Board of City Commissioners - January 10, 2022

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 10, 2022.
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: Building permit value totals in 2021 were more than $763 million, compared to more than $720 million in 2020; the Inspections Department will no longer be storing commercial plans with Record Keepers and a spreadsheet with the addresses of the stored plans will be made available on the City’s website; at the Library, the online Winter Read-a-Thon program runs through March 6th, Baby Rhyme Time continues in January and the Winter Storytime series starts January 24th; and a video was shown about the application process for the Fargo Police Advisory and Oversight Board.

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 Strand moved the Minutes of the Regular Meeting of the Board held on December 27, 2021 be approved as read.

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

Consent Agenda Approved:
Commissioner Preston moved the Consent Agenda be approved as follows:
1. 2nd reading and final adoption of the following Ordinances; 1st reading, 12/27/21:
a. Rezoning Certain Parcels of Land Lying in Interstate Park Second Addition to the City of Fargo, Cass County, North Dakota.
b. Rezoning Certain Parcels of Land Lying in University South Second Addition to the City of Fargo, Cass County, North Dakota.
c. Rezoning Certain Parcels of Land Lying in University South Addition to the City of Fargo, Cass County, North Dakota.
2. Applications for Games of Chance:
a. Centennial Elementary PTO for bingo on 1/21/22.
b. EL Zagal Shrine Temple for a calendar raffle on the last day of every month.
c. Home Builders Care of FM Foundation for a raffle on 5/6/22.
3. Agreement for Services with the following: Akumbom Neba, Andrew Luistro, Catherine Conlin, Jamie Bunnis, Mackenzie Mackner, Alexander McKinney, Ben Vetter, Christyn Knudtson, Susan Black, Amadi Chisom, Bernadetta Chinema, Clets Ofere and Zach Bruns.
4. Agreement for Services with the City of West Fargo.
5. Purchase of Service Agreement with the ND Department of Human Services, Behavioral Health Division for substance abuse prevention activities.
6. Notice of Grant Award with the ND Department of Health for HIV, HCV Counseling, Testing and Referral (CFDA #93.940).
7. Memorandum of Understanding with Native Community Development, Inc.
8. Amendment No. 1 of Subrecipient Agreement with FirstLink.
9. Rebate Contract with the ND Department of Environmental Quality for the State Clean Diesel Program.
10. Bills in the amount of $6,520,106.48.

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

Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) and Permanent Easement (Street and Utility) with Sanford North (Improvement District No. BR-22-A0):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for a permanent easement and a temporary easement in association with Improvement District No. BR-22-A0. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Preston moved the Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) and Permanent Easement (Street and Utility) with Sanford North in association with Improvement District No. BR-22-A0 be approved.

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

Resident Comments:
Steve Schons spoke about traffic patrols and Christopher Coen spoke about conflicts of interest on City boards, recordkeeping and the length of time for resident comments.

COVID-19 Update:
Director of Fargo Cass Public Health (FCPH) Desi Fleming said FCPH is starting to see the impacts of the omicron variant in the area with increases in cases and positivity. In Cass County, she said, nearly 50 percent of active cases are in the 20- to 39-year-old age range with the seven-day positivity rate at more than 23 percent. Hospitalizations are down statewide, she stated; however, staffed beds remain an issue and flu numbers are increasing substantially. Omicron has now been identified in 70 percent of testing, she said, and realistically is probably higher since there is a delay between testing and sequencing. She said the omicron variant is highly contagious and spreads quickly through communities and treatment with monoclonal antibodies is limited due to supply issues. Modeling for the Cass County area suggests omicron will peak the end of January, she said, and it predicts the next three weeks to be incredibly challenging for healthcare. She said FCPH’s storefront testing site is being inundated by high numbers of people as it is the only free testing site in the county. Masking continues to be a topic of great division nationwide, she said, and in Cass County, it is important to understand masking is not a standalone strategy or a long-term solution. Infectious disease doctors are saying due to the infectiousness of omicron, cloth masks provide little value, she stated, and a KN-95 or N-95 mask may provide more protection. There is little epidemiological impact when masks are only worn in one setting and the community overall has minimum to no usage, she said. The message FCPH has put out on how to decrease someone’s risk over the next surge period is to vaccinate now, she said, whether it is first dose, second dose or booster. She said other layers of protection are masking when in public spaces, avoiding gatherings, especially for the next month, staying home if sick and following isolation and quarantine guidance.

In response to a question from Commissioner Preston asking if other healthcare providers are offering major testing efforts, Ms. Fleming said FCPH is the only free site and it is getting a lot of Moorhead residents and is very complicated. She said Sanford requires a provider visit for a test and most charge a fee.

