05/10/1983 - City Council SpecialSPECIAL CITY COUNCIL MEETING
MAY 10, 1983
7:00 P.M.
EAGAN CITY HALL
I. ROLL CALL
II. JAMES HORNE STORM SEWER ASSESSMENT/PROJECT 10R
III. WATER TREATMENT FACILITY BIDS
IV. OTHER BUSINESS
V. ADJOURNMENT
MEMO TO: HONORABLE MAYOR AND CITY COUNCILMEMBERS
FROM: CITY ADMINISTRATOR HEDGES
DATE: MAY 6, 1983
SUBJECT: SPECIAL CITY COUNCIL MEETING - MAY 10, 1983
The following items are to be considered at the Special City Coun-
cil meeting on May 10, 1983 at 7:00 P.M. at the Eagan City Hall.
JAMES HORNE STORM SEWER ASSESSMENT/PROJECT 197R
The City staff has prepared data regarding the storm sewer assess-
ment from James Horne for his property.. This storm sewer assess-
ment relates to Project 197R. Enclosed is a copy of the report
that has been prepared by City staff which includes the appraisal
of the property, also an agenda from the City Attorney's Office
and finally an 8 -page letter from Mr. Horne's attorney, Bruce Mal-
kerson addressing the Horne's storm sewer assessment issue. Also
enclosed are a copy of the November 9, 1982 letter from Mr. & Mrs.
Horne which is their original letter .of objection,'a list of writ-
ten objections received for Project 297R, and a letter to Mr. Horne
from Thomas A. Colbert dated February 22, 1983 summarizing the
events prior to that date. The City Attorney will be guiding the
meeting with testimony and any other input that is expected on
Tuesday.
WATER TREATMENT FACILITY BIDS
The water treatment facility bids were received at 10:30 A.M. on
Friday, May 6, 1983. The engineer's estimate is $4,400,000.00
and the low bidder was'Barbarossa & Sons, Inc. in the amount of
$3,539,500.00. The bid was exceptional and will certainly reduce
the cost of the total project substantially. Enclosed is a bid
tabulation sheet prepared by the Engineering Department.
OTHER BUSINESS
The Director of Public Works is planning to discuss the concrete
curb vs. bituminous curbing issue at the special City Council
meeting. Also, the City Administrator would like a few minutes
to discuss evaluation of the'City Planner which is a partial con-
clusion of that personnel analysis conducted during the last sev-
eral months.
Respectfully submitted,
Thomas L. Hedges
City Administrator
TLH/jack
HAUGE, SMITH, E1DF. HELLER, P. A.
ATTORNEYS AT LAW
CEDARVALE PROFESSIONAL BUILDINGS
BBOB SIBLEY MEMORIAL HIGHWAY
EAGAN, MINNESOTA 83122
PAUL H. HAUGE
BRADLEY SMITH
KEVIN W EIDE
DAVID 0. KELLER
Bruce Malkerson
Attorney at Law
4344 IDS Center
Minneapolis, MN 55402
May 6, 1983
RE: City of Eagan Project 0297R - James Horne
Dear Bruce:
.AREA CODE 612
TELEPHONE 484.4224
On May 3, 1983 you called our office and indicated that as the attorney for
Jim Horne concerning the objections that were filed by him regarding Project
#297R relating to the Blackhawk Lake storm sewer trunk, that your appraiser
would not be able to complete his appraisals in time for the hearing
scheduled, on the objections by the Eagan City Council, for May 10,. 1983. On
March 31 , 1983, I sent a letter to you indicating that the hearing would be
scheduled for May 10 at the City Hall and asked for an acknowledgment from you
for that date. To the best of my knowledge, you did not acknowledge the date,
but we have proceeded on that basis and there has been discussion from time to
time that that would be. the continued date for the hearing. In addition, this
hearing date has been rescheduled several times to Mr. Horne's and your re-
quest. and the Council has now scheduled that evening, and intends to proceed
with the hearing on that date. I had asked that you forward a copy of your
appraisal to me before the hearing so that I would be able to review it. I am
enclosing a Memorandum that I have dictated for the City Council which out-
lines the general format that the Eagan City Council follows in hearings of
this nature.
I called you on May 4 and indicated that the City Council intends to proceed
with the ,hearing and at that time, you indicated you were uncertain whether
you'd be present on May 10, but would let me know whether you intend, to be
present at the scheduled hearing time. To the best of my knowledge,we have
had no correspondence from either you or Mr. Horne, other than .the written
objections that were filed in November of 1982 concerning the assessments and
it is the opinion of the Council that it must proceed because of the many
delays that have taken place at the request of Mr. Horne.
PHH:ras
Enclosure
P.A.
P. S. I have just received your letter dated May 5 and I did not say that the Council
had discussed the continuance on May 3.
MEMORANDUM
TO: EAGAN CITY COUNCIL
FROM: PAUL H. HAUGE
RE: IMPROVEMENT PROJECT #2978 - JAMES HORNE ASSESSMENT APPEAL
DATE: MAY 6, 1983
The hearing before the City Council concerning the objections that were
filed by James Horne and Horne Development Corporation covering assessments,
relating to the Horne property on Pilot Knob Road, is scheduled to be heard
before the City Council at 7:00 - 7:30 on Tuesday, May 10, 1983. The Council
is aware that this hearing has been delayed several times at the request of
the owner and that the City staff has forwarded letters to Mr. Horne and to
his attorney, Bruce Malkerson, indicating the hearing will be held on May 10,
1983.
Mr. Malkerson called our office on May 3, 1983 and stated that he would
not be ready for the hearing on May 10, and again requested a continuance
until some time in June. He stated that his appraiser would not be ready for
the hearing on May 10. On May 4 we called Mr. Malkerson and indicated that
the City Council intends to proceed on May 10 and he then indicated that he
may not be present and also objected to the procedure that the Council is
following when objections are raised by property owners to assessments levied
against their property.
The Council is also aware that the procedure that began approximately two
years ago by the Council, when an objection is filed in writing by a property
owner at or before an assessment hearing, that the Council then continues the
hearing relating to that specific assessment and schedules the continued
1
hearing before the City Council at which time the City and the property owner
is permitted to submit testimony concerning the project, and the assessments
levied against the specific parcel. It is also the intent of the City that in
the event the property owner appeals the City Council's decision to the
District Court, that the City will then request that the Court will not hold a
denovo or an entirely new hearing on the assessment appeal but rather accept
the proceedings before the Council, and the Judge then would be requested to
review the proceedings and determine whether the assessments levied comply
with the state law.
Because we are uncertain at this time whether Mr. Horne or his attorney
will appear before the City Council, we are recommending that the Council go
through with the hearing and hear testimony from the City and from the
property owner in the event that he is present and make its decision as it has
done in the past when objections have been filed in a similar fashion.
Therefore, we would suggest the following procedure:
1. The hearing be held on May 10, 1983 and all testimony would be
submitted at that time.
2. If additional testimony is permitted by the Council, it could then
continue the hearing until a later date and allow such testimony and written
information be submitted.
3. If the hearing is not continued, the Council would then leave the
record open for additional written evidence for twenty (20) days from the
close of the hearing.
4. The Council will consider written motions to reopen hearings or to
extend time limitations for good cause shown.
5. Any landowner may submit briefs and proposed findings of fact,
conclusions and orders as to any parcel at any time before 40 days from the
close of the hearing on that parcel. The City staff will also be required to
2
submit their proposed findings and briefs within 40 days.
6. Following receipt of the proposed findings, conclusions and order,
the Council will enter its Findings, Conclusions and Order and act on the
assessment roll.
The basis for the landowner's objections are that the property is not
benefitted by the storm sewer project in the amount of $43,591.41 which was
the initial amount of the assessment, and has not been benefitted in any
amount and that the proposed assessment is otherwise unlawful and contrary to
law.
3
PAUL H. HAUGE
BRADLEY SMITH
KEVIN W. EIDE
DAVID O. KELLER
Mr. Bruce Malkerson
Attorney at Law
4344 IDS Center
Minneapolis, MN 55402
HAUGE, SMITH, EIDE & $ELLER, P. A.
ATTORNEYS AT LAW
CEDARVALE PROFESSIONAL BUILOINOB
2808 SIBLEY MEMORIAL HIGHWAY
EAGAN (ST. PAUL). MINNESOTA 00122
March 31, 1983
RE: James Horne Storm Sewer Assessment - City of Eagan .Z Y? 2
Dear Bruce:
Anew COD[ 012
TeLePHCNe 40A.4224
You called on March 24 and indicated that you had been retained by Jim Horne as
attorney concerning the objections that he has filed relating to the Blackhawk Lake
storm sewer assessments covering the Horne property in Eagan. At that time you
asked that the City Council allow Mr. Horne to acquire an appraiser to prepare an
appraisal covering the benefit to the property. You also stated that Barr Engineer-
ing has been hired by Mr. Horne for engineering purposes on the project and that
Barr Engineering would be ready to proceed at the regularly scheduled hearing
scheduled for March 29, 1983, at the City Hall, but that the appraiser would not
be ready.
