06-12-12 CM Agenda Packet (entire) AGENQA �
Council/Manager Meeting ',
Golden Valley City Hall '
7800 Golden Valley Road
Council Conference Room
June 12, 2012
6:30 pm
Pages
1. Bottineau Transitway Locally Preferred Alternative (LPA) 2-6
2. 2011 Comprehensive Annual Financial Statements �
3. General Land Use Plan Map Amendment Request - Schullers Tavern - 8-10
7345 Country Club Drive
4. Quasi-judicial Proceedings 11-44
5. Proposed City Code Amendments - Residential Property Maintenance 45-73
6. Emergency Management Plan 74
7. Constitutional Amendment on Voter ID 75
8. Human Rights Commission Task Force Process 76
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Planning Department
763-593-8095/763-593-8109{fax)
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Executive Summary
Golden Valley Council/Manager Meeting I
June 12, 2012 �'i
Agenda Item 'I
1. Bottineau Transitway Lacally Preferred Alternative (LPA) �
Prepared By
Joe Hogeboom, City Planner
Summary '
On May 30, the Bottineau Transitway Policy Advisory Committee (PAC) voted to recommend the
B-C-D1 alignment as the "Locally Preferred Alternative" (LPA). The B-C-D1 alignment would begin
at the Target Corporation Campus on the north end, travel through Golden Valley via the
Burlington Northern Santa Fe railroad corridor, and terminate in downtown Minneapolis. This
route is represented by the dark green, blue and red colors on the attached map.
Cities along the proposed LPA alignment are requested to provide resolutions of support of the
LPA to the Hennepin County Regional Railroad Authority by June 26. Attaehed is a draft ',
resolution that the County like the City to consider. Council Member Pentel and Mayor Harris,
both of wham represent Golden Vall�y on the Bottineau Transitway PAC, have requested that the
City Council discuss the Golden Valley alignment at the Council/Manager meeting and vote on
the resolution at the June 19 City Council meeting.
Representatives from Hennepin County and the Metropolitan Council will be present at the
Council/Manager meeting to discuss the project, the LPA decision process,the federal funding
criteria and the City's involvement in with the Bottineau Transitway process following the
selection of the LPA.
Attachment
• Bottineau Transitway Alignment Map (1 page)
• Draft Resolution Transmitting the City of Golden Valley Resolution of Support af the Locally
Preferred Alternative (LPA)to the Hennepin County Regional Railroad Authority (HCRRA) and
Metropolitan Council (3 pages)
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DRAFf ENVIRONMENTAL IMPACT STA�
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Resolution DRAFT June 19, 2012
Member introduced the following resolution and moved its adoption:
RESOLUTION TRANSMITTING THE CITY OF GOLDEN VALLEY
RESOLUTION OF SUPPORT OF THE LOCALLY PREFERRED ALTERNATIVE (LPA)
TO THE HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY (HCRRA)
AND METROPOUTAN COUNCIL
WHEREAS, the Bottineau Transitway is a proposed project to provide transit service
which will satisfy long-term regional mobility and accessibility needs for businesses and the
traveling public in the heavily traveled northwest area of the Twin Cities, and;
WHEREAS, the Battineau Transitway is lacated in Hennepin County, Minnesata,
extending approximately 13 miles from downtown Minneapolis to the northwest servin�
north Minneapolis and the suburbs of Golden Valley, Robbinsdale, Crystal, New Hope,
Brooklyn Park, Maple Grove, and Osseo, and;
WHEREAS, while the Bottineau Transitway would provide transit service for
residents and businesses in the cities of New Hope, Osseo, and Maple Grove; the
preferred alignment identified by the PAC does not run directly through these three cities,
and;
WHEREAS, the HCRRA in partnership with the Metropolitan Council and other
project stakeholders recently completed the Bottineau Transitway Alternatives Analysis
Study that in addition to the No Build and Transportation System Management (TSM)
alternatives; recommended four Light Rail Transit (LRT) Alternatives and one Bus Rapid
Transit (BRT) Alternative be advanced for further study in the federal and state
environmental review processes, and;
WHEREAS, the Federal Transit Administration (FTA), the Hennepin County
Regional Railroad Authority (HCRRA) and the Metropolitan Council have initiated both
federal and state environmental review for the Battineau Transitway project, and;
WHEREAS, federal funding will be pursued for this project from the FTA, which has
consequentty been designated as the lead federal agency for this project, and;
WHEREAS, the Bottineau Transitway recently completed the Scoping Phase of
environmentaf process, and;
WHEREAS, through the Scaping process, the PAC recommended further study of
the No Build and TSM alternatives along with further study of four LRT alternatives (A-C-
D1, A-C-D2, B-C-D1, B-C-D2) in the Draft Environmental Impact Statement (Draft EIS),
and;
WHEREAS, through the Scoping process, the PAC recommended no further study
of the BRT alternative, and;
WHEREAS, on May 8, 2012 the HCRRA adopted (Resolutian No. 12-HCRRA-0028)
the recommendations of the PAC regarding the alternatives to be furkher evaluated in the
Bottineau Transitway Draft EIS, and;
WHEREAS, the identification of an LPA is a critical step in pursuing federal funding
for the Bottineau Transitway, and;
WHEREAS, the LPA includes the definition of the Bottineau Transitway mode and
alignment, and;
WHEREAS, the adoption of the LPA and amendment of it into the region's long-
range transportation plan, the Transportation Policy Plan, concludes the Federal Transit
Administration (FTA) Alternatives Analysis (AA) process, and;
WHEREAS, the LPA will be one of the build alternatives identified and studied in the
Draft EIS, and;
WHEREAS, the LPA selection process does not replace or override the requirement
to fully examine alternatives and determine the adverse impacts that must be avaided or
mitigated under the federal and state environmental review process, and;
WHEREAS, the four LRT alternatives to be studied in the Draft EIS were further
considered with respect to defined project goals, objectives and evaluating criteria set forth
in the AA study and further refin�d during the Scoping Phase of the federal and state
environmental analyses, and;
WHEREAS, the ARCC and the CAC have provided input into the selection of an
LPA, and;
WHEREAS, the ARCC, in a technical advisory role to the PAC, provided the
following input:
• Affirm the ARCC's April 2012 input to the PAC during the scoping decision
process advising that study of the BRT alternative should stop, BRT should not
be considered for the LPA, and advising the PAC to select LRT as the locally
preferred mode for the Bottineau Transitway.
• Select Alignment D1 (BNSF near Theodore Wirth Park) as the preferred route for
the southern end of the Bottineau Transitway, and that Hennepin County,
Metropolitan Council, and the City of Minneapolis should work together to
develop and deliver separate transit, livability and economic development
investments to narth Minneapolis neighborhoods as soon as possible.
• The ARCC concluded that the technical justification for the A and B alignment is
different, but balanced. The ARCC advises the PAC to consider the five project
needs in their policy decision on the preferred alignment. The ARCC also
recommends Hennepin County, Metropolitan Council, Maple Grove and/or
Brooklyn Park work together in the future to consider separate/additional transit
(bus) service and/or related capital investments to the "non-LRT" branch that
integrate with the regional transit system (separate from the Bottineau project).
i
i
WHEREAS, the Bottineau Transitway PAC held a public hearing as part of the LPA
selection process. Eighty-five (85) participants attended the hearing, with twenty-two (22)
individuals providing verbal testimony. A total of thirty-seven (37) written comments were
also received from February 26 through May 17, 2012, and;
WHEREAS, the Bottineau Transitway PAC took into consideration the technical
information on each of the alternatives developed to date, along with the ARCC,
Community Advisory Committee (CAC) and public input provided as part of the LPA public
hearing and comment pracess and passed a resolution on the recommended LPA on May
3Q,2012; defined as LRT Alternative B-C-D1, and;
NOW, THEREFORE, BE IT RESOLVED that the City of Golden Valley supparts the
LPA recommendation of the PAC, and identifies LRT Alternative B-C-D1 as the Locally
Preferred Alternative for the Bottineau Transifinray project.
NOW, THEREFORE, BE IT FURTHER RESQLVED that the City of Golden Valley
commits to working with the Hennepin County Regional Railroad Authority and Metropolitan
Council ta address the following for the Bottineau Transitway:
CITE SPECIFIC PROCESS OR PRELIMNARY ENGINEERING "REQUESTS",
EXAMPLES NOTED BELOW:
1. Per our written comments during the scoping process, that the Draft EIS include
[e.g., thorough noise and vibration analysis, including mitiqation as required].
2. That the City of Golden Valley be an active participant in
[e.q., station-area planning efforts].
BE IT FURTHER RESOLVED that this resolution adopted by the City of Golden
Valley be forwarded to HCRRA and the Metropolitan Council for their consideration.
Shepard M. Harris, Mayor
ATTEST:
Susan M. Virnig, City Clerk
The motion for the adoption of the foregoing resolution was seconded by Member
and upon a vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted, signed by the Mayor
and his signature attested by the City Clerk.
�'l��1 C.��.
Finance e rtment
� r�
763-593-8Q1 3 1 763-593-8109(fax)
Executive Summary
Golden Valley Council/Manager Meeting
June 12, 2012
Agenda Item
2. 2011 Comprehensive Annual Financial Report
Prepared By
Sue Virnig, Finance Director
Summary
Bill Lauer from Malloy Montague Karnowski Radosevich & Co. will be in attendance to discuss the
2011 Comprehensive Annual Financial Report, Management Report and Special Purpose Audit
Reports. His main focus will be reviewing the Management Report document.
Attachments
• 2011 Comprehensive Annual Financial Report (127 pages, reports mailed and emailed
separately)
• Management Report (22 pages, reports mailed and emailed separately)
• Special Purpose Audit Report (6 pages, reports mailed and emailed separately)
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Planning Deparfiment
763-593-8095/763-593-8109{fax)
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Executive Summary
Golden Valley Council/Manager Meeting
June 12, 2012
Agenda Item
3. General Land Use Plan Map Amendment Request -Schuller's Tavern - 7345 Country Club Qrive
Prepared By
Joe Hogeboom, City Planner
Summary
Schuller's Tavern, located at 7345 Country Club Drive, has requested to amend the City's General
Land Use Plan Map in order to ultimately construct an onsite patio. Schuller's Tavern is currently
designated on the City's General Land Use Plan Map as "Low Density Residential." It is zoned "R-1
Single Family Residential." Therefore, as a restaurant and bar, it is a legally non-conforming land
use. State Statute 462.357 defines a legally non-conforming land use as:
"The lawful use or occupation of land or premises existing at the time of the adoption of
an additional control (which) may be continued, including through repair, replacement,
restoration, maintenance, or improvement, but not including expansion."
Statutory language provides for replacement of legally non-conforming land uses if they are
damaged by fire or other disaster, but it does not permit for an "expansion" of the use.
Construction of a patio intended for outdoor dining, drinking, smoking, etc. at Schuller's Tavern
would expand the use of the establishment beyond its current capacity. Therefore, under the
provisions of the current land use and zoning controls, Schuller's Tavern may not canstruct a
patio. Schuller's Tavern is legally entitled to make improvements to its existing amenities.
If the majority of the City Council agrees to hold a public hearing to amend the General Land Use
Plan Map, the Planning Commission and the City Council could hold hearings to designate the
Schuller's Tavern property to "Commercial —Retail." If the land use designation change were to
be approved,the property owner would have the right to petition the City Council to rezone the
property to "Commercial." Because bars are only permitted in the Commercial Zoning District
with a Conditional Use Permit (CUP), a permit would have to then be obtained from the City
Council, via the Planning Commission, in order for the restaurant to be expanded in any way. A
CUP for the property would have to be obtained if a patio were to be constructed. The City would
have the ability to restrict hours of operation, traffic and parking situations and other items
through the issuance of a CUP. Property owners within 50Q feet of Schuller's Tavern would be
invited to all public hearings.
Schuller's Tavern does not meet setback requirements for the Commercial Zoning District.
Because it is located on a triangular shaped lot, the property is subject to front yard setback
requirements along both Country Club Drive and Glenwood Avenue. If Schuller's Tavern were to
expand by adding a patio, the property would have to go before the Board of Zoning Appeals and
obtain variances to bring the existing property into conformance with City Code. All new
additions, including a patio, would either have to meet current setback regulations, or would '
need variances to City Code. '
In addition to land use and zoning-related issues, there are several other items that would need
to be addressed should Schuller's Tavern move ahead with the addition of a patio. First, City Code
requires all buildings that are involved in planning-related approval processes to be compliant
with the City's Inflow and Infiltration requirements. That would mean that Schuller's Tavern's '
sewer service would have to be inspected and, if a deficiency is found, repaired or replaced. ;
Second, if any seating area is added to a restaurant, the Metropolitan Council Environmental '
Services Division may require that the business pay an additional Sewer Access Charge (SAC). The '
assumption is that an increase in seating areas means that there will be more customers using
onsite sanitary sewer services.
Finally, if alcohol is to be served and/or consumed on the patio, there may be additional
requirements that are associated with the onsite liquor license. For example, fencing of the area
may be a requirement of the liquor license. Certain liquor licensing requirements, such as
fencing, may conflict with zoning requirements, necessitating additional variances.
Because of the variety of land use, zoning, and other issues concerning Schulfer's Tavern, it will
be a lengthy process in order to approve an addition of an outdoor patio. It will involve multiple
public hearings of the Planning Commission, the City Counci{ and the Board of Zoning Appeals.
The Planning Department would work with Schuller's Tavern through these processes. The first
step would be for the majority of the City Council to agree to move forward with amending the
Comprehensive Plan to designate Schuller's Tavern as "Commercial-Retail" on the General Land
Use Plan Map. Staff seeks direction from the City Council in this matter.
Attachments
• Email from Ramez Jacab dated May 24, 2012 (1 page)
Hogeboom, .loe
From: Ray lacob <rzmpcvrp@yahoo.com>
Sent: Thursday, May 24, 2012 11�11 AM
Ta Hogeboom,loe
Subjec� Schullers Patio
City Council of Galden Valley,
We would like to request to change our zoning from residential to commercial-retail/ser�-ice. T'he reason far
this change is to apply for a patio for outdoar service. We would like this patio to be on the west side af aur
building and ta have approximately 12-I S tables. Our haurs of operatian wauld be from 1 lam-9prn. This
would be a designated no smoking area due to food service. The area wouid be landscaped and fenced due to
an�•regulations from the city�.
Thank��ou,
Ramez Jacob
Schutlers Tavern
'7345 Country Glub Dr.
Golden Valley, MN 55427
Phone: 763-545-9972
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City Administration/Council
763-593-8003/763-593-8109(fax}
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Executive Summary
Golden Valley Council/Manager Meeting
June 12, 2012
Agenda Item
4. Quasi-judicial Proceedings
Prepared By
Thomas Burt, City Manager
Summary
Allen Barnard, City Attorney, prepared a Memorandum outlining quasi-judicial proceedings for
discussion at the meeting.
At#achments
• Memorandum fram Atlen Barnard, City Attorney, dated June 7, 2012 (33 pages)
Allen D.Barnard
Attorney UIRECT 612.341.4715 '
abamard@bestiaw.com ,
BEST & FLANAGAN
Memorandum
DATE: June 7, 2012
To: City of Golden Valley Mayor and Councilmembers
FROM: Allen D. Barnard, City Attorney
REGARDING: Quasi-judicial proceedings
As we have discussed, in addition to policy-makin� functions the Mayor and City '
Counciimembers in Golden Va11ey perform at least three distinct functions as such:
legislative functions, quasi-}udicial functions and judicial functions. Since legislative and
judicial functions are somewhat obvious, quasi-judicia! functions need to be defined. They
involve: (1) investigation into a disputed matter and the weighing of evidentiary facts, {2) the
application of those facts to a prescribed standard, and (3) a binding decision on the matter.
In Golden Valley quasi-judicial hearings or proceedings include variances, conditional use
permits, rezoning, PUDs, nuisance demolitions, license revocations, and so forth.
Although quasi-judicial hearings need not be trials, state and constitutional law
impose procedural requirements on them. Public hearings are mandaCed by the Municipal
Planning Act. However, the courts have required that in quasi-judicial proceedin�s cities
must camply with the requirements of due process. Thus the proceedings must be fair, open
and impartial. In order�to be fair, open and impartia], information cannot be received in
private but must be obtained in an open forum where both parties to the matter have the
information available and are in a position to respond to it. Administrative tribunals must be
unbiased and must avoid even the appearance of bias to be in accord with the principles of
due. process.
In Cantinental Pro�erty Group Inc. v. City of Minneapolis, 2011 W.L. 1642510
(Minn. App. 2011) the Minnesota Court of Appeals.held that the decision of the City
Council to deny certain permits was arbitrary and capricious. The Caurt held that it was
arbitrary and capricious because, among other things, a councilmember:
1} took a position in opposition and exhibited a closed mind with regard to the
proposed project prior to the hearing;
2) adopted an advocacy role in opposition to the proposed project well before she
discharged her quasi-judicial duties; and
3} was clearly involved in an effort not only to assist, organize and mobilize
neighborhood opposition but also to sway the opinions of her fellow
councilmembers.
According to the court these findings established that the city council relied on factars that it �I
was not permitted to consider. '
Memorandum
June 7, 2012
Page 2
BEST tu. FLANAGAN
In order for quasi-judicial matters to be considered fair, open and impartial, it is
necessary that the decision be based anly on evidence in a record. Accordingly, decision
makers may not have ex-�arte contacts. Ex-parte contacts are communications between a
quasi-judicial hearing officer and a person with interest in the praceedings, conducted outside
the formal hearing process. Such contacts or communications may be improper if they relate ',
to the substance or merits af the issues involved in the hearing. Although this is comman in
local government and ex-garte contacts are becoming easier than ever due to the use of I
technology like text messaging and emails, to the extent possible a local government official
should avoid ex-parte communications when acting in a quasi-judicial capacity. If such
communications do occur they should be disclosed for the record with the assurance by the
decision maker that their decision is based only on the evidence presented through the forma)
hearing process.
