 1 licenses do have ability to sell off sale. He listed numbers for Hotel licenses, Food & Beverage licenses Class 4 - 10 to 13. In 1989 62 total licenses and in 2008 total of 71, and number of additional licenses that are available now but not in 1989 including wine and beer makers, winery, golf course license, fairgrounds, Kraft Field license, Alerus and Engelstad licenses.

Other information provided to the committee was based on various studies - sociological type studies that indicated that some of the primary areas of cities are focusing on - that limiting the number of outlets do have an effect to underage availability to alcohol- that where you had a large concentration of licensed premises within a neighborhood increased the probability of minor consuming or minors on premises or over consumption of alcohol. An area which seemed to indicate a decrease in the availability of alcohol to minors was staff training and staff licensing. followed very closely by prosecution of false i.d. or minors on the premises - sting operations. Concerns on restrictions on marketing, including "happy hours", free drinks or price promotions. Less success were attempts to change social norms, location of schools and campuses to licensed premises.

Council Member Kreun stated this will give them information to digest and use these statistics and information during license renewals and applications for new licenses brought to the Service/Safety Committee and forwarded to the council for approval.

2.1 Grand Forks Cemetery Association's appeal from special assessments for flood protection project.__________________
Dr. Gordon Iseminger, president of Board of Directors of Grand Forks Cemetery Assn., presented information - that special assessments have been levied against the Grand Forks Cemetery Association for flood protection and for internal improvements and are excessive, that Memorial Park Cemetery does not have resources with which to pay special assessments but that is not what they are basing their protest on - they are basing their protest on the Supreme Court decision in 1970 - that case involved the City of Bismarck vs. St. Mary's Church and issue was whether or not the City of Bismarck could levy special assessments on the cemetery owned by the Church, a non-profit corporation, and the decision was by majority opinion that the City of Bismarck could not levy special assessments against the cemetery which was exempt from special assessments. He stated what the city council has to do is explain why in the face of the 1970 decision the special assessments were levied in the first place. Comments were stated at the Finance meeting that the Legislature in 1959 repealed a special provision exempting cemeteries from special assessments but the Supreme Court case was decided in 1970. He stated he assumes that the case has never been challenged nor set aside and because of that it must stand and is on the basis of that they protest the levying of special assessments. He stated the basis of their protest is according to the Supreme Court case of 1970 Memorial Park cannot be required to pay special assessments.

Council Member Christensen stated at the finance committee meeting he suggested that the Cemetery Assn. do one of two things: withdraw their protest, or to move this forward to this body; and there are two things the council could do - make the findings and move it along or could instruct our city attorney to request an Attorney General's opinion, could stipulate as to the facts and only question is whether or not this case precludes or takes away the right of a city to levy special assessments - his opinion would be the law of the land until such time it was overruled or the Legislature acted. He stated that next Monday he would ask our city attorney to request an Attorney General's opinion as to the validity of this case as the same pertains to the special assessments. He stated in doing that it would resolve the issue for us and for the community.

Mr. Swanson stated it was not his recommendation to request an opinion from the Attorney General for two reasons: the Attorney General would be asked to render opinions based upon stipulated facts which in most cases the Attorney General will not rule upon a factually dependent case; and that the Attorney General by law cannot render an opinion that urges the reversal of a North Dakota Supreme Court decision. He also stated that he doesn't dispute there is a decision from the North Dakota Supreme Court and that he advised the committee last week why he doesn't believe that case is controlling authority any longer - that if it is the council's decision to ask for Attorney General's opinion, his advise is then to declare the assessments null and void and fund them out of whatever funds are available. He stated that they have a series of proposed findings that he has drafted and are very similar to findings this body has adopted previously.

He reviewed information relative to the 1970 decision which was a 3 to 2 decision by the Supreme Court, that case has never been cited which is also indicative of the reliance on that opinion by any other court, including the ND Supreme Court itself. He stated dissent of opinion indicated that it was a factual driven conclusion and not one based upon statutory interpretation, and did not consider the existence of two statutes, one is 40-23-08 which holds that if real estate is exempt from special assessments, if the property benefits and there is a party that is the occupant, possessor or user of the property suit can be brought to collect - the implication of that statute is that it was not considered by ND Supreme Court was that even if you are otherwise exempt doesn't mean that you can't have special assessments - additionally following the flood the ND Legislature adopted a specific statute on what property is exempt from city flood control special assessments, cemeteries are not included in that legislation. He reviewed areas where cemeteries are exempt by statutory act in Titles 57 and 28, and that there are additional reasons why he believes the decision of the ND Supreme Court was factually driven and not legally based. and in addition to those decisions the Supreme Court now uses what is called an arbitrary and capricious review standard which is different than what the 1970 court did.

