Fargo City Commission - September 18, 2023 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 5:00 o'clock p.m., Monday, September 18, 2023.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

The Mayor read a message with the following information: September is Suicide Prevention Awareness Month; the Library’s Summer Reading Challenge wrapped up in late August where more than 2,200 people registered to participate; the October Jazz into Fall concert series at the Main Library kicks off October 1st; September is Library Card Sign-Up Month; as of June 1st, the apartment vacancy rate was 4.2 percent and there were 1,623 apartments under construction in the metro area; in the first 8 months of 2023, 149 permits were issued for single-family houses, down from 297 in the first 8 months of 2022; and a video was shown highlighting the employees and mission of the Gladys Ray Shelter.

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

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

Minutes Approved:
Commissioner Piepkorn moved that the Minutes of the Regular Meeting of the Board held on September 5, 2023 be approved as read.

Second by Kolpack. 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. 1st reading of an Ordinance Amending Section 8-1321 of Article 8-13 of Chapter 8 of the Fargo Municipal Code Relating to Use of Safety Belts Required in Certain Motor Vehicles.

2. Waive 1st reading of an Ordinance Enacting Article 3-24 of Chapter 3 of the Fargo Municipal Code Relating to a Lodging Tax for Fargodome Including Conference Center.
3. Waive 1st reading of an Ordinance Enacting Article 3-25 of Chapter 3 of the Fargo Municipal Code Relating to a Sales Tax for Fargodome Including Conference Center.

4. Findings of Fact, Conclusions and Order, and Notice of Entry Order for 1449 4th Avenue South.

5. City of Fargo Resolution Authorizing Officers to Make Deposits and Withdrawals (Attachment “A”).

6. Resolution (Special Election Matters – Establishing Precinct-Setting Compensation of Election Officials) (Attachment “B”).

7. Applications for Games of Chance:
a. FM Derby Girls for a raffle on 9/23/23.
b. FirstChoice Clinic d/b/a Women’s Care Center for bingo on 10/9/23.

8. Negative Final Balancing Change Order No. 5 in the amount of -$62,377.95 for Project No. UR-22-B1.

9. ND Department of Transportation Participation, Construction and Maintenance Agreement for LPA Federal Aid Project (Project No. SL-23-B1).

10. Declaration of Easement (Utility) at 6375 31st Street South.

11. Emergency Water Main Replacement on Mills Avenue North (EM23170).

12. Developer Agreements with North Fargo Land, LLC and ARD Properties, LLC for the Interstate Business District Addition.

13. Bid award to Master Construction Company, Inc. in the amount of $305,425.00 for Project No. BP-23-02.

14. Bid advertisement for Project No. SN-23-A.

15. Change Order No. 2 in the amount of $7,046.15 and 2-day time extension to the Phase 2 Interim Date, Substantial Completion Date and Milestone Date for Improvement District No. BR-23-F1.

16. Easement (Temporary Access Easement) with Sanford Research North (Improvement District No. BR-23-J1).

17. Change Order No. 1 in the amount of $83,176.80 for Improvement District No. UR-23-C1 (EM23135).

18. Minimum Payment Policy Waiver and Election Form, Permanent Easement (Bike Trail) and Easement (Temporary Construction Easement) with EA Children Properties, LLC (Improvement District No. SN-23-A1).
19. Create Improvement District No. BR-24-C.

20. Create Improvement District No. BR-24-E.

21. Lease extension with Fargo Baseball, LLC through 10/1/28.

22. Change Orders in the amount of $3,804.00 for the Fargo Public Library Sunshades Replacement Project (RFP23090).

23. Amendment No. 4 with KLG for the GTC Underground Parking Facility (RFQ18325).

24. Receive and file General Fund – Budget to Actual unaudited monthly financial statements through 8/31/23.

25. Change Orders for Fire Station No. 8 Construction:
a. No. 1 in the amount of $9,881.00.
b. No. 2 in the amount of $38,336.34.
c. No. 3 in the amount of -$12,511.00.

26. Change Orders for Fire Station No. 2 Addition:
a. No. 1 in the amount of -$821.00
b. No. 2 in the amount of $7,871.36.
c. No. 3 in the amount of $3,392.55.
d. No. 4 in the amount of $1,209.44.
e. No. 5 in the amount of $1,948.80.
f. No. 6 in the amount of $1,017.35.
g. No. 7 in the amount of -$203.00.

