Board of City Commissioners - September 9, 2019 Minutes
The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 5:00 o'clock p.m., Monday, September 9, 2019.
The Commissioners present or absent were as shown following:
Present: Gehrig, Grindberg, Piepkorn, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.
The Mayor read a message with the following information: The Commission Chamber light panels are lit blue recognizing the Prostate Cancer Foundation’s “Light it Blue” campaign this month; Environmental Health is assisting Kate Holten in organizing a memorial event for Jay Halvorson on September 17th at Fargo Cass Public Health; North Dakota had its first report of severe respiratory illness relating to vaping; the Solid Waste and Recycling Departments partnered with MinnKota Recycling offering recycling for move-in weekend at NDSU and collected nearly 16,000 pounds of cardboard; following the June storm, Forestry, Streets and contracted staff picked up nearly 21,000 piles of brush, removed 184 boulevard trees and pruned more than 600 trees and the recent Labor Day storm has again resulted in crews working extended hours; the Block 9 tower is now 15 floors high and the parking ramp is open; Police Chief David Todd met with Sanford executives to discuss approaches to suicidal persons; as part of the 2019 One Book, One Community reading project, events at the Library include a Captain Marvel film screening, ND Air National Guard 119th Wing presentation and a screening of “Silver Wing, Flying Dreams;” Commissioner Strand was congratulated on the 25th birthday of his newspaper, the High Plains Reader; and a video highlighting the work of the Inspections Department was shown.
Order of Agenda Approved:
Commissioner Strand moved the Order of the Agenda be approved.
Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
Minutes Approved:
Commissioner Grindberg moved that the Minutes of the Regular Meeting of the Board held on August 26, 2019 be approved as read.
Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
Consent Agenda Approved:
Commissioner Gehrig moved the Consent Agenda be approved as follows:
1. Receive and file an Ordinance Amending Sections 3-1301 and 3-1302 of Article 3013 of the Fargo Municipal Code Relating to Lodging Tax.
2. 1st reading of an Ordinance Amending Section 25-1506 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Restrictions on Sale, Service or Dispensing of Alcoholic Beverages.
3. 2nd reading and final adoption of the following Ordinances; 1st reading, 8/26/19:
a. Amending Section 1-0305(A) of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Ordinance Violations.
b. Amending Ordinance No. 5140 which Rezoned Certain Parcels of Land Lying in Diamond Willow Addition, a Replat of Portions of Douglas Addition, Fargo, Cass County, North Dakota.
4. Gaming Site Authorizations:
a. Horse Race ND at Labby’s Bar & Grill (amended).
b. ND Association for the Disabled, Inc. at Cowboy Jack’s.
c. Fraser Ltd. at Golf Addiction ND LLC.
d. Team Makers Club, Inc. at Big Erv’s at Rose Creek.
e. Boys & Girls Club of the Red River Valley at Fargo Billiards and Gastropub.
5. Applications for Games of Chance:
a. Jeremiah Program Fargo-Moorhead for a raffle on 10/18/19.
b. Dakota Medical Foundation – Lend A Hand Up for a raffle and raffle board on 9/28/19.
c. Jeff Maddock Benefit Softball Tournament for a raffle on 9/21/19; Public Spirited Resolution.
d. United Way of Cass-Clay for a raffle board on 9/24/19.
e. ND Dental Foundation for a raffle on 9/20/19.
f. ND Dental Hygienists’ Association for a raffle on 9/20/19; Public Spirited Resolution.
g. NDSU Foundation and Alumni Association for a raffle and raffle board on 10/12/19.
h. Kappa Psi Fraternity for a raffle on 10/21/19.
i. 57th Directors Staff for a raffle board on 10/12/19.
6. Agreement with Baker Tilly for the Development of a Fiscal Impact Model.
7. Change Order No. 10 for an increase of $42,518.71 for Project No. FM-15-K1.
8. Negative Final Balancing Change Order No. 1 in the amount of -$63,040.00 for Project No. SN-18-B2.
9. Change Order No. 2 for an increase of $15,465.38 for Project No. SR-19-A1.
10. Bid award to SnapSports in the amount of $72,632.00 for a suspended modular tile sports floor system at the FARGODOME.
