Fargo City Commission - January 11, 2021

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, January 11, 2021.
The Commissioners present or absent were as shown following:
Present: Gehrig, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

The Mayor read a message with the following information: Inspections has ordered the new edition of building code books for 2021 and after meetings with the Board of Appeals, the codes will be adopted in 2022; Inspections had its second highest year of permitting to date in 2020; Fargo Public Library locations will reopen January 25th; the Library’s online Winter Read-a-Thon continues through February 28th; Solid Waste has opened a new residential transfer station at the Landfill which allows Fargo residents to bring in items such as appliances, metal objects, furniture and other large items as well as recycling items at no charge; and the Fargo Police Department swore in two new officers today who are graduates of the first Fargo Police Academy.

Order of Agenda Approved:
Commissioner Piepkorn 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 Preston moved that the Minutes of the Regular Meeting of the Board held on December 28, 2020 be approved as read.
Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.

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

1. 2nd reading and final adoption of the following Ordinances; 1st reading, 12/28/20:
a. Rezoning Certain Parcels of Land Lying in Darling’s First Addition to the City of Fargo, Cass County, North Dakota.
b. Rezoning Certain Parcels of Land Lying in Keeney and Devitt’s Second Addition, Oak Grove Addition and Lindsay’s Addition to the City of Fargo, Cass County, North Dakota.

2. Application for Games of Chance for K of C Council 11930 for a raffle and calendar raffle from 5/1/21 to 5/31/21.

3. Notice of Grant Award from the ND Department of Health for targeted testing for TB infection identification and treatment (CFDA #93.116).

4. Notice of Grant Award from the ND Department of Health for funding to help Fargo Cass Public Health mitigate the spread of COVID-19 (CFDA #21.019).

5. Application by the Fargo Public Library to the Fargo Park District Foundation for a matching grant for the Community Education Garden project at the James Carlson Library.

6. Second Amendment to Lease Agreement with BOAS Northport LLC for the Northport Library Branch (RSA16165 and SSP21026).

7. Funding transfer for remaining housing assistance from Red River Task Force COVID-19 funds.

8. Subrecipient Agreement Between the City of Fargo and Afro American Development Association (on behalf of ESHARA Partners) to provide funding of $143,000.00 for COVID-19 response efforts through 4/30/21.

9. Subrecipient Agreement Between the City of Fargo and New Life Center to provide funding of $35,500.00 for equipment and staffing to enhance capacity at its original shelter through 4/30/21.

10. Solid Waste Management Agreement for Private Haulers in the City of Fargo with Dirt Dynamics.

11. Northwest Metro Transportation Plan (Project No. MS-19-F0).

12. Bid Advertisement for Red River Pump Station Improvements (Project No. WA2005).

13. Sole Source Procurement with Trillium Pumps USA, Inc. in the amount of $106,140.00 for Project No. WA2005 (SSP21020).

14. Sole Source Procurement with Core & Main in the amount of $130,535.00 for Project No. WA2005 (SSP21019).

15. Contracts and bonds for Project No. WA2012.

16. Bills in the amount of $15,351,203.28.

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

Purchase Agreement with the Park District of the City of Fargo in Association with Improvement District No. BN-21-H1 Approved:
The Board received a communication from Land Acquisition Specialist Shawn Bullinger stating a final purchase price has been reached and the City Engineer’s office recommends the purchase of property in association with Improvement District
No. BN-21-H1.
Commissioner Strand moved the Purchase Agreement with the Park District of the City of Fargo in the amount of $505,252.08 in association with Improvement District No. BN-21-H1 be approved.

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

Southwest Regional Pond Phase 1 Improvement District No. FP-19-A (South of 52nd Avenue South between 57th and 45th Streets South):
Commissioner Strand moved the following action be taken in connection with Southwest Regional Pond Phase 1 Improvement District No. FP-19-A:

Adopt Resolution Creating Improvement District No. FP-19-A:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. FP-19-A in the City of Fargo, North Dakota, be created

An area of land located between 52nd Avenue South, west of Interstate 29, ¼ of a mile south of 76th Avenue South and east of 57th Street South.

COMPRISING:
Bound on the north by 52nd Avenue South.

Bound on the east by Interstate 29.

Bound on the south a distance of ¼ of a mile south of 76th Avenue South.

Bound on the west by 57th Street South.

All of the foregoing is located in the City of Fargo, Cass County, North Dakota and its Extra-Territorial Area.

NOW, THEREFORE, BE IT RESOLVED, That Southwest Regional Pond Phase 1 Improvement District No. FP-19-A in the City of Fargo, North Dakota, be and the same is hereby created.

Request Report and Estimate of Cost From the City Engineer for Improvement District No. FP-19-A:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. FP-19-A in the City of Fargo, North Dakota; as well as an estimate of the approximate cost of said construction. (The Engineer's estimate of cost is $12,326,693.79.)

Order Plans and Specifications for Improvement District No. FP-19-A:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. FP-19-A in the City of Fargo, North Dakota.

Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. FP-19-A:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. FP-19-A in the City of Fargo, North Dakota, as required by law; and
WHEREAS, Plans and Specifications and the Engineer's Report prepared by the City Engineer, have been considered.
NOW, THEREFORE, BE IT RESOLVED, That the Plans and Specifications and Engineer's Report for the construction of Improvement District No. FP-19-A in the City of Fargo, North Dakota, be and the same are hereby approved and ordered filed in the Office of the City Auditor.

Adopt Resolution Declaring Southwest Regional Pond Phase 1 Necessary:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
That it be and is hereby declared necessary to construct Southwest Regional Pond Phase I Improvement District No. FP-19-A in the City of Fargo, North Dakota, according to the Engineer’s Report for this district and the Plans and Specifications approved by the Board of City Commissioners of the City of Fargo, North Dakota, filed in the Office of the City Auditor, and open for public inspection. A map of the district is attached hereto and incorporated as if fully set forth herein.
That the entire cost of said improvement be specially assessed against the benefited property in said improvement district in amounts proportionate to and not exceeding the benefits to be derived by them respectively from said improvement.
Protests against the proposed Southwest Regional Pond Phase I must be in writing and must be filed with the City Auditor's Office within 28 days after the first publication of this Resolution.
BE IT FURTHER RESOLVED, That the City Auditor's Office is hereby instructed to publish this Resolution, as required by law.

Direct City Auditor's Office to Call for Bids for Improvement District No. FP-19-A:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. FP-19-A in the City of Fargo, North Dakota.

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

Contract for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure and Incidentals Improvement District No. BN-21-A Approved:
Commissioner Strand moved the Contract between the City of Fargo and Ames Construction, Inc. for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure and Incidentals Improvement District No. BN-21-A in the City of Fargo, North Dakota, be approved.

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

Contract Bond for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure and Incidentals Improvement District No. BN-21-A Approved:
Commissioner Strand moved the following described Contract Bond be approved as to sufficiency:
Travelers Casualty and Surety of America in the amount of $14,777,636.08, for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure and Incidentals Improvement District No. BN-21-A in the City of Fargo, North Dakota.

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

Resident Comments:
The following Fargo residents spoke to the City Commission: Kelly Noack voiced concerns regarding a recent fire at an apartment building, which is open and unsecured resulting in looting, burglaries, identity theft and check fraud; and Alexander Simon spoke about masks and vaccines.