In response to a question from Commissioner Strand asking what other regional jurisdictions are doing with mask requirements, Ms. Fleming said mask mandates in North Dakota are non-existent. She said Fargo and Grand Forks Public Schools have mask mandates until January 17th, then will go to strongly recommending masking. She said Cass County still has an employee requirement for masking and a handful of businesses require employees to wear masks. Healthcare also has the masking requirement, she said, otherwise there is not much else.

In response to a question from Commissioner Strand asking if the City should revisit a mask policy now with the explosion of omicron, Ms. Fleming said the reality is mandates work only if it is a consistent strategy throughout the community. She said even the CDC guidance for schools implies that when schools require masks, the CDC is assuming the community has a mask mandate and everybody is masking. She said Commissioner Strand had asked about the City of Grand Forks using CARES funding to purchase N-95 masks to give out to the community, and Grand Forks gives out five of the masks at a time along with some general instructions.

Commissioner Piepkorn said he finds it amusing how hypocritical it is that nobody is wearing a mask at the dais and if masks are such an effective tool, why are there just five people in the whole room wearing masks? He said it is time to move on.

In response to a question from Commissioner Preston asking if a policy would be solely for City employees, Commissioner Strand said the policy would be for City buildings, facilities and employees and the public who come in and out of the buildings.

Mayor Mahoney said what he hears from Ms. Fleming and others is unless the whole community wears masks there is very little if any value. He said one concern he has about N-95 masks is if they are not worn correctly, they are not effective and for those in the medical field who wear them, they are different than a regular mask. He said a surgical mask breathes a little bit easier and are fitted for the person wearing it. He said he concurs with Ms. Fleming that unless the whole community is doing masking, it would not be effective.

Commissioner Strand moved the City of Fargo Mask Policy for Employees be reinstated at midnight tonight and to revisit the policy on February 7th.

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

In response to a question from Commissioner Strand asking about FCPH purchasing N-95 or KN-95 masks for the public, Ms. Fleming said FCPH has been trying to get KN-95s for shelter staff and it has been difficult due to supply chain issues; therefore, she does not know how soon she could have the masks. She said federal COVID-19 relief money could likely be available to buy the masks.

Hearing on an Application Filed by BPC Fargo LLC d/b/a Boss’ Pizza and Chicken for a Class “F” Alcoholic Beverage License at 228 Broadway North Continued to January 24, 2022:
A Hearing had been set for this day and hour on an application filed by BPC Fargo LLC d/b/a Boss’ Pizza and Chicken for a Class “F” Alcoholic Beverage License at 228 Broadway North; however, City Auditor Steve Sprague asked that this Hearing be continued to January 24, 2022.
Commissioner Piepkorn moved the Hearing be continued to 5:15 o’clock p.m. on Monday, January 24, 2022.

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.

Parcels of Land in Urban Plains by Brandt Second Addition Rezoned (5100 28th Avenue South):
At a Hearing held on December 7, 2021 the Fargo Planning Commission recommended approval of a change in zoning from LC, Limited Commercial with a C-O, Conditional Overlay to MR-3, Multi-Dwelling Residential with a C-O, Conditional Overlay.
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 original vision for Urban Plains was a mixed-use, destination-oriented development. He said the developer has modified the vision and has identified a target market of 55-plus active living and wants to build an apartment building on the property for that target market. A modification of the Conditional Overlay is needed to accommodate the setback and interface with 51st Street South, he said, since the road was designed with public amenities to facilitate a different end land use design. More coordination needs to occur between the development team and City staff on behalf of the overall master plan for the undeveloped portions of Urban Plains, he said; however, in the meantime, the applicant seeks to proceed with an apartment project that has an urban and modern feel and serves a market need not addressed in other housing projects within the Urban Plains development.

Austin Morris, Enclave Development, said the inspiration behind this project was how to make use of the park amenity space, which is beautiful and the Park District did a lot of work. He said a study determined a need in the Fargo area for about 800 units of 55-plus housing in an active environment, much different than what is seen in a traditional continuum of care facility. He said this project would have apartments for those age 55-plus with robust amenities in a park-like setting with easy access to retail, restaurants, the interstate and healthcare.

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 and the Planning Commission be accepted and the rezoning be approved with the Conditional Overlay requirements listed in the Ordinance on the basis that it satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

Second by 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 Urban Plains by Brandt Second 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 Urban Plains by Brandt Second 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.