I have now discussed this issue with City Administrator Tom Hedges and Public Works
Director Tom Colbert and the City Council, at a March 29 meeting decided that the
hearing regarding'the storm sewer assessments will be rescheduled to Tuesday, May
10, 1983, at 7:30 p.m. at the Eagan City Hall. Because there have been a number
of delays in the hearing and objections raised by Mr. Horne, the staff insists that
either you on behalf of Mr. Horne or Mr. Horne consent to the holding of the hear-
ing on May 10 so that no further delays will take place. No further continuances
will be granted.
I would also ask that you arrange for the signature of a copy,of this letter to be
returned to me so that we have written consent for the change of date. It would
also be expected that any testimony that is to be submitted on behalf of Mr. Horne
will be ready that evening including the engineer and appraiser, and that any reports
or appraisals will be furnished to us prior to the hearing as soon as they are avail-
able.
If there are any questions about the information in this letter, please get back to
me immediately.
cc: Robert Rosene
Thomas L. Hedges
;rhomas A. Colbert
Daniel E. Dwyer
Very truly yours,
Paul H. Hauge, City Attorney, City of Eagan
I HEREBY CONSENT TO THE HEARING DATE OF
MAY 10, 1983 AS DESCRIBED ABOVE.
James Horne
November 9, 1982
Hon. Bea Blomquist and City Council
City of Eagan
Eagan, Minnesota
Re: Objection to Proposed Assessment for Storm Sewer
Project 297 2=--7
.,Dear, Mayor Blomquist...and Members of.the ,City Council:
Objection is herewith made to the City Council of the City of
Eagan to the proposed assessment for storm sewer and/or storm
sewer outlets to BlackhawkLake and Highway 13 (Project 297)
against our property. The total proposed assessment is approxi-
mately $43,591.41 and the basis of the objection is that
said property is not benefited by said storm sewer project in
that amount or in any amount, and that the proposed assessment
is otherwise unlawful and contrary to law.
\fq_g
HORNE DEVELOPMENT CORPORATION
By:
resides t
and
orne
LU -OG taiww HSSESSNIM ti":APLL%/'L1SI of WRIT EN OBJECTIONS RECEIVED PRa,TBC.'T �` x7 -
AREA
ASSESSMENT RATE
DATE OF
GROSS
CREDITS
I NET
P ,AL,
awNER
CLASSIFICATION
AMP -OF ASSMT
WRITTEN OBJ
REASONS
SE7CTION 16
Harry/Pearl
10-01600-010-05
Lemieux
10.0ac
2.0 ac
8.0 ac
Agricultural
$11,848.00
7 2�
No Benefit
8-12-92
10-01600-010-50
Henry Englert
40.Oac
8.0 ac
32.0 ac
Agricultural
47,393.28
7-20-82
Sr. Citi
10-01600-030-79
Idn. Bruestle
NA
NA
1.15 ac
SF large lot
645.00.
7-27-82
1
tklj S ?^100D ADD16,400
P.H. Notic
Lot 1, Block 1
Horne Dev.Corp
NA
NA
S.F.,
SF
557.60
7-20_-82
s
No Benefit
,�
-Lot 2, Block 1 -
J "
NA
NA
S.F.
SF -
474.67
1111-
i "
NA
NA
13,910
S.F.
"
472.94
"
Lot 3, Block 1
- —
Lot 4- Block 1
„
NA
NA
13,536
S.F.
460.22
„
"
Lot 5, Block 1
NA
�
14,536
S.F.
1111
444.22
11
— - -
Lot 6, Block
r �.16,054
NA
NA
S.F.
1.
545.84
11
Lot 7, Block 1
,,,_,t7,
-- - ---- -
Jaynes/Arvella
NA
NA
16,500
S.F.
561.00
"
Horne
'
J
NA
NA
16,500
S.F.
15,000
S.F.
SF1.00
"
Lot 8, Block 1
----- -
'Lot 9, Block_1.1
-
' "
NA
NA
510.00
"
Lot 10, Block 1
j "
NA
NA
15
S. F.
"
534.75
-Lot -12 (Ouf1: 1)
_
�
NA
�
_F.
85, 500 -
S.F.
Sr
-
2,907.n0
„
%Lot 13 (Out1.2) _
1 "
NA
13,000
---
SF
442.00
"
`- - ---
NA
S.F.
-Lot 14 (Outl. 3)_
--- -
+ "
NA
94,500
S.F.
Sr
3,213.On
SEX'TION 21
"
r10 -02100-010=0T
Horne ��
27.59
6,22Ac
21.37ac
Agricultural
31,857.17
"
10-02100-010-02
David Ashfeld
16.59Pc
3.32Ac
13.27ac
Agricultural
19,652.0011AnUtmt
Excessive
10-02100-012-2
.Ieo_PIluphY .
NA =
NA "'
31.18ac
r Agricultural rt
• '' ', 46,177.0
-
7-13-82
(feePWRIt
gel rl.t..
1.1 c
42� Ac
Agn tur 0,727.0
' f>r7�-p'
�eo.*buc� er+..
tm
Im
1.49 AC
SF large lot 838.00
7-14-R2 Gr.(i ti pan
of
3795 PILOT KNOB ROAD, P.O. BOX 21199
EAGAN. MINNESOTA 55121
PHONE: (612) 454-8100
February 22, 1983
MR JAMES B HORNE
3850 CORONATION RD
EAGAN MN 55122
BEA BLOMQUST
Mayan
THOMAS EGAN
JAMES A SMITH
JERRY THOMAS
THEODORE WACHTER
Oa d Ma $
THOMAS HEDGES
CNAam gala
EUGENE VAN OVEMEKE
Ory Cbn
Re: Project 297R - Final Assessment Appeal/Special Hearing
King's Wood Addition and Parcel No. 10-02100-010-01
I would like to take this opportunity to summarize the events that
have taken place to date regarding the final assessment for trunk
area storm sewer as it affects the above -referenced parcels.
JULY 20, 1982
Final assessment hearing was held for Project 297 for the trunk
area storm sewer assessments associated with the trunk storm sewer
outlet from Blackhawk Lake to the Minnesota River. A written ob-
jection was received from you pertaining to the final assessment
based on the fact that you did not receive notification of the pub-
lic hearing for this project which was held on May 20, 1980. Based
on your written objection, the City Council continued the final
assessment hearing pertaining to your parcels to September 7, 1982
and directed your specific concern to be addressed by the Special
Assessment Committee on August 30, 1982.
AUGUST 30, 1982
At a Special Assessment Committee meeting held at City Hall, your
written objection was reviewed in detail. In realization of the
fact that you were inadvertently omitted from the original public
hearing notification for Project 297, the Special Assessment Commit-
tee forwarded a recommendation to the City Council that you be re-
moved from the final assessment roll for Project 297 and that a
new project be initiated to follow the proper procedures of notifi-
cation.
SEPTEMBER 7, 1982
Upon recommendation of the Special Assessment Committee, the City
Council formally closed the public hearing pertaining to the final
assessments for Project 297 that was originally held on July 20,
1982. They also abandoned the final assessments for Project 297
as it pertains to the above -referenced parcels under your ownership
with the direction that a new project be established (Project 297R)
with a public hearing for this new project to be held on October 5,
THE LONE OAK TREE... THE SYMBOL OF STRENGTH AND GROWTH IN OUR COMMUNITY
Mr. James B. Horne
Project 297R
February 22, 1983
Page two
1982.
OCTOBER 5, 1982
The formal public hearing was convened after notifications were sent
to all affected property owners and published in the legal newspapers
for Project 297R. At this meeting, the details of the project were
discussed and the benefited properties associated with the Blackhawk
Lake storm sewer outlet were discussed in detail. Although objections
were made by you in relationship to this project, the public hearing
was closed and Project 297R was approved with the final assessment
hearing scheduled for November 9, 1982.
NOVEMBER 9, 1982
After individual notices were sent to the affected property owners
and published in the legal newspaper, the final assessment hearing
was held for Project 297R. Based on written objections submitted by
you pertaining to the above -referenced parcels, this final assessment
hearing was continued until December 21, 1982.