Hearing on a Dangerous Building Located at 717 3rd Avenue North Continued to January 25, 2021:
The Board received a communication from Inspections Administrator Bruce Taralson submitting a Notice of Dangerous Building Order. He said the Board allowed the owner to extend the permits an additional 180 days; however, the permits have expired and there is uncompleted work and numerous violations. He said after the Board voted to allow the 180-day extension, permits were issued to the Kilbourne Group on August 13 and October 14, 2020. On November 12, 2020, the Kilbourne Group contacted Inspections requesting its name be removed from the permits. He said he informed the Kilbourne Group the existing permits could be voided; however, all work would have to stop until a licensed contractor or the owner formally requested new permits. Inspections did not receive verification from the Kilbourne Group that they wanted the permits voided, nor did a licensed contractor or the owner request reissued permits, he said; therefore, the permits expired January 9, 2021 and were voided January 11, 2021. He said the uncompleted work as required by the permits includes basement structural bracing, repairing rotted floor joists, west upper column repair, siding and insulation, mechanical, plumbing and electrical brought up to code and an intended use for the building is not known. Other violations, he said, include junk in the yard, holes in the exterior to interior, an infestation of pigeons, a vehicle parked on the grass and an unpermitted temporary storage box on the property. A recent report from the owner’s structural engineer shows the work is not completed, he said, and the report states “future work to be inspected.” He said notices were sent to all parties involved and he wants to point out the owner's lack of responsibility for the last year. There has been some progress, he said; however, not what the Kilbourne Group promised. He said the first permit was a demolition permit, which was to remove the rear portion of the building, pick the building up and get it ready for an anticipated new foundation. He said the Kilbourne Group’s statement at the July 13th Hearing was “a contractor has been hired and the work has begun” and the Kilbourne Group “can commit to the schedule and can design and budget for Phase One, which is to relocate, secure and preserve the building with a budget of $125,000.00, which would come from the owner and private donations.” He said there have been some minor repairs and painting; however, even those are not complete and there has not been much communication from the owner or the owner’s representative. He said he received an updated punch list of items a few days ago from the owner’s representative; however, there were no completion dates on the list other than two items showing “completion Spring 2021.”

Ronald Ramsey, Fargo, said he is the owner of the building and several years ago he rented the building to students and those renters had a party and punctured holes in the membrane roof, which caused extensive damage and he did not have insurance to cover the damage. He said he has been working on plans to rehabilitate the building and is hoping the City will allow him to complete that process as he feels an urgency to finish and leave a legacy.

In response to a question from Commissioner Strand asking why the building is historic, Mr. Ramsey said he created a database of architects who worked in Fargo, including the Hancock brothers and Milton Earl Beebe, who lived in Fargo from 1900 to 1911. The M.E. Beebe Historic District in Fargo, where this building is located, he said, includes six structures either built or renovated by Mr. Beebe. He said the District is on the National Register of Historic Places and Mr. Beebe is an important regional architect.

In response to a question from Commissioner Preston asking about the discussion at the July 13th Hearing about starting a nonprofit and receiving grant funding and have those goals been achieved, Mr. Ramsey said they have not. He said he has invested $27,000.00 of his own money and he is prepared to invest another $75,000.00. He has had offers of financial contributions and help in creating a nonprofit, he said, and once in place, those things should be enough to cover the budget to take this building back to its original condition. He said there are many people who believe the preservation of this building is important to understanding Fargo history and the Red River Valley.

Heather McCord, a Project Manager with the Kilbourne Group, said it has been alluded to many times this is a Kilbourne project; however, it is not, it is a Ron Ramsey project and he is paying for everything with his money and she is just a volunteer attempting to manage the project. She said the only contribution to the project by the Kilbourne Group is her time. She said Mr. Ramsey is teaching full time at the age of 75 and is doing this on his own. In the building permit summary, she said, the property owner is listed as Mr. Ramsey and the contractor line has been left blank and it has been stated the work is being performed by the property owner. As far as the complaints, she said, missing windows and doors have been completed with the west facing windows Sheetrocked and painted, the pillar has been reinstalled and the cap will require more artisan work. The foundation on the interior has been replaced, she said, and the final inspection completed by Sandman Engineers. She said there have been five structural engineer visits and four reports went to the City. As for the infestation of pigeons, she said, that is a lengthy process and great strides have been made with Midwest Pest Control. The exterior has been scraped, primed and painted with the exception of the north side, which has exterior siding but was not painted due to weather, she said. A non-historic addition on the north side was demolished and the valuable 120-year-old brick foundation was excavated, salvaged and stacked on a pallet, she said, and those bricks are considered one of the violations. Railroad ties was another violation, she said, and those have been there since the 1980s and delineate the driveway. The holes from the exterior to the interior have been filled, she said, the fascia and soffit repaired and there are no more opportunities for pigeons to enter the structure. The vehicle parked in the driveway is the carpenter’s work truck, which is licensed and registered, she stated; however, it is at times filled with junk to go to the landfill or to recycling. Temporary storage was used to store items in the structure while work occurred, she said. As far as what the building intends to be in the future, she said, she told the City six months ago the building could be relocated and put on a new foundation. She said she soon realized she made a poor choice in thinking they could build a new foundation and set an unheated structure on it over a North Dakota winter. She said she sent an email to let everyone know the building would not be able to be relocated and she was told that was unacceptable.

In response to a question from Mayor Mahoney asking if the intent is rehabilitation and would that continue in a reasonable time, Ms. McCord said they would not be able to relocate the building in the next six to eight months.

In response to a question from Mayor Mahoney asking what they would have to do in order to come into compliance, Mr. Taralson said that is hard to answer due to the fact that there is so much. He said the Kilbourne Group took out two permits and those permits were voided today due to the City Commission’s action and deadline. A new permit is needed, he said, and he needs some specifics on the permit; therefore, the City Commission needs to decide how far it wants to go and how long it wants to wait.

Ms. McCord said all the items on the dangerous building list have been rectified, the only thing that did not happen was the building was not moved, which has nothing to do with the dangerous building.

In response to a question from Commissioner Preston asking about the moving of the building and the foundation, Mr. Taralson said he received some information on January 8th that “something” had been done; however, he does not know due to the fact that it had not been inspected.

Commissioner Piepkorn said the building looks better than it did six months ago and more work was done in the last six months than in the last 25 years. He said he supported the extension due to the fact that the Kilbourne Group made a commitment and he assumed their financial support was behind it and he was more optimistic. It is obvious this will go on forever with excuses, he said. This building is a piece of art, he said, and to demolish it would be sad. He said he does not believe anything the current owner says, he has owned it for more than 40 years and he let it fall into this state of disrepair. He said this is the owner’s fault, he is a negligent property owner and the irony is he is involved in architecture. He said he should be embarrassed this treasure was destroyed on his watch. The City Commission is doing its job, he said, and he wishes the City could take it over due to the fact that the owner does not deserve to have it.

Commissioner Strand said he would not easily vote to demolish a historic building. He said there has been too much of that in Fargo.

Commissioner Preston said historic buildings are valued on what percentage of their value is required to refurbish and then what is its use after refurbishing and having an empty building does not necessarily make it a historic building. She said she is disappointed and a lot of what Mr. Ramsey is saying now she heard six months ago and she is not seeing the advances that needed to happen.

Commissioner Gehrig said he does not like government coming in and telling someone what to do with their property; however, if this was his house it would have been demolished years ago due to the fact that his house is not as valuable as someone else’s house. If the City is going to have dangerous building laws, he said, they need to be held up consistently. These buildings sit and become dangerous and if the City is not going to enforce the laws on this building, he said, then what about the next one and the next one.

Ms. McCord said they have a reputable structural engineer who submitted four reports and made five visits and the reason Mr. Taralson is saying it is incomplete is due to the fact that the future moving of the building has not been completed. She said anything that deemed it a dangerous building was rectified.

Mr. Taralson said he does not know if that is correct. He said due to the fact that the City Commission never acted on the dangerous building, there is no dangerous building. He said if the City Commission had acted and deemed it a dangerous building, Inspections would have the authority to require full compliance; however, no action was taken other than a delay. A fully compliant building is what Inspections is looking for, he said.

Kay Schwarzwalter, 311 8th Street North, said there have been improvements; however, if the City signs off, there is no pressure on the property owner to continue bringing the building up to code unless she formally complains. She said it took more than 20 years of neglect followed by condemnation before anything was done and it is telling that after the owner was granted six more months to get things fixed, only the minimum was done. She said the pigeon nests were not removed and now roost and blight on her property and while she agrees it is a historic building and she hoped the building could be preserved, she is not convinced work will continue. She said she hopes preservation will continue in a timely manner and the building and grounds will not be allowed to deteriorate again.