11. Resolution calling for a public hearing on Host Approval on the Issuance of Revenue Bonds, Series 2019 (Sanford) by the Colorado Health Facilities Authority and Authorizing the Publication of a Notice of the Public Hearing on 9/23/19 (Attachment “A”).
12. Contract Agreement with AE2S Communications for tobacco use reduction media campaign (RFP19131).
13. Contract Agreement for Services with Southeast Human Service Center.
14. Agreement for Services with Cobalt Rehabilitation Hospital.
15. Agreement for Services with Emily Altstadt.
16. Contract Agreement for Services with Child Care Aware of ND.
17. Memorandum of Understanding with ND Department of Health.
18. Notice of Grant Award with the ND Department of Health for the following:
a. Comprehensive Cancer and Obesity Prevention in Child Care in 2019 (CFDA #93.898).
b. Comprehensive Cancer and Obesity Prevention in Child Care in 2020 (CFDA #93.898).
c. Increasing breastfeeding rates and reducing obesity in children (CFDA #93.994).
d. Implementation of a regional public health opioid network (CFDA #93.354).
e. Supplemental Nutrition Program (CFDA #10.557).
f. Increasing immunization rates for local public health units (CFDA #93.268).
g. Enhancing Harm Reduction (CFDA #93.354).
19. Notice of Grant Award with the ND Department of Environmental Quality for public water supply supervision program-EPA Block (CFDA #66.605).
20. Benefit renewals as presented effective 1/1/20.
21. 2019 Community Development Block Grant and HOME Partnership allocations from the US Department of Housing and Urban Development.
22. Professional Services Agreement with TDA Consulting, Inc. to develop a 2020-2024 Consolidated Plan and assessment of the Fair Housing for HUD Community Block Grant and HOME Partnership Programs.
23. Resolution regarding proposed corrected Plat of The Edge Addition and to set a public hearing for 5:15 pm on 10/7/19 (Attachment “B”).
24. Advertisement for Construction Bids for the Reconditioning of Water Tower Nos. 4 and 7.
25. Bills in the amount of $7,715,613.08.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 2 and Time Extension for Improvement District No. PN-18-C1 Approved:
Commissioner Gehrig moved Change Order No. 2 for an increase of $26,915.00 and a time extension to October 23, 2019 for Improvement District No. PN-18-C1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 4 and Time Extension for Improvement District No. DN-18-A1 Approved:
Commissioner Gehrig moved Change Order No. 4 for an increase of $30,411.70 and a 14-day time extension for Improvement District No. DN-18-A1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 1 and Time Extension for Improvement District No. PR-19-F1 Approved:
Commissioner Gehrig moved Change Order No. 1 for an increase of $76,915.00 and time extension to October 11, 2019 for Improvement District No. PR-19-F1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 2 for Improvement District No. BN-19-B1 Approved:
Commissioner Gehrig moved Change Order No. 2 for an increase of $65,726.27 for Improvement District No. BN-19-B1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 2 for Improvement District No. BR-18-F1 Approved:
Commissioner Gehrig moved Change Order No. 2 for an increase of $13,740.00 for Improvement District No. BR-18-F1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand 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 Improvement District No. BR-19-A1 Approved:
The Board received a Report of Action from the Public Works Projects Evaluation Committee regarding a Cost Participation and Maintenance Agreement associated with the reconstruction of Main Avenue from Broadway to University Drive. They said funding for the project will consist of Federal Highway Funds from the NDDOT’s Regional Highway System, State DOT Funds, Local Funds and Special Assessments. The total estimated project cost is $16,279,848.00, and is set to be bid in Bismarck on November 8th, with a substantial completion date scheduled for October 16, 2020, they said.
Commissioner Gehrig moved the Cost Participation and Maintenance Agreement with the NDDOT for Improvement District No. BR-19-A1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Amendment No. 1 for Improvement District No. BN-20-A0 Approved:
Commissioner Gehrig moved Amendment No. 1 with Apex Engineering Group in the amount of $29,586.00 for Improvement District BN-20-A0 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 4 for Improvement District No. BR-18-A1 Approved:
Commissioner Gehrig moved Change Order No. 4 for a 1-day time extension for Improvement District No. BR-18-A1 be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Selkirk Place First Addition Development and Assessment Agreement Approved (Improvement District No. VF-19-C1):
The Board received a communication from the Public Works Projects Evaluation Committee stating they reviewed a draft of a Developer’s Agreement for the private construction of the development known as Selkirk Place First Addition. They said staff is seeking approval to carry this document forward after review and acceptance by the Developer for Commission approval and it would be contingent upon there being no material changes to the agreement with the Developer’s review.