DECEMBER 21, 1982
Continued public hearing for the final assessments for Project 297R
was convened and the City Council directed that the City hire an ap-
praiser to determine the benefit associated with the trunk area storm
sewer assessments and that the final assessment hearing be continued
until March 1, 1983 with the understanding that if there is insuffi-
cient time allowed on.that Council agenda that it be continued until
another special Council meeting date.
FEBRUARY 1, 1983
Because of the anticipated length of the schedule for March 1, 1983,
the City Council formally rescheduled the continued final assessment
hearing from March 1, 1983 to a Special City Council meeting to be
held at 7:00 P.M. on Tuesday, March 29, 1983 at the Eagan City Hall.
This letter then is to give you formal notification of this scheduled
special City Council meeting to be held on March 29, 1983 to discuss
the objections pertaining to the trunk area storm sewer assessments
associated with Project 2978. The City will have completed a formal
appraisal of the property in question and will be presenting engineer-
ing, property appraisal and legal testimony pertaining to the justifi-
cation of this trunk area storm sewer assessment at this meeting.
It is strongly recommended that you arrange to have the proper repre-
sentation to present and verify your position of objection pertaining
to inclusion in this special assessment project.
Mr. James B. Horne
Project 297R
February 22, 1983 _
Page three
Based on the input presented by the staff on behalf of the City and
the property owner, this special committee "of the whole" of the City
Council will then make a formal determination pertaining to the final
assessments for Project 297R as it pertains to the above -referenced
parcels.
This letter is being sent to your attention to allow you adequate
time to prepare your presentation. Please feel free to contact me
if you would like additional information pertaining to the procedure
to be followed during this Special City Council meeting on March 29,
1983.
Sincerely,
homas A. Colbert, P.E.
Director of Public Works
TAC/jach
cc - Paul Hauge, City Attorney
WAYNE G. POPHAM
RAYMOND A. HAIK
ROGER W. SCHNOBRICH
DENVER KAOFMAN
DAVID S. DOTY
ROBERT A. MINISH
ROLFE A. WORDEN
G. MARC WHITEHEAD
BRUCE D. WILLIS
FREDERICK S. RICHARDS
G.ROBERTJOHNSON
GARY R. MACOMBER
ROBERT S. BURK
HUGH V PLUNKETT.
POPHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY, LTD.
4344 IDS CENTER
MINNEAPOLIS, MINNESOTA 55402
TELEPHONE AND TELECOPIER
612-333-4600
FREDERICK C. BROWN
THOMAS K. BERG
BRUCE D. MALKERSON
JAMES R. 5TEILEN
JAMES B. LOCKHART
ALLEN W. HINDERAKER
CLIFFORD M. GREENE
D. WILLIAM KAUFMAN
OESYL L. PETERSON
MICHAEL O. FREEMAN
THOMAS C. D'AOUILA
LARRY D. ESPEL
JANIE S. MAYERON
DAVID A. JONES
Mayor and City Council
City of Eagan
2795 Pilot Knob Road
Eagan, MN 55122
LEE E.SHEEHY
LESLIE GILLETTE
MICHAEL T. NILAN
ROBERT C. MOILA.NEN
DAVID J. EDOUIST
CATHERINE A. POLASKY
STEVEN G. HEIKENS
THOMAS J. RADIO
KATHLEEN M. MARTIN
JOHN C. CHILDS
THERESE AMBRUSKO
DOUGLAS P SEATON
GARY D. BLACKFORD
SCOTT E. RICHTER
May 5, 1983
Re: Horne Storm Sewer Assessment
Dear Mayor and City Council:
I. OVERVIEW
2560 PETRO-LEWIS TOWER
- TIJ SEVENTEENTH STREET
DENVER, COLORADO 80202
TELEPHONE AND TELECOPIER
303-025-2660
SUITE 802-2000 L STREET N. W.
WASHINGTON, D. C. 20036
TELEPHONE AND TELECOPIER
202-887-51 S 4
This office represents Mr. and Mrs. James B. Horne and their
company, Horne Development Corporation, who are the owners of Lots
1-10 and outlots 1, 2 and 3, King's Wood Addition and Parcel
#10-02100-010-01, City of Eagan, Minnesota.
The City staff has proposed in their assessment roll for
Storm Sewer Project #197R to assess this property and perhaps the
other property owned by my clients (hereinafter "Horne property")
in the amount of approximately $40,000 to $60,000 depending on
final land use.
II. REQUEST FOR CONTINUANCE
The City has previously continued the public hearing on the
proposed assessment against the Horne property to May 101 1983, so
that my clients would have an opportunity to retain an appraiser
to present evidence concerning the special benefit, if any, to the
Horne property. On May 3, 1983, I informed Mr. Brad Smith, one of
the City's attorneys, that the Horne's appraiser, Mr. Tom Metzen,
would not be able to complete the appraisal assessment by May 10,
May 5, 1983
Page 2
1983, because of his conflicts with various court appearances. I
asked that the hearing be continued to June, 1983 so -that the
Hornes would have the benefit of having their appraiser present.
I reminded him that the City is the party who controls these
deadlines so that the City can always modify them to suit its
needs; the City should be willing to do the same for the property
owner, especially since there is no need to adopt and certify any
special assessment until October, 1983, since no assessment
adopted in 1983 can be certified for collection on taxes any
earlier than those taxes payable in 1984. Therefore, it makes no
difference to the City when the assessment is adopted as long as
it is before October, 1983. I called him again several minutes
later and suggested several days in June when my clients would be
in town. He said he would review my request with City staff and
get back to me.
On May 4, 1983, he called and left a message that the
hearing would not be continued.
I then spoke with the City Attorney, Paul Hauge, who
informed me that the City Council reviewed this request on
Tuesday, May 5, 1983, and voted to deny it. I objected to Mr.
Hauge that such a denial, denied my clients' procedural due
process for the reasons noted above and because no one informed me
or my clients that this request would be discussed at a Council
meeting. Had I known of that fact, I would have been present to
state the reasons why this request should be granted.
It is not too late to remedy this denial of procedural due
process. Each of you can call the City Manager individually and
instruct him to continue the hearing or to tell him that you will
not be present. There will then be no quorum, and therefore no
meeting. The City Manager and the City Attorney could then inform
me. The Council could reset the hearing at its next Council
meeting.
If there is to be litigation concerning this special
assessment, why expose the City and yourselves to yet another
claim for denial of procedural due process?
III. GENERAL OBJECTIONS TO PROPOSED SPECIAL ASSESSMENTS
Our clients have directed us to enter written objections on
their behalf to the proposed special assessments, pursuant to
Minn. Stat. § 429.061, subd. 1. This letter constitutes those
May 5, 1983
Page 3
objections to be made part of the public record in this matter as
they relate to the property described above or any other property
owned by my clients which may be subject to this or any other
related special assessment. Based on the facts we have presently
available to us, the objections include, but are not limited to
the following:
1. The assessments exceed the special benefits to the
property. There is no special benefit to the property.
2. The special assessments constitute a taking of property
without compensation in violation of the State and U.S.
Constitutions and 42 U.S.C. §1983.
3. The City has not followed the procedural requirements
of Minn. Stat. § 429.01, et seq.
4. The assessment formula used by the City is arbitrary
and unreasonable.
5. The problem, if any, sought to be corrected is one of a
general nature and should be funded by general revenues.
6. The problem, if any, sought to be corrected was created
by the City and should be corrected and paid for by the
City.
7. Certain areas have been exlucded from assessment which
should be included.
8. Because previously existing storm sewers, both natural
and man-made, serving the property were adequate, no
special assessment can now be made for new storm sewer.
The above general objections do not limit the other
potential objections which may be made based upon further inquiry.
IV. APPLICABLE LEGAL PRINCIPLES
It is my opinion that the proposed special assessment
against my clients' property is not legal and will not be
sustained by the court on review.
In Carlson-Lanq Realty Co. v. City of Windom, 307 Minry. 368,
369, 240 N.W.2d 517, 519 (1976), the Minnesota Supreme Court
reaffirmed the following limitations on the power of the City to
levy a special assessment: '
May 5, 1983
Page 4
(a) The land must receive a special benefit
from the improvement being constructed, (b) the
assessment must be uniform upon the same class of
property, and (c) the assessment may not exceed the
special benefit. . . . Special benefit is measured
by the increase in the market value of the land
owing to the improvement. Quality Homes, Inc. v.
Village of New Brighton, 289 Minn. 274, 183 N.W.2d
555 (1971) . . . .
Any special assessment which does not meet these
requirements is an unconstitutional taking without compensation.
