01-06-2014 Council Minutes Special Meeting

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MINUTES OF THE SPECIAL ORONO CITY COUNCIL MEETING Monday, January 6, 2014 7:00 o’clock p.m. _____________________________________________________________________________________ Page 7 of 27 (1. #13-3638 and #13-3639 SOURCE LAND CAPITAL, LLC (PAT HILLER) O/B/O GRANT WENKSTERN (LAKEVIEW GOLF), 405 NORTH ARM DRIVE – COMPREHENSIVE PLAN AMENDMENT AND SKETCH PLAN REVIEW, Continued) Radio stated in his view, the City’s review process to date has been less than adequate and flawed. Radio stated he says that with all due respect to the City’s planning consultant and that it is difficult to deal with such a complex issue. Radio stated the fundamental issue is what has changed since the adoption of the Comprehensive Plan in 2010. The City Council should determine what has changed about the City’s goals, objectives, land use, codes, or anything that would justify this radical change from this property’s current designation to rural residential. Radio indicated he has not seen anything in the record to suggest that there has been any change to justify this and that the only rationale that has been articulated is to avoid potential litigation. Radio stated on the basis of the Comprehensive Plan, if the City Council denies this application and follows the City’s Comprehensive Plan, no court will substitute its judgment for the City’s on that point. Radio stated there is no risk-free alternative and that the basic argument in making the change is to avoid litigation. Radio indicated he has been doing this enough years to know there is no risk-free alternative, and if the City is to change its Comprehensive Plan on this thin of a record without any substantiation, the City’s whole Comprehensive Plan would be at risk and would allow anyone to come in and request a change to the Comprehensive Plan. Radio stated he would urge the City Council to deny this application based upon no substantial change in circumstances to justify the change in the Comprehensive Plan, that the reasons that have existed for decades in the Comprehensive Plan have not changed in this particular matter, and that he would request the City Council direct Staff to prepare a resolution of denial and establish a protocol to handle future requests to amend the Comprehensive Plan. Radio stated it is very rare that a Comprehensive Plan amendment comes up in the context of a land use application such as this. Radio noted in 2010 the City had a very careful, analytical, thoughtful process regarding the Comprehensive Plan and whether things should be changed. Radio stated in his view this would be a rush to judgment and not result in a good decision. Mark Thieroff, Attorney-at-Law with Siegel, Brill, stated his law firm has extensive experience in litigating regulatory takings claims like the claim that has been suggested or implied in this case, particularly in the context of redevelopment of golf courses. Thieroff noted his law firm represented Wenzman and also represented the owners of the Parkview Golf Course in Eagan. Thieroff stated he raised those cases because he would like the City Council to understand that his comments tonight are based on his experience in litigating those cases. Thieroff stated his first point is to clarify the legal standard that governs regulatory takings claims and that his second point deals with the misconceptions about this area of law that appear in the Staff report and in some of the written materials that have been presented to the City Council for consideration. Thieroff stated in a regulatory takings claim, the courts apply a multi-factored test that is described in his letter that has been provided to the City Attorney. The key question is; does the action of the City leave the property owner without any reasonable economically viable alternative use of the property. Thieroff indicated there are some other factors that are considered, but if a landowner cannot show that, it is virtually impossible to prevail on a regulatory taking claim.