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 9 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) Bremer asked if the City Council had never previously required that type of information in the context of another application, if it would not open the City to a claim of dissimilar treatment in a very similar circumstance. Bremer indicated she does not recall a time where the City Council required an expert to say that this use works better or that use does not work. Bremer stated she cannot recall a time in any context as she sits here tonight where the City has required that type of detailed information. Thieroff stated he would answer that question by saying that if there is a concern on the part of the City Council about a potential for a takings claim, one approach they could take would be to suggest that the 60-day deadline for the decision be extended because you would like to receive additional information to back up the statements made in the application that the property cannot be operated in an economically viable way. Bremer asked if the applicant agrees to extend the deadline and the City Council has requested that type of information, if, after those 60 days have expired, whether their position would be that the City Council has done sufficient homework that they would feel comfortable that the City is now exposing themselves to a takings cause of action. Bremer noted she has read the cited cases and that she has a slightly different opinion but that she is not a real estate attorney. Bremer asked what Mr. Thieroff would do if he was in her position and the 60 days have gone by and the information submitted by the applicant shows all those things are true that they have told the City. Bremer asked if the information shows that the golf course is not viable and that there is no way to make it economically viable, what the City should do in that situation. Thieroff stated then the City Council should go ahead and approve the application, but at this time the record does not show that information. Thieroff stated in his experience in trying these cases, he has found that the golf course industry in the Twin Cities does not correlate to the economic performance of the golf course alone but that it correlates to the real estate market and the profit they can make by developing the land. Bremer asked what exposure there would be to the City of a takings claim if the assumption is made that the City Council approves the Comprehensive Plan amendment. Bremer asked if the City Council would have the discretion to make that decision if they decide they can trust the information and representations they have from the applicant even if the information is not as thorough as Mr. Thieroff thinks it should be. Thieroff stated on the takings issue, there is not an inverse claim and there is not a claim the proponents for the project could bring against the City Council for accepting the risk of a takings claim in granting the application if it is based on proper findings and rationale. Thieroff stated on the Comprehensive Plan issue, the points raised by Tom Radio regarding judicial discretion apply both ways and that it would be difficult for the applicant to challenge the City Council’s decision not to amend the Comprehensive Plan if it is made on proper findings.