Commissioner Gehrig moved the Selkirk Place First Addition Development and Assessment Agreement be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Land Exchange Agreement with Earlyne Hector Approved:
The Board received a communication from City Engineer Brenda Derrig stating on April 29, 2019, the Finance Committee approved a land swap between the City of Fargo and Earlyne Hector within the proposed Selkirk Place First Addition for a future Fire Station site.
Commissioner Gehrig moved the Land Exchange Agreement with Earlyne Hector be approved.
Second by Grindberg. On call of the roll Commissioners Gehrig, Grindberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Presentation on the Fargo-Moorhead Diversion Recreation Plan:
Adam Altenburg, Fargo-Moorhead Metropolitan Council of Governments, said an additional component of the Fargo-Moorhead Diversion project is the Fargo-Moorhead Diversion Recreation Plan, which is looking at recreation and non-recreation components to integrate within the Diversion project. He shared a Power Point presentation of project goals, including a range of year-round recreation activities, restoration of native plant communities to create habitat, creating a distinct and branded attraction, providing connectivity, complementing adjacent existing and/or planned land uses and permanent flood protection, supporting economic vitality and supporting public health. Both active and passive uses will be looked at, he said, such as trails, sporting activities, community gardens, solar installations, pollinator habitats and educational or research possibilities. The project is in the data-gathering phase, he stated, and the goal is to develop a plan by September 2020. Some components are funding opportunities, governance strategy and public outreach, he said.
Hearing on Right-of-Way Vacation of the Alley between Lots A, B, C, D, E, F, T and U, the Vacated 10-foot Alley Adjacent to Lots T and U, Hagaman’s Subdivision of Part of Block 2, Roberts Addition Continued to 9/23/19:
A Hearing had been set for July 15, 2019 on an application for the
Right-of-Way Vacation of the Alley between Lots A, B, C, D, E, F, T and U, the Vacated 10-foot Alley Adjacent to Lots T and U, Hagaman’s Subdivision of Part of Block 2, Roberts Addition (624 2nd Avenue North and 613, 617 and 621 1st Avenue North).
At the July 15, 2019 Regular Meeting the Hearing was continued to August 12, 2019.
At the August 12, 2019 Regular Meeting the Hearing was continued to August 26, 2019.
At the August 26, 2019 Regular Meeting the Hearing was continued to this day and hour; however, the applicant has requested the Hearing be continued to September 23, 2019.
Commissioner Grindberg moved the Hearing be continued to 5:15 o’clock p.m. on Monday, September 23, 2019.
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.
Hearing on Right of Way Vacation of a Portion of 5th Street North between Blocks 21 and 22 Keeney and Devitt’s Second Addition and Lying North of 4th Avenue North and South of Lot B, Block 1, Great Northern Depot Addition Continued to 9/23/19:
A Hearing had been set for August 12, 2019 on an application for the Right of Way Vacation of a Portion of 5th Street North between Blocks 21 and 22 Keeney and Devitt’s Second Addition and Lying North of 4th Avenue North and South of Lot B, Block 1, Great Northern Depot Addition (410 5th Street North).
At the August 12, 2019 Regular Meeting the Hearing was continued to August 26, 2019.
At the August 26, 2019 Regular Meeting the Hearing was continued to this day and hour; however, the applicant has requested the Hearing be continued to September 23, 2019.
Commissioner Gehrig moved the Hearing be continued to 5:15 o’clock p.m. on Monday, September 23, 2019.
Second by Piepkorn. On call of the roll Commissioners Gehrig, Piepkorn, Grindberg, Strand, and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Parcels of Land in Scilley’s Addition Rezoned (1604 52nd Avenue South):
At a Hearing held on August 6, 2019 the Fargo Planning Commission considered a change in zoning from SR-2, Single Dwelling Residential to NO, Neighborhood Office.
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.