27. NDDES Mitigation Grant Application as a sub-applicant and subsequently acting as a pass through entity to receive and pass reimbursement to the resident for a storm shelter.

28. Agreement for Services with Folkways.

29. Grant Agreement with the ND Department of Health and Human Services, Office of Refugee Support Services.

30. Agreement of Affiliation with North Dakota State University, Department of Public Health.

31. Purchase of Service Agreement with Megan Nies.

32. Resolution Approving Plat of Timber Parkway Tenth Addition (Attachment “C”).

33. Resolution Approving Plat of Village West Fourth Addition (Attachment “D”).

34. Set October 2, 2023 at 5:15 p.m. as the date and time for a Public Hearing on a dangerous building at 1809 14th Avenue South.

35. UKG Dimensions Agreement for the upgrade of the time and attendance software (RFP23030).

36. Acceptance of the ND Department of Transportation Grant Funding for Occupant Protection, Impaired Driving, Distracted Driving Enforcement, Speed Enforcement and Underage Drinking Enforcement and Education Activities (CFDA #s 20.616 and 20.600).

37. Purchase of Lexipol/PoliceOne Academy Training software using seized asset forfeiture funds in the amount of $10,757.70.

38. Extension of the 2022/2023 Services Agreements – Snow Hauling Trucking Services with Master Construction; Lenzmeier Trucking Inc.; J D Kraemer Enterprises, LLC; and Diesel Dogs Trucking, LLC for the 2023/2024 snow season (RFP22137).

39. Street Snow Plowing Services Agreement with Master Construction Co., Inc. (RFP23138).

40. ND Department of Transportation State Aid for Public Transit Agreement for FY 2024.

41. ND Department of Transportation Section 5339 Transit Grant Agreement (CFDA #20.526).

42. Bills in the amount of $11,576,477.43.

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

Resident Comments:
Faith Dixon and Wess Philome spoke about the Liquor Control Board.