He stated that he was asked in 1998 through 2001 whether or not benefited property including cemeteries could be assessed, that it was his opinion then and now that cemeteries can be assessed if they were benefited, both the Grand Forks Special Assessment Commission and the Grand Forks City Council on two occasions, determined that they were in fact benefited by the improvement projects but not to the same degree or quality as other properties and this body including the Special Assessment Commission gave a 50% credit to cemeteries.

ND law says that any appeal from a special assessment determination must be brought within 30 days, and appeal is not timely. Another issue under special assessments is that there is a total amount of dollars to spread, and if the council determined that cemeteries should not be assessed all other benefited properties assessments would be increased to cover those amounts (however, he doesn't believe they have the authority to do that). That if find reasons that you wish to relieve the Cemetery Association from special assessments, cannot do that on the basis of ability to pay nor on basis of non-profit but if find reasonable basis if you have other funding sources but doesn't believe that after this length of time you can reopen a 2001 or 2003 assessments. The findings that were prepared go through great detail the various dates, activities, notice, including specific notices given to the appellants in this case, there are photographs showing the cemetery itself being flooded.

As an attorney, he can advise you and believes there are reasonable basis to seek an overruling or to have a prior decision overturned and that the series of opinions that have been rendered give an adequate basis to reasonably argue that there are legal and factual grounds that the 1970 decision by the ND Supreme Court does not apply in this case,

Council Member Christensen stated he is not advocating the Cemetery's position but trying to come up with a resolution of the issue, to make the request to the Attorney General, if they deny or refuse to render an opinion, have made the request, can bring a declaratory judgment action and ask for a judicial review. To ask the Attorney General to render an opinion, seems to be the way to go - that the 1970 case is the law of this State.

It was noted by Council Member McNamara that when reading the opinions, he clearly sees the conflict of the decision relative to the law, but it is the law, and would support the clarification of that and we all know how important the special assessment is, and will second Mr. Christensen's motion to request an Attorney General's opinion and that it is important that we take those steps so that if additional steps have to be taken, can say we did that.

Questions were asked by Council Member Bjerke if there was a way to go to some type of mediation where would not spend money in court; and it was noted by the city attorney that parties can always seek to reach settlement or agreement in whatever fashion they would like but have been told by the Cemetery is they do not believe they should be required to pay any amount of assessments for improvement except for some buildings located on their site. He also stated that if you think there is a genuine question of law here, which he does, then decide the question of law or if you don't believe they benefited and not obligated to pay legally, morally, or otherwise, say so. He noted that if request Attorney General's opinion he expects it to come adverse and contrary to his opinion and you cannot appeal it - this is serious issue and extremely expensive issue but has impact beyond the Cemetery. It was also noted that there are other non-profit organizations and many homeowners or property owners that they don't have the ability to pay the assessments. Council Member Bjerke stated he agrees either be done with it or find an answer and is more inclined to find an answer.

Council Member Glassheim questioned how would the City get to court, that we are clear on what the law is now. Mr. Swanson stated they can file a notice of appeal from a decision of a governing board as provided Chapter 32 of the Century Code, they have 30 days and that is what should have occurred in 2001 and in 2003, may be timely for the next assessment but not timely for past assessments and unless the council wanted to waive the timeliness and doesn't know if the Court would even have jurisdiction because the timeliness is a jurisdictional issue, and may not have jurisdiction to hear a direct appeal, could characterize it as a declaratory judgment action and see if the court would consider that, the fact that the Cemetery waited so many years is a significant issue.

Council Member Gershman stated he understands that the Cemetery did pay the first couple years (they did pay through 2004) and seemed to acknowledge they were receiving benefit but that if we were to exempt them from special assessments, the rest of the community would have to pick up that bill, that when they don't pay it is coming out of our General Fund - other cemeteries in town are paying their special assessments without protest, and citizens need to understand that they have been paying the special assessment to cover the shortfall since 2004.

Council Member Christensen stated we have a law here and understands why Mr. Swanson doesn't want to request an Attorney General's opinion because he feels the Attorney General will rule that this case is the law of the land and until such time as the legislature does something or it is reversed by the Supreme Court - that he will take the advice of our attorney and not request an Attorney General's opinion but then direct our attorney to commence a declaratory judgment action - that you can't pass third round of special assessments in light of this case, but their attorney will protest that and it will get into court and be resolved then. Question is whether want to man up now and get the issue resolved or wait until we have the special assessment next year (2010) because going to face it then. He suggested to either pass the findings prepared by the city attorney or ask for declaratory judgment to know the lay of the land before going to the next special assessment in this community on cemeteries - have two choices.