Current Planning Coordinator Donald Kress said the property is currently used as a church. Subsequent to the Planning Commission meeting, a formal petition of protest was received, representing 35% of the surrounding property owners, which means a supermajority vote is required. The current owners intend to sell the church building and rezoning the property would make it more available, he said, rather than having to sell it to another church. The asphalt front yard makes it unattractive to convert it back to a single family home, he said, and the Neighborhood Office zoning change would provide a transition between the General Commercial zoning of the substation and the residential zoning.
Ron Robson, Treasurer and Council Member of the Holy Resurrection Orthodox Mission Church, said the property has been for sale since October of 2018. He said he has been told that most interest in the property has been from attorneys interested in making it into an office. A zoning change would make it easier for the church to sell the property and would not detract from property value, he said, and would help neighborhood traffic patterns since church services have created a blockage on the frontage road.
Commissioner Piepkorn said the surrounding area is all residential and he favors having it go back to being a residence, which would be much more in the character of the surrounding houses and that asphalt could be removed to make a yard, he said.
In response to a question from Commissioner Strand about how the property went from a house to a church, Father William Raddick said the Holy Resurrection Orthodox Mission Church purchased it from the Community of Christ Latter Day Saints and as he understands it, it was a Mennonite Community prior to that; however, he does not know the prior history.
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, The Fargo Planning Commission approved the following rezoning on August 6, 2019; and
WHEREAS, Written protests to the rezoning representing 35% of the legal protest area have been received and filed in the Office of the City Auditor.
NOW, THEREFORE, BE IT RESOLVED, That the rezoning be approved as recommended by the Planning Commission.
Second by Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Grindberg, Gehrig, Strand and Mahoney voted aye.
Commissioner Piepkorn voted nay.
The Resolution was adopted.
First Reading of an Ordinance Rezoning Certain Parcels of Land Lying in Scilley’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 Scilley’s 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 and Mahoney voted aye.
Commissioner Piepkorn voted nay.
The motion was declared carried.
Amendment to the Growth Plan Approved (3800 56th Avenue South):
A Hearing had been set for this day and hour to consider approval of an Amendment to the Growth Plan consisting of a change from Low to Medium Density Residential to Commercial.
The Fargo Planning Commission recommended approval of the Amendment to the Growth Plan at their August 6, 2019 meeting.
No written protest or objection to the Amendment to the Plan has been received or filed in the Planning and Development Department.
The Board determined that no person is present to protest or offer objection to the Growth Plan Amendment.
A Hospice of the Red River Valley video was shown featuring testimonials on the need for the first Hospice House in North Dakota and what it will mean to the community.
Current Planning Coordinator Donald Kress said this is a Growth Plan Amendment and a public meeting was held where one neighbor expressed concerns about the level of activity adjacent to the single-family residences; however, he feels the concerns about high traffic and activity may have been alleviated due to the change in the placement of the parking and the pond.
Hospice Attorney Dan Bueide said North Dakota is the last state to have a Hospice House. He said a site large enough to create a serene environment was essential, and being near the I-29 and 52nd Avenue South interchange was important in the site selection.
Hospice of the Red River Valley Executive Director Tracee Capron said a Hospice House can be used for any patient in any care setting with the need. She said Medicare covers the cost for patients who meet criteria. It can allow a stay to relieve caregivers.
Commissioner Grindberg said he appreciates the willingness of the Board to allow the video to be played. He said speaking as someone who has experienced Hospice services with his family, one does not realize how important it is until it is needed.
Commissioner Strand moved the Amendment to the Growth Plan be approved.
Second by Grindberg. On call of the roll Commissioners Strand, Grindberg, Gehrig, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Parcels of Land in The Pines at the District Addition Rezoned:
At a Hearing held on August 6, 2019 the Fargo Planning Commission recommended approval of a change in zoning from MR-3, Multi-Dwelling Residential to LC, Limited Commercial.
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.
Commissioner Strand 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 Grindberg. On the vote being taken on the question of the adoption of the Resolution Commissioners Strand, Grindberg, Gehrig, Piepkorn 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 The Pines at the District Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Strand 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 The Pines at the District Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.