In response to a question from Commissioner Preston asking what is the process if the building is declared dangerous, Mr. Taralson said there is a six-week process, the City Attorney will do Findings of Fact that indeed the building is dangerous, then there is a 10-day appeal period and a 30-day appeal process to District Court.

Commissioner Preston moved the City Attorney’s Office be directed to prepare and serve the owner with the appropriate Findings of Fact and Order and the Inspections Department be authorized to solicit proposals for the removal of this structure if it is not removed within the time allowed by the Board’s Order.

Second by Piepkorn.

Commissioner Strand moved to amend the motion to extend the deadline for seven months.
The motion died for lack of a second.

Commissioner Gehrig said the Board was just told the owner was not going to do anything in that timeframe; therefore, he does not see the value in an extension.

In response to a question from Commissioner Preston asking if the owners provided documentation on what was done, the structure was inspected and found up to code, would the demolition not happen, Mr. Taralson said Inspections is past that point. He said he was before the City Commission six months ago to declare a dangerous building, the owners were given a six-month reprieve and in his eyes, the Commission’s deadline was not made. He said there are two options: the City Commission can declare the dangerous building, then after the six-week deadline, the City Attorney has done its work and the deadlines are passed for appeal, the City can order it demolished. The other option is to do an extension and propose another deadline, he said.

In response to a question from Commission Preston asking through the appeal process, if the owner came forward and showed the documentation, then at that point does it come back to the City, Mr. Taralson said it does not, the City has done its job and the appeal process goes through District Court.

In response to a question from Ms. McCord asking if the building not being moved is the sticking point, Mr. Taralson said it is more than just the items on the list, it is what is the building’s use and what is going to happen to this building on the City Commission imposed deadline.

Ms. McCord said they were not able to make it a habitable space in six months; therefore, they tried to reclassify it as commercial, which would have required the addition of fire sprinklers, elevators and ramps and that is why the change of use permit was abandoned. She said if the building could be classified as storage, they would like to pursue that.
Commissioner Strand moved to delay action for two weeks to give the property owner and representatives time to answer these questions diligently.

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

Hearing on a Dangerous Building Located at 1418 1st Avenue North Continued to May 3, 2021:
A Hearing had been set for this day and hour on a dangerous building located at 1418 1st Avenue North.

Inspections Administrator Bruce Taralson said the owner recently obtained a demolition permit, which delays the dangerous building action. He said he requests this Hearing be continued to May 3, 2021.

Commissioner Gehrig moved the Hearing be continued to 5:15 o’clock p.m. on Monday, May 3, 2021.

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

Hearing on a Dangerous Building Located at 1021 10th Street North: City Attorney's Office Directed to Prepare the Appropriate Findings of Fact and Order:
A Hearing had been set for December 28, 2020 on a dangerous building located at 1021 10th Street North.

At the December 28, 2020 meeting, the Hearing was continued to this day and hour.

The Board received a communication from Inspections Administrator Bruce Taralson submitting a Notice of Dangerous Building Order, detail and timeline regarding 1021 10th Street North. The building meets six of the 10 criteria found in the Ordinance, he said, and the dangerous building order was posted on October 8, 2020. The Assessor’s office has determined costs to repair the building exceed 50 percent or more of the current value, he said, and the building is currently vacant and uninhabitable due to extensive deterioration and the current Inspections order. He said the property was constructed in 1903 and was sometime later converted into a four-unit apartment building. The damage includes stairs built without a permit that do not meet current code, crumbling chimney, windows and doors boarded up, interior water damage, significant roof deterioration, signs of squatters, the basement pier is leaning, concrete and wood exterior steps are deteriorated and the concrete block foundation is buckling, he said. Since 1999, the building failed multiple rental housing inspections, he said, several junked vehicles have been removed and there were complaints of people living in the house without water. He said several permits issued to the owner to demolish the interior were filed as incomplete and there have been numerous complaints regarding the condition of the property including exterior rubbish and volunteer growth. He said there has been no water service to the building since 2011 and no electricity since 2012. This case is different than others, he said, due to the fact that it is a foreclosure property and in the past, foreclosures tend to sit for years until there was a resolution, which caused many issues such as blight, infestation, junk, unkempt yards and squatters. To determine ownership on a foreclosure property is difficult for the Inspections Department, he said, and the process can take many years and during that time the property is neglected and for that reason, Inspections changed how it deals with them and is not going to let them sit for years. The potential owner may be a financial institution that usually has legal representation that Inspections has to deal with, he said, and many of them are not local, including this building’s representative, which is in Ohio. He said Inspections had a hard time finding responsibility for this property during foreclosure. All required notices have been provided, Inspections has done everything it can to notify all owners of this property including the original owner and mortgage holder, he said.

Craig Richie, representing Merrill Lynch, First Franklin Mortgage Loan Trust Care and Select Portfolio Services Inc., (SPS) said the property sold on December 17, 2020 at a foreclosure sale. He said the property is in the redemption period and the owner still has time to reclaim the home. No deed has been filed and the redemption period ends February 14, 2021, he said. His client, SPS, is a service for the bank, he said, and has been doing preservation work on the property. He said he is asking for 60 days, the new owners are on top of it, they have only owned it since December 20th and it sounds like all of the issues will be taken care of. He said he knows the investors are not local; however, if they could have a little more time to get past the redemption date, they can handle the issues.

Mr. Taralson said the City’s final removal order is March 11, 2021, and a final dangerous building action should fit in this time period.
Commissioner Strand moved the City Attorney’s Office be directed to prepare and serve the owner with the appropriate Findings of Fact and Order and the Inspections Department be authorized to solicit proposals for the removal of this structure if it is not removed within the time allowed by the Board’s Order.

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

At 6:15 o’clock p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Resolution Adopted Approving Plat of Huynh Kha Addition (1425 Main Avenue):
A Hearing had been set for this day and hour to consider approval or denial of an application requesting a Plat of Huynh Kha Addition (Major Subdivision) a plat of an unplatted portion of the Northeast Quarter of Section 12, Township 139 North, Range 49 West to the City of Fargo, Cass County, North Dakota.

Current Planning Coordinator Donald Kress said this is an unplatted property where the zoning is General Commercial. He said the goal is to make it one lot and there is a right-of-way, which makes it a major plat. The owner is going to do some future development, he said, and wants to have it platted so it is ready.

James Peinovich, who owns the property at 1418 Main Avenue, said the federal government is going to redesign all of Main Avenue, which means there will finally be a turn lane from University to 19th Street. He said he was at all the Informational Meetings regarding Main Avenue and sees the design may push the 8 to 10 feet distance it takes to have a turn lane towards the railroad tracks. He said he would like to know how that would play with the property that stands there now.

Mr. Kress said a final design for that section of Main Avenue has not yet been completed; however, Planning did advise the applicant Main Avenue development will be coming; therefore, the applicant is doing this at their own risk and knows there may be an additional right-of-way required.

City Engineer Brenda Derrig said Engineering talked in depth with the applicant about the fact that there has not been a corridor decision between 25th Street and University Drive and at this time does not know what the impact would be. There were a few options discussed, she said; however, there is not a final design layout, so at minimum what Engineering did was make room for some additional right-of-way to make a safer sidewalk on the north side.

Mr. Peinovich said the City has been very forthcoming as the design goes forward and asked if this could this wait to proceed until there is a final design for Main Avenue.

Ms. Derrig said that would be a legal question and the City cannot tell someone they cannot redevelop their property when the City is not at the point of a final layout for that corridor.

Alyssa Novotny, Dovetail Development, the applicant’s representative, said it is her understanding if her client wants to make any improvements to the property it needs to be platted. She said her client hopes to tear down the dilapidated buildings and redevelop it into something more functional, safe and attractive.

