Board of City Commissioners - January 30, 2017 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Room at City Hall at 4:00 o'clock p.m., Monday, January 30, 2017.
The Commissioners present or absent were as shown following:
Present: Gehrig, Grindberg, Piepkorn, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

City Attorney Erik Johnson announced that there is a pending litigation matter to be discussed in Executive Session for the purposes of (a) attorney consultation pursuant to N.D. Century Code § 44-04-19.1(2) in the pending litigation matter City of Fargo v. Michele Brandt, and with respect to matters which are currently being negotiated related to property located at 726 Hackberry Drive South and 4122 17th Street South, Fargo, in that it is reasonably predicted that litigation may occur regarding the acquisition of such properties and (b) to discuss negotiating strategy or provide negotiating instructions to the City’s attorney or other negotiator regarding the above-described properties due to the fact that open meeting discussions regarding such negotiations would have an adverse fiscal effect on the bargaining or litigating position of the City pursuant to N.D.C.C. § 44-04-19.1(9).
Commissioner Gehrig moved the Commissioners meet in Executive Session in the River Room as authorized by NDCC Section 44-04-19.1(2) for attorney consultation and to discuss said pending litigation matters.

Second by Grindberg. All the Commissioners present voted aye and the motion was declared carried.

At 4:02 o’clock p.m. the Board moved to the River Room to discuss the litigation matter in Executive Session.
Members present were: Gehrig, Grindberg, Piepkorn, Strand, Mahoney.
The Executive Session closed at 4:52 p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.
Members present were: Gehrig, Grindberg, Piepkorn, Strand, Mahoney.

Members of Boy Scout Troop 215 led the Pledge of Allegiance.

Mayor Mahoney read a statement with the following announcements: Firefighters responded to 10,484 calls for service in 2016; the value of building permits in Fargo in 2016 was $493 million; Fargo Cass Public Health Emergency Preparedness Division will conduct a nine-class series for Community Emergency Response Training beginning February 22, 2017; MATBUS received a first place award from the American Public Transportation Association for promotion of LinkFM and is now eligible to win a Grand Award; and Wastewater Utility conducted a study to research a more efficient way of treating solids and determined removal of solids could provide additional capacity until a wastewater plant expansion is complete.

Order of Agenda Approved:
Commissioner Grindberg moved the Order of the Agenda be approved.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.

Minutes Approved:
Commissioner Gehrig moved that the Minutes of the Regular Meeting of the Board held on January 17, 2017 be approved as read.

Second by Grindberg. All the Commissioners voted aye and the motion was declared carried.

Consent Agenda Approved:
Commissioner Grindberg moved the Consent Agenda be approved as follows:

1. Receive and file an Ordinance Amending Sections 25-1501, 25-1506, 25-1507, 25-1508, 25-1509 and 25-1511 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.

2. 1st reading of the following Ordinances:
a. Amending Section 25-1504.2 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.
b. Amending Section 25-1506 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.

3. 2nd reading, waive reading and final adoption of the following Ordinances; 1st reading 1/17/17:
a. Amending Sections 20-0401 and 20-0402 of Article 20-04 of Chapter 20 of the Fargo Municipal Code Relating to Use Regulations and Telecommunication Facilities.
b. Amending Ordinance No. 5066 Pertaining to Zoning of Brandt Crossing Tenth Addition, Fargo, Cass County, North Dakota.

4. Applications for Games of Chance:
a. North Central Turf Grass Association for a raffle on 3/2/17.
b. Dakota Southeast Chapter of Pheasants Forever Inc. for a raffle board from 3/2/17 to 3/5/17.
c. Fargo Ice Show for a raffle from 3/11/17 to 3/12/17.
d. NDSU Judging Club for a raffle on 4/5/17.