Second by Grindberg. On call of the roll Commissioners Strand, Grindberg, Gehrig, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Appeal of the Approval of a Conditional Use Permit to Allow a Bed and Breakfast in the Chas A. Roberts Addition Continued to September 23, 2019 (611 8th Street South):
A Hearing had been held by the Fargo Planning Commission on August 6, 2019 to consider a request for a Conditional Use Permit to allow a bed and breakfast in the SR-3, Single-Dwelling Residential Zoning District on Lots 2 and 3, Block F, Chas A. Roberts Addition and the Fargo Planning Commission at such Hearing recommended that the Conditional Use Permit be approved.
The City received appeals of the approval of the Conditional Use Permit from three neighborhood residents, which requires that a Public Hearing be held by the City Commission.
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 Director Nicole Crutchfield said the final decision for a Conditional Use Permit normally lies with the Planning Commission; however, immediately after the Planning Commission approved the Conditional Use Permit, an appeal was received. She said the Planning Commission approved the Conditional Use Permit on a vote of 5-3. She said the owners of the property at 611 8th Street South filed an application to have a bed and breakfast business at that location, which is in a primarily residential neighborhood. She said one of the contentious components is that the permit allows for receptions and private parties. There was testimony at the Planning Commission hearing about the potential of parties, she said, as well as the change of use. She said typically petitions and protests are related to zoning ordinances; however, staff recommends, as part of due diligence and good practice related to neighboring residential conflict, a supermajority vote could be considered.
In response to a question from Mayor Mahoney asking if a supermajority is required, City Attorney Erik Johnson said while it is not completely clear what the Land Development Code requires regarding appeals of Conditional Use Permit requests, his opinion is that it should be a supermajority requirement due to the protests.
Ms. Crutchfield outlined the conditions, specifically dealing with private parties or receptions. She said some concerns still being heard from residents are about overflow of parking onto the streets and the number of units for overnight stays. One of the conditions would cease the land use of the party/reception component upon sale or transfer of land, she said; however, the bed and breakfast would run with the land.
Amanda Nelson, daughter of the property owners, said her parents purchased the house, which was built in 1884 by Matilda and Charles Roberts, and is one of the oldest houses and families in Fargo. She said it was painstakingly renovated and remodeled from a multi-unit apartment building that was in disrepair and after living in the Robert’s house for 32 years and trying to find new owners for more than 15 years, they are looking to expand the horizons for the beautiful house.
James Baum, 511 8th Street South, said he has lived in the neighborhood for 36 years. This would be a commercial enterprise in the middle of their block, he said, which could also be summarized as a hotel. This is in a national historic district with some of Fargo’s finest old houses dating back to the 1800s, he said, and he does not want things to change. He said he has concerns about security and while 95% of the guests will be great, what would be done about the others, he asked.
Roger Nelson said he and his wife, Margaret, own the property and the house has an enormous amount of history. He detailed the restoration work put into the house and he said they are proud of the home and have opened it to numerous groups. Food has been catered in for events or has been allowed to be brought in, he said, which is something not allowed in most hotels. He said their application has or will meet all criteria for a bed and breakfast and he respectfully requests approval.
Scott Neal, 623 8th Street South, said the Nelsons are wonderful neighbors and staff has been helpful working on both sides of the issue; however, everything the applicant has said refers to the property as their home. He said the application is not consistent with that, he would call it a hotel and a commercial enterprise, which involves money, employees and strangers. He said everything else in the neighborhood is residential and there is not adequate parking for such a commercial enterprise and certainly not an event center. He said his question for the Board would be if they would want a bed and breakfast, a hotel and event center sitting next to their home allowing up to 25 people on any particular night and serving a commercial business. He said he hopes the Board will deny the permit.
Commissioner Grindberg suggested the topic be tabled. He said in discussions trying to distinguish the difference between an Airbnb and the applicant’s process asking for a bed and breakfast permit, it is his understanding an Airbnb has to follow the same requirements.
Mr. Johnson said Airbnb is a way of internet marketing for people to make their homes available for bed and breakfast, which is no different from the application in front of the Board. He said if one lives in a residential zoning district and has guests in the home who pay to stay overnight, that is the definition of a bed and breakfast, whether using the internet or not as a marketing mechanism. He said it still requires a Conditional Use Permit, so it is identical.