Commissioner Gehrig offered the following Resolution and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Huynh Kha Addition” containing 1 Lot, 1 Block and 1.3 acres of land more or less, located at 1425 Main Avenue; and
WHEREAS, A Hearing was held December 1, 2020 by the Fargo Planning Commission, and notice of such Hearing had been published, as required by law, and said Plat had been approved by the Fargo Planning Commission and by the City Engineer; and
WHEREAS, The City Auditor's Office published a Notice of Hearing on said Plat in the official newspaper for the City of Fargo on December 30, 2020 and January 6, 2021 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., January 11, 2021 at which time said Plat would be considered and all interested persons would be heard.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “Huynh Kha Addition” be and the same is hereby in all things affirmed and approved on the basis that it complies with the Standards of Article 20-06, and all other applicable requirements of the Land Development Code, and that the Mayor of the City of Fargo and the appropriate City Officials are hereby directed to endorse their approval on the Plat and then direct Petitioner to file same for record in the Office of the Recorder of Cass County, North Dakota.

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

Parcels of Land in Arcadia Park View Addition Rezoned (18 and 20 8th Avenue North):
At a Hearing held on December 1, 2020 the Fargo Planning Commission recommended approval of a change in zoning from SR-3, Single-Dwelling Residential to SR-4, Single Dwelling Residential.
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 Coordinator Donald Kress said one of the two properties is vacant and the other is a rental property. He said the project proposes to combine the two and once rezoned, there would be sufficient area to build a duplex in addition to the existing residence for a total of three units on the property. He said the neighborhood was advised of the plans and he did not hear of any protests.

Commissioner Piepkorn said a condemned house was removed from that lot and he wants to thank the Inspections Department for its work on this. He said what was there before was a hoarder house and he is sure the neighbors are thankful a new building is going up.

Commissioner Preston 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 Preston, Piepkorn, Gehrig, Strand 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 Proposed Arcadia Park View Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Preston 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 Proposed Arcadia Park View Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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

Resolution Adopted Approving Arcadia Park View Addition:
Commissioner Preston offered the following Resolution and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Arcadia Park View Addition” containing 1 Lot, 1 Block and 0.26 acres of land more or less, located at 18 and 20 8th Avenue North; and
WHEREAS, A Hearing was held December 1, 2020 by the Fargo Planning Commission, and notice of such Hearing had been published, as required by law, and said Plat had been approved by the Fargo Planning Commission and by the City Engineer; and
WHEREAS, The City Auditor's Office published a Notice of Hearing on said Plat in the official newspaper for the City of Fargo on December 30, 2020 and January 6, 2021 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., January 11, 2021 at which time said Plat would be considered and all interested persons would be heard.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “Arcadia Park View Addition” be and the same is hereby in all things affirmed and approved on the basis that it complies with the Standards of Article 20-06, and all other applicable requirements of the Land Development Code, and that the Mayor of the City of Fargo and the appropriate City Officials are hereby directed to endorse their approval on the Plat and then direct Petitioner to file same for record in the Office of the Recorder of Cass County, North Dakota.

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

Renaissance Zone Project for Craig Enclave OG, LLC Approved:
A Hearing had been set for this day and hour to receive comments on a Renaissance Zone Project for Craig Enclave OG, LLC for a new construction project at 6 and 10 6th Avenue North, and 505 and 509 Oak 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 Planning Director Nicole Crutchfield stating the Renaissance Zone Project application presented by Craig Enclave OG, LLC meets all of the minimum criteria set forth in the Renaissance Zone Plan and is consistent with the established goals and objectives. The developer is hoping to construct a building with one floor of below grade parking, first floor parking and walk out apartment units, she said, with adult multi-family units on floors two through four for a total of 117 units along with 14 for sale condominiums. She said this Renaissance Zone application is primarily for the income relief and the Renaissance Zone Authority did review this on December 22, 2020 and unanimously approved the project and the Planning Department also recommended the project be approved. This is the City’s satellite block under the Renaissance Zone, she said, and will occupy the Renaissance Zone boundary for five years.

Shanna Krogh, 514 Oak Street, said this project would be right outside her front door. She said she would like to know how much money the developers would be getting with the Tax Increment Financing (TIF) and Renaissance Zone and either way, she would ask the Commissioners not vote for this due to the fact that it is not what the neighborhood wants. She said she thanks Jessie Craig for having meetings with the community; however, the neighbors have concerns. She said she also has concerns regarding an insensitive letter to the editor Mr. Craig wrote about his family’s company being criticized for not helping tenants during the pandemic. Seeing a letter like that does not instill a sense of confidence in regards to this project, she said.

Austin Morris, Enclave Companies, said the TIF for this project is for improvements required to make the site buildable. The Renaissance Zone does not benefit the project, he said, other than future owners of the condos. Those owners who qualify would benefit for the state income tax benefit and not pay property taxes for five years.
Commissioner Piepkorn moved the Renaissance Zone application filed by Craig Enclave OG, LLC for a project located at 6 and 10 6th Avenue North, and 505 and 509 Oak Street North be approved and the income tax and property tax exemptions be granted as recommended by the Renaissance Zone Authority.

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

Resolution for Annexation of Property Located South of the Current Fargo City Limits, West of I-29, along and East of 45th Street South and Along and South of 64th Street South Adopted (Part of Sections 3, 4 and 10, T138N, R49W): Public Hearing on the Sufficiency of Protests to be Held February 22, 2021:
The Board received a communication from Current Planning Coordinator Donald Kress stating the City of Fargo is initiating annexation for parcels to support future sports complex, educational, commercial and residential development, as well as street and drainage right of way. He said the annexation is scheduled to be reviewed by the Planning Commission on February 2, 2021, will be noticed pursuant to ND Century Code annexation statutes and the sufficiency of protests hearing would be set for the February 22, 2021 City Commission agenda.

Assistant Planning Director Mark Williams said this is for a 251-acre annexation that is going to accommodate the future Sanford Sports Center and the future Career Academy. In addition, he said, there is a right-of-way needed to be able to construct the roads. The approval of this Resolution, he said, would give staff the permission to contact property owners and publish this with an official annexation map.