After our discussions about these matters in or about February and March of this
year, I contacted the League of Minnesota Cities, specifically attorney Jed Burkett, who
handles land use matters far the League. Following a discussion and a review of my letter to
Mike Freiberg dated March 5, 2012, Mr. Burkett indicated that my letter "accuratefy
reflect(ed) the current thinking in the city attorney cornmunity that cities need to get a better
handle on possible ex-parte communications of quasi-judicial decision makers".'
Following our phone conversation Mr. Burkett provided me with a number af
materials as you can see in the attached email from him dated March 16, 2012. Set out '
below is a listing and explanation of some of the materials provided me by Mr. Burkett as
well as other materials which may he helpful to you:
1. My letter to Mike Freiberg dated March 5, 2012;
2. Mr. Burkett's email of March 16, 2012;
3. I..MC magazine article "When Not to Engage with Citizens"; �
4. My partner's memo to Ken Wilcox, Wayzata City Mayor, dated March 9,
2012
S. Excerpt from St. Paul's City Attorney "Conflicts of Interest and Government
Ethics";
6. City oE Mounds View Planning and Zoning Commission $ylaws;
7. Ex-�arte Policy from Lewis and Clark County;
8. Article from Cit,yscape Journal entitled "Iowa Supreme Court Changes the Way
City Councils and County Boards of Supervisors Handle Rezoning Decisions";
9. City of Iowa City Memorandum regarding Rezonings, Due Process and Ex
Parte Communication;
' He agreed with my statement of the law but refused to give me a written opinion because
� the League expects to be defending a case on this issue in the near Future.
Memorandum
June 7, 2012
Page 3
BEST & FLANAGAN
10. Rules and Policies of Gulfport, Florida; '
11. Lakewood, ColQrado Ciry Attorney's article entitled "The Quasi-Judicial
Process and Citizen Access to the City Council"; and
12. City of Dublin, California Staff Report regarding Reconsideration of Ex Parte ,
Contact Policy.
Mr. Burkett recommended that the City consider and adopt a policy to govern not
only the city council but also its boards and commissions when hearing quasi-judicial
matters. These attachments in part reflect policies other governmental agencies have put in
place. I offer them for your consideration.
Enclosures
cc: Tom Burt, City Manager
00009U/480568/1503543_i
Allen D.Barnartl sESraFU.au�nnrur
AtiDrney.oirtECr 613.347.9715 225 Scwth 5ixth Streek,Supe 4U00 Minaeapolfs,Minnesota 55402
0barnard(q�hestlaw.com rE1612.334.7121 FnX 672.939,5847 eESn.nw.cor� I
BEST & FLANAGAN
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CHARLES C.BERQIJIST �
1AME5 M.CHRISTEN$qN
E.1dSEPH LAiaVE
Dear Mike; ca��oav o.sout�
CATNY E..GORCIN �
� PATAICK 6.HENNESSY
At the Fe:bruary 2012 Minnesota Association of City Attorneys TIMpTHV A.SULLIYAN ,
Educ:atianal Conference I a:tterre(eci, P�ter Ginder of the IVlinneapa�is City , r►+oMAS,.Rxo�o
OANIEI..R.W.NE450N ��.
Attarney'�'(Jffice made a presentation entitled "Quasi-Judicial Hearings: ord�o,.��eKE
What Do You Tell L}ECisinn Mak.ers?" STEVEN R.KRUGER
PAUI E.RAMINSKI �
RO55 C.fURMEIt
On page 9 of the written materials re�arding "Ex t�arte MApVE.SHEAREN
BANBABA M.ROSS
cc�mmuni�ation5" he said th� followin�: SARAHC.CRIpPEN
ROB£RT D.MAHER �
� fr 4AVIp M.lOKiv50k
Gommuniz:atio�i ��tW��II a qu.�si-judicial hear.ing �111��� and a GHRISTOPH@R D,IOHNSQN
��SQ11 Vlrl�� 11��C:I�B� 111 Ul� n9°OG�('>d1IT S� CQTI�U(:�C.'d outsidc the OANIEI A.KAP4AN
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.
formal hear�g pr.oc�ss; axe consiciered "'e�c par�e" ar�cl may be BRAU6EY'F.WiLUAMS
1I11,�O. .eI li t�C7� T'��4' 'ti� t�e substance or 1TYeLItS of the issues �YNTHIAI.NEGARTY
� � . � J - R�EBEGCA A:CHAFFEE
involved '►n the kiearing. Thi� �§ .�xtr�mely cominon in local nnVEa�.scHe�2F�
�fJV�I171T1Crit 111CI ��C �1�Tt�COI1ta:CCS aLe �CCOri1111�y' E851�I tI111] �VCL' CIUB �OWAROP.SHEU
7 �^ y DAHIE4 i.GRIMSNVO
t� the �$f: o�f techno[ogy �ike t�xt messaging a�rid t.''�a11$. 1 Q �11�,.' 1pNN p.SEINER
XIM IODEME pONA7
�xtcnt possible a local government official actin� in a quasi-judicial XATHVYIP
�:`c�p'`d�.��� shoulcl.avoid ex� parte c�mmunicatio�s. Tf they dc� occur, BRIGID M.G055
JUSTIN V.SHpRT
those �:omirttiunications shot��d be disclosed for the record with the WLLLIAM R.ASP
assurance �x ressed b the decisian-maker that their decision i,s ELI2ABCTH C.80RER
� � IOSEDH 1.W.PHEtPS
based onl� the `sevid�n�e", ,presented throu�l� the #4rmal hearin� IOHN T.SULLIYAN
LEONAN�86.FINEDAY
,�IOCESS'
Discussin "Cc�nsider�tian o icie the x�cord" h� rovided the a►�ouNSE�
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RICHAR�A_PETER56N
IEQNAND M.ADOINGTON
Local government officials frequently have access to informatian N.WAITCRGRAFf
QllCSiCI@ Che record whecher ICS SICE VISICS t�U��IE: CjOCidTYl�TltS OC scc�rrn.n�ea
> C fRANK VOGL
information re�eived from well-intcntioned citizens. The official MARINUSW.VANPUTI'EN,,a.
should either refrain Erom considering such inform�ri�n �r
alteamatively take action to �nsure that the inforrnation is inc�ude�l
prop�rly i� the ree.orc� ,in a Cicnely rrx�nner so that tl�e parties ari;d
pu�ilic can fa�%rl.y b� apgrisecl of it and h�av� ar� opportunity th
respond or address-ir.
IVlike Freib�rg 'i
Marclz S, 2412 �
P�ge 2 '
BEST & FLANAGAIh!
These stater�ien:ts were followed�p E�y citatians to cases and other authoriries.
It is important that the C�ouncil be mindful of these issucs because af the potential
consequ�nces. T'he decision the Council rendered could be voided or the requested
permission granted/denied if appropriate under the cir�umstances.
Please ��ve m�a ea11 if you wish to-diseuss this E�ar.ther.
�ery truly yc�urs,
�lllen D. Bamard
ADB/rys
P.S. Wr�itings or copies of emails may be entered into the record liy orally xeferring ta
receipt of each one of thetn, clie name of the sender of each and .receiving and filing all
af them as part of the rEC�rd.
,
OtJI}09U148f)56Rf14619SZ_1 '
Allen D. Barnard
From: Burkett, Jed [JBurkett@Imc.org]
Sent: Friday, March 16, 2012 1:46 PM
To: Allen D. Bamard
Cc: Grundhoefer, Tom
Subject: ex parte communications
Attachments: When Not to Engage with Citizens.pdf;When Not to Engage with Citizens.pdf; Mounds View
planning commission bylaws.pd#; Lewis&Clark ex parte policy.pdf; Gulf Port FL ex parte
policy.pdf; Lakewood CO quasi judicial.pdf; lowa ex parte.pdf; Lake Forest CA ex parte.pdf;
Dublin CA ex parte.pdf
Allen,
Following up on our phone conversation of yesterday afternoon on "ex parte communications"of local quasi-judicial
decision-makers,attached are some materials you might find of interest:
• LMC magazine article"When Not to Engage with Citizens"from Minnesota Cities June-July 2009.
• City of St.Paul ethics notebook excerpt an ex parte contacts.
• City of Mounds View planning commissian bylaws,which at X.C.on pages 5-6 dea{s with ex parte contacts.
• Ex Parte Policy from Lewis and Clark County MT prohibiting communications on subdivision applications.
• Rules&Policies of City of Gulfport Ft,which at pp.5-6 permit communications but require disclosure.
• Articles from City of Lakewood CO on subject of quasi-judicial process&ex parte communications.
� Article from Cityscape journal& lowa Ci#y memo on ex parte communication In wake of 2006 Sutton decision.
• December 6, 2017.City of Lake Forest CA city council agenda report on adoption of Ex Parte Communication
Policy.
• September 2,2011 City of Dublin CA staff report on ex parte contact policy. ',
• November 2,2010 City of Los Angeles CA memo on ex part communications( '
http:/[ethics.lacitv.or�/PDF/policv/GE0/Memo Impartial & Fairness Part C Continued 11.2.2010.pdf). ',
• June 8,2010 City&County of San Francisco CA memo on ex parte communications&disclosure{ htt : sf- '�,
plannin�.or�/ftplfiles/CommissionlHPCPacketslmemo�20to%20hpc°�20b 8 10.pdf) . ,
�' Your tetter accurately reflects the current thinking in the city attorney community that cities need to get a better handle
on passible ex parte communications of quasi-judicial decision-makers.
In the wake o#recent case law,city attorneys should carefully review this topic with city staff and officials to determine
what sor#of policy might work best for the city. The most cautious approach is to limit ex parte communications to the
greatest extent possible. If ex parte communications occur,the city should determine the scope of the communications
to be disclosed,and how disclosure might best occur on the recard. Different cities might take different approaches,but
any city may be well-served by considering adoption of a policy. A policy requiring disclosure is reasonable and '
defensible. '
Please feel free to give me a call at 651-281-1247 if you would like to discuss further.
Thanks for wntacting the League,
Jed
Jed Burkett� Land Use Loss Control Attorney
Tel: (651)281-1247 � Fax: (651)215-4140
jburkettCa7lmc.org �www.lmc.ora
League of Minnesota Cities lnsurance Trust ',
145 University Ave.West� St. Paul, MN 55103 I
1 �I
i
- — _ _ ,
� � ,
When Not to En ' ' ' �
gage with Cit�zens
By Paul Me�win
magine that your city is facing a The importance of these consid- of open meetings and due process still I
difficult land use decisian that has erations is especialJy true for land use applies.Uavernment business should !
split the community.A developer regulations,which iinpinge upon arae be conducted openly so eveiyone can �
ts building a large nlulti-fa�iuly of the public's most str�ngly held rights: know what information was presented
building on prime lakeshore the right to use private properry.Cities and have an opportunity to participate. �,
properry.Some ciazeus think a that want to regulate land use must It may be difficult for cocincil and
new development will revitalize develop regulations and then apply commissioner members to step back II
the area;others think it wi11 ruin them in a consistent and public manner. from direct interactions with the com- �
tlie neighborhood. When processing land use applica- munity.However,the public system of
Neighbors are calling and writing tions,cities often act in a quasi judicial open rneetings and equal participation
city councilmembers.The develaper capacity.The city's decision will directly is set up to ensure due pi�ocess and a fair I!
has offered to give the councilmember irnpact an applicant's property rights hearing for all paxties,It preserves the I
finin that district a personal tour of the and:the due process rights of all parties city's appeazance of neuti�ality and pro- II
site to explain its benefits. involved.Just like a judge or jury 'priety,and can head off future conAicts
Should a single or small gmup of cannot accept evidence outside of the arising from a perception of unfairness.
coimcilmembers meet with che neigh- courtroom,the city should not accept While it may seem tempting to wade
:bors?Go on the tour?Try Co mediate evidence outside of public nZeetings. into a situation and problem-solve,
�a settlement between the factions? Like a judge,city off'icials niust avoid doing so is likely ta create more
', Tt may be tempting for a ciry coun- any appearance (or reality) that they problcros than it solves.
'cilinemher to wade into a contenuous have already made up their minds or Consider this:if an application is
':situation and tty to resolve disputes or that they favor one side or another. denied,and the ap�licant discovers that
'learn more about a project.After all, If citizens contact city off'�cials a city councilmemher had exten�ive
most council or commission mem- regarding a pending matter,the most private meetings with the opposition,
�6ers are interested in the community prudent and responsive course of how will that look?Or the reverse:
'::iitd want to make it bettez.They are action is to encourage participation what if a controversial application is
;go-getters and problem-soleers who in the public p►ocess so that everyone approved,and the councilmenibers had I
�nt to roll up their sleeves and get involved can be informed and engaged private meetings with the developer?
F':;... .
��rivolved.City councili�iembers want in the conversaqon at the same time. Even if the decision-maker acted wich
�to;be responsive to the citizens that A city's authority to make decisions rests thc best of intentions,the appearance
i�lected them. with the entire council,not any one of impropriety can create problems that
�;N3 I3ut sometitues,a ciry leader's job is meinber.All decision-makers should could have been avoided.
a�st;served by knowing when or how have access to the sarne information. In order to create a consistent
��:�o;�lisconnect froin specific interactions. If a ciry councilmember wants to get approach,cities should consider adopt-
.�...,
„�ity:decision-makers should avoid more deeply involved with a project ing a formal policy regarding ex parte
�=���ct individual contact with citizens in his or her district,and the formal contacts and how�o handle them.The
�,,.:.<..::.
���ciing matters pending before the hearing process is too cumbersome, key is to find a common understanding
�?i�`:�i�stead,decisian-makers should try there may be some middle ground such o£rhe appropriate individual role for
r�.�',.
�?��ake sure that all discussion happens as informal town hall meetings—but city councilmembers that will balance
���?ublic with all interested parties. the idea should be one that the entire responsiveness with considerations like
�� i
,�,.1'3�ving meetings thaC involve oniy council is informed about, appropriate decision-inaking and the I
'�?�4�ide to a controversy(known as ex Many contaccs between citizens Open Meeting Law Having a policy
;�;.:,:
.��,:Fanfacts) inay create an impression and decision-makers are subject to may not avoid all conflicts,but can help
��overnrnent is operating in secret the Open•Meeting I.aw,which requires to avoid accusatio�u about inappropriate
#iiot providing a fair process to atl that any situation be treated as a puUlic roles or secret ineetings.�
s .�s---a L�esult that is in direct con'� meeting of the council if a majoriry of �
`u�'idi the engaged and responsive the city councilmembers is in atten- Paul Meru�in is senior land use atrorney
• ,':ach the city councilmember dance.Even if the letCer of the Open with the Z.eague of Minesota Cities.Pl�one:
�ave iatended. Meeting Law does not apply,the spirit (6S1J 281-1278.E-mail:pmerutin@lmc.org, li
�:. �
�
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.;�..;;L;Y 2009 PAiNrvESOTn C�riss i3 I�
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._.. . ..._..._ .._. .. , ...,_ . __ I
i
i
Robert L.Meller,�P. BEST&PLANA6AN LLP
Attorney DIRECT 672349.5648 225 South Sixth Street,Suite 4000 Minneapolis,Minnesota 55402
rmeller@bestlaw.com TEL 612.339J121 Fnx 612.339.5897 BESTLnW.COM
BEST & FLANAGAN
Memorandum . �
DATE: March 9, 2Q12
TO: Ken Wilcox, Wayzata City Mayor
FROM: Robert L. Meller,Jr.,Wayzata City Attorney
REGARDING:Avoidance of Private Discussions with Applicants and Citizens on Quasi-
Judicial Matters (such as variances, CUPs, and PUI�s}
You have advised that, predictably, you are currently being approached by applicants and/or
citizens requesting private meetings with regard to q�asi-judicial matters pending befare the
City1. It is important that you continue to courteously decline such private meetings,
particularly in view of the 2Q11 decision af Continental Property Group, Inc. ("CPG") v.
City o f Minneapolis. In CPG, the trial court found that the conduct of a councilperson
outside of the public hearings eviscerated the plaintiffs' right to a fair hearing and violated
CPG's rights ta pracedural due process. The trial court found that the Minneapolis City ,
Councilperson toak a position in opposition and exhibited a closed mind prior to the '
hearings, and that such actions were improper and impermissible for someone acting in a
quasi-judicial capacity.
Simply stated, to participate in a quasi-judicial hearing, a councilmember must be ,
disinterested and free from bias or pre-disposition of the outcome, and the appearance of '
complete fairness must be present.
In fact, the CPG decision discourages council members from pre-hearing meetings with
applicants and/or constituents at all. This will preclude the "he said/she said" after the fact
characterization of these meetings. •
In a prescient 2009 article by League of Minnesota Cities' attorney Paul Merwin, even prior
to the CPG decision, he points out � "' �
When processing land'use applications, eities often act in a quasi-
judicial capacity. The city's decisiori will directly impact an
applicant's property rights and the due pracess rights of all
parties involved. Just like a judge or jury cannot accept evidence
outside vf the courtroom, the city should not accept evidence I
'.Quasi-Judicial,as opposed to legislative proceedings are:
(a) Investigation into a disputed ciaim and weighing of evidentiary facts;
(b) Application of those facts to a prescribed standard;and, '
- (c) A binding decision regarding the disputed claim.
Memorandum
March 9, 2Q12
Page 2
BEST & FLANAGAN
outside of public meetings. Like a judge, ciry officials must avoid
any appearance (or reality) that they have aiready nnade up their
minds or that they Eavor one side or another.
If citizens contact ciry officials regarding a pending matter, the
most prudent and responsive course of action is to encourage
participation in the public process so that everyone involved can
be informed and engaged in the conversation at the same time. A
city's authority to make decisions rests with the entire council,
not any one member. All decision-make�s,should have access ta
the same information. '
RECOMMENDATION
While applicants will doubtless continue tQ attempt to approach and influence council �
members pre-hearing, the easiest answer is that such meetings be declined stating that the
council member needs to keep an open mind and review all releuant background material in I
consultatian with all other council members so that the entire record is open and fair, with
the applicantlopposition having the opportunity to rebut or explain any adverse informatian.