In re Improvement of Superior Street, Duluth, 172 Minn. 554, 559,
216 N.W. 318, 320 (1927).
The construction of this storm sewer project was undertaken
to solve the drainage problems of areas in the City which do not
even receive the surface water runoff from my clients' property.
The City has artificially collected, redirected and deposited
water from outside the subwatershed which includes my clients'
property and then discharged that water on to my clients' and
their neighbors' property. There was no problem with the surface
water runoff from my clients' property. My clients had more than
ample water storage area on their property for any development of
their property or property in their subwatershed. Only because
the City chose to collect and discharge other water on my clients'
property, was there any potential need for the outlet pipe and
other downstream portions of the project. In fact, had the City
not built the outlet pipe from the pond on my clients' property,
the City's water would have trespassed further into their property
than it does presently.
For these reasons, tests (1) and (3) above are violated by
the proposed special assessment. The City should have reallocated
the proposed special assessment against my clients' property on
those properties upstream on this project which needed the
project. The City can still do so by a supplemental assessment.
If the City chooses not to do so, the City should admit its
mistake and pay for this portion of the project out of the general
taxes.
This situation is not unique for cities. In fact, the
Supreme Court has recently instructed cities that many of the
improvements they used to finance by special assessment mmst in
the future be financed by general tax dollars:
May 5, 1983
Page 5
"The legal limit on special assessments is that
they may not exceed the increase in market value of
the assessed property, and as a practicalmatter
this means many improvements may not be fully
assessed but must be funded through some other
means, such as the general property taxes."
Carlson -Lang Realty Company v. City of Windom, 240
This is especially true in the case of storm water
projects. This approach would not set an adverse precedent for
several reasons, including the following:
1. The City may assess each project in a different manner
from the other projects.
2. My clients' property did not need the project except
perhaps because the City collected and discharged water
onto my clients' property.
3. My clients' property is all high, dry and buildable
with no present or future potential drainage problems
(except those the City may have created.)
V. FOR THE PURPOSES OF THIS PROCEEDING, MY CLIENTS
It is my understanding from Mr. Hauge that although the City
does not state that this hearing is supposed to constitute a fair
and impartial contested case type hearing, the City may so argue
if an appeal is filed. I believe that the City may be trying to
bring its procedure within the parameters of a procedure suggested
by the Court in the case of Buettner v. City of St. Cloud, 277
N.W.2d 199 (1979), in which the Court stated:
"Similarly, if the St. Cloud City Council had
instituted an adversary proceeding before an
impartial referee and made findings on the specific
issue of special benefits, there would be reason
for judicial review to be more limited. But that
is not the case. Apparently the City Council here
initially made no findings whatsoever of special
benefits; even were it otherwise its status as an
interested party would, without procedural
protection, still make the 4etermination suspect."
227 N.W.2d 204.
May 5, 1983
Page 6
obviously the hearing on May lo, 1983, does not even begin to meet
the above tests for several reasons:
1. The Council is an interested party.
2. There is no independent disinterested party acting as a
decision -maker.
3. The City has refused to grant a continuance.
4. The City never ordered an appraisal to justify the
proposed assessment until after it knew there was an
objection.
5. The special assessment as proposed, in fact, already
appears in the tax statements.
VI. LIMITED REVIEW OF CITY'S APPRAISAL
Our Expert has not had a sufficient amount of time to
prepare his appraisal or to advise me and my clients of the
deficiencies in the City's appraisal. We, therefore, reserve full
comment until a possible later forum or to the date of a continued
hearing.
However, the fundamental weakness of the City's appraisal
remains as follows:
1. Prior to the City's project, none of my clients'
property had any existing or potential drainage
problems regardless of the manner in which it might be
reasonably developed. All of the property is high, dry
and buildable except for the ponding area on the
property which my clients would retain and use.
Therefore, there can be no increase in value to the
property. This, of course, is especially true for all
the property which is above the ordinary high water
elevation of the pond. This project has not resulted
in any more land being useable than existed before.
2. The only potential water problem for my clients'
property was created by the City which trespassed over
my clients' property by discharging water onto it. My
clients cannot be forced to pay for a potential problem
created by the City. -
May 5, 1983
Page 7
VII. SUMMARY
I am sure that the City's witnesses will develop some type
of response to the objections raised herein. I assume they
believe they are paid to be advocates for the City, which is
unfortunate and contrary to the law. The City staff and elected
officials have the affirmative duty to be neutral, to protect my
clients' constitutional rights, not to find ways to circumvent
them or obscure them, even if that type of action pleases the
Council.
I fully expect that the City staff and Council have already
made up their minds to adopt the special assessment as proposed
for several reasons:
1. You always assume that the city is right and the
property owner is wrong.
2. Mr Horne has not enjoyed the best working relationship
with the City in the past.
3. The City has, in fact, already levied the proposed
special assessment and it, in fact, shows up on my
clients' tax statements.
4. The City would rather adopt the higher special
assessment and then see if the Court will reduce the
higher special assessment. A city frequently takes the
position that if the special assessment is high when
adopted, a court reduction or settlement will still
result in a higher assessment than would occur if the
City adopted a more reasonable special assessment. The
fallacy in this approach is that it forces the property
owner to appeal, seek damages and most importantly, the
City officals have an affirmative duty not to deny
constitutional rights of property owners regardless of
the financial consequences to the City.
The City believes that any property which contributes
water to the project should be assessed even though the
property had no existing or potential drainage problems.
We sincerely hope that the City and its elected officials
will reconsider the special assessments proposed for this
property. We are willing to meet with the City staff -and/or one
May 5, 1983
Page 8
or more Councilmembers to review the proposed assessment roll if
the City Council tables any action on this proposed assessment.
There is ample time to table the roll and still adopt it prior to
October, 1983. We wish to work with the City in achieving a
satisfactory solution to the problems and objections we have
raised. If the assessment roll is adopted as proposed, my clients
will undoubtedly file an appeal in Dakota County District Court
and/or in Federal Court to set aside the special assessments and
to collect their costs and attorney's fees. Because any special
assessment adopted in excess of the special benefit constitutes a
denial of their constitutional rights, my clients may also seek
punitive damages against the City and the Councilmembers voting
for the assessment. This statement is made as a matter of
courtesy and to place you on notice of intent, not as a threat.
We wish to work with the City and not against it. However, we
have found that most city councils prefer to adopt an assessment
roll as proposed by City staff and then let the City Attorney
defend it in court later. The Minnesota Supreme Court has stated
that cities must be more willing to admit that some projects must
be paid for by general taxes and not by special assessments; this
project as it affects my clients' property certainly is of that
nature.
This letter may offend some readers. It is not meant to do
SO. I only want to remind you of the unfortunate realities of
this procedure and to ask you to put yourself in the position of
my clients. Would you accept this assessment as being fair and
lawful? Do you believe your property in this situation would
really be specially benefitted proven by actual increase in
value? Would you be willing to pay $60,000 to the City today? I
do not believe so. I hope you will ask yourself those questions,
answer them honestly and then vote to delete the special
assessment or reduce it to a minimum amount to reflect the fact
that only a very small area next to the pond could possibly be
benefitted under anyone's theory of benefit.
very truly yours,
Bruce D. Malkerson
BDM/jf
cc: City Clerk
City Manager
City Attorney
Mr. and Mrs. Horne
2422j
1.
2
3
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
4724b
Our File No. 49230
WATER TREATMENT FACILITY
CITY CONTRACT 83-01
PROJECT NO, 338
EAGAN, MINNESOTA
BID TIME: 10:30 A.M., C.D.S.T.
BID DATE: Friday, May 6, 1983
CONTRACTORS
Barbarossa & Sons Inc-.
Knutson Construction Co.
Loeffel-Engstrand Co.
P.C.L. Construction
Gridor Construction Inc.
Orville E. Madsen & Sons, Inc.
Adolfson & Peterson, Inc.
Acton Construction Co.
Johnson Building Company
Steenberg -Henkel Construction Co.
Young Construction Co.
M. A. Mortenson
Oscar J. Boldt Construction
Grudem Brothers, Inc.
Encon Utilities Inc.
ENGINEER'S ESTIMATE ------------
Feasibility Report (F.R.)---
Low Bid --------------------
% over (+) or under (-) F.R.
TOTAL BASE BID
$3,539,500.00
3,597,000.00
3,659,000.00
3,674,000.00
3.796,000.00
3.837.000.00
3.896.700.00
1-954.400.00
3.966.000.00
4,n4a 1S2_nn
4,091,838.00
4.219,700.00
4.326.000.00
NO BID
NO BID
$4,400,000
4,717,000
3,539,500
-24.96%
SPECIAL CITY COUNCIL MEETING
MAY 10, 1983
7:00 P.M.