First Reading of an Ordinance Enacting Section 1-0210 of Article 1-02 of Chapter 1 of the Fargo Municipal Code Relating to Ordinances - Procedures:
Assistant City Attorney Erik Johnson said this is a proposed Ordinance that will establish the procedure by which a City Commission could submit certain proposed Ordinances for the City voters' approval at a City Election. At the December 27, 2021, City Commission meeting, he said, the City Commission received and filed a draft of this Ordinance; however, as he noted at that meeting, there was an error in the draft and the Ordinance for first reading tonight is a slightly revised version of the same Ordinance. He said the motion would be to repeal the current term limit Ordinance, make minor language adjustments to the Ordinance and then have residents decide if they want to keep the City law that limits City Commissioners and the Mayor to three four-year terms or 12 years and if a City Commissioner is elected Mayor, that person would be eligible for one more term or 16 years. He said City voters will be deciding to keep term limits or not under the revised Ordinance.

Commissioner Preston said it would be less confusing to voters to simply vote "yes or no" to re-enact the revised term limit Ordinance, which still has the basic framework of the current City law. If a majority of voters vote “yes,” she said, the term limits would continue.

Mr. Johnson said in November 2021 the City Commission approved this direction rather than ask for an advisory vote on whether or not to have term limits presented to the City electorate, to have an up or down vote and that process is authorized; however, a procedural Ordinance needs to be enacted. He said that is step one and step two is for the City Commission to approve a Resolution, which directs the City Auditor to advertise in the newspaper at least 60 days before the City Election on June 14th, and that Resolution would contain the actual Ordinance voters will be voting on. He said an example would be if the City Commission took no other action, the Resolution he would present would be an Ordinance repealing the current term limits Ordinance. A repealing Ordinance is very simple, he said, and what he did not present was what a sample ballot would look like. He said the City Auditor usually puts that together and the ballot might say “shall an Ordinance repealing the existing City law Section 2-0106 of the Fargo Municipal Code be approved, which law establishes term limits for the Mayor and City Commissioners.” The key is that what the voters are voting on is “yes” or “no” shall the Ordinance repealing term limits be approved, he stated. Regarding ballot language, he said, if the City Commission takes no action, his intention would be to prepare a Resolution for presentation in February after the procedural Ordinance has taken effect, unless the City Commission wants to give some direction to the City Attorney's Office to repeal the Ordinance with a date that takes effect sometime in the future and then the Resolution to re-enact it. He said if the City Commission takes no action, he will move forward assuming he will be presenting a repealing Ordinance to the City voters.

In response to a question from Commissioner Gehrig asking if the law is repealed before the Election, would that reset everyone's clock, Mr. Johnson said there would a draft of some kind that retains everyone's existing terms.

Commissioner Gehrig said it makes sense and it cleans up the language. He said if it is repealed, all Commissioners have to agree on that before the Election; however, the language saying “do you want to enact a law creating term limits” is much more intuitive to the voter to say “yes” or “no.”

Commissioner Preston said the value with this is it would be clearer and the current Ordinance would need to be repealed either way, no matter how the public would vote on Election Day.

Mr. Johnson said there was just a discussion in a court decision that lent some interpretation to the Ordinance. It stands as it does with the clarity provided by the court, he said; however, the City Commission certainly could take action to modify it.

Commissioner Strand said he still would prefer an advisory vote. He said with term limits, how many terms, how many years, which configuration of mayors and commissioners, it is all gray. He said if the City Commission is asking people to approve term limits, which have not been defined, he cannot fathom asking the public to vote on something this hazy.

Commissioner Gehrig said if the Ordinance is repealed, Commissioners could design one with public input. He said he does not know how many terms the voters want; however, there is not a clearly defined Ordinance unless an Ordinance is suggested with new defined term limits.

Commissioner Preston said a second option would be an Ordinance with all of this defined and that is what people would be voting on. She said it would not be a wide open question “do you want term limits?” She said it would be reacting to a specific Ordinance.

Commissioner Gehrig said it is an opportunity for the public to weigh in and this is a true way to get the opinion of the people on what they think of the current way of doing term limits versus getting rid of them again. He said the Commission voted to put this on the ballot so it has to happen.

Commissioner Preston said to make things less confusing, the Commission could direct the City Attorney to produce language that uses the same framework so it would be the same term limits, the same requirements about consecutive except defining things better. She said instead of opening this up, it could be taking the current Ordinance, cleaning up a couple of confusing pieces and then taking that Ordinance and substitute it for the other.
Commissioner Preston moved an Ordinance Enacting Section 1-0210 of Article 1-02 of Chapter 1 of the Fargo Municipal Code Relating to Ordinances – Procedures be placed on first reading.