000043J2Q1868J1465228 1 -
CITY OF SAINT PAUL
�C)�FLICTS C�F INT�REST
� AND
Gt�VERNMENT ETHI� S
��
�
�ffice of the City Attorney
May 1l, 1994 I
�
�
Updated Apri126, 2007 '
�
beneft(other than duly autliarized salary ar compensation for services to the city)
to fihe public official,the spouse of the public official and all minor chiidren within
the custody and control of the puhlic official."
III. ETffiCAL AND GOOD GOVERNMENT PROVISXONS
A. Ex parte contacts in puasi-iudicial matters.
There are a nurnber of situations in which the City Cauncil takes action in a judicial or quasi- '
judicial capacity. These most often occur when it is dealing with the rights and duties of an
individual person,deciding how the laws and ordinances should be applied to the facts of the case
as they affect that persan. '
This is in conlxast ta legislative and/or policy matters, which deal with the application or i
formulation of rules or regulations that cover all persons generally ar all persons in a general class I���,
without regard to specific rights or responsibilities. ',
Common examples of quasi judicial couucil actions are those revoking or suspending �I
licenses, and those granting or denying individual zoning variance applications. ''
In general,no Councilmember should receive a private communication from or on behalf ',,
i
of nne side of the case in a mattsr that is before the Council for a quasi judicial hearing or decision. �
I
Sach private communicativns violate the due process principle that both sides to a dispute should I,
have the chanee ta present evidence, and to have the opporttiuZity to rebut or qualify the evidence !
offered by the ather side.
Of�en this due process principle is embodied in an ordinance or statute. For example,
Section 310.05(o-2) of the Saint Paul Legislative Code provides:
"If a license matter has been scheduled for an adverse hearing, council members
shall not discuss the license matter with each other or with any of the parties or '
interested persons involved in the matter unless such discussion oocurs on the record
during the hearings of the matter or during the council's final deliberations of the
matter."
24 '
A more detailed provision is found in Chapter 11 of the Saint Paul Administrative Code relating to
utility regulatory cases.
However,whether or noT there is an ordinance or statute which forbids ex parte cantacts,due
process forbids ex parte contacts in a11 quasi judicial decision malcing.19 The decision of the Ciry
Council in ticense,zoning, and other quasi judicial hearings,should be made on the record of the
evidence and testimony before it, and nat on the basis of information that was communicated to
particular members privately and out of the hearing of the other party to the case.
In ths case of an inadvertent violatian,or when the Councilmember receives the information
under circumstances giving no hint that the information was to be about a qu�si judicial matter
pending befare the Council, the problem can be remedied. The other party must be afforded an
apportunity to rebut and conftont the information using the normal procedures for that type of
matter.xo
B. U$e of Citv qropertv. '
1. Political use of Citv prot�erty. Chapter 29 of the Saint Paul Legislative Code
forbids any person from using City praperty for a political purpose. The definitions of"person," ',
"City property,"and"political purpose"are expansive and have bmad coverage.
It doas not apply to (a)public lands or areas which are or can be used by City permit for
public meerings or political activities,or(b)those portions ofpublic buildings which are open to and
19See Minnesota Administrative Procedure,Beck,et al., 1990, §12.2(p.240),which states
that administrative decision-makers must make their decisions on the record. Cases"may not be
decided on the basis of information acqnired by the decision makers from ex parte contacts."
Such cantacts violate due process. The treatise cites to Nevels v. Hanlon, 656 F.2d 372, 37b(8th
Cir. 1981); and other authorities.
20See Simex v. Rios,bbl F.2d 655,b79(7th Cir. 1981); and Barlau v. Citv of Northfield,
568 F. Supp. i81, 187(D.Minn. 1983)(actual bias is the test of the due process violation).
25
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CITY OF MOUNDS VIEW
PLANNING AND ZONING COMMISSION BYLAWS
(Revised Sept 1, 2004) ;
I. AUTHORITY: The Bylaws of the Mounds View Planning and Zoning Commission
(Bylaws) are established in accordance with the Maunds View Municipal Code
Section 401.06. Subd. 7"The Commission shail adopt bylaws for its governance and
for the transaction of its business.° Whece there is a conflict between the provisions
of the Bylaws and the provisions of the City Charter and the Municipal Code, the
provisions af the City Charter and the Municipal Code shail govern. (For purposes of
simplicity,the Planning and Zoning Commissian may hereinafter be referred to as the
Planning Commission or the Commissian.)
I1. ADOPTION OF BYLAWS; REVIEW AND AMENDMENT: ''
A. ADOPTIONAND AMENDMENT:The Bylaws shai{be adopted by Resolution by I,
an affirmative vote of the majority of inembers qf the Planning and Zoning �,
Commission appointed as voting members, and shall be placed on file with the
City Clerk-Administrator and the Community Development Department. A copy '
of the bylaws shall be forwarded to the City Councif for ifs information. Any
amendments to the Bylaws shall be adopted by Resalutian in the same manner
as the original Byfaws.
B. ANNUAL REV1EVl�The Bylaws shall be reviewed on an annual basis at the first
regular meeting of the Commission in February.
111. MEMBERSHIP AND VACANCIES. Vacancies on the Planning Commission shall be
fitled in accordance with the Municipal Code, Sections 401.02 and 401.03,
IV. OFFICERS
A. OFFICERS NAMED: The officers afthe Planning Cammissian shall consist of a
chairpersvn and vice-chairperson. The Commission may create and fill such
other offices from its members, as it may deterr�ine, to transact Commissian
business. ln addition, the Director of Community Devefopment, or his or her
designee,shall act as the recording secretary for the Commission for purpose of
preparing meeting minutes.
;
_ . .: - _ I
City of Mounds View
Planning and Zoning Commission-Bylaws Page 5
regular or special meeting. The Co�mission packet should be delivered at least four
days prior to the meeting. Each Commissioner is responsible for reviewing the
material within the packet prior to the rneeting.
i
Vlli. PROFESSIONAL CONSULTANTS:Advice from, consultation with,and/or requests '
for review by the City Attomey, City Engineer, City Planning Agency, or other paid '
cansultants shail be in accordance with the Municipai Code, Section 401.07.
IX. SUPPLEMENTARY PUBLICATIONS:All Commission members shall receive a copy
of the Mounds�ew Municipal Code and a copy of the Municipal Comprehensive Plan
as well as other materials provided by the City Council or City Staff. These materials
shall be retained by each commission member and returned to the Community
Development Director upon the membe�'s resignation or termination of appointment.
X. CONDUCT OF MEMBERS
A. ATTENDANCE: Commission members shall advise the designated Staff
member or the Commission chairperson of an anticipated absence trom any
regularly scheduled Planning Commission meeting. Any member attending 4ess
than 2p meetings per year without the consent of the Commission shall be
deemed to have vacated the o�ce,and such vacancy shall be filied by the City
Council pursuant to Section 401.03, Subd. 1. A leave of absence may be
granted by the consent of the Commission.
B. CONFL/CT OF 1NTEREST.'
1. General Standard: No Commissioner shall be appointed with private or ,
personal interests likefy to conflict with the general public interest If any ',
person appointed to the Commission shall find that their private or personal '�,
interests are involved in any matter coming before the Commission, they ',
shall disqualify themseives from taking part in any discussion or action on the �
matter; alternativefy, they may be disqualifled by a finro-thirds {2/3) majority '
vote of the Commissioners in attendance.
2. Conflict Due to Ecanomic Interests: A Commissioner has a conflict of
interest if, in his or her discharge of official duties, would be required to take
an action or make a decision that would substantially affect the
Commissioner's financial interests or those of an assocfated business,unless
the effect on the Commissioner is no greater than on other members of the
Cammissioner's business classiflcation, profession, or occupation. In the
event a conflict of interest exists with respect to a particular matter before#he
Commission,the Commissioner shall disqualify himself or herself f�om taking '
part in any discussion or action on the matter,
�'' C, EX PARTE CONTACTS: Ex parte contacts are cantacts befinreen individuals �'`
seeking to influence the�lecisions of the Planning Commission and individual��'� �
Commission members outside the meeting forum. Such contacts include
City of Mounds View
Planning and Zoning Commission-Bylaws Page 6
meetings with project proponents, residents, praperty owners, and citizens ',
separate from Commission meetings, communication between Commission ,
members outside the meeting forum,telephone calis or letters which attempt to ',
influence a Commissioner's opinion on a matter which will be subject to the ',
Commissioner's vote. When the Planning Commission is involved in a rnatter '
which is to be heard and decided by the Commission(e.g.variances),Planning '
Commissianers shall indicate to the persan cantac#ing them that such contact is ',
inappropriate and all testimony needs ta be offered at the hearing ta ensure a I
fair hearing for all parties. In all other cases, Planning Carnmissioners should '
discourage such contacts and shoufd avoid expressing any opinian as #o the
meriks of the case. When ex parte contacts occur,the Planning Commissioner
is responsible for notifying the Cammunity Development Director, and fo�' ',
conveying the substance of the communicatian at the next commission meeting '
at which the matter discussed is under consideration.
i
Gary Stevenson, Chairperson �
ATTEST:
James Ericson, Community Development Director
,�
I �
�!
Rev�,siofi HisWnr:
September l,2D04
Februsry Zl,2001
February 2,2�U
March 5, 1997
February 3, f 993 ',
\\TftOUT1COMMDEV\PI.ANNING COMMISStON1PC BYLAWSIBYLAWS 2004-W1TH CHANGES.ROC OCtOI?CP l�O I
i
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Lew/s and CJark Countv
SU8DIVISION REGULAT/ONS
APPENDIX M:
LEWIS AND CLARK COUNTY EX PARTE POLICY
RESOLUTION NQ.2002-23
A RESOLUTION ESTABLiSi-IING THE BOARD OF COUNTY CpMMTSSIONERS POI�ICY
RELATING TO EX PARTE COMMUNICATIONS
WHEREAS,the Board of County Commissivners wishes to establish a written poticy regarding
EX PARTE communications relating ta quasi-judicial proceedings;and
WHEREAS,yuasi judicial mstttrs include,hut are not limited to:
A) granting or denying privileges,rights,nr benefits to a particular entity;
B) interpreting,applying,enforcing rules and laws;
�) issning,suspending,or revoking licenses,permits,and certificates;
D) determining rights and interests of adverse parties; •
E) evaluating and passing on facts as they apply to exisring laws or rules;
F) awarding compensation;
G) ordering action or abatement of action; I
H} any other act necessfuy to the performance af a yuasi judicial functian ',
WHEREAS,a matter is quasi-judicia!if the Board of Caunty Commfssioners is actzng as a body tv
determir�e facts and their application to the law and a party has a legal obli�;ation and right to seek review
of the Board of Coundy Commissioners;and
WHEREAS,the County Commissioners held a public hearing on December 11,2001 to hear evidence for
or against establishment of an"EX PARTE"policy. '
NOW,THEREFORE IiE IT RESOLVED that Commissioners may nok communicate with any pariy ar
his/her representative outside the setting of a public hearing on any issue of fact or law regardin�any quasi-
judicial matter that may come before the Cammission for decision;and ',
BE IT FURTHER RESOLVED that Commissioners shall nnt diseuss a subdivision applicatian with the
applicant,any other effected party,or his/her representative once an application has been submitted to the
Planning Department. Any written commonts regarding an application shall be forwarded to the Planning
Department,and those comments will be presented to the Commission during the public hearing.
Individual Commissioners may visit the property under review,as tong as communication does not take
place with the applicant or any effected party during the site visit.
Dated thls 26 day of February,2002,
Lewis and Clazk County �
Board of Commissioners '
!s/
Michael A.Murray,Chairman
AT'�'EST:
/s/
i'aulette DeHart,Clerk of the Board
I
December�8, 2007 Appendix M-1
Amended March 5, 2009 and May 18, 2010 ,
Iowa Sapreme Court Changes the Way City Councils and County Boards of Snpervisars
Handle Rezoning Decisions
Gary Taylor,.1.D.,TSU Extension,Department of Community&Regional Planning*
Article to appear in the February 2007 issue of Cityscape Journal,
published by the lowa League of Cities
In September 2006 the Iawa Supreme Court decided Sutton v, Dubuque City Council; a case that could
. significantly affect the process by which ci#y councils and county boards of supervisors make decisions
on rezoning applioatians in the future. This article summarizes the case and provides some suggestions to
bring the practices of these etected bodies in line with the Supreme Court's ruling. ',
The Case '
The Dubuque City Council voted to rezone a parcel of property fmm a commercial recreation distriot to a
planned unit development(AllD)district on a four-to-three vote. The PUD rezoning allowed the property '
owner to eonstruct a condominium project on property adjacent to a eity park. Plaintiffs, who claimed '
that the condominium would affect their use and enjoyment of the park,challenged the rezoning decision '
in court on numerous grounds. ',
Mach of the case revolved around whether plaintiffs followed the procedure appropriate far appealing ',
rezaning decisions. The City of Dubnque contended that plaintiffs'olaims were barred because they filed '
the wrong type of action ("declaratory judgmenY') with the distriot court. The Iowa Supreme Court '
concluded that a different type of action ("certiorari") is appropriate for challenging f.�e legality of �
decisions made by city councils and county supervisors in zoning matters if"the action being reviewed by
certiorari is of a quasi judicial nature." This led to the yuestion of significance for future wning practice:
Ts a rezoning a quasi-judicial action? The Iowa Supreme Cou�t concluded that rezonings are, in fact, ,
quasi-judicial actions. The Court cited with approval a Washington State Supreme Court opinion that set ',
forth factars that make rezonings quasiyudicial: ',
"Those factors include(1)rezoning ordinarily occurs in response to a citizen application
followed by a statutorily mandated public hea�•ing; (2) as a result of such applications, ',
readily identifiable proponents and opponents weigh in on tha process; and (3) the
decision is iocalized in its application affecting a particular group of citizens mare '
acutely than the public at large°' �!,
The Implications II�
The Court's decision means that city councils will need to conduct rezoning hearings differently than the ',
way they conduct other "legislative" actions, such as adopting resolutions, budgets, and general health, i
safety and welfare ordinances. The Iowa Supreme Court, and the courts in many other states, have
insis#ed that quasi judicial proceedings are subject to more rigorous procedural safeguards because their '
results directly affect the property rights of particular citizens. By way of example,the decisions made by ',
zoning boards of adjustment—variances, special exceptions, and appeals—are alt quasi judicial actions, ,
and the rules of proceduce followsd by baards of adjustment reflect these safeguards. The primary
changes in practice that elected bodies wiil need to follow For rezoning matters are (l) no ex parte
contacts outside the hearing,(2)tighter,more"cour#-like"hearing procedures,and (3)a written decision
(or dctailed set af minutes)that includes adequate justifiaations for the decision.
Ex parte contacts. Citizens expect to be able to discuss public matters with their elected representatives,
and expect the elected representatives to be responsive to those discussions. However, in quasi judioial
Sutton v Dubuque City Council Page 1 of 2
actions many suah discussions fall under the definition of ex parte contacts. The towa Supreme Court has
stated that an ex parte communication ocours when a board member communicates,directly or indirectly,
in connection with a marier before the board, with any person or party, except upon notice and •
opportunity for all parties to participate. Members of a governmentai body performing a quasi judicial
function are prohibited from having ex parte communications with interested parties. Such oontacts could
disqualify the elected official from involvement in the rezoning vote. Insofar as Sutton holds that
rezonings are quasi judictal proceedings, it may be interpreted to mean that efected officials should not
discuss the particulars of a rezoning aase outside the public hearing.This woutd prohibit discussions with
rezoning applicants, objectors and members of the public, Sorne city attorneys also suggest that
discussions with oity staff and site visits conducted by individual city cauncil members qualify as
prohibited eac parte contacts.
"Cnurt-like" procedures. The term quasiyudicial litera(ly means "court-like." Zoning boards of
adjusiment follow (or should follow) quasi judicial procedures by ensuring that all sides to an issue are
provided an opportunity to speak and keeping an official record af the proceedings, including testimony
and exhibits. Rezoning decisions cannot be based on material that is not contained within the record,
After Sutton,the city council cannot rely on some fact or opinion that was not presented in testimony or
evidence at the rezoning hearing.
Written decision. A written decision (or detailed set of minutes)ensures that decisions are not based on
material that is not contained within the record. Tt should reflect that a doliberative pi�ucess was used by
the counci]in raaching its conclusion. 7'he written decision must contain a statement af the facts,derived ',
from the record, that support the council's conclusion. For example, a critical element in deciding ,
whether a rezoning is appropriate is whether the new zoning classification is consistent with the !i
community's comprehensive plan. The statement of facts in the decision,therefore, should bring out the I
facts in the eecord that support #he consistency between t}� plan and the new zoning. The written
decision should also clearly state whether the rezoning is being approved or denied; a simple fact that
sometimes gets overlooked at the conclusion of a long hearing.
Conclusion
The Sutton decision means that city councils wi11 need to conduot rezoning hearings differently than other
matters. To understand the procedural safeguards that may naw be sxpected from elected offioials acting '
on rezoning applications, a good tip is to look at your board of adjustment's rules of procedure. Of
course, city council members should first and faremost consult with their municipal attorney to work
through the implications of tha Sutton case. ,
a
*The author wishes to thank Barry Lindahl,Dubuque City Attorney,for his helpful analysis of the case. '
,
Sutton v Dubuyue City Council Page 2 of 2
��,�.�.m.�r� ��. � G 1 7' Y C� F 1 C3 W l'� C t T' Y IP2
�"��� �i�IE � � R� N1� C.,IM �
.�.�..���. _�-___ - ..,
DATE: 2/28�007
ro: c;sy cou��i
FROM; �leatror DfJkes, City Attomey
RE: Rezonir�gs,Dua Process And�ac Parte Cpmmunicatfon
INTRUDUCT�ON f ISSUE
In 3ufton v nubuaue Citv CQ�ncfl Sitp Op. IVo. 85/0�1--i�7 {Se�tember 29, 2006) ths Iowa
Sup'reme Court held that thg Dubuque City Cauncii's rszoning af s psrcel of property from a
�ammercist recreatfon dtstrict to a plannect unit davelapment(PtlO)district was a°quashj+adictai"
as oppased ta leglsla�ve proaaedir�g. The issue in fton was tha nature of ths prc�ceeding one
must usa to c�ratlenge a zontng decisGan. Nowever, the c�ur�s characteri�atbn of the reu�nin�
as °quasi-]udic�l` has prompted an examination of the ext�nt to which the due process ,
requirem�nts that applY ta quasl•]udidal bodies(e.g, �oard af AdJustrnent) eppty to a leglslative �
• bady like tha�fty Cc�unci!when it Is making a rezonlr�g decislon that ia quasi judlcial In n�tur�.