In response to a question from Mayor Mahoney asking about the blanks in the middle of the annexation area, Mr. Williams said that area is where the drain would go as part of the 2,300 acre Southwest Pond Project and the City is still working with the property owner.
Commissioner Piepkorn offered the following Resolution, referred to as Attachment “A,” and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, The City of Fargo, Cass County, North Dakota, is a municipal corporation, organized and existing under the laws of the State of North Dakota, with approximately one hundred twenty-four thousand (124,000) inhabitants; and
WHEREAS, There is contiguous and adjacent to the City of Fargo, a tract or parcel of land hereinafter specifically described, containing approximately 251.10 acres, more or less, which tract or parcel of land is not presently a part of the City of Fargo.
NOW, THEREFORE, BE IT RESOLVED, By the Board of City Commissioners of the City of Fargo, North Dakota, that the boundaries of the City of Fargo be, and they hereby are, extended so as to include and incorporate within the corporate limits of the City of Fargo, Cass County, North Dakota, all the land described as follows:
Part of Sections 3, 4 and 10, Township 138 North, Range 49 West of the Fifth Principal Meridian, Cass County, North Dakota, being more fully described as:
Beginning at the northwest corner of said Section 3; thence along the existing City of Fargo corporate limits along the following courses; thence southerly along the west line of the Northwest Quarter of said Section 3 to the southwest corner of said Northwest Quarter; thence easterly along the south line of said Northwest Quarter to a point lying 100.00 feet easterly of, as measured perpendicular to, the west line of said Section 3; thence southerly, leaving the existing City of Fargo corporate limits, parallel with the west line of said Section 3 to a point lying 1690.00 feet northerly of, as measured perpendicular to, the south line of said Section 3; thence easterly, parallel with the south line of said Section 3, to a point on the east line of the Southwest Quarter of said Section 3; thence northerly, along the east line of the Southwest Quarter of said Section 3, to the southeast corner of said Northwest Quarter and the existing City of Fargo corporate limits; thence along the existing City of Fargo corporate limits along the following courses; thence northerly along the east line of said Northwest Quarter to a point lying 165 feet northerly of, as measured perpendicular to, the south line of the North Half of said Section 3; thence easterly, parallel with the south line of the North Half of said Section 3, to the northwest corner of a tract of land described in the City of Fargo annexation plat on file as document 1440667 at the Cass County Recorder's Office; thence southerly, easterly, southerly, easterly, northeasterly, easterly, northerly, easterly and northerly, along the boundary of said City of Fargo annexation plat, to the northeast corner of said boundary being a point lying 165 feet northerly of, as measured perpendicular to, the south line of the North Half of said Section 3; thence easterly, parallel with the south line of the North Half of said Section 3, to a point on the east line of said Section 3; thence southerly, leaving the existing City of Fargo corporate limits, along the east line of said Section 3 to the northeast corner of said Section 10; thence southerly along the east line of said Section 10 a distance of 1472.41 feet to the southeast corner of a tract of land described as “Tract A” in document 1599716 on file at the Cass County Recorder's Office; thence northerly along the east line of said “Tract A” to a point of intersection with the westerly right of way line of the 33-foot statutory road easement along the east line of said Section 10; thence northwesterly, westerly, northerly and westerly along the westerly and southerly boundary of a tract of land described as “Tract 2” in document 1607915 on file at the Cass County Recorder's Office to a point lying 100.00 feet southerly of, as measured perpendicular to, the north line of said Section 10; thence westerly, parallel with the north line of said Section 10, to the northeast corner of a tract of land, “Tract B” as referred to herein, known as the south 849.00 feet of the north 949.00 feet of the west 839.50 feet of the east 989.50 of the Northwest Quarter of said Section 10; thence southerly, westerly and northerly along the boundary of said “Tract B” to the northwest corner of said “Tract B”, a point lying 100.00 feet southerly of, as measured perpendicular to, the north line of said Section 10; thence westerly, parallel with the north line of said Section 10, to a point on the west line of said Section 10 and the existing City of Fargo corporate limits; thence along the existing City of Fargo corporate limits along the following courses; thence northerly along the west line of said Section 10 to the northwest corner of said Section 10; thence westerly along the south line of said Section 4 to a point lying 100.00 feet westerly of, as measured perpendicular to, the east line of said Section 4; thence northerly, leaving the existing City of Fargo corporate limits, parallel with the east line of said Section 4, to a point on the north line of said Section 4 and the existing City of Fargo corporate limits; thence easterly, along the north line of said Section 4 and the existing City of Fargo corporate limits to the northwest corner of said Section 3, the point of beginning.
LESS
The northerly 1025.00 feet of the southerly 1125.00 feet of the southwest Quarter of said Section 3, less the westerly 100.00 feet thereof.
Said part of Sections 3, 4 and 10 contains 251.10 acres, more or less.
BE IT FURTHER RESOLVED, By the Board of City Commissioners of the City of Fargo, North Dakota, that this Resolution be published in the official newspaper for the City of Fargo once each week for two successive weeks, and a hearing be held on the 22nd day of February 2021, at 5:15 p.m., in the Commission Chambers, City Hall, Fargo, North Dakota.

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

Application for Abatement or Refund of Taxes #4490 made by Fredrikson & Byron, PA representing Buena Vista Mobile Home Park at 4301 El Toro Boulevard South Denied:
The Board received a communication from City Assessor Michael Splonskowski recommending the application filed by Fredrikson & Byron, PA representing Buena Vista Mobile Home Park for abatement or refund of taxes #4490 at 4301 El Toro Boulevard South requesting a reduction in valuation for 2018 from $11,398,000.00 to $9,120,000.00 be denied. He said no authorizing letter was presented by the preparing entity and no supporting evidence for a reduction was provided for analysis.
Commissioner Piepkorn moved based upon Mr. Splonskowski’s recommendation that the application filed by Fredrikson & Byron, PA for abatement or refund of taxes #4490 requesting the valuation for 2018 be reduced from $11,398,000.00 to $9,120,000.00 on property located at 4301 El Toro Boulevard South be denied.

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

Application for Abatement or Refund of Taxes #4491 made by Fredrikson & Byron, PA representing MHC Meadow Park at 3340 12th Avenue North Denied:
The Board received a communication from City Assessor Michael Splonskowski recommending the application filed by Fredrikson & Byron, PA representing MHC Meadow Park for abatement or refund of taxes #4491 at 3340 12th Avenue North requesting a reduction in valuation for 2018 from $73,000.00 to $63,000.00 be denied. He said no authorizing letter was presented by the preparing entity and no support evidence for a reduction was provided for analysis.
Commissioner Piepkorn moved based upon Mr. Splonskowski’s recommendation that the application filed by Fredrikson & Byron, PA for abatement or refund of taxes #4491 requesting the valuation for 2018 be reduced from $73,000.00 to $63,000.00 on property located at 3340 12th Avenue North be denied.

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

Application for Abatement or Refund of Taxes #4492 made by Fredrikson & Byron, PA representing MHC Meadow Park at 3220 12th Avenue North Denied:
The Board received a communication from City Assessor Michael Splonskowski recommending the application filed by Fredrikson & Byron, PA representing MHC Meadow Park for abatement or refund of taxes #4492 at 3320 12th Avenue North requesting a reduction in valuation for 2018 be reduced from $2,349,000.00 to $1,722,000.00 on property located at 3220 12th Avenue North be denied. He said no authorizing letter was presented by the preparing entity and no supporting evidence for a reduction was provided for analysis.
Commissioner Piepkorn moved based upon Mr. Splonskowski’s recommendation that the application filed by Fredrikson & Byron, PA for abatement or refund of taxes #4492 requesting the valuation for 2018 be reduced from $2,349,000.00 to $1,722,000.00 on property located at 3220 12th Avenue North be denied.

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

Application for Abatement or Refund of Taxes #4493 made by Fredrikson & Byron, PA representing MHC Meadow Park at 3216 12th Avenue North Denied:
The Board received a communication from City Assessor Michael Splonskowski recommending the application filed by Fredrikson & Byron, PA representing MHC Meadow Park for abatement or refund of taxes #4493 at 3216 12th Avenue North requesting a reduction in valuation for 2018 from $424,300.00 to $315,000.00 be denied. He said no authorizing letter was presented by the preparing entity and no supporting evidence for a reduction was provided for analysis.
Commissioner Piepkorn moved based upon Mr. Splonskowski’s recommendation that the application filed by Fredrikson & Byron, PA for abatement or refund of taxes #4493 requesting the valuation for 2018 be reduced from $424,300.00 to $315,000.00 on property located at 3216 12th Avenue North be denied.

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

Application for Abatement or Refund of Taxes #4494 made by Fredrikson & Byron, PA representing the Fargo Doublewood Inn, LP at 3333 13th Avenue South Delayed to January 25, 2021:
The Board received a communication from City Assessor Michael Splonskowski recommending the application filed by Fredrikson & Byron, PA representing the Fargo Doublewood Inn, LP for abatement or refund of taxes #4494 at 3333 13th Avenue South requesting a reduction in valuation for 2018 from $7,990,500.00 to $5,000,000.00 be denied. He said no authorizing letter was presented by the preparing entity and no supporting evidence for a reduction was provided for analysis.

