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 8 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) Thieroff stated the first misconception contained in the documents is the idea that the potential for a takings claim turns on whether the current owner of the property can operate the golf course profitably. Thieroff indicated that is not the test and noted the current owner is not the measure of whether this property can be used in an economically beneficial way. Thieroff noted in the Wenzman case, there was evidence before the MN Supreme Court that there was another golf course operator who was willing to buy the property and operate it in an economically profitable way. The fact that a current owner may be facing economic difficulties is not the test of whether this property has value as a golf course. Thieroff indicated there are other factors, such as marketing factors and experience in the industry, where someone would be able to operate the course in a profitable manner. Thieroff noted they did include in their affidavit that the owner of this property did receive an offer from some members of the course who were interested in taking it over and running it as a golf course, which establishes that there is value to this property as a golf course. Thieroff stated the second misconception is that there are no other possible alternative uses under the current guiding and that it is either a golf course or it must be re-guided, which is not the case. Going back to the Wenzman case, the Supreme Court has suggested that if someone is interested in purchasing the property simply to hold it in the hopes that one day the guiding might change to allow development, it would be an alternative economically viable use of the property to sell it to such a person. Thieroff stated there is a vision in the community for putting this property to a different use but yet maintain the current guiding on the property. Thieroff stated the third misconception is a combination of the idea that the owner is entitled to a return on his investment and the other is that the owner is entitled to the zoning that would make the land most profitable. Thieroff commented there are lots of people who would like to have different zoning on their property to make it more valuable, which is not the legal test. It has been established for over 100 years that cities can constitutionally zone property even if it reduces the value of that property. Thieroff stated he would like to point out, however, that return on investment is relevant, but in looking at a regulatory taking claim, how much a person paid for the property is also relevant and is considered in whether an alternative use or value would be reasonable. Thieroff stated the last main misconception is the idea that all the landowner has to do is to tell the City there is no economically viable use for the property and therefore the City must grant the application. In the cases mentioned before, there is extensive information that is considered when considering a regulatory taking claim. The owner has to show all the financials of the business and demonstrate that everything has been done to run the business in an economically viable way. Those cases have involved market studies and extensive appraisals. They have also involved expert opinions from golf course management experts as to whether this golf course might be run differently and generate a profit. Thieroff noted none of that evidence is before the City Council tonight and that there is literally nothing before the City other than a suggestion that the current owner cannot do it anymore. Thieroff stated that does not provide the basis for a regulatory taking claim and that the City Council should consider that in discussing the application tonight. Thieroff stated based on the record before the City Council, there is relatively little risk of a regulatory taking claim.