Ci)NGlUSION '
Due proc�sa requtrements apply to quasajudiciat proceedings and generaliy not to IegisUatfve I,
praceedings. In u on, the caurt explained that zoning decisions can be eRtfer legisla4va or I
quasi judtcta! in nariare: "Wh�n a munici�al leg�lative bvdy enacts a comprehensive plan arnl ',
�zanirxa code��cts in a palicy making aapacity, Bul ln amending e zoninp aode� or redaasifying
lar�d thersund�, the same bvdy, In effeet makes an adjudiaattan between the rEghts sought by
the proponents and thQS�alaimed by the apponenis of the zoning r.ttienge." SHp Op,p.5{quoting
Flemin�y 7a_i�,�a. 81 Wesh.2d 282, Z99, 502 P.2d 327, 381'{h 972)}. Under the standarda set
forth in the S a case, the majority of zoning decisions made by the lowa Gity City Counci�are
quasi�JudSc�at in na#ure, Wi#h respect to t�'►ese declslons, I advise that the fotlowing chenges be
rnade in arder to a�ure that the partit�pa�rts are al�orded due process:
1, F� a�+�ommunicat ons. In the IIgM of the dt�erences between quasi judioial bodies ;
�nd legislath+e bodies mak{ng quasi�udidal decislons, f do nat agres with the posRion of some ,
vommenta#ors that the S n ca�e requires that Coundl members have n�r ex pa�te
aomrnunications, (See;, g,�;,"Recer�t Caurt case dec�SEon changes rezonir►g process°. February �
2007.) hlowever, i� ard�r to assure d� praces�, a Counc�'f inember who has had an ex parEa
communication cancemJng the rezar�ng must disclose tha ideMity of the person(s)wlth whom he
or she has communicated �d fhe substance of�ach communicaq4n. Such disclosure should
occur at the pubNa hea�ing. if a aam�nunica�on ocau�s aiter the public t�earin� it should be
discios�l tha next time the item Is on the Counc�'s agenda. A Cfluncil member may discuss the
r�xonin�with a staff member outside the pubitc forum but a discusston wfth a staff member�er ,
t�ian a c �t�,o,rnev must be disclosed as an ex parte�rommuntcation, ,
2. Ima�tiai decfstonm�s kers. Counc�l rr�ernbers must remain fmpar#Ial, An impartial '! ;
dscisionmaker is a cr+ticai component Af due proc�ess. Caundl membees must keep an , ,
vpen mind, Statements by counall membe�s indicating that ihsy have rnads up thelr mind befors iI
they vote ar�nat acceptable and wiif aubject t�e rezanfrtg to challe�ge. i,
� �
�
I9
t
3. .Stij,�f�eq atlons. Staff prese�afions and t�ue�ions tor statf sttould occur at the public '
t�earing, not at the work sassion. A staff presentation made at ths wark se�eiion is on the
record, �hd therefare, is �ot ax parte. However, other ir�terested parties are t�ot able to ,
� par�clpate at the wark sesslan. Maving ail pres�ntstfons and responses ihereto at the pubiic
, hearing wfll help assure the imparUalthr at the decsionmakers.
DISCUSSIpN
Exam„ple Qf x parte Communi.cafions."Ex parte"means: "Dane or m�de at tha instance and for
the benefit of one p�rty only, and withaut notfce to, ar arQument by, any person adversely
interested." Btack's Law Dlctianary(1999 7�'ed.} ',
Assame the councN's agenda tnclades the consideratlai of 8n ordinance to rezone a paRicular '�,
ctty btock awned by John l�oe. The fallcv�ing are examples ofi�x parte cvmmunications: �
�i. John Doe calls Council mernber A and tells him why the rezoning is a good idea. �I
2. Neighba�ing property owner Jane Smith cells CouncN membar � and telis her th� %
• r�zoning ls a bad Idea. �,
3. Cpu�cl!member C#alks to Pl�ner A to flnd out why Plenner A thinks the rezan�ng Is �,
a gocd idea or a bad idea.
' Although it is not alweys cl�ar if the matter befcxe Councl!is leglsiat(ve/administra�tive f�nature or I
qu�si Judleial,the distinakian i�canstitutlonally signiflcant beoause the due process clause sppli�as I
J #o quasi�udiclal matters, . Key princlples undedying procedu�al due process ere notice�
� oppartuniiy to be heard,and an impartiai declslon meker. Matt�a �Idrtds�e,424 U.S.319�
333(1876).
. I n Sutton,the lowa Supceme Courk iist�d fhree{3)factors that must be consldered in detemtining
whe�her a zoning d�isbn is auas��udPatal: �,
"Those factors include (1) rezoning ordinarily ocxurs in response to a cit�en
- application f�ll�+red by a atatufortly mandated pub�c hearf�; (2) as a result ef
such appitcations, readily identif'uable proponente and opponent9 weigh in on the I,
proc�ss; and (3) the decision is localized in It� ap�iication affectlttg a particutar '
• groap of citizens more acutely than the p�bli�at�'�e."
i
Slip Op.at p.8 li
Mast of the zoning decisions the City Ccuncll makes are"qu�sl]udiciaP' because they mvolve a I,
citixe� application of a locelizad nature that is supported by eome end oppospcl by athers.
�xceptions to thia wautd be comprehensive amendments to th� oamprei�ensive pian or zon�g
code.
Tha lowa Court of Appesis has concluded that a Board of Adjusimen# must not engage in ex '
parte communications with inte�asted partiee, sse Rnrii�a� ��nin� Board qf Adlustment Qf P_c�ls
un ,434 N.W. 2d t24(lawa Ct.App. 1988). However,the appailate cou�ts in Iowa have not
considered whether ex parte cvmmunir.etfon by city councils and boerds of supervisors in quasi• ' ,
Judicial mattara vfalstes the Cvnst�tutiorl, Ot�rer state courts that have cansider�d 1hs issue
generalty hav�not(ssued�t complats prohibition, but rather,heve Iooked tv v�+hether the e�c perte '
2
�� irrformatfon was dlsClosed such ihat aB parties�ad en opportunity ta address it and whetf�►er the .
decisbn maker w�s predfsposed to a decision.
In a case bQfore the idaho Supreme Court, a limitec! parinership flled an appticatio� with ths ,
Bofse City Mistoric Pres$rvaiion Commissbn fo� a certificate of approprfateness to demolish a '
. warehouse bufidfng.}�aho HistQric Preservatia�CQUncil Inc v Citv Co noi of�at�e, 134 Idaho
651, 8 !'.3d 64S (2000). After the Cornmisabn den�d the applicativn, the limited pa�tnershlp
appe�lad to the city cauncil. At the hearing be�fare the cify counc�l, cert�in memt�ers of the aity
caune�stated that they had rec�lved numerous telephane calls conceming the is�but did not
ldentify who contacted th�m and did nat state what was said. The city council appr�ved the
certiflc�ate of appropriateness, a�d an �ppeal er�sued, The Cauft found that the due pracess
clau�was v+orsted for the foApwittg reasons:
� 'The members oP the City Councll who accepted phone calis failed to discbse thg
� nama and vther(dentiFying ir�formatlan�af the callers, and also failed tv reveal ,
- the nature af the canversation, making 1t imposslble for the �amrri�ston to
effedivefy rsspvnd to tt�e argurnents that the cauers may have actvan�l. 5ee
'T�mev� 3�P.2d at�g4,�. While the dlstrict court found that it"[did] not appe�r
that any of these tel�phone contacks improperly Influenced eny ultimate opinlon
given by 1he tndividuai [Cify] Counc�t membe►s," there was no ev�denc�e to
support thts oorc�lustnn becaus�af the Gtry CounciPs fallure to�ui�ictantiy iden�ifj+
the callers and provide a genaral descrtp�on of what thay said in favor of or In
oppositwh to the destructiort of the Faster Su1ldEng.We hald, thetefOre,that the
rBC�ipt of phone calls in th3s csse, without more speaftc disclosure, vlolated
procedural d�process. ,
Id.at 655-856,65b-851. ' ��,
As explained by the Idaho Sup�eme Caurt ir��nother cass, �acret v Bonnes Countv, 739 ldahe II
780, 787, 86 P.3d 49d, 5q1 (2{�), "[tJhe purpase af the disclosure requirement is to a(ford
apposinp partias with an opportunity to rebut the s�rstanca af any ex pade cvrnmunications."
Mos#recently,the Idahv Suprem�Court wrote that:
� [W�e rec4gnizs that due process °en�#les a per�n tv an impartial end '
disinterested tribu�al[,j" but we require a showing of actual bias before
disqualKying a decision maker even when a li�ant maintains a dedsion maker
has deprived the proceedings of tl�appearence of faimess. Davlsco Foods Inf7
�r�141 Idaho at 791. 718 P.3d at �,23.
Cowan v Board of_ Cotnm�ssiq,ners of F�mant CauMv, 1431daho 501, 512�148�P.3d 1247,1260 �I
{20E?6}. I
In a case from Otegan, N�i,i eraer v. �y qf Porf{and, 288 O�. 595� 807 P.2d ?22 {1980}, I
•rr��nts challenged a decisfon by the Partland City Council M chanje the zono of a parcei af
' undeveloped land based, in part, on ccuneil members' ex parte comrnunicetian. The Or�gon ,
Supreme Gourt wrote that the '"�sue � not whether thd'e were any ex parta oorstacts, but
whether ths evidence shows that fhe tr�unai or�ta members were biased." �,. at 590, 128t1.
Thus, when a aty counoi! discloses the informatfon arui remains an unbiased decision maker, '
both the tdahn and the Oregon 5upreme Court�have found�at th�fuqdamentai prindples of tha
due proaess clause are rnet. �,.,ee.�g, �Qc�phersQa�.andfiA tnc � Boerd of Countv Com'ts gf
3
. • Shawr�e� Cour�tv. 27a Kan. 303, 32Z, A9 P.3d 522, 534 (2Q02) ("1Nith respect ta the ex parte �
communlcatlarts, it shouid be noted that the partie�must be ir�formed of the evldance subrni#ted
far consideratiw� and must be provkied an apportuniEy to reapond ar�d rebut the evtdence:');
, Sa,�,Sy Beach l7efense Fund v Cltv Caunoif of Citv��ountv Q,(,��,g�gj�, 70 Haw, �81, 878,
773 P.2d 250, a81 (1989j {"Due process is not a�cetf concept requiri�g a spec�ic procedura�
� caurse in every situation. .... The fuil rigt�ts of due proceas present in a court af law, i�ciuding
present�Uon Cf wMesses and arv�s�axamination, da rwt automatically attach to a q�si judicial
hear�rlg.'?;arrci Cnuntv af Lancaster 3 C v Mec�te�„y,�„ ountv ,Q,.334 id.C, 486, 511,434
9.�.2d 604, 614 (1993) (" Due process requires an fmpartial deciciun maker,... A�i�opinion
that is not�sce�tible to ahange may well constitute �np�rmissible bias, sa will undisclas�d ex
par�e communication w a close familial or businoss reiationship with an appiicarrt.j. sut see
Masgey v.City 4f G,t�'ar�otte,2t�00 WL 33996844,*8 n. 3 (N,C,Supar. 2000j('1Nhen quasfaudiclal ,
proc:edures are Invoked,ex p�rte c�nmunication is prahibited.").
. Addi�onally, courls have recognizec!that a counc�member engaging in ex parte communication •
� 1s dlffe�ent lhan a district cvu�t judg� doing so because councilors are el�cted ofticlals with
const(tuents. !n Hou�ham v Le�tin�ton-Faygrie Urban Coun Government,29 S.VY.9d 370, 374
(Ky.App.1989),the Kentucky Court of Appeals explains why ete�ed atficiala are not heid to ths
� same standard as judges:
We agcea with the trfal court that members af caundl do not live i�a vaauum nor ',
are th�y req�red to. They are alected a�icials who repr�.sent the community and �
wlll be subjected fr�n time ta tlme tc cortact from conatituents cont�ming fssu�s, .
� upon which they must ultimste�y dedde, 'fhe mere fact that t�ey are expossd ta
� various infoRnatian from competing groups does not make(t impo�ible far them
to s�'r+e and vate. Mere amtect v�tth netghborhood groups� letters fran
I c�nstituents, infomtation gathe�ed (�am st�ff� eto. do� not, by Il.s�f, constitu6e i,
�mpreper ex parte contac�t.° Ii thfs ware the cass,seklom could an elacted officia!
make an informed decision without being accused of improper ex parte
conduct..,..
'fhis deciaion does not hald the City Cot�+Ci! to a standard of judicial
disinterestsdness. As exptalne� above, membars of the Clty Counci! are frea to
take phone calls from cancerned citizens and lieten to their opinions and
argumerrts privr to a quasl judicial procseding. I� order to safisfy due process,
hawevar, the ident�y of �e cailers must be disc�o�ed, as well as a general
descffption of wha#eech caller said_...
A Flortda caurt also acknowled�d this pditiCat reallty when it stated:
(1lVJa teCagnize the reatity that [county� commissionars are dected offiaais irt
witich capaciiy.they may unavaidabiy be the recipients of unspqctted ex parte
communlca#tons re,garding quesl judlclal matters they are to decide. The
occurr�nc:�s of such a communic�ian tn a quasi Judlcfal procoad►ng daes not
mandate automa�c r+eversal. ,18nRinas v. pade Cauntv. 5�t9 $o.2d 133?, 134t
(F1a.App. 3 Dist. 18�1),
�inally, (n S,y,{tan the iowa $upreme Cou�t reiied heavity on the opinion of khe Washington
Supreme Court ira F�eminq v. Cftv�f Tacoma, ln that c�se the Washtngton Supreme CouR hekl
that the ap�arance af fairrregs doctrine applied ta all heerings cchdueted by munieipai legislalive
bodies almed at amandi�g existir�g zoning codes or recla�ssifying land ther$under. It is nof�ble
4
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that the Fairness doctrne, whMfi has since been codified in Washtn$tan, does nat campk�tely , !
prohibit ex parte communication, bu# rather, requires disclosure of the communicatian at the '
hear�ng.Wash. Rev.Code Sactlon 42.36.�60. '
� Cc: Steve Atkins,City Manag�' '
_ Dale Hdl�g,Assis#ant CRy Manager
Ma�ian Karr,City Cle�ic
Kari��rankAn,Diredor oi Planning&Communny Development
Sarah Holecek,Firat Assistant City Attarney ', �
• Mltch Behr,Assistartt City Altarney ' '
Sue�ulsk,Assfst�n#Ci#y Attorney
�tc Gaers,Ass3stant Gty Attorney
i '
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RESQLUTION IVO.2011-12 �
A liESOLUTIOiV QF THE CITY OF GULF�ORT, FLORIDA, ESTABUSWING '
REASONABLE RULES AND POLIClES FOR THE CITY COUNCII,AND FOR COMMENT
�1T CITY COUNClL MEETINGS;AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS; Section 307 (b� of the Charter of the City of Gulf�ort, provides that the City Council
shall deterrnine its own rules and arder of business;and ,
WHEREAS, the City Council has considered and wishes to adopt an order of business which
provides reasonable ru{es and policies far the City Council and for comment at City Coundl
r�eetings lr�order to efficiently and effectively complete city business during the meetings.
NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY O�GUI.FPORT,FLORIDA;
Section 1. The follvwing reasonable rules and policfes are hereby established far the City �'�
Councit and for comment at City Coun�il meetings: �I
A. Ba{ance of Ri�hts and Decorum. Guifport is afforded the means to insure thafi the
IndividuaPs rfght ta participate In a pubfic meeting is balanced with maintaining ,
decorum during thafi meeting. The right of the Individual to express his or her thoughts
wiil genewally prevail aver restrlction on public participation. ,
B, Citizens,to Be Heard Before the Citv Council.
1, Public Sesslon. The remarks of each speaker are limited to three {3) minutes. ,
Cltizens may discuss any matCer, unless the discussion is nat apprapriate �ecause of a !!I
pending bi� protest, the matter invalves a quasi-judlciaf hearing or due process i�
cansiderations, #here are other similar limitations retating to the discussion, or the �'
matter is a scheduled agenda item.
The City Cc�uncii wilf not attempt to resolve problems nor respond during a City Council
Meetfng unti! the matter has been referred to the Administration far review and '
recarnmendation.
2, A�enda items. Cit(zens' carnments will be permitted on agenda items at the
time the item is unde�consideration by the City Council. The remarks of each speaker '
are limited ta three (3j min�tes.
C. Workshops. Warkshop meetings af the City Cauncil are Meld for the purpose of Council
being infnrmed on and discussing matters wh(ch may come before them far
consideration at a regular or speclal Council meeting, Cltizens' comment will be
permitted on any/afl agenda items at the beginnfng of the meetings. The rernarks of
each speaker are limlted ta three {3) minu#es. City Cauncil may request presentatians
, �
,
resolutions or ordinances, other government agencies or the City's purchasing
guidelines.
All administrative matters or acts concerr�ing Charter Officials or other ttems as
determined by a majority vf Cvuncil shall not be placed on the Consent Agenda.