Mike Raum, an attorney at the Fredrikson & Byron Law Firm, said his client had an unexpected family emergency, which slowed down the firm getting information submitted prior to the agenda deadline. He said he did deliver a packet of information today and a memo describing the firm’s position. He said included are reports, financials and an income sheet, which shows the value. He said he is not going to ask for as much as was initially requested. The assessed value is $7.9 million, he said, and $5 million was the original request; however, tonight he is asking that the assessed value be $6.34 million, which would be a per room value of about $37,000.00. According to the North Dakota Assessor's Guidelines, he said, true and full value is the value at which a property would trade on the open market. This is an income producing property, he said, and for any kind of property, there are three recognized approaches to valuation – comparable sales, cost to construct and income. The Assessor’s staff has something on the first two, he said; however, not income. Cost to construct is useful when talking about a new building, he said; however, this building is almost 40 years old. To generate a cost to construct, he said, projected cost manuals have to be used and other factors added in and then it becomes pretty fuzzy, pretty quick and he does not think that is the best value. Looking at comparable sales, he said, are the best metric of market value due to the fact that someone does not know what something is worth until it sells and they see what someone would pay. With hotels, he said, there are not many that sell and they are different from homes. A large part of hotel sales is brand, he said, not the building, and there is a big difference when someone is buying a nationally recognized brand versus a budget brand. It might be the same building, he said; however, those trade at different values and the brand is personal property, not real property and does not get taxed. There were only two comparable sales given, he said, the Holiday Inn, which is a higher class of hotel and the other was the Baymont, which is a lower quality brand and the Doublewood is in the middle, which forms a good bracket. What staff does not do is account for income, he said. When buying a hotel, an owner cares about the ability to rent rooms and make money, he said, and that is going to determine how much they are willing to pay for it. He said one of the sheets he provided is about the income approach and he created a model to price the hotel. Under the system in North Dakota, he said, the County Commission makes the decision, the City Commission makes a recommendation and this is the trial. He said the City Commission’s obligation is to choose a value within the range of evidence, not just to decide whether it is good or bad and choose the value. He said his value is better evidence due to the fact that it reflects the actual income and expense of the property. Anyone buying the property would be buying it to make money, he said, not to live in it or to own a pretty building. That is why someone buys an apartment building, that is why someone buys hotels and staff's assessment does not account for that, he said. Staff has to assess thousands of properties in the City, he said, and they cannot do income analysis on every one of them; however, if an individual owner thinks it is not right, they can come forward and say “wait a minute, I think you are missing something,” and the City Commissions needs to take another look at it.

In response to a question from Mayor Mahoney asking if delaying this for two weeks would cause any issues, Mr. Splonskowski said it would not, it does not go to the County until the Commission acts.
Commissioner Gehrig moved that the application be delayed until January 25, 2021.

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

No Action Taken on the Application for Abatement or Refund of Taxes #4495 and #4496 made by Fredrikson & Byron, PA Representing Plains Art Museum Properties at 704 and 720 1st Avenue North:
The Board received a communication from City Assessor Michael Splonskowski recommending the application filed by Fredrikson & Byron, PA representing Plains Art Museum for abatement or refund of taxes #4495 and #4496 for properties at 704 and 720 1st Avenue North requesting the classification for 2018 be changed to charitable be denied. He said the Museum is located in the Downtown area and houses and displays art and offers classes on art and art appreciation. Given the nature of the appeal, he said, legal advice was sought in regards to legal precedent and case law as well as precedent established by other taxing jurisdictions and officers. He said the legal analysis was as follows: “The museum is classified under NDCC 57-02-08-11, the same as lodges, clubs, fraternities and other similar properties, which exempts all property taxes except fire protection. The current total value of the two parcels is $8,623,000.00 with approximately 92 percent of the taxes being exempt. The property has been under this classification for 27 years and paying the fire protection tax since 1993. The museum holds that the properties should be classified under NDCC 57-02-08-08, which completely exempts institutions of pubic charity from property tax. ND law does not expressly exempt museums from property tax and indicates beneficiaries of the organizations must show a demonstrable charitable need for its services. Without taking away from the worthiness of the mission and actions of the Plains Art Museum, it is hard to show it is devoted to a charitable purpose because it is unable to show a demonstrable charitable need for a disadvantaged group. An art museum does not appear similar to organizations that provide basic necessities such as food, clothing, shelter or hospitalization and the beneficiaries of the Plains Art Museum appear to be people interested in art, which is not a disadvantaged group. Art and art appreciation are an elective subject and the Plains Art Museum fits better under the mantle of an organization with specific interest rather than a public charity, therefore it does not appear the classification is arbitrary, capricious or unreasonable.” He said 39 other properties in the City are under this classification and as the Assessor, he has to abide by the state laws.

Mike Raum, an attorney with Fredrikson & Byron, said this is a philosophical question and state law says property is exempt from taxation if it is a building belonging to institutions of public charity. The statute goes on at some length but it does not define what public charity is and it is not defined by the Century Code, he said. Every case that has gone to the ND Supreme Court about this issue has dealt with residences operated by a charity, he said, and there are no laws specifically on museums. He said the Assessor’s staff comments say an art museum does not appear similar to organizations that provide basic necessities such as food, clothing, shelter or hospitalization and proposes that to be an institution of public charity, it has to provide something without which someone would die and is overly constrictive and is not supported in case law. He said the meaning of a public charity is broad and it should include non-profit art museums operated on a free basis for the benefit of the public; therefore, he urges the Commission to reclassify this property.

Mr. Splonskowski said the City’s legal advice was to hold the classification that the City has and the look of the Plains Art Museum is not along the same lines as this case law is suggesting. He said there is a two-prong system and many times it has to do with what is the museum providing and the advice simply was to hold the classification as it is due to the fact that the City is treating other similar properties the same way.

City Attorney Erik Johnson said some people look at it and it looks like a charity, they are giving away free admission, they are doing education and a variety of other things. He said the issue in the statute is what is a charitable purpose under North Dakota law. For example, a nursing home asks for the charitable purpose and that is where he arrived at the notion charitable purpose has to be not just giving away some services for free, which could be called charity; however, that is not the charitable purpose expressed by the courts. He said in those cases, the court said providing a lower cost of living for the elderly is not necessarily a charitable purpose, there has to be some kind of nursing assistance, a demonstrable need by the people who are receiving the assistance and that is where it gets into saving someone’s life or helping them with health issues. He said that is the demonstrated need that is a charitable purpose in North Dakota. The ND Supreme Court was offered standards in a case about a charity designation and chose not to adopt them, he said; therefore, the City is left with that demonstrated need analysis that seems to be more for furthering people's health, safety and life as being what is a charitable purpose under North Dakota law.

Mayor Mahoney said many different museums in the community are taxed the same way and the City is consistent with how it taxes everyone. He said Assessors have a list of institutions in Fargo that are only charged for the fire protection and that is the way the City has historically done it.

Mr. Raum said he would never advocate that taxation be inconsistent; however, at the same time within property tax there is a principle called equalization, which is a separate process to make sure to look at other properties. On these abatement proceedings, he said, the Commission is supposed to look at the property at issue and this case is entitled to be heard, irrespective of what other properties do or do not do.

Mr. Splonskowski said the reason for equalization is the City looks at other properties to determine if they are being treated the same as far as valuation and as far as classification. He said those two things are what the Assessor's office deals with and if other properties are being classified similarly to this property and it is not being treated arbitrarily.

In response to a question from Commissioner Strand asking how Bonanzaville is classified, Mr. Splonskowski said he does not know if it is under the County or is privately owned; however, he did check with several jurisdictions throughout the state and one jurisdiction does it the way Fargo does it and another one gives museums the charitable designation. This is a very unclear question throughout the State, he said, it just depends on the Assessor.

Commissioner Gehrig said the City Commission treats the City like a charity, it has been that way for years with the Arts and Social Services Fund that is funded through tax dollars which the City gives away, presumably to the arts. He said on one hand it makes a good point and on the other hand, if the City does have other properties that are not getting special benefits from tax dollars and are paying 8 percent property tax for fire protection, the question is where does the City want to be consistent? He said he would err on the side of the other properties looking at this and saying “they get something special, they get a fund for themselves and they do not pay taxes.” He said if he was one those other properties he would say his charity is not important to the City; however, the arts is very important to the City. He said he would hope everyone would agree to deny this in light of the other properties and he hopes the City is more careful with its charitable giving through tax dollars. He said it is not charitable as a government to take money out of residents’ pockets and give it to someone else.