Commissioner Grindberg said there has been added information and additional ideas for compromise. If there is room for compromise and it is not solved tonight, the topic could be delayed, he stated, and action can be taken in two weeks.
Commissioner Strand said he remembers when that property changed ownership and it has been greatly improved from the dilapidated apartment building. This is the Robert’s House, he said, and there are few historic homes in Fargo like the Robert’s House in Roberts Addition. He said he is in favor of the application and everyone has lives where people are brought into their places and homes.
Commissioner Strand moved the Conditional Use Permit be approved.
The motion died for the lack of a second.
Commissioner Grindberg moved that a supermajority vote be required for protests of Conditional Use Permits.
Second by Piepkorn. On call of the roll Commissioners Grindberg and Piepkorn voted aye.
Commissioners Strand, Gehrig and Mahoney voted nay.
The motion died for the lack of a majority
Commissioner Grindberg moved the Hearing be continued to 5:15 o’clock p.m. on Monday, September 23, 2019.
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.
City of Fargo Special Assessment Taskforce Summary of Final Recommendations Referred to Appropriate Staff for Review and Incorporation into a Revised Draft Infrastructure Funding Policy:
Commissioner Grindberg said the ND Legislature’s Prairie Dog Funding Bill is a key game changer for infrastructure and funding policies. He said his recommendation is that the City Commission refer the Summary of Final Recommendations to appropriate staff to be evaluated and incorporated into a revised draft Infrastructure Funding Policy, which would be brought back to the City Commission this fall for deliberations and final consideration.
Commissioner Gehrig said the Taskforce was formed from an outpouring of disdain for special assessments during the last election cycle based mostly around the Broadway project and people learning more about the process. It was clear the citizens of Fargo want special assessments dramatically reduced or eliminated, he said; however, the suggestions presented do neither. A reduction of a quarter percent on infrastructure interest payments is not a big move, he said, nor is limiting fees charged for engineering. He said these are very minor changes that will still allow a system that, if specials, fees and interest are not paid, by law, a person’s home can be taken. The Prairie Dog funds of up to $13 million will come next year, he said, and the City needs to make an Ordinance stating that as long as Prairie Dog funding is available, 100% of that needs to go to offset specials. If there is anything left, the Infrastructure Sales Tax currently used towards the water plant can pay for infrastructure. He said he feels the Infrastructure Sales Tax does not need to go to the water plant, it is done, and those funds going to the general fund is money laundering. He said these suggestions should not be pushed forward and he reminded the Board that the last election season was shaped by discussion on special assessments. He said next year is an election year and he would like those running who are in favor of specials to point that out when they run.
Commissioner Piepkorn said the name of special assessments can be changed; however, it is a bill that must be paid. To use terms such as “money laundering” is embarrassing, he said, and one has to be careful to act as if the Prairie Dog funding is a permanent solution. He said he supports looking at ways to change the system; however, he feels the City has a very good, unique system where the City does the infrastructure, which is not how it is done in most cities. Having the City controlling the infrastructure is good, he said, due to the fact that in 40 or 50 years, the City will be held accountable after developers are long gone.
Commissioner Grindberg said a premise in the Taskforce was defining a benefit. He said early on, the Taskforce agreed to review greenfields and reconstruction, which last year was amended from 50/50 to 70/30. He said in his opinion it is philosophical whether the City should be financing special assessments. Tonight on the Consent Agenda, the Board approved a developer to do their own infrastructure, he said, and that cost will be added to the cost of the lot. The Taskforce took the idea that the City is a good partner for greenfields and if one buys or builds a new home, the owner assumes the responsibility for those specials and has the benefit. The debate, he said, is if specials are eliminated, is it reconstruction or also greenfields? He said if a taxpayer has specials paid off and then the City taxes them for specials and increases utility rates to pay somebody else’s specials that is not right and will not fly. The responsible thing to do is work with the Taskforce’s recommendations and minimize the impact, he said, particularly on the right side of the ledger where reconstruction prevails. The North Broadway example, which Bill Worth, who recently passed away, represented, had substantial cost consequences to the taxpayers and that 70/30 shift brought it down to a minimum. It is incumbent on the Board and staff to look at the vision and long-term and capital needs, he said, and use the Prairie Dog funds and other available tools to be able to say there will be meaningful tax consequences. It is disingenuous to call it a shell game, he said, it will have real meaning and real tax relief based on the addition of State funds and being prudent with City resources.