Any item placed on the agenda as a consent ifiem may be removed by a motion,
, secand, and majority vote of the City Council. ltems removed from Consent wili
be considered priar to Idew Business. 'I
4. ltems discussed during City Council Workshop Meetings will require a consensus
of the majority of the City Council ta bring the iCem forward for placement on a
subsequent City Council Meeting Agenda. Substantive decisioris shall nofi be
made at workshops.
�
K. Pro�edur� for Gitv Coun�lf a�t�ions on the adoption of Ordinances �nd approval of ', ;
3tesolutPons nat an �he con�senC a�enda and consid�rafiion of aRenda items. The City '� `
Council shall follaw the#ollowing process: ',
1. The Mayor/Chair shali direct the Gty Clerk to read the Ordinance or Resolution
by tltle unless otherwise provided by law. ?
Z. Comments from the City Manager and/ar City staff members.
� 3. City Council questions ta staff.
4. Open pubiic hearing and/or public comment. I
5. Close pubt(c hearing and/or public comment. �' �
;
6. Consideration af a motion to adopt, reJect or defer the agenda item.
7. Secand on tha motion. .
8. Council debate.
9. Roll call vote.
I
� L. Pr�eedure f�r Ex-P�rte Communi�ati ns �ncernin�4uasl-Judieial matters. Any persan '
nat otherwise prohibified by statute, charter, p�ovision vr ordinance may discuss with
any public official, the merits of any matter on which action may be taken by the City
C�uncil. Such communicativn shaA not raise any presumption of preJudice provided the
following process of disciosure occurs:
1. Tt�e subject and substance of any ex-parte communicafiion with a member af the �-
City Council relating to a quasi Judicial action pending before them,as weJl as the
identlty of the person, group or entity with whom the communication took
pface, is disclosed and made a part of the record before final action is taken on
the matter.
2. A member of the City Council may read a written communication'from a person �+(,
relating to a quasi judicial action pending before them; however, such
comrnunicatfon shall be made a part of the record before final action is taken on
the matter.
5
3. A member of the City Council may conduct lnvestigations, make site visits and -�',
receive expert opinions regarding a quasi-Judicial action pending before them,
prcrvided that such activitles and the existence of such investigation, site visit, or
expert opinians are made a part of the recard before final action is taken on the
matter. '
�
M. Procedure for Public Hearin�s an Quasi-Judiciai matters. 7he City Council shall foNow I
the foltowing process: '
1. MayorJChair explanation of hearing pracess.
2. Swearing in of individual wish{ng ta speak.
3. Staff presentation—10 minutes max.
4. Applicant presentation—10 minutes max.
5. Proponents:
Designated representative—10 minutes max.
' Individuals-3 minutes max.
6. Opponents:
Designated representatives—1Q minutes max.
Individuals Y 3 rninutes max.
7, Other citizen comments w 3 minutes max. �
8, City Council pisclosure—Ex-Parte Comrnunicatlons.
9, RebuttaR by Appllcant—5 minutes max.
�0. StafF Response—5 minutes max.
�1. City Council questions.
12, Close public hearing.
1�: City Council action. ,
Sectian 2. The rules and policles adopted herein shalt be effective until modified, ar repealed I
by the City Counctl. I�
Section 3. This resolutian shall become effective upon 9ts adoption.
PAS5ED AND ADOPTED this 5�'day of April,2011 by the Counci)of the City of Gulfport� Florida.
,� .
D�vid a�stings,V Ni
ATTEST: �j
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C�sley eMuth,City Gerk
�
THE QUASi-JUOICIAL PROCESS
AND CITIZEN ACCESS TO THE CITY COUNCIL
One of�e most misunderstood aspects of lacal govemment is#he Quasi-Judicial process, and
the limits that process imposes on ci�zen access to their elected �epresentatives. Residents
who are active In their community and are accustamed to contac.#ing City Councif inembers to
discuss lacal affairs o�ten find lt hard#o understand why they cannot communicate with those
same officials about certafn types of public matters, '
The purpose of this articis is to provide answ+$rs to some o#the most frequsntiy asked questions
about the quasi Judicial process.'
� The Definttlon of QuasE judicial
Colorado courks have defined quasl-Judiciai actions as those which:
generally invoive a detemrination of the rights, duties, or obligations of specific
individuals on the basis of the application of presently exfsting legal standards or policy
considerations to past ar present facts develaped at a hearing conducted for the purpose
of resolving the particular interests in question.°2
In simpler terms, a quasi judiciai case is one in which the Cauncil members are acting as judges
rather than legis(ators; the Council is not making neuv.laws, but rather applying exlsting laws to
specific facts, conceming one person or a small number of peaple rathe�than the entire Gity, at ',
a public hearing. ',
I
Qussf�udicial cases '
The most common quasi judiciai cases are rezaning decisians affecting an individuai property ar '
a smatl number of properties.3 Subdivision applica�ans, special use revfews and vaciances ',
(heard by the Board of Adjustment)are other examples of quasi judiciai processes. ',
;
How quasi judicial matters dlffer from leglslative matters I'i
The primary role of the City Council is Ieglslative; i.e.,the development and implementadon of �
laws and policies that apply Citywide. Examples of Isgisla�ve action include the adoption of new
zoning regulations cx amendments to Municipai Code provisions concerning parking restrlctions
on pubiic streets.
With legislative actions,a public hearing is frequently held at which anyone cen comment on the
merits af the proposed law. However,the"legislators" on the City Councfi may also receive
evidence from other sources, induding citizen input received in person, by phone or by email,
and may consider any of that evidence,as well as their own gersonal beliefs and biases in
deciding whether tp adopt the legislation.
�The l.akewood C�ty Attomey's Office p�pared this a�ticle es a brief summary of relevent laws and Judicial decisions.
It is intended to be a general reference Mol oniy,and stwuld not be considered a wmprehensive or detailed recitation
of the law.
�Cheny Hllls Resort v. Che►ry Hills Vfl►sga,757 P.2d 622{Colo.1988).
3 The case that estabflst�d rezoning cases as quasf-judicial in Coloredo is a Lake�rood deGsion,Snyder v. Clty of
Lakewood,642 P.2d 371 (1975). ln additlqn to Colorado,Delaware,the District of Columbia,Florfda, Idaho,
, Kentucky,Oregon and Washington consider rezonk�g oasee to be quasi judiaial. 6-38 Zoning and Land Use Controls
§38.04(201 i).
On occasion,however,the City Council is confronted with a quasi judiciai matter,and is
required to operate as a panei of"Judges" rather than as legislators. In contrast to legisla�ve
actions, in quasi judicial matters, all of the evidence that may be considered by tt�e Council must
� be presented at the public hearing. This procedure is required in order to afford due pro�ss to
those individuals who may be affected by the decision 4 ,
Why the"judges"cannot discuss quasi�udicial matters '
Just as a judge t�a civil or crim�nal case c�►r�n6�speak td or►�a party without the o�er party or
parties preserrt,5 the"judges"on the Clty�ouncii are.prohifsite�tl from obta{ning evidence from
either side of the dispute outside of the pubtic hes��n�g Thts rule, referred to in legal terms as
regulating "ex parte"communicatian, has been developed over the years to ensure that
everyone with an interest in the case, and ali members of the decision-making body, hear the
same evidence at the same fime, from the same sources.' Ex parte communication in�udes '
not only oral comrnunicatlon, but written, electronic,and graphic communication as weil.
The reale prohibiting�ex parte"communication can be frustreting to citizens who assume that
they always have access to their elected afficials. Hawever�it is important to remember that this
rule is designed ta protect the rights of all involved—applicants, opponents, and other interested_
parties—affording the apportunity for a fair hearing before unbiased decision rnakers.e
If and when a Councti member daes receive information about a case outside of the public
hearing� the member is expected to disclose the communication, in as much detaii as possible,
to the enti�e Council at the beginning of the public hearing. If the Cauncil mernber sincerely
believes that the"ex parte"communication did not affect his or her ability to decide the c-ase
fairly, impartialiy and based solely on the evidence presented at the hearing,the member can
participate in the hearing after#he disclosure;atherwise,the member must"recuse"or remove
him or herself from the discussion and the vote�
i
'I
,
a"Ouasi judiaal prxee�ngs must be conducted in accordance wfth procedural due process,and fundamental �,
faimess is the cornerstone of due process. Scott v.Eng/ewoad,672 P.2d 225(Cplo.Ct.App.1983). ,
5 The Colorado Code of Jud'�ciai Corniuct,Canon 3(A)(4},provides that e judge should"neither ini�ate nor consider ' "
ex parte or other corranuniaa�ions concerning a�nding or impandiing p►qceQdir�g."
g See C.R.S.,§24-4-105(14),prohibiting ex parte mater�isln steEe administrstive proc:eedings;Cole�edo Energy
Adyocacy Olf+c�a v.Pubpc 5ervice Co.of Coforado,704 P2d :�98(Coto�19�5)(in quasi-)udic�si proceadings,agency
may not base deasion on ex parDe iMormation of which the parties are not given noticej;Zuv'rceh v. The Mdustrial
Comm.of Colo�do,544 P.2d 841 (Colo.App.1975)(case remanded bec�use court could not determine whether
quasi judicial agency relied on ex parte communiCation);Thanpson v.Mdustrial Canm.CN Colorado,520 P.2d 138
�Colo.App.19T4){court vacated deaston based cn ctaim that bwer tribunal r+elied cin ex pa�te co►ittnunie�►lion).
Appellate decisions regarding ex parte ca�tacts in municipal mntng cases are rate &�8 Zon�g arid�rtd Use
Controls§38.04(2017). One state that has squarety addressed the issue,ldaho,�tiler3 t#�itex:parta ccntacts by city
c�uncif inert�ers cansidering a quasi-judiciel za�ing matter violated the�nsfitutional right to due process. ldsho
Histarrc P�eservatlan Council,lnc•v.City Coundl of Boise,8 P.3d 648(Idaha 2000).
e"Ex parte contacts and cammunica�ons related ta the merits of an edrninist�ative zoning decision are considered
highiy improper and may be held sufficient to prejudice the affected person's procedural due process rights to a'fair
hearing;"caurts in swne cases have extended the�ght to a fair hearing to not only appllcarrts but to nefghboring
owners who object to ihe apptication. Rathkopi,The Law of ZoninB and Planninp§32:13(2010). "[Ex parte]
conlacts deny due process to bath appiic�ts and opponerrts of the applicatbn becau�the other party is nat present
to hear arsd rebut statemerits made to the decision-maker." Advlsing Q+�s�Jud9as,The Colorado Lawyer 33-3
March 2004.
g Failure to properly disclose ex parte contect rr�ay resuit in the invalidation af the tribunal's ultimate dedsion. 800th
v. Town of SNverPlume,4y4 P.2d 227(Colo.App.1970).
How citizens can communicate their concerns to the City Cauncil in quasi�udicial cases
The public hearing is an oppo�tunity for anyane to express his or her views to the City Council
on a quasl judicial matter. The City posts the dats,tirne and place of every public hearing in the
designated location at the Lakewood Civic Center, and also provides that information on this
websiie,www.lakewood.o��. if you are unable to attend the public hearing,you have the ,
oppo�tunity to submit yaur comments in writing, preferably at least seven days before the '
hearing. All w�itten comments are conveyed to the City Caunci!members and become part of '
the record of the case, alongside the#estimony and other evidence presented at the public ' '
he8rirlg. ,
The consequences af improper ex parte communication !
The City's adherence to the rules gaveming quas�-judici�l proceedings is not merely a matte�of '
honor�ng long-standing legal traditions. When a decision-maker does engage in ex parte '
�discussl�ns about a case,and then proceeds to participate and vote on the matter without
making the necessary disclosure, anyone adversely affected by the decision has the right to
appeal the decision to district court. Appeats from quasi judicial decisions can be dif#icult to win,
because the court gives deference ta the locaf government's interpretation and application of its
own laws. Nevertheless, if the appeafing party can produce evidence that the goveming body
failed ta provide due process,the likelihoad of the decision being vacated and the matter being
sent back to the City Council for a second look increases dramatically. Holding a second
hearing on a singls matter obviously resuits In significant expense and delay fo�the Ciry and for
the applicant,#o say nothing of the negative press the City would inevitably receive from tocal
medla outlets. ,
For more on the quasi judfclai process,please ca11 the City Attomey's O�ce at 303-987-7�60. !
�
CITIZEN INFORMATION ADOUT QUASI-JUDICIAL CITY COi.TNCIL PR�CEEDINGS
Applying constitutional due process (fair heariug) requirements, state and federal courts have
characterized certain City Counoil decisions as legislative and others as "quASi-judicial." It is
important to understand the differences between legislative and quasi judicial decisions because the
courts require the Council to follow special procedures for"quasi judicial"rnatters. We offer these
freyuently asked questions and responses as a general and brief explanation of those procedures.�
The Cauncil's Le is�lative Functions
The Council norrnally operates as a policy-rnaking body. In that capaeity, the Council gathers
information at public hearings, frorn informa.l conversations with citizens and others, from
memoranda prepared by CiTy staff, and from other sources. The Cauncil then deliberates and
implements a palicy by enacting an ordinance. This is a legislative process by which the Counoi!
creates citywide policy that operates prospectively from the effective date of the ordinance. Far
example,when the Council enacts an ordinance setting future citywide noise standards,it is acting in
its policy-making,ar legislative eapacity.
The Council's Ouasi-Judicial Functions
Occasionally the Council must act in a manner similar to a judge in a court of law. Courts eall this
kind of action adjudicatory,or"quasi judicial". In a quasi judicial proceeding,the Council is not
setiting new policy but is applying policies expressed by an existing ordinance,statute or regulation
to past or present faets presented at a hearing. In other wards, much like a court, the Council is
applying the law to facts gathered at the hearing to arrive at its decision. Quasi:judicial land use
decisions usually apply only ta a few specific properties and are not effective citywide. Far ',
example, when the Council hears au appeal of a Plaauzing and Zoning Commission decision on a
specific property or development,it is generally operating in its quasi-judicial capaeity.
Some Examples of Quasi-Judicial Cauncil Decisions
Detertnining whether a particuiar Council decision involves legislative or quasi judieial aetion
sometimes requires analysis of court decisions, As a rule, however, "site-specific" land use
decisions (including most rezoning decisions)z are generally nua.si judicial. On the other hand,
courts generaliy consider the rezoning of large areas consisting of many properties legislative3.
"Other quasi judicial matters inolude historic preservation district permits,conditional and special �
use permits,and variances.s4
r The City prepared this material for general public information. When prep�rred, it was a summary and paraphrase of
applicable rules and court decisions, As a summary,it omits many detaiis that could I�important to particulaz cases or
questions. In addition,court decisions,ordinances and statutes edopted after preparation oftl�is material may altsr its accuracy,
completeness or applicability. Therefore,citizens should use this material as a genera!reference only.
Z Srryder v. Ciiy of Lakewood, 189 Colo,421,542 P.2d 371 (1975)(site-specifc rezoning),Reynolds v. Crty Co�sncil
' of the City of Longmont,b80 P.2d 1350(Colo.App. 1984)(subdivision plat) '
3,Icrfiry v.Board of Counry Commissioners of Boulder County,84$P.2d 892,898(Colo. 1993)
°Gerald E.Dahl ��+v���„�t)►raxi.h�r�o�c+Liia�.Cnrifl�;a nF Int�reSt Pl"B,��d�mC�t,at�x.R��e Ct�ntaets,The
�t3lLi LYT1 Jyx: c �ziP .a{� �T
Colorado Lawyer,Vol.33;No,3 [Page 69],March 2044
Special Rules for Ouasi-Judicial Decisions
in making quasi judicial decisions, due process (whiah means a constitutionally ft�ir procedure)
generally requires that the Council follow cerf.ain rules, including:
• The Council must provide advance notice and a rea sonable opportunity for interested persnns to
present evidence and argument at the hearing,
• The Council must make a record of the proceeding, including all information it considers in
making its decision. The City will collect letters,ernail messages and documents submitted at
least seven {7) business days before the hearing and wi11 include them in the record of the
hearing. If there is an appeal of the Cauncil's decision,the reviewing court will lvok to see if
evidence in the record supports the Council's decision.
• The Council rnust not eonsider any information received outside the record (this is called"ex
parte cvmmunication"�,so everyone has a fair opportunity to hear the evidence and argurnent.
Ex Parte Communication
lnformation (verbal, written, electronic or graphic} received outside of tha record is "ez parle ',
communication". Courts generally hold that such communication is improper and may provide legal ,
grounds for overturning a decision. This rule against ex-parte communication promotes impartiaY ',
decisions by ensuring disclosure of all evidence and azgument presented to the Cauncil in its ',
deliberation and decision. The rule also gives everyone involved a fair chance to respond to all '�,
information that may affect the decision.
Comtnunieation with.Co�uncil Members
Cauncil members and citizens are free to discuss legislative matters at any time. However,Council
members should not receive information on a pending quasi judicial matter outside of the official
recard(including any hearings on the matter).
Farticipatin�in a Quasi-Judicial Decision
If you wish to express your opinian or communicate information on a quasi judicial decision,you
can simply address the Council at the appropriate time, according to applicable procedures. !
(Participatian in same quasi judiciai Council hearings may require that yau participate at earlier ,
sta�es of the process;for example by speaking at a board ar commission hearing or writing an appeal
letCer to the Cauncil). If you have any questions about the applicable procedures or about how ar
when you may make your views known,contact:
Planning and Development Services Division
3S0 I�imbark St.