EAGAN CITY HALL
I. ROLL CALL
II. JAMES HORNE STORM SEWER ASSESSMENT/PROJECT 10R
III. WATER TREATMENT FACILITY BIDS
IV. OTHER BUSINESS
V. ADJOURNMENT
MEMO TO: HONORABLE MAYOR AND CITY COUNCILMEMBERS
FROM: CITY ADMINISTRATOR HEDGES
DATE: MAY 6, 1983
SUBJECT: SPECIAL CITY COUNCIL MEETING - MAY 10, 1983
The following items are to be considered at the Special City Coun-
cil meeting on May 10, 1983 at 7:00 P.M. at the Eagan City Hall.
JAMES HORNE STORM SEWER ASSESSMENT/PROJECT 197R
The City staff has prepared data regarding the storm sewer assess-
ment from James Horne for his property.. This storm sewer assess-
ment relates to Project 197R. Enclosed is a copy of the report
that has been prepared by City staff which includes the appraisal
of the property, also an agenda from the City Attorney's Office
and finally an 8 -page letter from Mr. Horne's attorney, Bruce Mal-
kerson addressing the Horne's storm sewer assessment issue. Also
enclosed are a copy of the November 9, 1982 letter from Mr. & Mrs.
Horne which is their original letter .of objection,'a list of writ-
ten objections received for Project 297R, and a letter to Mr. Horne
from Thomas A. Colbert dated February 22, 1983 summarizing the
events prior to that date. The City Attorney will be guiding the
meeting with testimony and any other input that is expected on
Tuesday.
WATER TREATMENT FACILITY BIDS
The water treatment facility bids were received at 10:30 A.M. on
Friday, May 6, 1983. The engineer's estimate is $4,400,000.00
and the low bidder was'Barbarossa & Sons, Inc. in the amount of
$3,539,500.00. The bid was exceptional and will certainly reduce
the cost of the total project substantially. Enclosed is a bid
tabulation sheet prepared by the Engineering Department.
OTHER BUSINESS
The Director of Public Works is planning to discuss the concrete
curb vs. bituminous curbing issue at the special City Council
meeting. Also, the City Administrator would like a few minutes
to discuss evaluation of the'City Planner which is a partial con-
clusion of that personnel analysis conducted during the last sev-
eral months.
Respectfully submitted,
Thomas L. Hedges
City Administrator
TLH/jack
HAUGE, SMITH, E1DF. HELLER, P. A.
ATTORNEYS AT LAW
CEDARVALE PROFESSIONAL BUILDINGS
BBOB SIBLEY MEMORIAL HIGHWAY
EAGAN, MINNESOTA 83122
PAUL H. HAUGE
BRADLEY SMITH
KEVIN W EIDE
DAVID 0. KELLER
Bruce Malkerson
Attorney at Law
4344 IDS Center
Minneapolis, MN 55402
May 6, 1983
RE: City of Eagan Project 0297R - James Horne
Dear Bruce:
.AREA CODE 612
TELEPHONE 484.4224
On May 3, 1983 you called our office and indicated that as the attorney for
Jim Horne concerning the objections that were filed by him regarding Project
#297R relating to the Blackhawk Lake storm sewer trunk, that your appraiser
would not be able to complete his appraisals in time for the hearing
scheduled, on the objections by the Eagan City Council, for May 10,. 1983. On
March 31 , 1983, I sent a letter to you indicating that the hearing would be
scheduled for May 10 at the City Hall and asked for an acknowledgment from you
for that date. To the best of my knowledge, you did not acknowledge the date,
but we have proceeded on that basis and there has been discussion from time to
time that that would be. the continued date for the hearing. In addition, this
hearing date has been rescheduled several times to Mr. Horne's and your re-
quest. and the Council has now scheduled that evening, and intends to proceed
with the hearing on that date. I had asked that you forward a copy of your
appraisal to me before the hearing so that I would be able to review it. I am
enclosing a Memorandum that I have dictated for the City Council which out-
lines the general format that the Eagan City Council follows in hearings of
this nature.
I called you on May 4 and indicated that the City Council intends to proceed
with the ,hearing and at that time, you indicated you were uncertain whether
you'd be present on May 10, but would let me know whether you intend, to be
present at the scheduled hearing time. To the best of my knowledge,we have
had no correspondence from either you or Mr. Horne, other than .the written
objections that were filed in November of 1982 concerning the assessments and
it is the opinion of the Council that it must proceed because of the many
delays that have taken place at the request of Mr. Horne.
PHH:ras
Enclosure
P.A.
P. S. I have just received your letter dated May 5 and I did not say that the Council
had discussed the continuance on May 3.
MEMORANDUM
TO: EAGAN CITY COUNCIL
FROM: PAUL H. HAUGE
RE: IMPROVEMENT PROJECT #2978 - JAMES HORNE ASSESSMENT APPEAL
DATE: MAY 6, 1983
The hearing before the City Council concerning the objections that were
filed by James Horne and Horne Development Corporation covering assessments,
relating to the Horne property on Pilot Knob Road, is scheduled to be heard
before the City Council at 7:00 - 7:30 on Tuesday, May 10, 1983. The Council
is aware that this hearing has been delayed several times at the request of
the owner and that the City staff has forwarded letters to Mr. Horne and to
his attorney, Bruce Malkerson, indicating the hearing will be held on May 10,
1983.
Mr. Malkerson called our office on May 3, 1983 and stated that he would
not be ready for the hearing on May 10, and again requested a continuance
until some time in June. He stated that his appraiser would not be ready for
the hearing on May 10. On May 4 we called Mr. Malkerson and indicated that
the City Council intends to proceed on May 10 and he then indicated that he
may not be present and also objected to the procedure that the Council is
following when objections are raised by property owners to assessments levied
against their property.
The Council is also aware that the procedure that began approximately two
years ago by the Council, when an objection is filed in writing by a property
owner at or before an assessment hearing, that the Council then continues the
hearing relating to that specific assessment and schedules the continued
1
hearing before the City Council at which time the City and the property owner
is permitted to submit testimony concerning the project, and the assessments
levied against the specific parcel. It is also the intent of the City that in
the event the property owner appeals the City Council's decision to the
District Court, that the City will then request that the Court will not hold a
denovo or an entirely new hearing on the assessment appeal but rather accept
the proceedings before the Council, and the Judge then would be requested to
review the proceedings and determine whether the assessments levied comply
with the state law.
Because we are uncertain at this time whether Mr. Horne or his attorney
will appear before the City Council, we are recommending that the Council go
through with the hearing and hear testimony from the City and from the
property owner in the event that he is present and make its decision as it has
done in the past when objections have been filed in a similar fashion.
Therefore, we would suggest the following procedure:
1. The hearing be held on May 10, 1983 and all testimony would be
submitted at that time.
2. If additional testimony is permitted by the Council, it could then
continue the hearing until a later date and allow such testimony and written
information be submitted.
3. If the hearing is not continued, the Council would then leave the
record open for additional written evidence for twenty (20) days from the
close of the hearing.
4. The Council will consider written motions to reopen hearings or to
extend time limitations for good cause shown.
5. Any landowner may submit briefs and proposed findings of fact,
conclusions and orders as to any parcel at any time before 40 days from the
close of the hearing on that parcel. The City staff will also be required to
2
submit their proposed findings and briefs within 40 days.
6. Following receipt of the proposed findings, conclusions and order,
the Council will enter its Findings, Conclusions and Order and act on the
assessment roll.
The basis for the landowner's objections are that the property is not
benefitted by the storm sewer project in the amount of $43,591.41 which was
the initial amount of the assessment, and has not been benefitted in any
amount and that the proposed assessment is otherwise unlawful and contrary to
law.
3
PAUL H. HAUGE
BRADLEY SMITH
KEVIN W. EIDE
DAVID O. KELLER
Mr. Bruce Malkerson
Attorney at Law
4344 IDS Center
Minneapolis, MN 55402
HAUGE, SMITH, EIDE & $ELLER, P. A.
ATTORNEYS AT LAW
CEDARVALE PROFESSIONAL BUILOINOB
2808 SIBLEY MEMORIAL HIGHWAY
EAGAN (ST. PAUL). MINNESOTA 00122
March 31, 1983
RE: James Horne Storm Sewer Assessment - City of Eagan .Z Y? 2
Dear Bruce:
Anew COD[ 012
TeLePHCNe 40A.4224
You called on March 24 and indicated that you had been retained by Jim Horne as
attorney concerning the objections that he has filed relating to the Blackhawk Lake
storm sewer assessments covering the Horne property in Eagan. At that time you
asked that the City Council allow Mr. Horne to acquire an appraiser to prepare an
appraisal covering the benefit to the property. You also stated that Barr Engineer-
ing has been hired by Mr. Horne for engineering purposes on the project and that
Barr Engineering would be ready to proceed at the regularly scheduled hearing
scheduled for March 29, 1983, at the City Hall, but that the appraiser would not
be ready.