5. Applications for property tax exemptions for improvements made to buildings:
a. Tammy L. Gartner, 3103 22nd Street South (3 Year).
b. Ryan J. and Aimee R. Dorrheim, 2718 28th Avenue South (3 Year).
c. Shawn Anderson, 24 Fremont Drive South (3 Year).
d. Kay Maesse T/O/D, 1915 32nd Avenue South (3 Year).
e. Francis A. and Beverly J. Cordahl, 2607 25th Avenue South (3 Year).
f. Randy C. and Roberta J. Haaland, 2625 24th Avenue South (3 Year).
g. Troy W. Ertelt, 1111 3rd Avenue South (5 Year).
h. Jeffrey R. and Jean P. Hannig, 2219 9th Street South (5 Year).
i. Kathy J. Polansky, 1443 4th Avenue South (5 Year).
j. Douglas and Donna Conyers, 537 23rd Avenue South (5 Year).
k. Peggy R. Stern, 2529 East Country Club Drive South (5 Year).
l. Charlene C. and Kyle D. Card, 274 Prairiewood Drive South (5 Year).
m. Kristopher W. and Erin K. Gilett, 1007 21st Avenue South (5 Year).

6. Offer of Just Compensation from the CCJWRD in the amount of $1,315,000.00 for 285.32 acres of land in Harwood Township.

7. 2017 City Arts Fund recommendation and agreement allocating $112,000.00 to The Arts Partnership.

8. 2017 City Social Service Fund.

9. Amendment to the Purchase Agreement with the ND Department of Health in the amount of $8,500.00 to coordinate a regional network project related to Cross Jurisdictional Sharing.

10. Fire Department budget adjustment and grant award from the ND DES-Division of Homeland Security in the amount of $76,010.00 for purchase of Regional Response Equipment and Training (CFDA #97.067).

11. Change Orders for the Fire Headquarters Remodel Project:
a. No. G-6 for an increase of $18,360.55.
b. No. E-3 for an increase of $2,974.00.

12. Purchase of IceSlicer ice melt from EnviroTech Services at a price of $185.00 per ton.

13. Purchase of an AMP salt brine additive from EnviroTech Services at a price of $2.76 per gallon.

14. Contracts with Master Construction, Diesel Dogs Trucking and Industrial Builders for snow hauling trucks for the 2016-2017 winter.

15. Award the 2017 bulk agricultural based liquid deicer contract to Smith Fertilizer and Grain Company at a price of $1.40 per gallon.

16. Annual Maintenance Certification for urban federal aid projects with NDDOT.

17. Purchase Agreement with Cheryl N. Olson for property located at 618 Hackberry Drive (Project No. MS-15-K0).

18. Memorandum of Offers to Landowners – Project No. PR-17-A0:
a. Permanent easement and temporary construction easement with St. Sophie’s, LLC.
b. Permanent easement and temporary construction easement with The Luther Company.
c. Temporary construction easement with 3154/3168 41st Street South LLC.

19. Change Order No. 2 for two time extensions related to reconditioning work at Water Tower Nos. 6 and 9 (Project No. WA1503).

20. Bid award to TMI Coatings, in the amount of $639,000.00 for Project No. WA1601.

21. Task Order No. 17 from Apex Engineering Group for a Phase II Preliminary Engineering Report in the amount of $493,500.00 (Project No. WW1701).

22. Change Order No. 1 for Contract No. 1 with PKG for an increase of $23,777.41 and Contract No. 2 with JDP for an increase of $4,539.00 (Project No. NR-16-A).

23. Planned Service Proposal with Johnson Controls, Inc./Chiller Systems, Inc. at the FARGODOME.

24. Sole Source Procurement with North Country Business Products for food and beverage point of sale system upgrades at the FARGODOME.

25. Bills in the amount of $11,147,054.29.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Cost Participation and Maintenance Agreement with the NDDOT for the 32nd Avenue South Project Approved (Improvement District PR-17-A1):
The Board received a Report of Action from the Public Works Projects Evaluation Committee (PWPEC) stating the committee reviewed information from Transportation Division Engineer Jeremy Gorden regarding a cost participation and maintenance agreement associated with upcoming improvements to 32nd Avenue South. He said the agreement includes responsibility of the city to maintain the lift station, which is not a normal provision; however, this arrangement has been in existence at this location since 2000 when the lift station was installed following the June 2000 rain event. He said the lift station picks up the low flow water off the adjacent service station parking lot and pumps it to the south. The pump station is small and does not benefit the NDDOT, he said, and staff recommends approval.