Longmont,CO 80501
Phone: 303-651-$330
Fax: 303-651-8696
1 ongmont.nlanni ng�i�c�i.longm.nnt.co.us
Conveving,Your Thou�hts to the Council If You��n.�Attend a Hearing
Generally,yau may submit your thoughts or cancerns in written form(letters vr e-mail)to City staff
(at one of the addresses listed above) for inclusion in the public reeord. City staff conveys this
infarmation in the appeal or Cauncil pack�t,which is provided to t�e Council with their agenda and
meeting materinis. Due to time and duplication constraints,do�wments should be submitted ta staff
no later than seven(7)business days prior to a hearing,
'�;-�� "' STAFF REPORT , C i T Y C L E R K
� � QUBLIN CITY C�UNCIL F�ie # ❑��I�-0�
DATE: September 6, 2011 �
TO: Honorable Mayor and City Councilmembers
FROM: Joni PattiHo, City Manager
SUBJEC . Reconsideration of Ex Parte Contacts Policy
, Prepared By: John Bakker, City Attomey � '
EXECUTIVE SUMMARY:
Ex parte contacts are communications of information relevant to a quasi Judicial governmental ',
decision to a decis+onmaker outside of tC�e formal quasi judiciai proceeding. On December 20, '
2005, the City Council adop#ed a policy ,erohibitin� City Council members and Planning
Commissioners, among others, from the intentionally making or receiving ex parte contacts
refated to quasi judiciat proceedings such as site development review approvals, conditional '
use permits, and variances. The policy does nat apply to quasi-legislative decisions such as
general plan amendments and zoning ordinance amendments. At that time, staff presented the
Council with two proposed options for an ex parte contacts paticy, one prohibiting contacts and
the other permitting contacts but requiring their disclosure on the record. The City Councll
adopted the policy prohibiting contacts. At the April 5, 2011 Ci#y Cauncil meeting,
Councilmember Swalweli requested that the policy be placed on a futu�e Council agenda that
wouid allow the policy to be teviewed. In the event that the City Council desires to change the ,
policy, Staff has prepared a resolution that would permit contacts subject to their disclosure on '
the record of the proceeding.
FINANCIAL IMPACT:
None
RECOMMENDATION: .
Staff recammends that the City Council either: (a) take no action and thereby leave the existing
ex parte contacts po{icy in ptace or (b} adopt the proposed resoiution permitting ex parte
contacts subject to their disclosu�e on the record.
�'''� ��'' �
Submitted By Revi wed y
City Attorney Assistant ' anager
4.
`Page 1 of 2 {TEM Nt�. ,�,.�. �'
4 �
C:kiownloadslSTAFF REPORT ABM Amendment 3.doc � •
i�l
�L�y �� ii.
Fire Department
?63-593-8079/763-593-8098(faxj
Executive Summary ��
Golden Valley Council/Manager Meeting '
June 12, 2012 i
'I
Agenda Item '
5. Proposed City Code Amendments - Residential Property Maintenance
Prepared By
Mark Kuhnly, Chief of Fire and Inspections
Summary
Fire Department Staff will be in attendance to make a presentation to Council and discuss the
residential property maintenance program. The current residential property maintenance code
has been in existence for several years. Staff has identified sections of the code for Council to
consider amending. ,
Attachments
• Partial City Code Section 4.06: House and Building Numbering (1 page)
• Partial City Code Section 4.08: Swimming Pool Construction and Demolition (3 pages)
• City Code Section 4.6Q: Residential Property Maintenance Code (19 pages) ,
• Partial City Code Section 10.40: Collection and Disposal of Garbage, Refuse, Yard Waste and '
Recyclables (4 pages) �
• Partial City Code Section 10.51: Lawn Maintenance (1 page) '
Section q..o6: House and Building Numbering
�
Subdivision 1. Assignment !
It is the duty of the City Building Official to prepare and maintain a system of house
and building numbering for the City and to assign specific numbers to all houses
and other buildings.
Source: Ordinance No. 179, 2nd Series '
Effective Date: 6-I1-98
Subdivision 2. Installation �
The owners of all houses and other buildings, after assignment, shall install and I
maintain a number in accordance with such assignment, which numbers shall be na '�,
less than three inches high, permanent in nature, of contrasting color to the '
background, and clearly visible from the street. The numbers shall be Arabic ',
numbers. '�
Source: Ordinance No. 358, 2nd Series '
Effeetive Date: 1-12-07
Subdivision 3. Unlawful Act
It is unlawful for any person, not the owner of the property, to remave, damage,
destroy or obliterate a building number.
Source: City Code
Effective Date: 6-30-88
Subdivision 4. Enforcement
Whenever a house, structure or building is out of compliance the City Manager or ',
hisfher designee shall issue a compliance order setting forth the violations and
ordering the owner, o�erator, or aqent to correct the violation within ten (10) days
of receivin,g notice. If the re-ins,pection reveals the violation has not been corrected
as ordered� an administrative citation shall be issued to the offender. A se�arate,
additional administrative citation mav be issued on each day that an ofFender is out
of com_pliance.
i
§ 4.08 !,
Section 4.08: Swimming Poo1 Construction and
Demolition
Subdivision 1. Definitions
As used in the City Code, the following words and terms shall have the meanings
stated:
A. Swimming Pool: means a permanent structure, basin, chamber, or tank
containing an artificial body of water for recreational swimming or diving,
mare than five thousand (5000) gallons and over twenty-four (24) inches in
depth. This includes in-ground, aboveground and on-ground pools; hot tubs;
spas and fixed-in-place wading pools. The walls or fence shall be at least five
(5) feet in height measured from the finished grade. Gates shall be at least
five (5) feet in height measured from the walk beneath.
B. Public Swimming Pool: means a swimming pool other than a private
single-family residential swimming pool, intended to be used collectively by
numbers of people for swimming, regardless of whether a fee is charged for
use. Included in this definition are swimming pools located in or adjacent to
apartment buildings, condominiums, townhouses and other multiple dwelfing
residential complexes, public and/or private schools, public and/or private
recreational sports facilities, institutional facilities and commercial property, 'I
unless used for sales and/or display purposes only. II
C. Private Swimming Pool: means a swimming pool connected with a single-
I family residence or e�er--ee-�a-�ie� duplex, located on private property a�
, the use of which is limited to family members or
the family's invited guests. A private residential pool can not be used as part
of a business. '
Subdivision 2. Permit Required
A. To the extent required by the City Building Code, a person shall not
construct, alter, reconstruct or demolish a swimming pool without first
obtaining a building permit fram the City. Mechanical and electrical permits
are also required. A grading permit may be required from the Public Works
Department, for construction or demolition.
B. A permit may be revoked or work stopped following procedures set forth in
the City Building Code.
Golden Valley City Code Page 1 of 4
i
§ 4.08
D. No electric wires shall be over the pool area or within ten (10) feet of the
pool's edge.
E. The pool and related facilities shall be built in accordance with plans approved
by the City. The pool may not be placed in operation until final inspection
Iapproval , ' , '
F. The demolition of an existing swimming pool requires the removal of the
entire pool, including the foundation and all electrical and plumbing
appurtenances. Excavated areas must be filled with clean fill to match '
adjacent contours.
Subdivision 5. Construction Inspection
A person who does or causes to be done any of the work covered by this section �
shall notify the City at specific predetermined stages of construction and at the time �
of completion to allow adequate inspection of the pool and related equipment. A
permit for the removal of an existing swimming pool requires an inspection after
the pool is removed but before the �II is placed.
Subdivision 6. Safety and Maintenance
A. Pools and pool fences shall be maintained so as not to pose a health hazard or
danger. Pools shall be closed if the following conditions exist for a period in
excess of forty-eight (48) hours:
fk: 1. There is no circulation or filtration.
B-: 2. There is insufficient disinfectant.
� 3. Water clarity is lacking so that the pool bottom is not visible from the pool
edge.
�: 4. Unsafe electrical, mechanical and biological conditions are present.
� 5. Pool fencing is in disrepair. �
B. A "Pool Closed" sign shall be posted until the corrections are completed and
approved by the City Inspector. If corrections are not completed or the pool
has been abandoned, the pool shall be removed per Subdivision �-F 4F of the
Section.
1. City Removal.
a. If the owner of private property fails to correct any of the conditions listed
under this section, the City may remove the same and assess the cost for
said removal.
Golden Valley City Code Page 3 of 4
I
§ 4.08
b. Prior to City removal of the pool, the Cit r�Manager, or his or her designeeR
shall prepare and serve the property owner with a notice: � describin�the
property and the violation; b) setting forth a date by which the paol must
be removed (which in no event shall be earlier than thirty (30) da r�s from
the date of the notice); c) providing the option for a hearing before the
Council (and setting forth the procedure for obtaining said hearing); and d)
warninq that the cost of the Cit�removal may be assessed aaainst the
propert�
c. If the property owner desires a Council hearing, the hearing must be
initiated by the property owner before the City commences abatement and '
upon owner's request for a hearing the City Staff shall take no action to
abate the alleged violation. If a council hearing is conducted the Council
may hear evidence from any interested p�artv. If the council determines a
violation exists, it shall order a time period within which removal is requited
of the property owner and if said order is not fullkcomplied with�then the ',
City Staff shall proceed to abate the violations and assess the costs �li
therefore against the propert�.
d. If no hearing before the Council is requested by the owner of the property I
and at least thirty (30) days have la�sed since the notice date,�the City
may enter the property� remove the pool, and assess the cost of removal
against the property owner.
Subdivision 7. Drainage
A person who drains, allows or causes the drainage of water from a public or
private swimming pool, including an accumulation of precipitation or runoff, shall do
so only into the street pavem�nt immediately adjacent to the property or to the
nearest storm sewer inlet, unless otherwise required or approved by the City
Engineer. Drainage shall not be permitted into any sanitary plumbing fixture. The
person who drains a swimming pool shall regulate the volume and rate of the
discharge to prevent damage to public or private property.
Subdivision 8. Enforcement '
The City Building Inspector and his/her agents are authorized to enforce the I�I
provisions of this section. ,
Source: Ordinance No. 294, 2"d Series '
Effective Date: 4-30-04
Golden Valley City Code Page 4 of 4
I
§ 4.60
Section q..6o:
Residential Property Maintenance Code
ISubdivision 1. Title
This ordinance shall be known as the Residential Property Maintenance Code (the ,
"RPMC") of Golden Valley.
ISubdivision 2. Scope
In order to insure the health, safety, and welfare of the residents of Golden Valley,
this Section 4.60 of the City Code requires certain minimum standards for all
residential dwellings or dwelling units.
ISubdivision 3. Definitions
For the purposes of this Section, the following terms are defined as follows:
A. Accessory Structure: A structure subordinate to the principal use of the
land or a building on the same lot and serving a purpose customarily
incidental to the principal use or structure except as provided for essential
services.
B. Administrative Citation:
. A fine imposed b r�the City for failure to correct a
violation of Ci� Code. Such citations require correction of the violation and
may impose administrative penalty or penalties upon the responsible party.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06 '
C. Bedroom: A habitable room used or intended to be used by human beings
for sleeping purposes.
D. Common Area: Portions of a structure held in common for the exclusive use '
of all renters or owners of individual dwelling units within said structure.
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-10-05
E. Compliance Order; An official notification of vialation of any provision of
� Cit�Code or State Statute �r�n. Such orders shall require correction
of the violation but shall not impose administrative penalty or penalties upon
the responsible party.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-IS-06
F. Cord of Firewood: Means a unit of cut fuel wood, equal to one hundred
twenty-eight (128) cubic feet in a stack.
Source: Ordinance No. 357, 2nd Series
Effective Date: 1-12-07
Golden Valley City Code Page 1 af 19
§ 4.60 ','
G. Dwelling or Dwelling Unit: A single, secure dwelling space providing
independent living facilities for one or more persons, including permanent
provisions for sleeping, eating, cooking, and sanitation.
Source: Ordinance No. 339, 2nd Series
Effective Date: 12-16-05
H. Firewood: Wood or wood product used or intended for heating fuel in a
residence or for recreational fire. Painted or treated wood shall not be ',
considered firewood. Ii
Source: Ordinance No, 357, 2nd Series �,
Effective Date: 1-12-07 '
I. Habitable Room: Any room or enclosed floor space for sleeping ar living
purposes, excluding such closed places as closets, water closet I
compartments, common areas, attics, or spaces used exclusively for storage. '
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-10-05
J. Multiple-dwelling Properties, Multiple-dwelling Buildings or Multiple-
dwellings: A property or building containing three (3) or more dwelling
units.
Source: Ordinance No. 339, 2nd Series
Effective Date: 12-06-OS
K. Neat, Secure Stack: A stack of firewood that is piled in a regular, orderly
arrangement that is stable and reasonably resistant to collapse.
Source: Ordinance No. 357, 2nd Series
Effective Date: 1-12-07
L. Occupant: Any person living or sleeping in a building, or having possessions
of a space within a building.
M. Owner: The person (or entity) who owns or holds title to the property.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
N. PeSt and Rodent Harborages: Any location in which pests or rodents are
predisposed to or would be able to live, nest, or seek shelter. In all instances,
an insect shall be considered a pest.
Source: Qrdinance No. 319, Znd Series
Effective Date: 2-10-05
IO. Property: Residential property in any of the residential zoning districts.
Golden Valley City Code Page 2 of 19
i
§ 4.60
P. Rental Property: Residential property in any af residential zoning districts
that is rented or occupied by another person or entity other than the owner
of record. The property is not considered rental under a relative homestead
status or filed contract for deed with Hennepin Countv.
� f�C�,. Residential: Activities within land areas used predominantly for housing.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06 '
�R. Sound Condition: Not broken or damaged, in good condition
� Q:S. Water Closet Compartment: Any space containing a wash basin and a
water closet. It may also, but is not required to include a bathtub, a shower,
or both.
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-10-05
*Relettering Sources: Ordinance
No.339,349 & 357; 2"d Series
Effective Date: 12-16-05, 9-15-06 and
1-12-07
Subdivision 4. Responsibility
A. The Owner or Occupant of any residential property shall be responsible for all
provisions in this Section which are applicable thereto but only to the extent
that he/she has access thereto.
Source: Ordinance No. 349, Znd Series
Effective Date: 9-15-06
B. With respect to rental properties:
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
1. The Owner shall be responsible for preventing the accumulation of
garbage and debris in all common areas. The Owner and/or Occupant
shall be responsible for preventing the acc�mulation of garbage and
debris within private, secured residences.
. This is repeated in D.
. . ,
c�.�}:,,,, n.,t,,. n �c nc
� 32.A11 property owners shall be responsible for providing garbage pickup and
water and sewer services.
Souree: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
Golden Valley City Code Page 3 of 19
§ 4.60
� C. The Owner and Occu ant shall be se+e�-q� responsible for the prevention of
Pest and Rodent Harborages throughout the entire structure and property.
D. No person shall occupy any dwelling unit which does not comply with the
minimum standards provided in this Section.
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-10-05
Subdivision 5. Minimum Exterior Standards
All residential properties shall meet or exceed the following minimum exterior '
standards:
A. Structure. The foundation, exterior walls, exterior roof, and all appurtenances
thereto shall be kept in sound condition and repair. The foundation must
adequately support the building at all points. Exterior walls shall be
� maintained and kept free from decay, dilapidation-I��e�, tears or breaks
from deteriorated plaster, stucco, brick, wood, or other material that is
extensive and shows evidence of neglect. The protective surface on exterior
walls of a building above ground level must be maintained in good repair so
as to provide a sufficient covering and protection of the structural surface
underneath against its deterioration. Without limiting the generality of this
Subdivision, a protective surface of a building shall also be deemed to be out
of repair if:
1. The protective surface is paint which is blistered ar peeled to an extent of
more than fifteen percent (15%) of the area of any plane or wall or other
area including windows, trims, cornices, railings, and other such areas;
2. More than ten percent (1Q%) of the pointing of any chimney or fifteen
percent (15%) of the pointing of any brick or stone wall is loase or has ,
fallen out; or
3. More than fifteen percent (15%) of the finish coat of a stucco wall is worn
through, chipped away, broken, or damaged, revealing the metal lathe or
any part of the underlying structure.
4. Any part of the sidin�or trim is missing, rotten or not secured. '
B. Accessory Structures. Accessory Structures must be structurally sound, '
securable, and maintained in good repair and appearance. Exterior walls,
doors, and windows of Accessory Structures must be maintained in
accordance with the standards set forth for principal structures in Subdivision
5A.
C. Windows and Entries. Windows, exterior doors, and basement hatchways
shall be reasonably weather tight, watertight, rodent proof and securabl�;
Golden Valley City Code Page 4 of 19 '
§ 4.60
and kept in sound working conditian and good repair. Any operable window
� shall be provided with a screen .
D. Gutters and Downspouts. Existing gutters, leaders and downspouts must be
maintained in good working condition as to provide proper drainage of storm
water. In no case may storm water be channeled into the sanitary sewer
system. Storm water, ice, or snow may not be directed into, or channeled
across walkways or streets where it is likely to be a hazard to life or health.
E. Walks�e�, lawn steps and stoops. Walks, �i-�tew�s; lawn steps, and
stoops shall be maintained in good repair. Without limitation the aenerality of �
this Subdivision� it shall be deemed out of repair if:
l. It has settled from its original .position three (3� inches or more;
2. It has heaved, moved or separated and causes a tripping hazard.
F. Landscaping Requirements. Landscaping maintenance on all parts of the
property shall be in accordance with Section 10.51 of the City Code.
G. Driveway and Parking Area. The owner of any structure or property shall be
responsible for providing a driveway and parking area in accordance with
Chapter 11 of the City Code. Any such driveway or parking area shall at all
times be maintained in good repair.
H. Retaining Walls. All retaining walls, or similar structures shall be maintained
in good repair with proper anchorage and in safe condition. It shall be the
responsibility of the owner to repair or replace any retaining wall deemed not '
to be in good repair by the City Manager or his/her designee. ,
i
I. Signs. The owner or occupant of any structure or property shall be �
responsible for maintaining signs in accordance with Section 4.20 of the City
� Code. It shall be the responsibility of the property Owner e�-eec-tr�-to
repair replace, or remove any sign deemed not to be in good repair.
7. Awnings. All awnings upon the property or attached to the structure(s� shall
be maintained in good repair. It shall be the responsibility of the property
awner to repair, replace, or remove any awning deemed not to be in good
repair.