Commissioner Preston said these are two very different issues and it is based on the cases that have gone to the courts. She said there is not much the Commission can do; however, the definition of charitable needs to be expanded.

Commissioner Strand said just for the sense of a comparison when The Bridges Student Apartments were built near NDSU, 22 houses were taken down and 21 of them were owned by the NDSU Development Foundation, which does not pay property taxes. He said he does not understand how some people pay property taxes under a charitable umbrella and some do not. He said on South University Drive, the Dakota Hospital Foundation owns property and pays taxes on it and it perplexes him the inconsistency of what defines a charity. He said he is inclined to try to seek equity and perhaps there is a way to look for that.

Commissioner Piepkorn said he thinks the City should resolve this with the people who are not paying property taxes on properties they own. He said if someone can come up with an idea, he would be behind it 100 percent. He said in his mind, charities are food, clothing and shelter, essential things helping people. He said the museum is a great place; however, it is not essential.

Commissioner Gehrig said he agrees with Commissioner Piepkorn that it is a larger issue and that is why he wants to deny this and have a discussion. He said many other organizations are looking at the City Commission and saying they are not getting equal treatment.

In response to a question from Commissioner Preston asking how hospitals are classified, Mr. Splonskowski said hospitals are under the charitable exemption; however, clinics pay taxes.
Commissioner Gehrig moved the Applications for Abatement or Refund of Taxes #4495 and #4496 be denied and to deny the recommendation to retain the 2018 classification under NDCC 57-02-08-11.

Second by Piepkorn. On call of the roll Commissioners Gehrig and Piepkorn voted aye.
Commissioners Preston, Strand and Mahoney voted nay.
The motion was declared lost for lack of a majority.

Mayor Mahoney asked for another motion due to the fact the abatement was denied.

In response to a question from Commissioner Preston asking what would be the appropriate motion, Mayor Mahoney said to allow the museum to be charitable.

Commissioner Strand said for the sake of exploring this and landing on solid ground, would this be a topic for the Tax Exempt Review Committee to vet.

Commissioner Piepkorn said he thinks this is more than the Tax Exempt Review Committee. He would rather have a have a brown bag or something where all Commissioners are present.

Mayor Mahoney said he has a recommendation from Assessors; therefore, a motion is needed one way up or down on this.

Mr. Johnson said this is a recommendation to the County who actually makes the decision and he thinks the Board certainly could interpret the negative result of the motion to simply be a recommendation. He said the motion or the application is to abate the taxes as the application says and that the recommendation was to deny that application; therefore, the Commission could deem that the recommendation.

Mayor Mahoney said in a sense the Commission is not recommending to the County that it charge the taxes; the Commission recommends the County take them as a charitable organization and the 8 percent goes away.

Mr. Raum said that is correct, to change the classification to charitable for 2018.

Bids Rejected for Downtown Water Tower Improvements Project No. WA1910: Project to be Rebid:
Water Utility Director Troy Hall said bids for the Downtown Water Tower Improvement Project No. WA1910 in the City of Fargo, North Dakota, were opened at 11:45 a.m., Wednesday, December 2, 2020. The project was bid as separate individual contracts, he stated: Contract 1 – General Construction; Contract 2 – Mechanical Construction; Contract 3 – Electrical Construction; and Contract 4 – Combined Construction. The project also included one bid alternate for water tower art, he said. One bid each was received for Contracts 1, 3 and 4, he said, and there were no bidders for Contract 2. Since there were no mechanical construction bidders, he said, ND Century Code allows two options to award this project: Option 1 is to award to Contract 4 (combined construction) or Option 2 award Contract 1 (General construction) and Contract 3 (Electrical construction), negotiating the Mechanical construction. He said the project is a component of the City’s water infrastructure Capital Improvements Plan (CIP) and is scheduled to be funded through a State Water Commission (SWC) grant and Infrastructure Sales Tax (Fund 450). The plan of financing for the Project is through grants and loans totaling $6,750,000.00, he said; however, the low bid total for Option 1 and Option 2 exceeds the plan financing. The financing plan is also intended to cover the professional engineering and architecture fees associated with the project, he said, which would further increase the funding shortfall. Therefore, he stated, it is the opinion of Water Utility staff that the bids be rejected and the project be authorized for rebid following a value engineering effort to stay within the plan of financing or significantly improve project costs. He said the estimated project cost of the Downtown Water Tower Study was $6.9 million in 2016 dollars.

City Administrator Bruce Grubb said three downtown water towers were built between 1942 and 1955 and are in need of major rehabilitation. He said the City went through an evaluation and in 2017 determined replacement of those three towers with a single new tower was more economical and hydraulically much better to move water around the Downtown areas. He said bids came back about 30 percent over the estimate and the City is not comfortable with that. He said the City can value engineer into a better pricing structure. He said he is asking to reject the bids received, allow a value engineering effort and a rebidding of the tower and approval to rebid the alternate bid as well.

Water Utility Director Troy Hall said the project is one new tower to replace three old towers. He said the three towers are close together and this is an important project to get the water distribution master plan finalized. He said the Utility Department went through a study, which showed Downtown needed more storage and an improved water main. He said the high cost to recondition and maintain the three towers makes construction of one new tower more cost effective. The recondition costs over a 50-year life cycle of the three towers versus building a new tower saves between $3 million and $7 million. He said the new tower would be built at 11th Street and 7th Avenue North, and once the other two towers are removed, there would be room for redevelopment and possibly lots for new single-family homes. He said there are four national tower contractors that have experience constructing towers to the size Fargo needs; therefore, research and development is not needed and contractors know how to build the structure, which means a lower cost than doing something different. There are also local and regulatory considerations, he stated, and the State Water Commission grant is contingent on Fargo building a composite tower. The bottom section of the new tower will be shared by the Water Utility and the Red River Regional Dispatch Center for mechanical equipment, he said, and the top of the tower will hold antennas. As far as public safety, he said, a water tower is really about fire protection. For example, he said, the fire earlier this year in the 1400 block of 1st Avenue North used about 1.4 million gallons of water. The overall benefits of the new tower will be improved fire protection and emergency water storage in the Downtown and NDSU areas, a reduction in life-cycle costs, public safety and communications improvements. He said it would also protect the water distribution system against water main breaks, reduce the risk of ice damage, it will be less complicated to control water levels in all towers and will allow for the full adoption of the operational strategy.
Commissioner Gehrig moved the bids for the Downtown Water Tower Improvements Project No. WA1910 be rejected and to authorize a value engineering effort and a rebidding of the project.

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

Bid Alternate No. 1 for Water Tower Art Work Approved:
Maegin Elshaug, Urban Development Planning Coordinator, said in March 2020 the Utilities Committee authorized staff to work with the City’s Arts and Culture Commission to seek public artists to engage in community outreach for creation of a mural to be incorporated into the bid documents of the Downtown Water Tower Improvements Project. She said water towers are critical infrastructure and provide a canvas for an opportunity for art. She said the Finance Committee reviewed and approved the work and in July 2020, a call for artists was issued with selection of REACH Partners and Black Ink as the artist team in August 2020. The project team facilitated several community sessions during August, September and October for the creation of five mural concepts, she said, which were later revised to two. She said the final design was selected by the Arts and Culture Commission in October 2020 and the design was incorporated into the water tower bid package as Bid Alternate No. 1.

In response to a question from Commissioner Gehrig asking what is the budget for the art, Mr. Hall said if art is put on the tower the budget is $154,000.00 to $186,000.00.

In response to a question from Commissioner Gehrig asking if doing this type of art would add further costs when it comes time to repaint or recondition or would it be the same cost as refurbishing a white or a regular “Far More” tower, Mr. Hall said the art would cost more to repaint or recondition.

Commissioner Gehrig said he appreciates the in-depth presentation and everyone looks at those big white things in the sky and thinks they are simple and not expensive; however, the amount of work and engineering is huge and being able to make this mega tower happen is going to be better for the City’s water system.