Commissioner Grindberg moved the Cost Participation and Maintenance Agreement with the NDDOT for improvements to 32nd Avenue South, Improvement District No. PR-17-A1, be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Task Order No. 6 for Improvement District No. BN-17-A0 Approved:
The Board received a communication from the Public Works Projects Evaluation Committee stating the 2017 CIP includes two projects on 19th Avenue North, one from Interstate 29 to 45th Street North and the other is from 45th Street North to 57th Street North. They said the Engineering Department does not have sufficient resources to design and perform construction administration for both projects and request assistance for the western project. They said the highest scoring respondent of five teams was KLJ/AE2S who teamed up and submitted a single response. KLJ/AE2S anticipated the design cost at $244,400.00 and estimated construction administration cost at $319,190.00. They said while the selected team did not have the lowest cost proposal, they have a solid understanding of the project and provided a reasonable cost commiserate with this understanding and the necessary level of effort to complete the work efficiently. They said construction administration costs will vary based on actual length of time it takes the contractor to complete the project and it is possible that unscoped items will be identified through the design process; however, staff works closely with consultants to manage scope changes and make recommendations regarding amendments to Task Orders.

Commissioner Grindberg moved Task Order No. 6 for the Master Services Agreement with KLJ/AE2S for Improvement District No. BN-17-A0 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Resolution Adopting the 2016 Fargo-Moorhead Metropolitan Bicycle and Pedestrian Plan:
The Board received a communication from MetroCOG Transportation Planner Dan Farnsworth stating MetroCOG is the designated Metropolitan Planning Organization (MPO) for the Fargo-Moorhead Metropolitan Area responsible for carrying out the metropolitan planning process and other planning issues of a regional nature. He said every five years a new bicycle and pedestrian plan is developed to address the latest bicycle and pedestrian-related needs. He shared the final version of the 2016 Fargo-Moorhead Metropolitan Bicycle and Pedestrian Plan and said Fargo is the largest jurisdiction in the planning area. The Bike Share program has proven very successful, he said, setting a national record for most rides per bike per day, 6.3.

In response to a question from Commissioner Strand about whether there are plans to enhance access and safety of bike paths for nighttime use, Mr. Farnsworth said that is not in this plan; however, it could be looked at.

Commissioner Piepkorn offered the following Resolution and moved its adoption:
WHEREAS, The Fargo City Commission is the duly elected governing body responsible for the planning and development of safe and functional transportation systems including bicycle and pedestrian facilities; and
WHEREAS, The Fargo-Moorhead Metropolitan Council of Governments, as the metropolitan planning organization designated by the Governors of North Dakota and Minnesota to maintain the metropolitan area's transportation planning process in accordance with federal regulations; and
WHEREAS, The Fargo-Moorhead Metropolitan Council of Governments has undertaken the task of developing the 2016 Fargo-Moorhead Metropolitan Bicycle and Pedestrian Plan, which is a vital element of the planning process, and which makes transportation related bicycle and pedestrian needs eligible for future federal funding; and
WHEREAS, The 2016 Fargo-Moorhead Metropolitan Bicycle and Pedestrian Plan was directed by the Metropolitan Bicycle and Pedestrian Committee comprised of a wide cross section of bicycle and pedestrian interest groups including park district representatives, law enforcement, technical city, county and state staff, citizens and other applicable agencies/organizations; and
WHEREAS, The public was invited, encouraged and involved in this Plan's preparation in full compliance with Metro COG's Public Participation Plan; and
WHEREAS, The 2016 Fargo-Moorhead Metropolitan Bicycle and Pedestrian Plan seeks to enhance the Fargo-Moorhead Metropolitan Area's bicycle and pedestrian environment so as to increase mobility, health, safety, equity and the quality of life for all citizens.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners does hereby adopt the 2016 Fargo-Moorhead Metropolitan Bicycle and Pedestrian Plan and agrees to use it as a tool to implement area bicycle and pedestrian goals and objectives which will complement the overall development of the area’s transportation system.

Second by Grindberg. On the vote being taken on the question of the adoption of the Resolution Commissioners Piepkorn, Grindberg, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Application Filed by Wurst Pub LLC d/b/a Wurst Bier Hall for an Alcoholic Beverage License Approved:
A Hearing had been set for this day and hour on the application filed by Wurst Pub LLC d/b/a Wurst Bier Hall for a Class "FA-RZ" Alcoholic Beverage License at 630 1st Avenue North, notice of which had been duly published in the official newspaper for the City of Fargo.
No written protest or objection to the granting of the application has been received or filed in the office of the City Auditor, and said application has been approved by the Police Department as to the character of the applicant.
The Board determined that no person is present at this Hearing to protest or offer objection to the granting of the application.