K. Sanitation. All exterior property and premises shall be maintained in a clean,
safe and sanitary condition. The occupant and/or owner shall keep that part
of the exterior property which such occupant occupies or controls in a clean
and sanitary condition.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
Golden Valley City Code Page 5 of 19
I
§ 4.6Q
L. Exterior Canstruction. All exterior construction shall be completed within the
time limits specified beiow from the date of issuance of the building permit.
Source: Ordinance No. 357, 2nd Series
Effective Date: 1-12-07
1. Projects up to a value of two hundred fifty thousand dollars ($250,000):
twelve (12) months
2. Projects of value greater than two hundred fifty thousand dollars
($250,000): fifteen (15) months.
For purposes of this Subdivision '�Value" shall be the same amount as that
determined by the Building Official for issuance of the building permit. The
City Manager or his/her designee may grant an extension of a completion
date if the City Manager or his/her designee finds that the project has been
performed as expeditiously as reasonably possible and in a manner to
reasonably accommodate the needs of persons residing in the neighborhood
and that the delay in campletion of construction was beyond the reasonable
control of the property owner or contractor. Applications for an extension
must be submitted no later than thirty (30) days prior to the expiration date.
M. Property Identification. The Owner shall be responsible for providing property
identification in accardance with Section 4.06 of the City Code.
N. Storage, Collection and Disposal of Garbage, Refuse, Yard Waste and
Recyclables. The Owner or tenant shall be responsible for storage, collection
and disposal of garbage and refuse, yard waste, and recyclables in
accordance with Section 10.40 of the City Code.
O. Fences. The Owner shall be responsible for maintaining fences in accordance
with Section 11.72 of the City Code.
P. Decorative Features. All decorative features of residential and accessory
structures including cornices, belt courses, corbels, terra cotta trim, wall
facings, and similar decorative features shall be maintained in good repair
with proper anchorage and in a safe condition.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
Q. Outdoor Wood Storage. The following are conditions for outdoar wood
storage.
1. Except for firewood and construction materials necessary for on-site work,
no wood or wood product shall be kept or stored upon a residential
� premises unless stored inside an�proved structure.
Golden Valley City Code Page 6 of 19
§ 4.60
2. Firewood may be stored upon a residential premises solely for use on the
premises and not for resale.
3. All firewood located upon a residential premises shall be stored as follows:
a. The firewood shall be cut/split to a uniform shape thirty (30) inches in
length or less, stored in neat, secure stacks, and prepared for use;
b. Each stack cannot exceed a cord of firewood. The height of a woodpile
over three (3) feet shall be no more than twice its width, but in no �
event shall the height exceed five (5) feet; '
c. Firewood stacks must have at least ten (1Q) Feet of space from each
other;
d. The firewood shall not be in a deteriorating state;
e. No firewood shall be stored within three (3) feet of any side or five (5)
feet of any rear property line;
,
I f. No firewood shall be stored in the front yard, upon the driveway or in
the public right-of-way.
4. All existing storage of wood shall be brought into compliance within thirty
(30) days of notification. '
Source: Ordinance No. 357, 2nd Series
Effective Date: 1-1�-07
R. Raised Decks and Platforms. Decks and platforms must be safe, in good ;
repair and structurally sound on pro�er footinqs and anchored to the
structure.
*Subdivision 6. Rental and Multiple Dwelling Exterior Standards
All rental properties and multiple dwelling properties shall meet or exceed the
following minimum exterior standards:
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
� A. Multiple Dwellings Snow and Ice Removal. Snow and ice must be removed I
from all sidewalks, parking areas, and driveways on the property within
twenty-four (24) hours after the cessation of a snowfall of two (2) or more
inches.
B. Security. For all structures containing five (5) or more dwelling units therein,
a secure, locked exterior entry door into any common area shall be provided
Golden Valley City Code Page 7 of 19
§ 4.60
at all times for the purpose of entering and exiting said common area. Such
door and lock shall be maintained in goad repair.
C. For buildings containincL(5) or more dwellin�units thereinF an approved lock '
box and keys must be provided for emerqency access by emergency
personnel.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
� 6D. Exterior Lighting. All circulation and parking areas of any structure shall be '
subject to the requirements in Section 11.73 Outdoor Lighting.
Source: Ordinance No. 365, 2nd Series
Effective Date: 3-23-�7
( �9E. All rental property owners shall be responsible for providing garbage pickup
and water and sewer services.
Subdivision 7. Rental and Multiple Dwelling Minimum Interior Standards II
All rental property and multiple-dwelling properties shall meet or exceed the '
following minimum interior standards:
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
A. Structure. All interior walls, ceilings, floors and structural members shall be
kept in good repair. Floors shall be free of any loose, warped, protruding or
rotted materials. Interior walls and ceilings shall be free of holes and large
cracks, loose plaster, and blistered paint, and shall be kept in good repair.
B. Stairs. Every stairway shall be kept in a safe condition and in good repair.
Every flight of stairs, platforms or balconies shall be free of deterioration and
maintained as originally approved. A stairway and its elements shall be
according to the State Building Code at the time that they were constructed.
I Anv set of stairs over three (3� steps must be provided with an approved
handrail and auardrails.
Source: Ordinance No. 339, 2nd Series
EffecCive Date: 12-16-05
C. Interior poors. Every interior door shall fit reasonably well within its frame
� and shall be capable of being opened and closed without special knowledae
by being properly and securely attached to jambs, headers, or tracks as
intended by the manufacturer of the attachment hardware.
D. Bedroom Requirements. Every bedroom shall contain at least seventy (70)
square feet of floor area. No bedroom shall constitute the only means of
access to another bedroom.
E. Kitchen Requirements. A kitchen in a dwelling unit shall include�the following:
Golden Valley City Code Page 8 of 19
I
§ 4.60
1. An operable sink connected to the public water and public sewer system 'I
and providing at all times an adequate amount of heated and unheated '
water; and
2. Cabinets and shelves for the purpose of the storage of food, food
preparation equipment, and dining utensils. Such cabinets and shelves
shall be maintained in good repair; and ;
3. Countertops made of an impervious, cleanable surface; and
4. A kitchen range and refrigerator, properly installed in a stationary manner
for the purpose of long-term use, and having all necessary connections
for safe, sanitary, and efFicient operation. In no instance shall a kitchen
range include such temporary cooking appliances as a hot plate or ,
portable gas powered stove.
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-11-05
F. Door Locks. Each door that is designed to provide the primary ingress and '
I egress for an individual dwelling unit shall be equipped with a lack.-��
��a�i�es--a Dead-locking bolts must not be retracted by end
pressure, provided, however, that such lock shall permit the door to be
opened from the inside without the use of a key or any special knowledge or
effect.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
G. Pest and Rodent Control. It shall be the responsibility of the occupant to '
prevent the accumulation or placement of materials that may serve as food
supplies to pests or rodents. In all other instances, it shall be the
� responsibility of the property ^� ������*����� owner to prevent pest or rodent
harborages or infiltration of the structure by pests or rodents.
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-11-05
Subdivision 8. Rental and Multiple Dwelling Mechanical Standards
All rental and rnultiple-dwelling properties shall meet or exceed the following
minimum mechanical standards:
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
A. Ventilation.
1. Every bedroom shall have at least one (1) operable window�
Golden Valley City Code Page 9 of 19
I
§ 4,6Q
2. Ever�bathroom or water closet shall have one (1) operable window or
provide mechanical ventilation;.
3. Clothes dryers must be vented to the outside usinq.metal type ducting.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
B. Water System.
1. Every Dwelling Unit shall contain its own bathtub or shower, lavatory,
water closet, and kitchen sink which shall be maintained in a sanitary,
safe working condition. Every such bathtub, shower, lavatory, water
closet, and kitchen sink shall be connected ta a public water and public
� sewer system.
2. Water heating facilities shall be properly installed, maintained and capable ',
of providing an adequate amount of water to be drawn at every required '
sink, lavatory, bathtub, shower and laundry facility at a temperature of
� not less than one hundred ten (110) degrees Fahrenheit.
C. Heating System. In all dwelling units, heating facilities shall be pro�ert�r
instalied and remain in operation from the months of October to April and
shall provide a minimum temperature of sixty-eight (68) degrees Fahrenheit
� in all habitable rooms, as measured at three (3) feet above the floor at the
center of any such room. All heating facilities shall provide common areas
with sufficient heat to maintain a temperature of sixty-five (65) degrees ,
Fahrenheit at all times. Cooking appliances shall not be used to heat any i,
dwelling unit. Between the months of October and April, any maintenance on
a structure's heating facilities shall be considered an emergency repair and
shall be given priority by the owner of any such unit.
D. Fuel Gas Valves. Every a�pliance must have a code compliant valve in the
room within six�63 feet of the appliance exce�t_for vented decorative '
apqliances. ,
-BE. Electricity and Light. I�
1. All common areas shall be adequately lit at all times. Adequate lighting
may include a combination of natural and electric light provided at an
intensity of not less than one (1) foot candle at floor level to all parts
thereof.
2. Every habitable room shall be provided with at least one (1) operable
floor or wall-type electric convenience outlet for each sixty (60� square
;
Golden Valley City Code Page 10 of 19
i
§ 4.60
feet or fraction thereof of total floor area.
Every Water Closet Compartment shall be provided with at least one (1)
operable wall-type outlet. .
3. All electrical boxes must be secured and have proper covers installed.
4. Any electrical alterations shall be completed bX a Minnesota licensed
electrician.
5. All appliances shall be hard wired or have an outlet�rovided, extension
cords shall not be used ta provide electrical pawer to any appliance,
�araQe door opener, or air conditioner.
E. Elevators. In buildings equipped with passenger elevators, at least one (1)
elevator shall be maintained in operation at all times when the building is
occupied. This provision shall not preclude the occasional service or testing of
Ithe elevators.
F. Smoke Detectors.
l. Multiple dwellina units smake detectors shall be located and maintained in
accordance with Section 10.22 of the Citx Code.
2. Residential one (1) and two (2) unit smoke detectors shall be located and
maintained in accordance with MN State Statute 299F.362.
G. Carbon Monoxide Detectors. Carbon monoxide detectars shall be loeated and
maintained in accordance with MN State Statute 299F.5.
Source: Drdinance No. 319, 2nd Series
Effective Date: 2-11-05
Subdivision 9. Licensing of Rental Dwellings
A. No person shall operate, let or cause to be let, a rental dwelling without first
having obtained a license to do so from the City as herein provided. Upon
receipt of a properly executed application for licensing, or at any other time,
the City Manager or his/her designee may cause an inspection to be made of
the premises to determine whether the property is in compliance with the
City Code, the standards contained in this Sectian and the laws of the State
of Minnesota. Each such operating license shall be issued annually and shall
I expire on the ' date set forth in the City's
Master Fee Schedute �ea-�. License renewals shall be filed at least thirty (30)
days prior to license expiration date. Every rental dwelling may be re-
Golden Valley City Code Page 11 af X 9
§ 4.60
inspected after a renewal application is filed to determine if the premises still
conforms to all applicable ordinances and codes. I
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
1_._ For license renewals received after the expiration date on the rental
license the license fee shall be double. �
2. �ar Properties that have received two {2} or more notices from the Cit,y to
obtain a license and failed to do so the license fee shall double. ',
B. No operating license shall be issued or renewed unless the rental property
covered by this Section conforms to the provisions of this Section, the City
I Code and the laws and regulations of the State of Minnesota. '
Source: Ordinance No. 339, Znd Series
Effective Date: 12-16-05
� C. The annual license fee and e�iration date shall be as provided by ordinance
of the City. The City shall establish licensing fees which will include a specific
amount for each dwelling building or address and an additional amount for
each rental unit contained therein. In addition to the annual license fees, the
City may charge for additional re-inspections necessary to determine whether
violations have been carrected or to restore a license for a rental dwelling
which has had its license revoked or suspended. In addition, the City may
require a fee for transfer of a license under the provisions of this Section.
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
D. License application or renewal shall be made by the owner of the rental
property or a legally constituted agent or operator.
. The applicant shall supply the following:
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
1. Name, address, and telephone number of the dwelling owner; partners of
a partnership; corporate officers of a corporation. The City must be
notified in writing within five (5) days of any change of information
provided.
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
2. Name, address, and telephone number of designated agent or operator.
The City must be notified in writing within five (5) days of any change of
information provided.
Golden Valley City Code Page 12 of 19
i
§ 4.60
3. Name, address, and telephone number of vendee if dwelling is being
purchased through a contract for deed or mortgage (name of lender or
financial institution holding mortgage).
4. Legal description and address of dwelling.
5. Number of units in each rental dwelling and the type of units (one (1)
bedroom, two (2) bedroom, etc.) within each of such dwellings. ',
Source: Ordinance No. 386, 2nd Series ;
Effective Date: 12-14-07 I
� , ,
I .
Source: Ordinance No. 339, 2nd Series
Effective Date: 12-16-05 �
E. No operating license shall be issued or renewed for a nonresident owner of
rental dwelling unit(s) unless such owner designates in writing to the City
Manager or his/her designee the name of his/her resident agent or aperator
who is responsible for maintenance and upkeep and who is legally
constituted and empowered to institute emergency repairs of the rental
dwelling property. The City Manager or his/her designee shall be notified in
writing of any change of resident agent.
I F. The City Manager or his/her designee shall set up a schedule oF pe�i�e�-i�
inspections to ensure citywide compliance with this Chapter. The City
Manager or his/her designee shall provide reasonable notice to the owner or
operator of the date and time of the inspection. Every occupant of a rental
dwelling unit shall give the owner or operator thereof, or his/her agent or
employee, access to any part of such dwelling unit, or its premises, at
reasanable times for the purpose of effecting inspection, maintenance,
repairs, or alterations as are necessary to comply with the provisions of this
Ordinance. If any owner, operator, occupant, or other person in charge of a
rental dwelling fails or refuses to permit free access and entry to the '
structure or premises under his/her control for an inspection pursuant to this
Ordinance, the City Manager or his/her designee may seek a court order
authorizing such inspection and the City may charge the owner or property
with the costs thereof.
G. No operating license shall be transferable to another person or to another
rental dwelling without written approval of the City Manager or his/her
designee. A license issued hereunder is transferable providing that the new
owner, partners, or corporate officers submit to the City Manager or his/her
designee within five (5) business days after legally acquiring ownership of
the licensed rental dwelling(s), a License Transfer Form (supplied by the
Golden Valley City Code Page 13 of 19
§ 4.60
City), along with the required transfer fee. Failure to submit the license
transfer form and the transfer fee shall result in the termination of the rental
license.
Source: Ordinance Na. 386, 2nd Series
Effective Date: 12-14-p7
H. License Suspension or Revocation.
1. Notification. Prior to suspension or revocation, the licensee (or his/her '�,
designated agent) and all occupants of units potentially subject to '
suspension or revocation, shall be notified in writing thereof by persanal
service or first class mail at least twenty (20) days prior to a hearing on
the matter.
2. Hearing. A hearing shall be held before the Council or a hearing examiner '
appointed by the Council. The hearing shall be conducted to meet the '
licensee and occupant's due process rights, including:
a. Allowing interested parties the right of legal representation, the right
to present evidence, witnesses, and to cross-examine all adverse
witnesses, and
b. Making a complete record of all proceedings, including findings of fact
and conclusions of law.
Source: Ordinance No. 339, 2nd Series
Effective Date: 12-16-05
3. Suspension or Revocation. Every operating license issued under the '
provisions of this ordinance is subject to suspension or revocation for the
entire rental dwelling or for individual rental dwelling units, by the City
Council, should the licensee fail to operate or maintain the licensed rental
dwelling(s) and dwelling units therein consistent with the provisions of this
Chapter, the City Code, and the laws and regulations of the State of
Minnesota.
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-Q7
An operating license may also be suspended or revoked for any of the
following reasons:
a. The license was procured by misrepresentation of material facts, by
fraud, by deceit, or by bad faith.
b. The applicant or one acting in his/her behalf made oral or written
misstatements or misrepresentations or material facts in or
accompanying the application.
Golden Valley City Code Page 14 of 19
§ 4.60
c. The licensee or applicant has failed to comply with any condition set
forth in any other permits granted by the City of Golden Valley.
I
d. The activities of the licensee in the licensed activity create or have '
created a serious danger to the public health, safety, or welfare.
e. The licensed business, or the way in which said business is operated,
maintains or permits conditions that injure, annoy, or endanger the
safety, health, morals, comfort, or repose of any member of the '
public. ,
f. The occupants/tenants of the rental prope� or Dwellinc�Unit conduct
any illegal activifiy on the propert�.
Source: Ordinance No. 339, 2nd Series !,
Effective Date: 12-16-05 '�
I. Whenever any dwelling unit has been denied a license, has had its operating '
license suspended or revaked or is unfit for human habitation, it shall be
posted with a placard by the City Manager or his/her designee to prevent '
further occupancy. No person, other than the City Manager or his/her !
designee, shall remove or tamper with any placard used for posting. The City ��
Manager or his/her designee will post on the placard the date that the I
vacancy shall become effective. On or after the placard vacancy date, no '
person shall reside in, occupy, or cause to be occupied any dwelling unit
which has been posted to prevent occupancy.
J. If it is determined that a rental dwelling unit is being operated without a valid
license, an immediate inspection shall be conducted. It shall be unlawful for
an owner, designated agent or operator, after notice sent first class mail, to
continue operation of a rental dwelling unit withaut submitting an application
for a license under this Chapter, along with the necessary license fee. Once
an application has been made, it shall be unlawful for the owner, or his/her
duly authorized agent, to permit any new occupancies of vacant, or
thereafter vacated rental units until such time as the license is issued.
K. If the rental dwelling is in compliance with all applicable ordinances of the
City and the laws and regulations of the State of Minnesota, a license shall be ',
issued to the present owner or his/her designated agent. If the City finds
that the circumstances of the occupancy following the issuance of the license
involve possible Code violations, substandard maintenance, or abnormal
wear and tear, the City may re-inspect the premises during the licensing
period.