In response to a question from Commissioner Strand asking if the Arts and Culture Commission wants to move forward with the preferred design prior to having an actual water tower, Planning Director Nicole Crutchfield said the goal is to keep this as a bid alternate in the plans that will be rebid.

Commissioner Gehrig said the Commission needs to be careful to not make an expensive project even more expensive. He said some will look at this as a $6 million project and the art is only $180,000.00; however, out of respect to the taxpayers, the City should paint the tower the same as the other towers so taxpayers know the City Commissioners are good stewards of their dollars.
Commissioner Preston moved Bid Alternate No. 1 for water tower art work be added to the bid documents for the Downtown Water Tower Improvements Project.

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

COVID-19 Update:
Desi Fleming, Director of Fargo Cass Public Health, said COVID-19 cases in the state and Cass County are decreasing; however, she said she is concerned about the state mask mandate expiring on January 18th. She said she does not know if the UK variant strains are circulating in North Dakota; however, it has been found in Minnesota and that along with not having enough people vaccinated for herd immunity makes continuation of the mask mandate order along with other mitigation efforts an important strategy in keeping the downward trajectory going. The positivity rate for Cass County continues to decrease, she said, hospitalizations also continue to decline statewide and there have been zero deaths for three consecutive days, which is great news. She said Governor Doug Burgum changed the entire State to the moderate risk yellow category, which allows for slightly larger capacity limits for bars, restaurants and larger scale events. Fargo Cass Public Health continues to distribute vaccines, she stated, and is working this week to finish Tier 1A, which are healthcare workers and first responders. She said she anticipates 2,500 vaccines done this week and then the vaccines will move on to Tier 1B.

Mayoral Mask Mandate Extended to February 18, 2021:
Mayor Mahoney said he issued a Mayoral Mask Mandate on October 19, 2020, which was to remain in effect until the underlying State of Emergency ended unless it is sooner modified or terminated by the Mayor or the Fargo Board of City Commissioners. He said on November 13, 2020, Governor Doug Burgum issued an Executive Order requiring face coverings to be worn in indoor businesses and public settings as well as outdoor public settings where physical distancing is not possible through December 13th. That Order was extended on December 9th to January 18, 2021, he said. If there is not enough vaccine in the community to get enough immunity he would like to recommend the Commission extend the mandate for another 30 days, he said. If the Governor overrides or does something longer, he said, he would accommodate that request; however, his feeling with the Commission is Fargo would have this mandate and he does not want to call the Commissioners back in for an emergency session and wants to have the discussion with all Commissioners. He said people are complying very well, the Police Chief has not had much difficulty with bars, and he said when he is out in public he sees people are doing a good job with wearing masks.

In response to a question from Commissioner Strand asking if this would be an extension of Fargo’s original mandate without enforcement, Mayor Mahoney said it would be the original mandate.

Commissioner Piepkorn said the legal terminology is a mandate; however, it is not technically a mandate due to the fact that there is no enforcement or penalties.
Commissioner Preston moved that contingent upon the Governor’s office not extending the Statewide Mask Mandate that the City of Fargo Mask Mandate be reinstated through February 18, 2021.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Edward and Susan Ankrum, 3307 West Prairiewood Drive South (3 year).
b. Dustin and Bridget Knudson, 2306 Victoria Rose Drive South (3 year).
c. Susan Quandt, 3414 21st Street South (3 year).
d. Bradley Jorgensen, 1529 10th Street South (5 year).
e. Robert and Tammy Brooks, 1505 5th Street South (5 year).
f. Emily and Timothy Wilcox, 1632 Flickertail Circle South (5 year).
g. Jason Jacobson, 718 11th Avenue North (5 year).
Commissioner Piepkorn moved the applications be approved.

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

Request to Amend the Current Snowmobile Ordinance Lost for the Lack of a Majority:
Commissioner Gehrig said he would appreciate the Commissioners consideration of an Amendment to the City’s existing snowmobile Ordinance in order to authorize use of snowmobiles near the outskirts of the City on public roads to allow residents to gain access to rural areas for snowmobiling. The proposed Amendment, he said, would also authorize the use of snowmobiles on public roads during and after major snow events to allow citizens to travel to work, get medicine or food and help people who are stuck. He said the Mayor can declare certain snow events as being substantial enough to warrant no parking and the same Mayoral snow event declaration could be used to authorize use of snowmobiles on public roads. Violations of the City’s snowmobile regulations is a Class B misdemeanor, he said, with a maximum sentence of a $1,500.00 fine, 30 days in jail or both. He said this is excessive and the penalty should be reduced to a non-criminal offense with a monetary penalty.

Commissioner Preston said she received an email from a resident who is not in favor of this. She said snowmobiles would be constantly racing by if someone happens to live near the river or close to the entrance to a snowmobile trail and it would be a hassle for a neighborhood. She said she does not see the need and will not support it.

Mayor Mahoney said West Fargo and Moorhead do not allow snowmobiles; however, Horace does.

Commissioner Strand said he is open to hearing what the definition of outskirts would be and to hear from someone who lives near Lindenwood Park. He said he also thinks a $1,500.00 fine is steep.

Mayor Mahoney said Fargo is a big city and does not know how outskirts would be defined. He said this is a disaster waiting to happen and it is a safety issue.

Commissioner Gehrig said if safety is being considered, there would not be motorcycles or golf carts and everyone would be bubble-wrapped together and there would be a cop on every corner making sure people watch where they are walking. He said he is not talking about drinking and driving, the snowmobiles would not be on Broadway or the Interstate. Those who live on the outskirts of town are already doing it, he said, so why not make it legal. He said he would especially like to look at the penalty side of this due to the fact that it is so harsh.

City Attorney Erik Johnson said this is an Ordinance from 1969 and he is not sure why the penalty is so harsh; however, that is probably not what a municipal judge would impose, especially on a first offense.
Commissioner Gehrig moved to direct the City Attorney to work with City staff to develop the concepts as presented and prepare an Ordinance amending the current snowmobile Ordinance.

Second by Strand. On call of the roll Commissioners Gehrig and Strand voted aye.
Commissioners Piepkorn, Preston and Mahoney voted nay.
The motion was declared lost for lack of a majority.

Legislative Update:
City Administrator Bruce Grubb said the Legislative session started last week and some information has been assembled about tracking bills as has been done in the past. He said each department head will review the bills and identify which bills fall under their purview as the City’s subject matter expert. Each department head is creating their own tracking list by topic, he said, and on Friday those lists will be merged into a master list to be emailed to Commissioners along with a meeting schedule in Bismarck for the next week. He said some operational procedures have changed in Bismarck due to COVID-19 and virtual testimony is being encouraged. He said the spreadsheet to track the bills is the same with the bill number, status, title, description, comments and actions. He said the first scheduled North Dakota League of Cities weekly call will be Friday and those will continue weekly throughout the session.

Assistant City Administrator Michael Redlinger said there would be specific items explored such as open records, liquor licenses, the Transit Authority Study and overdose legislation.

City Attorney Erik Johnson said Representative Ben Koppelman had contacted some of the Commissioners to assess the issue of firearm sales in homes and he is trying to have legislative action that State law would trump City Ordinance. He said the issue was referred to the Land Development Code team to come up with an answer, which will not be ready for another year. He said what would be proposed would be to strip the City’s authority to zone all respects of firearm sales and this is an accommodation proposed that would restrict zoning Ordinances that address the purchase and sale of firearms; however, allowing cities the power to create zoning regulations.

Commissioner Piepkorn said the concept of individuals buying and selling guns is none of the City’s business; however, having a retail gun store in a neighborhood is the City’s business and the majority of people he has had contact with are opposed to having retail gun stores in neighborhoods. He said with zoning, the City limits a lot of different things; however, a retail gun store is common sense.

Commissioner Gehrig said he is not going to rehash how he feels about the topic; however, if the City oversteps the State, the State is going to push back.

Commissioner Piepkorn moved that the Board adjourn to 5:00 o’clock p.m., Monday, January 25, 2021.

Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 8:18 o’clock p.m.