Commissioner Grindberg moved the application be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Hearing on Appeal of the Board of Adjustment’s Denial of a Request for a Variance Continued to February 13, 2017 (303 11th Street North):
A Hearing had been set for January 17, 2017 on the appeal of a variance request by 300 Lime, LLC at 303 11th Street North, which was denied by the Board of Adjustment at their December 22, 2016 meeting.

At the January 17, 2017 meeting, the Hearing was continued to this day and hour; however, the applicant has requested that the Hearing be continued to February 13, 2017.

Commissioner Gehrig moved the Hearing be continued to 5:15 o’clock p.m. Monday, February 13, 2017.

Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Parcels of Land in Reeve’s Addition Rezoned (1409, 1411 and 1413 1st Avenue North):
At a Hearing held on January 4, 2017 the Fargo Planning Commission recommended approval of a change in zoning from GC, General Commercial to LI, Limited Industrial on part of Lot 19 and all of Lots 20 and 21, Block 18, Reeve’s Addition.
The City Auditor's Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and would be heard.

Planning Administrator Nicole Crutchfield said property uses have changed quite a bit over time on 1st Avenue North. She said the owner of this property would like to use it for storage for Wolf Steel Construction, which owns property across the alley. A few years ago this site was approved for a Conditional Use Permit for housing, she said; however, the landowner is not going through with that CUP with the adoption of this zoning.

Commissioner Grindberg offered the following Resolution and moved its adoption:
WHEREAS, All legal requirements in connection with the above-described request for rezoning have been complied with; and
WHEREAS, There have been no written or verbal protests to the request for rezoning and no one is present to protest thereto.
NOW, THEREFORE, BE IT RESOLVED, That the findings of staff be accepted and the rezoning be approved on the basis that the proposal satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

Second by Piepkorn. On the vote being taken on the question of the adoption of the Resolution Commissioners Grindberg Piepkorn, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

First Reading of an Ordinance Rezoning Certain Parcels of Land Lying in Reeve’s Addition, Fargo, Cass County, North Dakota:
Commissioner Grindberg moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and that the Ordinance Rezoning Certain Parcels of Land Lying in Reeve’s Addition, Fargo, Cass County, North Dakota be placed on first reading.

Second by Piepkorn. On call of the roll Commissioners Grindberg, Piepkorn, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Parcels of Land in Reeve’s Addition Rezoned (1620, 1630 and 1632 1st Avenue North):
At a Hearing held on January 4, 2017 the Fargo Planning Commission recommended approval of a change in zoning from GC, General Commercial to LI, Limited Industrial on Blocks 26 and 27, Reeve’s Addition, and adjacent vacated right-of-way, and Auditor’s Lot No. 1 of the South Half of Section 1, Township 139 North, Range 49 West of the 5th Principal Meridian, Cass County, North Dakota.
The City Auditor's Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and would be heard.

Planning Administrator Nicole Crutchfield said the property owner is converting it for residential and commercial with plans to develop the site to additional commercial. She outlined recommended conditions related to keeping that residence safe if the property were sold or converted to a higher intensity commercial use in the future.

Second by Piepkorn. On the vote being taken on the question of the adoption of the Resolution Commissioners Grindberg, Piepkorn, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

First Reading of an Ordinance Rezoning Certain Parcels of Land Lying in Reeve’s Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Grindberg moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and that the Ordinance Rezoning Certain Parcels of Land Lying in Reeve’s Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

Second by Piepkorn. On call of the roll Commissioners Grindberg, Piepkorn, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Parcels of Land in Timber Parkway First Addition Rezoned (4801 Timber Parkway South):
At a Hearing held on January 3, 2017 the Fargo Planning Commission recommended approval of a change in zoning to repeal and re-establish a C-O, Conditional Overlay on Lot 7, Block 1 Timber Parkway First Addition.
The City Auditor's Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and would be heard.
Planning Administrator Nicole Crutchfield said the owner plans to build an outlet mall and this streamlines the existing ordinance to apply to a project of this size.