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

Commissioner Preston moved to direct the City Attorney to develop an Ordinance of Repeal and to develop an Ordinance for the ballot using the same framework as the current Ordinance but to clean up the confusing language.

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

Update on Cass County Election Services for the June 2022 City Election:
Assistant City Administrator Michael Redlinger said on December 27, 2021, the City Commission approved a Joint Powers Agreement (JPA) for Cass County Election Administration Services. The purpose of the JPA, he said, was to formalize election administration services provided by Cass County to municipalities, Park Districts and School Districts. The JPA will be used for future County Primary Elections, General Elections and Special Elections, he said. Following approval of the JPA by the City Commission, he said, City and Cass County staff met to discuss planning for the June 2022 City Election, specifically the City mailing absentee ballot applications to voters at its expense. Cass County officials clarified that if the City mails absentee ballot applications for the June 2022 Election, Cass County will not apply additional costs to the City for processing those applications, he said. For the June 2022 Election, Cass County will be responsible for costs associated with processing any absentee ballot applications received, he stated, whether it originates from the City’s "vote by mail" effort or from another organization, such as a political party or interest group. He said no action is required on this item tonight by the City Commission as these presentations are informational only.

Cass County Administrator Robert Wilson said he appreciates the effort that went into drafting this agreement and the Commissioners should have materials that lay out the vote center process and what the County would be looking forward to in its Election procedures. He said Brandi Madrigga, the County’s new Finance Director, will oversee the office that conducts and administers the elections.

Mayor Mahoney said the County has spent a considerable amount of money on this and will be setting up voting centers again. He asked if Mr. Wilson could explain the investment the County has made and how the County is working with many municipalities in the area and the agreement which defines responsibilities and costs.

Mr. Wilson said there was a statewide investment in the equipment required for vote centers, which was a rolled out first in 2020 and was largely a successful concept. He said residents do not have to vote in their home precinct, they can vote at any of the vote centers across the County and feedback was residents felt like that gave them greater flexibility and the ability to vote when and where it was most convenient and the County intends to offer that again.

Ms. Madrigga said the purpose of the JPA was to formalize the County’s relationship. She said there were no major changes expected; it was just so everybody knows what to expect. As far as vote centers, she said, they were well received and the County was able to open those up for early voting the week before the election to avoid long lineups. She said the County did notice that Election Day is still a very busy day, a lot of people want to submit their votes on Election Day; therefore, the County has, at the moment, budgeted for about 10 voting centers and expects to have them opened up to meet everyone’s needs.

In response to a question from Commissioner Strand asking if the JPA still incorporates the City's desire to allow mail-in voting, Ms. Madrigga said absentee applications are being sent out and the County will process absentee ballots and the applications in the same manner as in the past. She said it is a manual process and as absentee ballots increase, there are increased costs that the County has budgeted and prepared for.

In response to a question from Commissioner Strand asking if the proposal still accommodates the City's budgeted and approved approach that allows mail out applications prior to the Election, Mr. Redlinger said the County is proposing to do the in-person voting with a number of sites yet to be determined and the City in its 2022 approved budget will also fund the activity of the mailed ballot applications, which are separate activities. He said the City wants to provide as many opportunities as possible for the electorate to participate in the voting process. There would not be additional costs attributed to the City for processing those absentee ballot applications at Cass County, he stated. The funds contained in the budget are for the printing and postage costs, he said, and getting information on the City website to get the word out about the opportunities to vote in person as well as with the mailed process.

In response to a question from Commissioner Gehrig asking if the City is automatically sending out ballots, Mr. Redlinger said the Commission action from June 2021 approved funds based on an estimate prepared by Commissioner Preston of the number of mailed pieces and postage costs.

Commissioner Gehrig said he would like to see where in the budget that was. He said it is his recollection that the Commission did not fund that portion.

Commissioner Preston said she wants to commend the County for formalizing the process and clarifying all the different pieces in it. She said this is about voter turnout and how to accommodate voters, which has a lot of value due to the fact that voter turnout is low for City elections.

Appointments to the Historic Preservation Commission Approved:
The Board received a communication from Mayor Mahoney recommending that Jay Nelson and Christine Kloubec be reappointed to the Historic Preservation Commission.
Commissioner Preston moved Jay Nelson and Christine Kloubec be reappointed to the Historic Preservation Commission for three-year terms ending October 31, 2024.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Michael and Lisa Stenstrom, 2921 Edgewood Drive North (5 year).
b. David and Mary Peterson, 735 14th Street North (5 year).
c. Mosaic Companies LLC, 1445 1st 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.

The meeting was adjourned to 5:00 o’clock p.m., Monday, January 24, 2022. The time at adjournment was 6:01 o’clock p.m.