I have now discussed this issue with City Administrator Tom Hedges and Public Works
Director Tom Colbert and the City Council, at a March 29 meeting decided that the
hearing regarding'the storm sewer assessments will be rescheduled to Tuesday, May
10, 1983, at 7:30 p.m. at the Eagan City Hall. Because there have been a number
of delays in the hearing and objections raised by Mr. Horne, the staff insists that
either you on behalf of Mr. Horne or Mr. Horne consent to the holding of the hear-
ing on May 10 so that no further delays will take place. No further continuances
will be granted.
I would also ask that you arrange for the signature of a copy,of this letter to be
returned to me so that we have written consent for the change of date. It would
also be expected that any testimony that is to be submitted on behalf of Mr. Horne
will be ready that evening including the engineer and appraiser, and that any reports
or appraisals will be furnished to us prior to the hearing as soon as they are avail-
able.
If there are any questions about the information in this letter, please get back to
me immediately.
cc: Robert Rosene
Thomas L. Hedges
;rhomas A. Colbert
Daniel E. Dwyer
Very truly yours,
Paul H. Hauge, City Attorney, City of Eagan
I HEREBY CONSENT TO THE HEARING DATE OF
MAY 10, 1983 AS DESCRIBED ABOVE.
James Horne
November 9, 1982
Hon. Bea Blomquist and City Council
City of Eagan
Eagan, Minnesota
Re: Objection to Proposed Assessment for Storm Sewer
Project 297 2=--7
.,Dear, Mayor Blomquist...and Members of.the ,City Council:
Objection is herewith made to the City Council of the City of
Eagan to the proposed assessment for storm sewer and/or storm
sewer outlets to BlackhawkLake and Highway 13 (Project 297)
against our property. The total proposed assessment is approxi-
mately $43,591.41 and the basis of the objection is that
said property is not benefited by said storm sewer project in
that amount or in any amount, and that the proposed assessment
is otherwise unlawful and contrary to law.
\fq_g
HORNE DEVELOPMENT CORPORATION
By:
resides t
and
orne
LU -OG taiww HSSESSNIM ti":APLL%/'L1SI of WRIT EN OBJECTIONS RECEIVED PRa,TBC.'T �` x7 -
AREA
ASSESSMENT RATE
DATE OF
GROSS
CREDITS
I NET
P ,AL,
awNER
CLASSIFICATION
AMP -OF ASSMT
WRITTEN OBJ
REASONS
SE7CTION 16
Harry/Pearl
10-01600-010-05
Lemieux
10.0ac
2.0 ac
8.0 ac
Agricultural
$11,848.00
7 2�
No Benefit
8-12-92
10-01600-010-50
Henry Englert
40.Oac
8.0 ac
32.0 ac
Agricultural
47,393.28
7-20-82
Sr. Citi
10-01600-030-79
Idn. Bruestle
NA
NA
1.15 ac
SF large lot
645.00.
7-27-82
1
tklj S ?^100D ADD16,400
P.H. Notic
Lot 1, Block 1
Horne Dev.Corp
NA
NA
S.F.,
SF
557.60
7-20_-82
s
No Benefit
,�
-Lot 2, Block 1 -
J "
NA
NA
S.F.
SF -
474.67
1111-
i "
NA
NA
13,910
S.F.
"
472.94
"
Lot 3, Block 1
- —
Lot 4- Block 1
„
NA
NA
13,536
S.F.
460.22
„
"
Lot 5, Block 1
NA
�
14,536
S.F.
1111
444.22
11
— - -
Lot 6, Block
r �.16,054
NA
NA
S.F.
1.
545.84
11
Lot 7, Block 1
,,,_,t7,
-- - ---- -
Jaynes/Arvella
NA
NA
16,500
S.F.
561.00
"
Horne
'
J
NA
NA
16,500
S.F.
15,000
S.F.
SF1.00
"
Lot 8, Block 1
----- -
'Lot 9, Block_1.1
-
' "
NA
NA
510.00
"
Lot 10, Block 1
j "
NA
NA
15
S. F.
"
534.75
-Lot -12 (Ouf1: 1)
_
�
NA
�
_F.
85, 500 -
S.F.
Sr
-
2,907.n0
„
%Lot 13 (Out1.2) _
1 "
NA
13,000
---
SF
442.00
"
`- - ---
NA
S.F.
-Lot 14 (Outl. 3)_
--- -
+ "
NA
94,500
S.F.
Sr
3,213.On
SEX'TION 21
"
r10 -02100-010=0T
Horne ��
27.59
6,22Ac
21.37ac
Agricultural
31,857.17
"
10-02100-010-02
David Ashfeld
16.59Pc
3.32Ac
13.27ac
Agricultural
19,652.0011AnUtmt
Excessive
10-02100-012-2
.Ieo_PIluphY .
NA =
NA "'
31.18ac
r Agricultural rt
• '' ', 46,177.0
-
7-13-82
(feePWRIt
gel rl.t..
1.1 c
42� Ac
Agn tur 0,727.0
' f>r7�-p'
�eo.*buc� er+..
tm
Im
1.49 AC
SF large lot 838.00
7-14-R2 Gr.(i ti pan
of
3795 PILOT KNOB ROAD, P.O. BOX 21199
EAGAN. MINNESOTA 55121
PHONE: (612) 454-8100
February 22, 1983
MR JAMES B HORNE
3850 CORONATION RD
EAGAN MN 55122
BEA BLOMQUST
Mayan
THOMAS EGAN
JAMES A SMITH
JERRY THOMAS
THEODORE WACHTER
Oa d Ma $
THOMAS HEDGES
CNAam gala
EUGENE VAN OVEMEKE
Ory Cbn
Re: Project 297R - Final Assessment Appeal/Special Hearing
King's Wood Addition and Parcel No. 10-02100-010-01
I would like to take this opportunity to summarize the events that
have taken place to date regarding the final assessment for trunk
area storm sewer as it affects the above -referenced parcels.
JULY 20, 1982
Final assessment hearing was held for Project 297 for the trunk
area storm sewer assessments associated with the trunk storm sewer
outlet from Blackhawk Lake to the Minnesota River. A written ob-
jection was received from you pertaining to the final assessment
based on the fact that you did not receive notification of the pub-
lic hearing for this project which was held on May 20, 1980. Based
on your written objection, the City Council continued the final
assessment hearing pertaining to your parcels to September 7, 1982
and directed your specific concern to be addressed by the Special
Assessment Committee on August 30, 1982.
AUGUST 30, 1982
At a Special Assessment Committee meeting held at City Hall, your
written objection was reviewed in detail. In realization of the
fact that you were inadvertently omitted from the original public
hearing notification for Project 297, the Special Assessment Commit-
tee forwarded a recommendation to the City Council that you be re-
moved from the final assessment roll for Project 297 and that a
new project be initiated to follow the proper procedures of notifi-
cation.
SEPTEMBER 7, 1982
Upon recommendation of the Special Assessment Committee, the City
Council formally closed the public hearing pertaining to the final
assessments for Project 297 that was originally held on July 20,
1982. They also abandoned the final assessments for Project 297
as it pertains to the above -referenced parcels under your ownership
with the direction that a new project be established (Project 297R)
with a public hearing for this new project to be held on October 5,
THE LONE OAK TREE... THE SYMBOL OF STRENGTH AND GROWTH IN OUR COMMUNITY
Mr. James B. Horne
Project 297R
February 22, 1983
Page two
1982.
OCTOBER 5, 1982
The formal public hearing was convened after notifications were sent
to all affected property owners and published in the legal newspapers
for Project 297R. At this meeting, the details of the project were
discussed and the benefited properties associated with the Blackhawk
Lake storm sewer outlet were discussed in detail. Although objections
were made by you in relationship to this project, the public hearing
was closed and Project 297R was approved with the final assessment
hearing scheduled for November 9, 1982.
NOVEMBER 9, 1982
After individual notices were sent to the affected property owners
and published in the legal newspaper, the final assessment hearing
was held for Project 297R. Based on written objections submitted by
you pertaining to the above -referenced parcels, this final assessment
hearing was continued until December 21, 1982.