Commissioner Grindberg offered the following Resolution and moved its adoption:
WHEREAS, All legal requirements in connection with the above-described request for rezoning have been complied with; and
WHEREAS, There have been no written or verbal protests to the request for rezoning and no one is present to protest thereto.
NOW, THEREFORE, BE IT RESOLVED, That the findings of staff and the Planning Commission be accepted and the rezoning be approved with the Conditional Overlay requirements listed in the Ordinance on the basis that it satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

Second by Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Grindberg, Gehrig, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

First Reading of an Ordinance Rezoning a Certain Parcel of Land Lying in Timber Parkway First Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Grindberg moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and that the Ordinance Rezoning a Certain Parcel of Land Lying in Timber Parkway First Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Renaissance Zone Project for DFI 1213 NP LLC Approved (6 12th Street North):
A Hearing had been set for this day and hour to receive comments on a Renaissance Zone Project for DFI 1213 NP LLC at 6 12th Street North.
No written protest or objection to the Project has been received or filed in the City Auditor's Office.
The Board determined that no person is present to protest or offer objection to the Project.

The Board received a communication from Planner Derrick LaPoint stating the Renaissance Zone Project application presented by DFI 1213 NP LLC meets all of the minimum criteria set forth in the Renaissance Zone Plan and is consistent with the established goals and objectives. The Renaissance Zone Authority recommended that the project be approved, he stated. Mr. LaPoint said there was a previous rehabilitation project adjacent to this at the old Mathison Building that was constructed in about 1955. This portion on the east end was built in 1905-1910, he said and is an old stable building and a unique space. He said there would be extensive renovations with the hope to get a single tenant in there by next year. The current assessed value is $60,000.00, he said, while the value of the investment is about $250,000.00.

Commissioner Strand moved the Renaissance Zone application filed by DFI 1213 NP LLC for a project located at 6 12th Street North be approved and the income tax and property tax exemptions be granted as recommended by the Renaissance Zone Authority.

Second by Piepkorn. On call of the roll Commissioners Strand, Piepkorn, Grindberg and Mahoney voted aye.
Commissioner Gehrig voted nay.
The motion was declared carried.

Update on the Downtown Master Plan and Presentation on 2nd Avenue North: Improvements in Conjunction with the Downtown Master Plan Recommendation for Bicycle Facilities (Lanes) Approved:
Planning Administrator Nicole Crutchfield said the Downtown Master Plan consultants were in town recently and a second outreach event was held during Frostival with over 200 people in attendance. She said the consultants were able to brief staff and directors on some of their findings to date and are about half way in the process. She said the website, www.fargoinfocus.org, has a slideshow presentation and interactive activities. A public space will also be set up, she said, for an additional opportunity for the public to engage. She said right now the work is crafting a vision and one of the first thoughts is to really make downtown a family-friendly space. Some themes are finding out what is happening downtown today, understanding how downtown works with the city as a whole, understanding a future vision and hitting multiple points with a solution, she said. The three focus areas are development, transportation and river and open space, she said. The consultants are beginning to look at the idea of 2nd Avenue and Broadway being the hub of all hubs, having retail, Civic connections, the Block 9 project and the open space of a plaza which can really be a key focus, she said, and the challenge is, how can that be made with easy access, yet destination driven for all? She said bicycle facilities and diagonal parking are not a good mix and buffered lanes may be needed, not all streets are appropriate for bike lanes. She said when the master plan is adopted, hopefully in April or May, there could be a template/framework adopted as a whole, then Engineering and Planning staff would not need to come before the Board for every detail of these planning efforts.

Commissioner Strand said the Board would be remiss not to include bicycle facilities in the design of a development downtown involving traffic.

Commissioner Gehrig said he will vote yes as it would be out of turn for him to vote against it at this point. He said he looks forward to seeing what it may look like and what ideas come from it.

Commissioner Grindberg moved the 2nd Avenue improvements in conjunction with the Downtown Master Plan recommendation, specifically bicycle facilities (lanes) be approved.

Second by Strand. On call of the roll Commissioners Grindberg, Strand, Gehrig, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Resolution of Necessity Adopted Authorizing the Commencement of Legal Action to Acquire Property at 3223 32nd Avenue South (Attachment “A”):
Transportation Division Engineer Jeremy Gorden gave an overview of Improvement District No. PR-17-A which is the reconstruction of 32nd Avenue South between 32nd Street to 42nd Street.