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
*Re/ettering Sources:
Ordinance No.339, 2�d Series
Effective Date: 9-15-06
Golden Valley City Code Page 15 of 19 I
� 4.60 j
Subdivision 10. Enforcement '
A. The City Manager or his/her designee shall enforce all pravisions of the RPMC
for all residential properties.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-IS-06
B. Whenever a property, structure, or dwelling unit is out of compliance with
one of mare of the provisions of the RPMC, the City Manager or his/her
designee shall issue a compliance order setting forth the violations and
ordering the owner, occupant, operator, or agent to address such violations '
by either correcting them or proving them to be nonexistent to the I
satisfaction of the City Manager or his/her designee. This compliance order '
shall:
Source: Ordinance No. 386, 2nd Series
Effective Date: 12-14-07
1. Be in writing;
2. Describe the location and nature of the violations '
3. Establish a definite but reasonable time for the correction of such �i
violations; and '
4. Be served upon the owner or his/her agent. Notice shall be deemed to be
properly served upon such owner or agent if a copy thereof is: '
a. Served upon him/her personally;
b. Sent by regular mail to his/her last known address; or ;
( C . . .
, Pasted at a conspicuous place in or about the property,
structure, or dwelling unit which is affected by the notice.
C. If the re-inspection reveals the violation has not been corrected as ordered,
� an administrative citation s+�a+f mav be issued to the offender. A separate,
additional violation occurs on each day that an offender is out of compliance
with the RPMC. '�
D. In emergency situations where an imminent threat to the health, safety, or
welfare of residents arises due to a violation of Cit�Code�s-��, the
City Manager or his/her designee may require immediate compliance.
E. If the same violation occurs on the same pr�erty within a twelve �12) month
period from the violation notice an Administrative Citation maX be issued
without first servinc�a violation notice.
Golden Valley City Code Page 16 of 19 ',
§ 4.60
Subdivision 11. Administrative Citations
A. Administrative Citations.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
1. An administrative penalty or penalties for a violation of the RPMC may be
assessed through an Administrative Citation according to the enforcement
procedure outlined in Subdivision 10 of the RPMC, issued by the City '
Manager or his/her designee. Such administrative penalty or penalties
shall be payable directly to the City.
Source; Ordinance No. 357, 2nd Series
Effective Date: 1-12-�7 '
2. The Council shall establish by ordinance the amount of the administrative ',
penalty or penalties to be assessed for all administrative citations. These I
administrative penalty or penalties shall not exceed the maximum penalty '
for a misdemeanor violation under State law.
3. Payment of any such administrative penalty or penalties shall not excuse
the failure to correct the violation nor shall it bar further enforcement
activity by the City.
4. Any administrative penalty or penalties paid pursuant to the RPMC shall
be refunded if it is determined, after an appeal hearing, that there was no
violation as charged in the administrative citation.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
5. Payment for any Administrative Citation shall be due twenty (20) days
after its issuance.
B. Content. All Administrative Citations shall contain the following:
1. The date of the violation;
2. The address or a definite description of the location where the violation
occurred;
3. The name, address, and other identifying information for the person being
cited;
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-11-05
4. The provisions of the RPMC violated and a description of the violation;
5. The administrative penalty or penalties schedule for the violation;
Golden Valley City Code Page 17 of 19
II
§ 4.60
6. A description of how, when and where the administrative penalty or
penalties must be paid;
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
7. A brief description of the appeal process;
Source: Ordinance No. 319, 2nd Series ',
Effective Date: 2-11-OS
8. The name and signature of the citing enforcement official.
C. Recovery of administrative penalty or penalties resulting from administrative
citation. Property owners shall be notified yearly by U.S. Mail of any
outstanding administrative citations and that such citations will be assessed ',
against the property. Thirty (30) days after mailing such letter, the City Clerk I
shall file any outstanding Administrative Citations as special assessments '
against each such property which shall becom� liens on such lots or lands.
This shall be an additional remedy and not in lieu of any other penalty
provided for in City Code or state law.
D. Failure to Pay Administrative Citation.
1. All Residential Property Owners. Failure to pay any administrative citation
shall constitute grounds for suspending or revoking any license or permit
held by the offenders.
( 2, . Failure to pay an Administrative Citation
shall constitute a separate, additional violation of City Code.
Source: Ordinance Na. 349, 2nd Series
Effective Date: 9-15-06
Renumbering Source: Ordinance No.
339 & 349 2nd Series
Effective Date: 12-16-OS and 9-15-06
Subdivision 12. Appeals
A. Right of Appeal. Any person aggrieved by a Compliance Order or
Administrative Citation may appeal the Compliance Order or Administrative
Citation to the Council. Such appeals must be in writing, must specify the
grounds for the appeal, must be accompanied by a filing fee, and must be
� filed with the Citv Clerk within ten (10) business days after service of the
Compliance Order or Administrative Citation. The filing fee shall be set by the
Council. Failure to file an appeal shall constitute a waiver of rights ta contest
the Compliance Order or Administrative Citation and the imposition of the
administrative penalty or penalties.
Golden Valley City Code Page 18 of 19
§ 4.60
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
B. Decision. Upon at least five (5) business days notice to the appellant of the
� time and place for the hearing the appeal, and within thirty (30) calendar
days after said appeal is filed, the Council shall hold a hearing thereon, at
� which time the applicant may appear and present evidence as to why the
Compliance Order or Administrative Citation, or any portion thereof, should
not be issued. The Council may reverse, modify, or afFirm, in whole or in
� part, the Administrative Citation e�eFOr Compliance Order and shall order
return of all or part of the filing fee if the appeal is upheld. The Council may
postpone a meeting and hold a hearing at a later date, not to exceed sixty
� (60) calendar days after the appeal is filed, when it is necessary to do so.
Source: Ordinance No. 319, 2nd Series
Effective Date: 2-11-OS
Subdivision #�# 13. No Warranty by City
By enacting and undertaking to enforce this Section of the City Code, neither the
City nor its Council, agents, or employees warrant or guaranty the safety, fitness or
suitability of any dwelling in the City and any representation to the contrary by any
person is a misdemeanor. �wners or occupants should take whatever steps they
deem appropriate to protect their interests, health, safety and welfare. In the case
of licensed rental property, a warning in substantially the foregoing language shall
be printed on the face of the license.
Source: Ordinance No. 349, 2nd Series
Effective Date: 9-15-06
Golden Valley City Code Page 19 of 19
i
§ 10.40
Section lo.q.o: Collection and Disposal of
Garbage, Refuse, Yard Waste, and Recyclables
Subdivision 1. Definitions
The following terms, as used in this Section, shall have the meanings stated:
Source: Ordinance No. 296, 2nd Series
Effective Date: 5-28-04 I
A. Compost: A mixture of decayed organic matter. '
B. Composting: An above ground microbial process that converts yard waste
ta arganic soil or mulch by decomposition of material through an aerobic
process providing adequate oxygen and moisture. ,
I
C. Container: means a container designed to hold either garbage, litter, refuse,
yard waste, or recyclables.
D. Garbage: means animal and vegetable wastes resulting from the handling,
preparation, cooking and consumption of food.
E. Hauler: means any person who shall offer to, or engage in the collection
and/or transportation of garbage, refuse, yard waste or recycling from any i
house, apartment, public or private institution, or commercial establishment
within the City, including all activities up to the time when the waste is
delivered to a waste facility.
F. Litter: means garbage, recyclables and refuse.
G. Recyclables: means items of refuse designated by the Hennepin County
Department of Environment and Energy ta be part of an authorized recycling
program and which are intended for processing and remanufacture or reuse.
H. Refuse: means all wastes (except body wastes), including but not limited to
rubbish, paper, cardboard, ashes, rocks and construction material, normally
resulting from the operation of a household or business establishment, but
not including garbage, recyclables or yard waste.
I. Woody Yard Waste: Hedge or tree �tr�-t�ri-�tgs branches and twigs (1/4 inch
diameter or greater)
Golden Valley City Code Page 1 of 6 '
§ 10.40
J. Yard Waste: Grass/lawn clippings, leaves, weeds, garden waste (tomato
vines, carrot tops, cucumber vines, etc.) softbodied plants (flower and
vegetable plants), hedge or tree trimmings and twigs (1/4 inch diameter
maximum), pine cones and needles.
Relettering Source(A-J): Ordinance No.
361, 2nd Series
Effective Date: 1-12-07 '
Subdivision 2. Littering Prohibited
It is unlawful for any person who does not own, occupy, or control a parcel of
property within the City to throw or deposit litter, yard waste or woody yard waste
on any such property.
Subdivision 3. Owner to Maintain Premises Free of Litter - Disposal
Required
The owner, occupant, and/or person in control of anyprivate property, whether
occupied or vacant, shall at all times maintain the premises free of litter; provided,
however, that this Section shall not prohibit the storage of litter in receptacles
which meet the requirements of this Section. Except to the extent permitted as
composting under this Section, every such person shall also provide for minimum
bi-weeklv-��e-r-e�-a+a� disposal of garbage, recyclables, refuse, , �
, which may accumulate upon such private property, including
garbage, recyclables, refuse, yard waste and woody yard waste stored in
Ireceptacles which comply with this Section,
Subdivision 4. Garbage, Recyclables and Refuse Storage
The owner, occupant, and/or person in control of any private property, business
establishment, ar industry, shall be responsible for the satisfactory storage of all
garbage, recyclables and refuse accumulated at the premises, business
establishment, or industry.
A. Garbage shall be stored in durable, rust-resistant, nonabsorbent, watertight,
rodent-proof, and easily cleanable containers, with close-fitting, fly-tight
covers.
B. Refuse shall be stored in durable containers or as otherwise provided in this
Section. Where garbage is stored in combination with refuse, containers for
the storage of the mixture shall meet the requirements for garbage
containers. '
C. Toxic or hazardous wastes shall be stored in the proper containers which are
adequately labeled in a safe location and in compliance with the regulations
of Federal, State and City governments, and their regulatory agencies.
Golden Valley City Code Page 2 of 6
§ 10.40
D. All containers for the storage of garbage, recyclables and refuse shall be
maintained in such a manner as to prevent the creation of a nuisance or
menace to public health. Containers that are broken or otherwise fail to meet
requirements of this Section shall be replaced with acceptable containers.
Source: Ordinance No. 296, 2nd Series
Effective Date: 5,28-04
E. Garbage, recyclables, refuse, yard waste or woody yard waste objects or
materials too large or otherwise unsuitable for storage containers shall be
stored in a sanitary manner, in compliance with the regulations of Federal
and State government and their regulatory agencies, and in compliance with
the City Code. The owner, occupant and/or person in charge of the premises,
business establishment, or industry shall arrange the disposal of such
garbage, recyclables, refuse, yard waste or woody yard waste objects or
materials as soon as practically possible; provided, however, that, except for
I yard waste and woody yard waste which shall be accomplished in €e��thirtv
(4830) days, in all other cases such disposal shall be accomplished within ten
(10) days of the date on which such materials were first stored on such
premises, business establishment, or industry, unless a longer period of
storage is specified by the regulations of a Federal or State government, or
their regulatory agencies, or unless such owner, occupant, and/or person in
charge of such premises, business establishment, or industry obtains a
permit to store such garbage, recyclables, refuse, yard waste or woody yard
waste objects or materials for a longer period from the City Manager's
designee. The City Manager's designee shall issue a permit for a longer
period of storage only upon a showing of need for such storage and
satisfactory evidence that such storage will not endanger the health or safety
of any person or create a nuisance.
Subdivision 5. Location of Containers — Residential Zoning Districts
Containers shall be stored no more than three (3) feet from the primary or
accessory structure and shall at all times be located behind the front of the primary
Istructure. Containers may be placed at the curb . ' the day prior to
collection and removed from the curb the day after-e€ collection.
Subdivision 6. Location of Containers - Commercial Establishments
and Multiple Dwelling Uni#s
Any bulk or box type container used for the storage of solid waste or recyclables
must be fully screened from view of the public right-of-way, public park, or
residential area. In no event shall containers be placed next to the street or be
placed or maintained in such a way as to unreasonably interfere with the use of
adjoining property. Recycling containers less than one (1) cubic yard in capacity do
not need to be screened from view of the public right-of-way, but must be placed
on a paved surface. Baled recyclables must be stored out of view from the public
right-of-way other than a twenty-four (24) hour time period before a scheduled
collection.
Source: Ordinance No. 361, 2nd Series
Effective Date: 1-12-0�
Golden Valley City Code Page 3 of 6
§ 10.4Q
A. Warnings. The City or any of its haulers may issue a warning notice to any
person observed not in compliance with any provisions of this Section. Such
warning may serve as the basis to reject noncompliant waste materials for
collection.
Source: Ordinance No. 296, 2nd Series
Effective Date: 5-28-04
B. Inspections. The City Manager's designee shall inspect or investigate as
necessary to determine whether an immediate health hazard exists as a
result of a violation to this Section. Such official may enter upon any land
without the consent of the owner and without being subject to any action for
trespass. However, if entry into enclosed buildings is necessary, such official
shall obtain the consent of the owner, occupant, or person in control of such
premises beforehand. If such permission cannot be obtained, such official
shall obtain a warrant to enter said building based upon probable cause to
believe that a violation of this Section exists. The City Manager's designee
shall carry identification, in a form approved by the Council, and produce it at
the request of any owner, occupant, or person in control of said premises.
Source: Ordinance No. 361, Znd Series
Effective Date: 1-12-07
C. City Removal.
1. If the owner of private property fails to maintain the property free of litter,
refuse, yard waste or woody yard waste as required under this Section, the
City may remove the same and assess the cost for said removal.
I 2. Prior to City removal of litter, refuse, yard waste or woody yard waste, the
City Manager , or his or her
designee, shall prepare and serve the property owner with a notice: a)
describing the property and the violation; b) setting forth a date by which the
litter or waste must be removed (which in no event shall be earlier than 30
days from the date of notice); c) providing the option for a hearing before
the Council (and setting forth the procedure for obtaining said hearing); and ,
d) warning that cost of City removal may be assessed against the property.
3. If the property owner desires a Council hearing, the hearing must be
initiated by the property owner before the City commences abatement, and
upon awner's request for a hearing the City Staff shall take no ac�ion to
abate the alleged violation.
Golden Valley City Code Page 5 of 6
§ 10.51
Subdivision 3. General Requirements
A. All lo� areas not designated for buildings, pedestrian or vehicle, parking,
recreation, and storage shall be provided with Turf Grass, Native Vegetation,
or combined ground cover of cultivated vegetation, garden, hedges, trees,
and shrubbery.
B. No owner or occupant of any lot shall allow to grow any Noxious Weeds on
any part or portion of said lot as designated by Minn. Stat. Sec. 18.78.
C. No owner or occupant shall allow any Turf Grass, Weeds, Native Vegetation
or Rank Vegetation to grow to a height greater than eight (8) inches on a ',
majority of any lot or parcel of land. '
Subdivision 4. Exemptions
A. Vacant Land. The owner of vacant and unoccupied land consisting of a
contiguous tract of one (1) acre or more is exempt from Subdivision 3(C) of
this Section, provided that Weeds, Turf Grass, Native Vegetation, and Rank
Vegetation thereon are cut when fifty_percent �50%) of the vegetation
reaches eighteen (18) inches tall.
,
. Failure to correct the violation shall result in removal �er
Subdivision 5(b) of this Section. Designated nature areas within the City are
exempt.
B. Natural Habitat.
1. All private lands designated by the Council as Natural Habitat shall be
exempt from Subdivision 3(C) of this Section.
2. All public lands designated in the City's Comprehensive Plan as Natural
Habitat shall be exempt from Subdivision 3(C) of this Section.
C. Native Vegetation.
1. Native Vegetation Permit. Upon satisfaction and campletion of all the
requirements of this Section, the City Manager or designee shall approve
all applicatians for a Native Vegetation Permit and issue such permit. A
Native Vegetation Permit shall grant any property owner or occupant so
interested the ability to cultivate Native Vegetation on his/her property
and exempt the owner and occupant from the requirements of Subdivision
3(C) of this Section. A Native Vegetation Permit shall be valid for five (5)
years from the date of approval. The City Manager or designee shall
approve no Native Vegetation Permit for any owner or occupant having
unresolved City code violations or administrative citations.
Golden Valley City Code Page 2 of 4
L 1��' C)� � �;�.*
� � �
�� Fire e rtment
�€�. �'.�� D pa
763-593-8Q79/763-593-8098(fax}
Executive Summary
Golden Valley Council/Manager Meeting
June 12, 2012
Agenda Item
6. Emergency Management Plan
Prepared By
Mark Kuhnly, Chief of Fire and Inspections
Summary
Staff will present to Council the City Emergency Management Plan. The presentation will include
the emergency operations center and emergency operations plan. The emergency operations '��
plan establishes a framework to prepare for, respond to, recaver from and mitigate the impact of
a wide variety of disasters and emergency events.
�`t���� C�� �;�� ����
� �� ������ � � �������
� �
��. �� CityAdministration/Council �
763-593-8003/763-593-8109(fax)
Executive Summary '
Golden Valley Council/Manager Meeting
June 12, 2012
,
Agenda Item I'
7. Constitutional Amendment on Voter ID
Prepared By I
Chantell Knauss, Assistant City Manager
I
Summary
Council Member Pentel requested discussion on this item and to provide Council Members with
the link to the League of Women Voters web site.
http://www.lwvmn.or�/DemocracyforAll
�
�'1��� �� �'� ��_
,
�����
�
��, ��� CityAdministration/Council
763-593-8003/763-593-8149(fax)
Executive Summary
Golden Valley Council/Manager Meeting
June 12, 2012
Agenda Item
8. Human Rights Commission Task Force Process �
I
Prepared By �
Chantell Knauss, Assistant City Manager I
Summary ',
Council requested to review the 19 applications received for the Human Rights Commission Task '
Force in order to determine whether or not interviews would be necessary. If interviews are
necessary the Council should establish dates and times.
Attachments
• Human Rights Commission Task Force Applications (emailed separately)