Council Member Kreun stated relating to the 50% assessment to the cemeteries, that the Assessment Commission found is that even though we gave 50% reduction that the benefits accruing the property within this district were equal or exceeded the amount of the assessments, and odd that this was taking place in 2001 and 2003 and cemeteries and non-profits or businesses didn't change their business model to accommodate and adjust for these particular costs - cemeteries should have a perpetual care in place and if don't they are violating the law and they made an indication that they were charging the most for their lots of anybody in ND, why is that as don't pay taxes on any of the property and that is without special assessments. They stated that it was $351,000 in special assessments and actually specials are $150,972.60 on 6 pieces of property and doesn't think we have all the proper information, and is more than a few 10 thousand dollars if we make this decision. and maybe talking over a million dollars when this is said and done if we go ahead and make exceptions, very critical.

Council Member Christensen stated the issue is have Supreme Court decision that says they are exempt, they figured this special assessment out for the dike based upon front footage or square footage, and had they known about this case when weighing 100% vs. 50%, would have asked the question, that we have duty to follow the law and have to figure out and resolve what the law is before going forward.

Mr. Swanson stated he was not sure if you were aware of the existence of NDCC 40-23-08 in the course of debate and discussion, that statute in and of itself would indicate that that Court ruling does not apply, however, he encourages council to formalize that decision in the form of some findings whether the ones he prepared or if you wish to modify them or otherwise, but if going to move forward and thinks there is a basis for the City to defend itself, then allow the City to defend itself with all of the available legal basis to do so.

Council Member McNamara stated question is the basis to assess is what the law and Supreme Court decision seems to stand in conflict of - what is process next Monday if we would on this motion deny the appeal Mr. Swanson stated that if the council would adopt findings, conclusions and deny the appeal - that what he would see happening if a Cemetery continued to disagree with a conclusion where the council upheld the special assessments and denied their protest, was that they would file an appeal to District Court. He has also noted that if council directs that we bring suit against the Cemetery it would have to be in some form of an advisory opinion as to the application of 1970 case and the specific statute that he has citied - that an advisory opinion in light of the fact that the former assessment can't be altered, perhaps they may make a future finding that the future assessments exceed the benefit already received by the Cemetery and render no further benefits.

Council Member Glassheim stated not clear on advisory opinion - that if there were an advisory opinion that 1970 held, would hope that the council would then move to pay it off from other funds - much too complicated to spread it to each individual but can't even do that. Mr. Swanson stated he would anticipate that the decision of this nature would involve the ND Supreme Court as it is their decision we're relying upon and let them clarify that, that if the council is of the opinion that you don't want the assessments to stand against the Cemetery, he would advise that you have the authority to fund that assessment but if you think there is a reasonable basis and they have an assessment, lets get a decision and that may involve a decision by the ND Supreme Court and shouldn't be adverse from doing that if that is the route you pick. Mr. Glassheim stated he thinks that is what he's leaning towards and wants to obey the law, but law seems unclear to him, when he reads it he finds the Supreme Court in error, weak argument and brings in all kinds of things and the dissenting opinions are stronger to him but that is not the law - that he would like to find out what the law is and if can do that at modest cost and not in hostility - and if during the next week can think through the best way to do that, that is what he would like to do.

Council Member Gershman asked if the council were to decide to stand, and that the other Cemeteries in town would cease to pay, would they be able to ask for rebates for what they have paid from the time of their assessments and if that is true, then need to know what the cost would be if that were the decision - that if the council decided that we are not going to have action and will forgive the assessment. Mr. Swanson stated they could and that may not be legally binding precedent but certainly would have other implications, that if did it for one why wouldn't you do it for another. Mr. Gershman stated that if you do something for a certain period of time, does that become a fact or acceptance of a law. Mr. Swanson stated there are some legal theories that would characterize that as a waiver, doesn't think that would necessarily be applicable in this case, what is more likely to be determinative in this case is the fact that the statute of limitations has run, the Cemetery if they believe they were correct, missed the statute of limitations.

2.2 Project Concept Report for Project No. 6101, paving S. 48th Street from 17th Ave.S. to 32nd Ave.S.______________
Council Member Gershman questioned whether this was going to be a two-lane partial part of the way and then a four-lane farther on. It was noted that is just an intersection - the roadway itself is basically a 41 ft. wide street from beginning to end.