Commissioner Gehrig said the water plant receives about $7 million a year from sales tax and utilizes $2 million with the rest being transferred to the General Fund. That is an intergovernmental transfer and is legal, he said; however, that is the definition of a shell game. To say that is disingenuous is not looking at facts, he said. With $13 million coming in from the State for infrastructure, he said, and as permanent as state law is, it will keep coming in. City employees do not build a road, new or old, he said; it is done by contractors, then the City inspects it to see if it is done right. He said if it is not, it is redone, so having control of infrastructure through specials is nonsensical in that the person doing it without specials has the exact same standards as those using specials. Special assessments reoccur, he said, and a person can pay them off every time and if they are lucky to live long enough, there will be another one. Having a start and end date to a bad process does not take advantage of the next guy, he said, it means that was the system then, and now with $13 million that was not there before, a bad system that is universally hated by residents can be changed. The Board needs to listen to the people of Fargo and get rid of this system, he stated.
Commissioner Strand said this topic has been vetted for some time; however, he is not ready to vote on any of it. He said he would like to see a deep discussion about many elements of the Taskforce’s proposal and he has pages of questions. He said there is some good insight and direction, so he would hate to see it voted down due to members not being ready to vote. He wants to study greenfields, developments and funding, benchmarks, models and what others do, as well as financial, quality consequences and greenfield developers’ securities. He said he would like to look at the deferrals on the books, zoning effects on specials and aspects of the legalities addressed. His suggestion is for one or more informal meetings, where topics can be segmented out and discussed to learn history and resolve each little part and then perhaps the Board can come up with a new proposal.
Commissioner Grindberg said he does not feel there is anything in the proposed motion and the intent to move forward that prohibits any of Commissioner Strand’s concerns from happening. That could involve each Commissioner individually, a roundtable or a brown bag meeting, he said, anything to keep this moving to get to a decision. He said someone needs to take the ball at this point and move forward with the list of recommendations. This is not saying this is a new plan, he said, it is saying for staff to go to work on it and come back with updates and ramifications. More can be added to the recommendations as it moves forward and as Commissioners see fit, he stated.
Mayor Mahoney said the Taskforce met for over a year and at this point, for instance, if a percentage is dropped from fees, it could drop off $700,000.00 from the General Fund, how that would be made up would need to be deliberated. He said he does not believe there could have been a consensus from the Taskforce due to a variance of opinion; however, now it is the time to get it into the hands of staff to narrow down the options. He said the public would like to see some action.
Commissioner Grindberg said initially he asked the Taskforce for a minimum of three options: do nothing, reduce special assessments dramatically or get rid of them and then explore what that means. Now there is a list of things that staff is being told to move forward behind the eye of the public, he said, and that is not what he wants. He said he would have preferred three options that could have been discussed and then the affect researched on property taxes and sales taxes with those three things considered. Now, he said, if staff is given this list of things that really do not do anything, there will be a bad result, which he does not want to happen.
Commissioner Strand said the biggest change that has happened in recent years was when the Board addressed the 70/30 split. He said there is hardly anything consequential in the recommendations and while there are some good aspects to study, he does not see any changes, other than changing the percentage for commercial properties.
Commissioner Grindberg said the purpose on the front end was educating Taskforce members and it is not an easy subject. He said the whole thing is embedded in benefit and in the past, decisions have been made to increase sales tax to modernize the infrastructure, largely for reconstruction. New greenfields can be debated, he said, and whether to allow the developer to do it or to do as the Homebuilder’s Association prefers, creating a level playing field for people to compete. The fundamental game change here, he said, is that somebody has to pay. The Taskforce dragged out longer than he would have liked due to the Legislative session and to Commissioner Gehrig’s point, to drop a fee here or there does not make fundamental change; however, bringing in state funds for the first time to complement local funds and modernize infrastructure, thus reducing taxpayer impact, will be substantial. There will not be much change on the greenfield side, he said, and a property owner pays for that benefit while reconstruction is subsidized.