In response to a question from Commissioner Piepkorn about whether there are early completion incentives involved with it being a high volume arterial, Mr. Gorden said there are not incentive/disincentives applied to the project; however, there are time constraints applied to certain portions, like intersections and approaches. Lanes will be reduced at times during construction, he said, much like was done during the 13th Avenue reconstruction last year. There are federal, state and local funds for the project, he said, and he expects the bids to come in at nearly $20 million. There are sixteen properties for which temporary construction easements for permanent street and utility easements are needed, he said, and fifteen have been secured. He said the remaining property owner, KCB Legacy, LLC at 3223 32nd Avenue South, is concerned about the easements needed: a five and a half foot permanent street utility easement, a five and a half foot permanent utility and a temporary construction easement. The process has stalled, he said, and legal action may be needed.

Assistant City Attorney Nancy Morris said there have been a number of communications with a representative of the owner and there are some questions being worked through on zoning and land use. Counsel is aware that process continues, she said; however, a Resolution of Necessity is being requested now so if an agreement cannot be made, legal action would proceed to secure the property and allow a bid to be awarded. That would still leave an opportunity to discuss some of the issues raised because of the potential taking of the property and its potential inability to be used, she said, then the issue would be what the damages are, if any, as a result of that taking.

In response to a question from Commissioner Gehrig if this is being taken for a bike lane or utilities underneath, and whether the action would be necessary without the bike lanes, Mr. Gorden said redesign work has been done and dimensions have been reduced so less of the parking lot would be taken. He said designers try to create a place for snow to sit when the snowplows go through, and narrower than eight feet cannot be classified as a bike path. He said what started out as a request for nine feet is now down to five and a half feet and the buffer between their lot and the path is at only three and a half feet. It cannot be reduced any more unless the path were eliminated, he said, and in his opinion, that is not be a good decision with a path going from the Red River to the Sheyenne River. He said some kind of easement would be needed to construct anything and with the existing right-of-way not even a sidewalk would fit there.

Commissioner Gehrig said perhaps the owner feels more property is being taken than needed. He said the Board is being asked for a Resolution of Necessity and if taking the land is not necessary to do the project, he will not support it.

Mayor Mahoney said a lot of money has been invested in bike paths to have one property owner stop the continuation of the path. The plans have a bike path all the way through the project and in reality, 32nd Avenue should be a walkable, bikeable area. He said this is consistent with city policy.

Commissioner Piepkorn moved the Resolution entitled "City of Fargo Resolution of Necessity" and referred to as Attachment "A", be adopted and attached hereto, and the commencement of legal action to acquire a portion of property at 3223 32nd Avenue South be approved.

Second by Grindberg. On call of the roll Commissioners Piepkorn, Grindberg, Strand and Mahoney voted aye.
Commissioner Gehrig voted nay.
The motion was declared carried.

Resolution Adopted Authorizing Licensing Fees for Wireless Telecommunication Facilities:
Division Engineer Brenda Derrig said the small cell ordinance had final reading on January 17, 2017 and tonight the Board approved final reading and adoption of the Land Development Code supporting that ordinance; therefore, the final step is to adopt the Wireless Facility Guidelines. She said this technology is in its infancy and as they work through it, there may be revisions. A phased type approach is proposed, she said, with a $100.00 per site initial application fee to see if it is feasible before the applicant puts all their money into a rebuild. Once sites are approved there will be a phased approach based on number of sites in an application. Proposed annual fees are $500.00 for a Right of Way Permit and $1,500.00 per structure for an attachment agreement, she said. A 10-year master attachment agreement is recommended with a $1,500.00 renewal fee, she said. Upon renewal the agreement would be re-looked at to be sure all the sites are still being used and the agreement could be renegotiated.

In response to a question from Commissioner Strand about whether this may be setting a precedence on having access to infrastructure, and possible consequences of the visual aesthetics, Ms. Derrig said it is not possible to predict what new technologies will come; however, this is still the right-of-way and it houses the city’s sewer, water and storm sewer. She said it needs to remain open to some extent to provide these utilities, so there will be limitations on what can go in that right-of-way. She said the Land Development Code has opened it up somewhat to allow cells on private property also. She said as far as aesthetics, currently requests are for commercial areas and not residential as of yet, and a notification procedure is in place requiring that everyone within a 500-foot radius be notified. She said if the applicant gets comments back, they are required to advise the City.