2.3 Consideration of bids for construction of Project No. 6347, 2009 ADA Curb Ramps.
Dean Rau, asst. city engineer, reported that 2 bids were received that didn't meet bid requirements and will amend staff report for Monday's meeting to add that they need to return non-conforming bids to the bidders, otherwise staff report is correct.

2.4 Design and Bidding Engineering Services Agreement for Project No. 6433, Permanent Lift Station No. 37.
Council Member Gershman asked if they would check with Greg Hoover to see if we are eligible for an EDA grant for that station.

2.5 Cost Participation, Construction and Maintenance Agreement for Project No. 6303, reconstruction of English Coulee Shared Use Path from 24th to 17th Aves. S.
There were no comments.

2.6 Design, Bidding and Construction Administration Engineering Services Agreement for Project No. 6393, Forcemain Repair at Columbia Road and 10th Ave.N. and at Columbia Road and 6th Ave.N. ___________________________________________
There were no comments.

2.7 Bids for Project No. 6363, 2009 Flood Preparation and Debris Cleanup.
Council Member Bjerke questioned if Riverside pool were to flood, how would they track that cost as he wants to make sure that we are tracking anything to deal with that project, and what money is used to pay for that issue. Mr. Walker stated he wasn't sure what monies will be used for the cleanup and the cost associated should Riverside pool flood or if we have to pay for the contractors to evacuate the site, that decision remains to be determined. He stated they have had conversations with our contractors to be prepared that we may have to evacuate the site if the water level gets to a certain elevation and should the waters overtop the low level levee there will be cleanup involved and would track the costs.

2.8 Cost Participation and Maintenance Agreement for Project No. 6429, Micro-Surfacing of Grand Forks US2 Business Loop (N. 5th Street and DeMers Avenue) from Gateway Drive to Sorlie Bridge._____________________________________
There were no comments.

2.9 Public Works Department: Streets Division payloader mounted rotary snow blower bid.
There were no comments.

2.10 Grand Forks Landfill Geotechnical Evaluation Results, Slope Stabilization construction bids and Associated Engineering Services Agreement Amendment No. 1._____________________________________________________________________
Mr. Feland stated that they want to meet with the Airport Authority and their associates and would provide an update to the council next week.

MATTER OF RECONSIDERATION OF SUSPENSION
OF MUDDY RIVERS ALCOHOLIC BEVERAGE LICENSE

Council Member Kreun stated he was in contact with the manager and owner of Muddy Rivers and that they have several activities taking place on the dates of suspension and have worked out a situation where it might be better on two different dates and if could take care of that item on the council agenda which will follow this meeting. Mr. Swanson recommended as we get into city council agenda, that after roll call ask to suspend agenda to add item 4.3 - reconsideration of suspension of Muddy Rivers license, and assuming that passes could make a motion to reconsider and subsequent motion to amend dates.

MAYOR AND COUNCIL MEMBER COMMENTS

1) Council Member Bjerke presented question - that currently there is part of the city that doesn't pay anything for flood control benefits, and in lieu of the Supreme Court ruling on agricultural land west of the Interstate and in Ward 1, doesn't understand why anybody living within the city cannot receive benefits, that your home property is not the only issue, if where your work is protected, and police department or sewer system, etc. - when comes to the third special assessment, we need to have discussion on that part of town .

Mr. Swanson stated that he is not aware of any areas in the city limits that are within the flood control project that are not assessed except those that are statutorily exempt, which is State-owned property, and a property within or below a set elevation north of Columbia Road along the English Coulee past the Mill & Elevator that was below the base flood that we are trying to protect. The assessment district was the entire city limits and future special assessment district goes beyond the city limits all the way to the tie-back levee to the north and south. Mr. Bjerke stated areas to the south outside the flood protection on the wet side of the levee are outside the flood protection but still receive benefits from the project, houses might not be protected but where they work is protected, police department is protected, etc. Mr. Swanson stated the problem is that your assessment is based upon where the property is and clear that if you are outside the flood protection you are not going to be able to assess those properties - that property does not receive a benefit from the flood control project even though their work may. Bjerke stated he still wants to have discussion.

2) Council Member McNamara stated relative to the Cemetery issue, not sure how to discern and with Mr. Swanson's admonition to resolve the issue, thinks that he would like to see it discussed, that he believes the appeal will be denied - when you read the decision, that is the law of the State of North Dakota, or whether we sue them or they sue us, it is important that it gets resolved.

ADJOURN

It was moved by Council Member Kreun and seconded by Council Member Bjerke that we adjourn. Carried 6 votes affirmative.

Respectfully submitted,


Saroj Jerath
City Auditor