Mayor Mahoney said the biggest items in the public meetings were reconstruction and arterials. He said the issues for staff to sort out are looking at the Capital Improvement Plan (CIP) for this year and next year, what are the consequences and what is fair. He said that is not something a committee can do, the engineers have to get the impacts and discern the impact for the individual taxpayer. It is not simple, he said, there are questions such as how to get the benefit, who gets the benefit and how much of the benefit. A big lesson was learned on Broadway when a primary sector and arterial were applied at the same time, he said. To get something that can be objectively voted on is knowing the consequences of a change, he stated.
Commissioner Strand said there is not a guarantee of having Prairie Dog funding into the future. If available, he said, he would say use it for the projects with the greatest public good, not particular projects that benefit just some individuals. He said there is nearly a half billion dollars in bonded indebtedness for specials assessments, mostly for greenfields and what happens if there is a repeat of 2008 and what are the unintended consequences and who is going to pay the bill. He said what about a house sitting in a new development with tens of thousands in special assessments against it, and the market plummets and the property owner is underwater, what is the implication to the City and who pays that debt. He said he would like to weigh approaches and he is not satisfied that it is the City’s job to fund those greenfield developments.
Commissioner Grindberg moved the City of Fargo Special Assessment Taskforce Summary of Final Recommendations be referred to appropriate staff for review and incorporation into a revised draft Infrastructure Funding Policy.
Second by Piepkorn. On call of the roll Commissioners Piepkorn, Grindberg and Mahoney voted aye.
Commissioners Strand and Gehrig voted nay.
The motion was declared carried.
State Water Commission Request for Cost Reimbursement for FM Diversion Flood Project Costs Approved:
Finance Director Kent Costin said the State Water Commission is requesting $2,835,957.03 for cost reimbursement for the FM Metropolitan Area Flood Risk Management Project for costs incurred in July. He said $5.5 million was expended and the request is for various projects including land expenses in the Diversion Channel, the Red River Control Structure, residential relocation assistance, costs to prep flood buyouts for demolition and for the 2nd Street South and Main Avenue flood mitigation project.
Commissioner Grindberg moved the cost reimbursement request to the State Water Commission for the FM Diversion Flood Project costs in the amount of $2,835,957.03 be approved.
Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
At 6:45 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.
Public Hearing for Comment on the 2020 Preliminary Budget and Recommended Tax Levies:
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 be heard.
There were no public comments.
Mayor Mahoney closed the public hearing.
Updated Policy on Storm Water Discharge and Treatment Requirements Approved:
The Board received a Report of Action from the Public Works Projects Evaluation Committee stating that the current Policy has been in place since 2001. The Policy needs to be updated as engineering design procedures have evolved, they said. Major changes, they said, include modeling requirements to determine storm run-off volumes and the required retention/detention for the development of City parcels. They said the new policy also clarifies design requirements for various types of projects to include existing parking lot improvements and regional and City maintained pond requirements have also been incorporated into the updated policy, they said.
Division Engineer Jody Bertrand said the 2019 Storm Water Discharge and Treatment Policy is a different topic than the storm water fee that was implemented at the beginning of the year. He said it is an updated guidance for the design of developments in new areas and site plans, making it a working document for engineers to use for design changes or decisions when site plans are created. He said the revisions presented to the Board follows outreach with local consultants and input related to handling parking lots, small lots and release rate requirements have been incorporated. He said multiple documents are being combined taking Ordinance language and existing design requirements and incorporating water quality treatment and pond requirements. The result is a good document, he said, and meets requirements. One topic discussed is DMU, Downtown Mixed Use zoning, he said, which does not enable any storm water ponding locations to relieve the storm water system and many Downtown properties go to the property line which does not allow any ponding locations. He said future proposals would ask that expansion of DMU zoning not be granted with the exemption from storm water retention requirements.
In response to a question from Commissioner Strand on whether there are allowances for porous pavements, Mr. Bertrand said very few people would find those as a viable solution. He said with this area’s ice, and the sand used on the ice, pores fill up requiring a vacuum truck to get the sand out. He said sandy soils beneath pavement are preferred over the clay in this area.
Commissioner Piepkorn moved the Updated Policy on Storm Water Discharge and Treatment Requirements be approved.
Second by Gehrig. On call of the roll Commissioners Piepkorn, Gehrig, Grindberg, Strand 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, September 23, 2019.
Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:55 o’clock p.m.