DECEMBER 21, 1982
Continued public hearing for the final assessments for Project 297R
was convened and the City Council directed that the City hire an ap-
praiser to determine the benefit associated with the trunk area storm
sewer assessments and that the final assessment hearing be continued
until March 1, 1983 with the understanding that if there is insuffi-
cient time allowed on.that Council agenda that it be continued until
another special Council meeting date.
FEBRUARY 1, 1983
Because of the anticipated length of the schedule for March 1, 1983,
the City Council formally rescheduled the continued final assessment
hearing from March 1, 1983 to a Special City Council meeting to be
held at 7:00 P.M. on Tuesday, March 29, 1983 at the Eagan City Hall.
This letter then is to give you formal notification of this scheduled
special City Council meeting to be held on March 29, 1983 to discuss
the objections pertaining to the trunk area storm sewer assessments
associated with Project 2978. The City will have completed a formal
appraisal of the property in question and will be presenting engineer-
ing, property appraisal and legal testimony pertaining to the justifi-
cation of this trunk area storm sewer assessment at this meeting.
It is strongly recommended that you arrange to have the proper repre-
sentation to present and verify your position of objection pertaining
to inclusion in this special assessment project.
Mr. James B. Horne
Project 297R
February 22, 1983 _
Page three
Based on the input presented by the staff on behalf of the City and
the property owner, this special committee "of the whole" of the City
Council will then make a formal determination pertaining to the final
assessments for Project 297R as it pertains to the above -referenced
parcels.
This letter is being sent to your attention to allow you adequate
time to prepare your presentation. Please feel free to contact me
if you would like additional information pertaining to the procedure
to be followed during this Special City Council meeting on March 29,
1983.
Sincerely,
homas A. Colbert, P.E.
Director of Public Works
TAC/jach
cc - Paul Hauge, City Attorney
WAYNE G. POPHAM
RAYMOND A. HAIK
ROGER W. SCHNOBRICH
DENVER KAOFMAN
DAVID S. DOTY
ROBERT A. MINISH
ROLFE A. WORDEN
G. MARC WHITEHEAD
BRUCE D. WILLIS
FREDERICK S. RICHARDS
G.ROBERTJOHNSON
GARY R. MACOMBER
ROBERT S. BURK
HUGH V PLUNKETT.
POPHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY, LTD.
4344 IDS CENTER
MINNEAPOLIS, MINNESOTA 55402
TELEPHONE AND TELECOPIER
612-333-4600
FREDERICK C. BROWN
THOMAS K. BERG
BRUCE D. MALKERSON
JAMES R. 5TEILEN
JAMES B. LOCKHART
ALLEN W. HINDERAKER
CLIFFORD M. GREENE
D. WILLIAM KAUFMAN
OESYL L. PETERSON
MICHAEL O. FREEMAN
THOMAS C. D'AOUILA
LARRY D. ESPEL
JANIE S. MAYERON
DAVID A. JONES
Mayor and City Council
City of Eagan
2795 Pilot Knob Road
Eagan, MN 55122
LEE E.SHEEHY
LESLIE GILLETTE
MICHAEL T. NILAN
ROBERT C. MOILA.NEN
DAVID J. EDOUIST
CATHERINE A. POLASKY
STEVEN G. HEIKENS
THOMAS J. RADIO
KATHLEEN M. MARTIN
JOHN C. CHILDS
THERESE AMBRUSKO
DOUGLAS P SEATON
GARY D. BLACKFORD
SCOTT E. RICHTER
May 5, 1983
Re: Horne Storm Sewer Assessment
Dear Mayor and City Council:
I. OVERVIEW
2560 PETRO-LEWIS TOWER
- TIJ SEVENTEENTH STREET
DENVER, COLORADO 80202
TELEPHONE AND TELECOPIER
303-025-2660
SUITE 802-2000 L STREET N. W.
WASHINGTON, D. C. 20036
TELEPHONE AND TELECOPIER
202-887-51 S 4
This office represents Mr. and Mrs. James B. Horne and their
company, Horne Development Corporation, who are the owners of Lots
1-10 and outlots 1, 2 and 3, King's Wood Addition and Parcel
#10-02100-010-01, City of Eagan, Minnesota.
The City staff has proposed in their assessment roll for
Storm Sewer Project #197R to assess this property and perhaps the
other property owned by my clients (hereinafter "Horne property")
in the amount of approximately $40,000 to $60,000 depending on
final land use.
II. REQUEST FOR CONTINUANCE
The City has previously continued the public hearing on the
proposed assessment against the Horne property to May 101 1983, so
that my clients would have an opportunity to retain an appraiser
to present evidence concerning the special benefit, if any, to the
Horne property. On May 3, 1983, I informed Mr. Brad Smith, one of
the City's attorneys, that the Horne's appraiser, Mr. Tom Metzen,
would not be able to complete the appraisal assessment by May 10,
May 5, 1983
Page 2
1983, because of his conflicts with various court appearances. I
asked that the hearing be continued to June, 1983 so -that the
Hornes would have the benefit of having their appraiser present.
I reminded him that the City is the party who controls these
deadlines so that the City can always modify them to suit its
needs; the City should be willing to do the same for the property
owner, especially since there is no need to adopt and certify any
special assessment until October, 1983, since no assessment
adopted in 1983 can be certified for collection on taxes any
earlier than those taxes payable in 1984. Therefore, it makes no
difference to the City when the assessment is adopted as long as
it is before October, 1983. I called him again several minutes
later and suggested several days in June when my clients would be
in town. He said he would review my request with City staff and
get back to me.
On May 4, 1983, he called and left a message that the
hearing would not be continued.
I then spoke with the City Attorney, Paul Hauge, who
informed me that the City Council reviewed this request on
Tuesday, May 5, 1983, and voted to deny it. I objected to Mr.
Hauge that such a denial, denied my clients' procedural due
process for the reasons noted above and because no one informed me
or my clients that this request would be discussed at a Council
meeting. Had I known of that fact, I would have been present to
state the reasons why this request should be granted.
It is not too late to remedy this denial of procedural due
process. Each of you can call the City Manager individually and
instruct him to continue the hearing or to tell him that you will
not be present. There will then be no quorum, and therefore no
meeting. The City Manager and the City Attorney could then inform
me. The Council could reset the hearing at its next Council
meeting.
If there is to be litigation concerning this special
assessment, why expose the City and yourselves to yet another
claim for denial of procedural due process?
III. GENERAL OBJECTIONS TO PROPOSED SPECIAL ASSESSMENTS
Our clients have directed us to enter written objections on
their behalf to the proposed special assessments, pursuant to
Minn. Stat. § 429.061, subd. 1. This letter constitutes those
May 5, 1983
Page 3
objections to be made part of the public record in this matter as
they relate to the property described above or any other property
owned by my clients which may be subject to this or any other
related special assessment. Based on the facts we have presently
available to us, the objections include, but are not limited to
the following:
1. The assessments exceed the special benefits to the
property. There is no special benefit to the property.
2. The special assessments constitute a taking of property
without compensation in violation of the State and U.S.
Constitutions and 42 U.S.C. §1983.
3. The City has not followed the procedural requirements
of Minn. Stat. § 429.01, et seq.
4. The assessment formula used by the City is arbitrary
and unreasonable.
5. The problem, if any, sought to be corrected is one of a
general nature and should be funded by general revenues.
6. The problem, if any, sought to be corrected was created
by the City and should be corrected and paid for by the
City.
7. Certain areas have been exlucded from assessment which
should be included.
8. Because previously existing storm sewers, both natural
and man-made, serving the property were adequate, no
special assessment can now be made for new storm sewer.
The above general objections do not limit the other
potential objections which may be made based upon further inquiry.
IV. APPLICABLE LEGAL PRINCIPLES
It is my opinion that the proposed special assessment
against my clients' property is not legal and will not be
sustained by the court on review.
In Carlson-Lanq Realty Co. v. City of Windom, 307 Minry. 368,
369, 240 N.W.2d 517, 519 (1976), the Minnesota Supreme Court
reaffirmed the following limitations on the power of the City to
levy a special assessment: '
May 5, 1983
Page 4
(a) The land must receive a special benefit
from the improvement being constructed, (b) the
assessment must be uniform upon the same class of
property, and (c) the assessment may not exceed the
special benefit. . . . Special benefit is measured
by the increase in the market value of the land
owing to the improvement. Quality Homes, Inc. v.
Village of New Brighton, 289 Minn. 274, 183 N.W.2d
555 (1971) . . . .
Any special assessment which does not meet these
requirements is an unconstitutional taking without compensation.