Commissioner Grindberg offered the following Resolution and moved its adoption:
WHEREAS, The City of Fargo has enacted Article 24-04 of the Fargo Municipal Code which authorizes the installation of Wireless Communication Facilities on City Owned Structures in the public right of way; and
WHEREAS, Section 24-0404 of the Fargo Municipal Code authorizes the Board of City Commissioners to adopt Wireless Facilities Guidelines and application fees; and
WHEREAS, Section 24-0408 of the Fargo Municipal Code authorizes the Board of City Commissioners to adopt an attachment fee; and
WHEREAS, The Finance Committee of the City of Fargo considered recommendations from staff and recommends the Wireless Facilities Guidelines and the fees stated therein be adopted.
NOW, THEREFORE, IT IS HEREBY RESOLVED, BY THE BOARD OF CITY COMMISSIONERS,
1. The Wireless Facilities Guidelines shall be adopted as presented, including the fees as stated therein, in accordance with Article 24-04 of the Fargo Municipal Code.

Discussion on the City Commission’s Position on Legislative Issues and Comments Sent to State Legislative Committees Regarding Tax Incentives:
Commissioner Piepkorn said he wanted to open a discussion on using City letterhead for individual views. All the Commissioners have their own interests and views, he said, and that is what makes this country great; however, caution must be taken when individual views are placed on city letterhead. He said that makes people think it is the city’s view and care must be taken not to make people think it is the city’s opinion when it is an individual opinion.

Commissioner Gehrig said the letter he and Bismarck City Commissioner Steve Marquart co-wrote advocating for passage of a bill they support stating upfront it was their opinion, they were not speaking for a City Commission. He said he is asking to be treated like everyone else; other commissioners have advocated for or against different bills in person, spoken to legislators and called or written them to say what they think. Some have stated they represent the Fargo City Commission even without a vote to say they could do that. He said he does not have a problem with that because a majority/consensus is known. There has not been a vote, he said, even when he asked for one at the last meeting, it died for a lack of a second. He said if that is desired then there should be votes. At the end of the day, he said, he is a Fargo City Commissioner, he believes in issues and he regularly appears on TV, radio, newspaper and takes phone calls. He identifies himself as a City Commissioner and gives his opinion, he said, and all the commissioners do the same and as long as he does not say he represents the City of Fargo or the entire Commission, honestly, there is nothing the Commission can do about it. He said he will continue to advocate for what he believes in and will do so respectfully, and he believes the letter did just that.

Mayor Mahoney said a written policy would make this easier and he shared a draft of a basic policy outline titled “Interaction with State Legislature” for the Board to review. He said there was confusion when something went out on Commission letterhead. He said often times staff recommends to support or not support and the Board does not always vote on everything they take a stand on. He said if a Commissioner would like, a vote could be requested and then staff would have clear direction on where the City of Fargo stands. He said the draft has three parts: Staff may recommend City position; any Commissioner may pull an item from the list for discussion and vote; and disclosure to Legislature by Commissioners. He encouraged the Board to review, add to, or change, the draft policy and he would like to approve a policy at the next meeting to cover this topic, he said.

Commissioner Strand said all government subdivisions have different practices and policies for how they communicate as representatives. He said he believes Commissioner Gehrig’s letter made it clear that he was speaking on behalf of himself, yet it created a gray area when it was issued on the stationery of the whole commission. He said the reality is that Commissioners, even a minority voice, all have a right to their view. He said he would suggest all the Commissioners have access to a letterhead template. He said the question would be what is the position represented to the public in a capacity like the legislative hearings or committee hearings on legislation when all Commissioners do not agree. He said the group should stay the course of what is policy and practice.

At 6:20 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Legislative Update:
City Administrator Bruce Grubb said all bills have now been introduced. He said the bills of interest to the Board have been put into a spreadsheet, summarized and categorized to make it easier to track. He said it will be placed in a shared drive for staff and Commissioners to access. He said one bill, HB1327, is missing from the League of Cities Bill Hearing list that was distributed. It is a bill which the Inspections Department has concerns with that would prohibit permitting for anything done after the initial construction of a residence.

Assistant City Administrator Michael Redlinger explained the tabulation of the relevant bills. He said there is background and key issues describing the bills, as well as status and a recommendation whether to oppose, support or remain neutral on a matter, as well as whether a written piece should be developed and submitted to the Legislature for consideration. He said information will be refreshed on a weekly basis.

Commissioner Strand said close attention needs to be paid to HB1386. He said he feels it would be prudent for a progressive, welcoming city like Fargo to stand in support of passage of this bill, which counters discrimination in housing and employment against folks who are LGBTQ.
Commissioner Strand moved that the Fargo City Commission encourage a yes vote for passage of legislation that offers equal protections under the law for people who are LGBTQ and are currently at risk at their jobs and their housing situations. Second by Grindberg.

Commissioner Grindberg said he voted in favor of these attempts in the past when he served in the State Senate and his assumption is that it is the same language as in the past.

Commissioner Piepkorn said he hesitates against taking positions on state legislation not knowing the specific wording or final product. He said his preference would be to find out the exact wording first or he would be in favor of simply stating opposition to any discrimination, rather than trying to break out special groups.

Commissioner Gehrig said this traps people into groups, which does not help anything. He said he would like the motion to state the Fargo City Commission opposes discrimination in accordance with Fargo City Ordinances.

Commissioner Strand said that would suffice and would show the intent that as a city discrimination in housing, the workplace and otherwise for any people is opposed.

Commissioner Gehrig moved to amend the motion to read that the Fargo City Commission supports the passage of any law that eliminates discrimination for groups in accordance with Fargo City Ordinances.

Second by Grindberg.
On call of the roll for the motion as amended, Commissioners Gehrig, Grindberg, Strand, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Commissioner Strand said he also has concerns about HB1472 with Fargo’s substantial population of refugees. He said he would like to ask the Board for an expression of support for refugees in the community to honor their dignity, desires and needs for a safer existence, which comes through a refugee resettlement program. He said refugees in the community now feel like they are under attack and at risk and do not know what to do or who to go to.

Commissioner Piepkorn said he agrees that refugees are a valuable asset to the community and he supports the refugees who are here; however, the City needs to be more involved in the process and allowed more input. He said some things in HB1472 are changing the process of how refugees are determined and located which he is in favor of. He said there is a need to know what is being done right and what can be done better. It seems now, he said, that people are afraid to ask and there are some things in the bill he supports and some things he does not, and the final product is not known yet.

Mayor Mahoney said parts of the bill seem harsh and some language seems to discriminate against refugees.

Commissioner Gehrig said he does not know a lot about the bill and would not know how to vote right now. He said no one wants to discriminate or close the doors; however, it would be good to have a seat at the table and a say as public leaders on how many people can be taken in.

Commissioner Grindberg said much more will be known in the near future about what is going on nationally with the refugee situation, and at the state level as well. Anything done as the will of the Commission needs to be well thought out and in a written format, he said, there are too many variables now.

Commissioner Strand said it is not as simple as opposing HB1427. He read the following statement from the Fargo Human Relations Commission into the record: “The Fargo Human Relations Commission recognizes that legislation, at any level, can either promote acceptance and respect for diversity or contribute to divisiveness and discrimination.
“In accordance with our mission, we value and respect the human dignity of our refugee friends and neighbors, and as such, forcefully oppose HB1427 which means to target a specific group of people based on immigration status, track their physical movements throughout the country, create onerous reporting standards, and allow cities and the state of North Dakota to decide who should and should not get to become an American. It will not only have a devastating effect on our local economies, it is also unethical, immoral, impractical, unlawful and could be unconstitutional.
“The Fargo Human Relations Commission calls on all Fargo citizens to contact committee members and representatives in the North Dakota Legislature and urge them to vote against discrimination -- urge them to vote against HB1427.
“The Fargo Human Relations Commission works to promote acceptance and respect for diversity and discourages all forms of discrimination.”

Negotiation Strategies Discussed in Executive Session Approved:
Commissioner Strand moved the negotiation strategies and parameters discussed in Executive Session regarding the Strande property at 726 Hackberry Drive South, the Bergh home at 4122 17th Street South and the litigation matter City of Fargo v. Michele Brandt be approved.

Second by Piepkorn. On call of the roll Commissioners Strand, Piepkorn, Gehrig, Grindberg and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Commissioner Piepkorn moved that the Board adjourn to 5:00 o’clock p.m., Monday, February 13, 2017.
Second by Grindberg. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:54 o’clock p.m.