In re Improvement of Superior Street, Duluth, 172 Minn. 554, 559,
216 N.W. 318, 320 (1927).
The construction of this storm sewer project was undertaken
to solve the drainage problems of areas in the City which do not
even receive the surface water runoff from my clients' property.
The City has artificially collected, redirected and deposited
water from outside the subwatershed which includes my clients'
property and then discharged that water on to my clients' and
their neighbors' property. There was no problem with the surface
water runoff from my clients' property. My clients had more than
ample water storage area on their property for any development of
their property or property in their subwatershed. Only because
the City chose to collect and discharge other water on my clients'
property, was there any potential need for the outlet pipe and
other downstream portions of the project. In fact, had the City
not built the outlet pipe from the pond on my clients' property,
the City's water would have trespassed further into their property
than it does presently.
For these reasons, tests (1) and (3) above are violated by
the proposed special assessment. The City should have reallocated
the proposed special assessment against my clients' property on
those properties upstream on this project which needed the
project. The City can still do so by a supplemental assessment.
If the City chooses not to do so, the City should admit its
mistake and pay for this portion of the project out of the general
taxes.
This situation is not unique for cities. In fact, the
Supreme Court has recently instructed cities that many of the
improvements they used to finance by special assessment mmst in
the future be financed by general tax dollars:
May 5, 1983
Page 5
"The legal limit on special assessments is that
they may not exceed the increase in market value of
the assessed property, and as a practicalmatter
this means many improvements may not be fully
assessed but must be funded through some other
means, such as the general property taxes."
Carlson -Lang Realty Company v. City of Windom, 240
This is especially true in the case of storm water
projects. This approach would not set an adverse precedent for
several reasons, including the following:
1. The City may assess each project in a different manner
from the other projects.
2. My clients' property did not need the project except
perhaps because the City collected and discharged water
onto my clients' property.
3. My clients' property is all high, dry and buildable
with no present or future potential drainage problems
(except those the City may have created.)
V. FOR THE PURPOSES OF THIS PROCEEDING, MY CLIENTS
It is my understanding from Mr. Hauge that although the City
does not state that this hearing is supposed to constitute a fair
and impartial contested case type hearing, the City may so argue
if an appeal is filed. I believe that the City may be trying to
bring its procedure within the parameters of a procedure suggested
by the Court in the case of Buettner v. City of St. Cloud, 277
N.W.2d 199 (1979), in which the Court stated:
"Similarly, if the St. Cloud City Council had
instituted an adversary proceeding before an
impartial referee and made findings on the specific
issue of special benefits, there would be reason
for judicial review to be more limited. But that
is not the case. Apparently the City Council here
initially made no findings whatsoever of special
benefits; even were it otherwise its status as an
interested party would, without procedural
protection, still make the 4etermination suspect."
227 N.W.2d 204.
May 5, 1983
Page 6
obviously the hearing on May lo, 1983, does not even begin to meet
the above tests for several reasons:
1. The Council is an interested party.
2. There is no independent disinterested party acting as a
decision -maker.
3. The City has refused to grant a continuance.
4. The City never ordered an appraisal to justify the
proposed assessment until after it knew there was an
objection.
5. The special assessment as proposed, in fact, already
appears in the tax statements.
VI. LIMITED REVIEW OF CITY'S APPRAISAL
Our Expert has not had a sufficient amount of time to
prepare his appraisal or to advise me and my clients of the
deficiencies in the City's appraisal. We, therefore, reserve full
comment until a possible later forum or to the date of a continued
hearing.
However, the fundamental weakness of the City's appraisal
remains as follows:
1. Prior to the City's project, none of my clients'
property had any existing or potential drainage
problems regardless of the manner in which it might be
reasonably developed. All of the property is high, dry
and buildable except for the ponding area on the
property which my clients would retain and use.
Therefore, there can be no increase in value to the
property. This, of course, is especially true for all
the property which is above the ordinary high water
elevation of the pond. This project has not resulted
in any more land being useable than existed before.
2. The only potential water problem for my clients'
property was created by the City which trespassed over
my clients' property by discharging water onto it. My
clients cannot be forced to pay for a potential problem
created by the City. -
May 5, 1983
Page 7
VII. SUMMARY
I am sure that the City's witnesses will develop some type
of response to the objections raised herein. I assume they
believe they are paid to be advocates for the City, which is
unfortunate and contrary to the law. The City staff and elected
officials have the affirmative duty to be neutral, to protect my
clients' constitutional rights, not to find ways to circumvent
them or obscure them, even if that type of action pleases the
Council.
I fully expect that the City staff and Council have already
made up their minds to adopt the special assessment as proposed
for several reasons:
1. You always assume that the city is right and the
property owner is wrong.
2. Mr Horne has not enjoyed the best working relationship
with the City in the past.
3. The City has, in fact, already levied the proposed
special assessment and it, in fact, shows up on my
clients' tax statements.
4. The City would rather adopt the higher special
assessment and then see if the Court will reduce the
higher special assessment. A city frequently takes the
position that if the special assessment is high when
adopted, a court reduction or settlement will still
result in a higher assessment than would occur if the
City adopted a more reasonable special assessment. The
fallacy in this approach is that it forces the property
owner to appeal, seek damages and most importantly, the
City officals have an affirmative duty not to deny
constitutional rights of property owners regardless of
the financial consequences to the City.
The City believes that any property which contributes
water to the project should be assessed even though the
property had no existing or potential drainage problems.
We sincerely hope that the City and its elected officials
will reconsider the special assessments proposed for this
property. We are willing to meet with the City staff -and/or one
May 5, 1983
Page 8
or more Councilmembers to review the proposed assessment roll if
the City Council tables any action on this proposed assessment.
There is ample time to table the roll and still adopt it prior to
October, 1983. We wish to work with the City in achieving a
satisfactory solution to the problems and objections we have
raised. If the assessment roll is adopted as proposed, my clients
will undoubtedly file an appeal in Dakota County District Court
and/or in Federal Court to set aside the special assessments and
to collect their costs and attorney's fees. Because any special
assessment adopted in excess of the special benefit constitutes a
denial of their constitutional rights, my clients may also seek
punitive damages against the City and the Councilmembers voting
for the assessment. This statement is made as a matter of
courtesy and to place you on notice of intent, not as a threat.
We wish to work with the City and not against it. However, we
have found that most city councils prefer to adopt an assessment
roll as proposed by City staff and then let the City Attorney
defend it in court later. The Minnesota Supreme Court has stated
that cities must be more willing to admit that some projects must
be paid for by general taxes and not by special assessments; this
project as it affects my clients' property certainly is of that
nature.
This letter may offend some readers. It is not meant to do
SO. I only want to remind you of the unfortunate realities of
this procedure and to ask you to put yourself in the position of
my clients. Would you accept this assessment as being fair and
lawful? Do you believe your property in this situation would
really be specially benefitted proven by actual increase in
value? Would you be willing to pay $60,000 to the City today? I
do not believe so. I hope you will ask yourself those questions,
answer them honestly and then vote to delete the special
assessment or reduce it to a minimum amount to reflect the fact
that only a very small area next to the pond could possibly be
benefitted under anyone's theory of benefit.
very truly yours,
Bruce D. Malkerson
BDM/jf
cc: City Clerk
City Manager
City Attorney
Mr. and Mrs. Horne
2422j
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4724b
Our File No. 49230
WATER TREATMENT FACILITY
CITY CONTRACT 83-01
PROJECT NO, 338
EAGAN, MINNESOTA
BID TIME: 10:30 A.M., C.D.S.T.
BID DATE: Friday, May 6, 1983
CONTRACTORS
Barbarossa & Sons Inc-.
Knutson Construction Co.
Loeffel-Engstrand Co.
P.C.L. Construction
Gridor Construction Inc.
Orville E. Madsen & Sons, Inc.
Adolfson & Peterson, Inc.
Acton Construction Co.
Johnson Building Company
Steenberg -Henkel Construction Co.
Young Construction Co.
M. A. Mortenson
Oscar J. Boldt Construction
Grudem Brothers, Inc.
Encon Utilities Inc.
ENGINEER'S ESTIMATE ------------
Feasibility Report (F.R.)---
Low Bid --------------------
% over (+) or under (-) F.R.
TOTAL BASE BID
$3,539,500.00
3,597,000.00
3,659,000.00
3,674,000.00
3.796,000.00
3.837.000.00
3.896.700.00
1-954.400.00
3.966.000.00
4,n4a 1S2_nn
4,091,838.00
4.219,700.00
4.326.000.00
NO BID
NO BID
$4,400,000
4,717,000
3,539,500
-24.96%