Amendment to the Growth Plan and Petition Requesting the Rezoning of Certain Parcels of Land in Interstate Business District Addition Failed for the Lack of a Majority (4753 45th Street North and 4269 40th Avenue North):
A Hearing had been set for this day and hour to consider approval of an amendment to the Growth Plan from Residential Area, Lower to Medium Density, Commercial and Proposed Park to Industrial and Commercial and a Petition requesting the rezoning of certain parcels of land in Interstate Business District Addition.
The Fargo Planning Commission recommended approval of the Amendment to the Growth Plan at its 8/1/23 meeting.
Current Planning Coordinator Donald Kress gave a presentation that included an overview of updates to the application since the last City Commission meeting. He said there are 15 lots, including two that will be publicly owned. The current Growth Plan designates the property as Commercial, Residential and Park, and the amendment would be make the lots on the west side Commercial and Industrial on the east side, he said. Opp Construction/Patio World, which is the north of this property, was part of a rezone a while ago and Memory Fireworks is also in the area, he said. On Lot 1, Block 1, which will be zoned General Commercial with a Conditional Overlay, will have prohibited uses that include the crushing of any materials as well as specific rules for exterior lighting, off street parking and outdoor storage, he stated. The Conditional Overlay for Lots 3 through 7, he said, which are also zoned General Commercial, include the prohibition of the crushing of any materials, exterior light standards and storage rules as well as the requirement for a 3- by 25-foot berm. There are also requirements for tree plantings on the west side of the berm, he said. The Conditional Overlay for Lots 9 through 15, which are zoned Limited Industrial, also prohibits the crushing of any materials, exterior lighting standards and storage rules as well as rules for signs, including a height limit of 35 feet and no more than four signs, not all of which can be digital billboards. He said lots 2 and 8 will be zoned Public/Institutional and will not have a Conditional Overlay.
Lee Grossman, SW&L Attorneys representing Trent Duda, Earthworks Services and ARD Properties, said this request has been approved four times by Planning staff and his client has satisfied all the required criteria. Concrete crushing has been completely removed, he said, and residential protection standards are in place and have been exceeded, including more than 280 feet between residential and industrial zoning. This property has been for sale for more than 20 years, he said, with no interest for residential development and if it was such a prime spot, it would have already been developed. He said the reason Fargo is on the air quality list from the American Lung Association is due to Canadian wildfires, which have also affected the air quality in cities in Montana, Idaho, Utah and Colorado. A lot immediately to the west of Reile’s Acres is zoned General Commercial and now, with all of this additional information with this property and with all of the changes and concessions that have been made by his client, he said, there is no reason the City Commission should deny this application.
Reile’s Acres residents Mike Lastine, Paula Peterson, Kyla DuBord, Mariia Goriacheva and Josh Morrell spoke in opposition to the Growth Plan Amendment and zoning change and their concerns included traffic, safety, noise, air quality, environmental impacts, decreased property values, the types of businesses that will be allowed, the need for more housing on the north side, negative impacts on NDSU and future school growth and other concerns.
In response to a question from Commissioner Preston asking if the northern section of this property is zoned heavy industrial due to Opp Construction/Patio World, Mr. Kress said Opp Construction/Patio World is what is referred to as Industrial Service and therefore has to be in an industrial zone. He said he does not think Opp manufactures anything; however, since they are a contractor, they are considered industrial.
In response to a question from Commissioner Preston asking about Lots 9 and 10 on the north end of the property, are there some additional conditions that could be placed on those lots to address the residents’ concerns, Ms. Crutchfield said in other parts of the City where industrial is in proximity to residential, there are standards in the code by mandate and when industrial is within so many feet of residential, there are extra buffering, landscaping and lighting conditions, which have also been laid on portions of this property. She said if additional standards such as landscaping, screening, walls and fences are added, a new Ordinance would have to be drafted.
Mayor Mahoney said in Fargo, the Conditional Overlay now is 50 feet and with this property it is 280 feet, which is much more than anywhere else in the City for industrial sites.
Ms. Crutchfield said any standards the Commission wants can be added; however, historically, when Planning staff drafts standards, talk about fencing, buffering, landscaping and other things that would negate nuisances such as noise and light, many of those standards are already in the code and even more restrictions were added to those codes for this application. She said there are also additional protections with the site plan and permit review processes.
Ms. Crutchfield said this application is for Limited Industrial, not heavy industrial, and if Opp Construction were applying today, they would not be in compliance with the current LDC. She said near the Rocking Horse development on 52nd Avenue South, some of the businesses in that area are Limited Industrial with the same Conditional Overlay as this property.
In response to a question from Commissioner Preston asking if there are restrictions on billboards along 45th Street, Mr. Kress said billboards are limited to 35 feet and no more than four, and if there were no restrictions, there could be as many as eight.
In response to a question from Commissioner Strand asking if there is still clear opposition from Reile’s Acres even though the concrete crushing was removed, Mr. Kress said residents are still opposed, even with the changes.
Commissioner Strand said Fargo needs to be a good neighbor and if residents are so opposed to this application, he cannot imagine Fargo not giving regard to their desires. He said he is not inclined to tell Reile’s Acres what its future will be.
Commissioner Preston said this is not an issue of residential versus industrial, it is general commercial versus industrial and whether industrial is appropriate next to residential.
Mayor Mahoney said Planning staff recommends approval of this application, they have looked at this application more than any other issue that has come before the City Commission for a very long time, there have been reams of discussion, it complies with the Growth Plan, people worked very hard on it and he thinks the Commission needs to support Planning staff.
Commissioner Kolpack said she read the entire packet and watched both Planning meetings. She said she understands the change from greenspace to light industrial is frustrating for the neighborhood; however, the packet was very pragmatic. There has been a residential opportunity for 20 years on this property with no interest and now there is an opportunity to have a tax base that is mixed with commercial. She said she certainly sees both sides; however, she found the resolution and the data supports Planning staff’s recommendation.
Commissioner Kolpack moved the Amendment to the Growth Plan and request for rezoning be approved.
Mayor Mahoney relinquished the Chair to second the motion (Deputy Mayor Preston presiding).

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

Deputy Mayor Preston returned the Chair. (Mayor Mahoney presiding).

Public Hearing for Comment on the 2024 Preliminary Budget and Recommended Tax Levies:
The City Auditor’s Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and be heard.
City Administrator Michael Redlinger said there is no vote tonight; this is an opportunity for the public to be heard regarding the proposed budget.
Glenn Knudson said he understands that the City’s costs are rising; however, the costs for residents are also rising and the City needs to consider ways to cut spending, including lowering the amount of money paid for employee benefits.
Jay Larson said the City needs to do more with less and with his higher property taxes he has seen no improvement in services. He said he has lived in Fargo for 23 years and he sees no benefit of a growing city. With all of this growth, he asked, why are taxes not being decreased?
Charles Canning said his property taxes have increased 30 percent, which is outpacing his fixed income and he suggested the budget be cut back to 2021 levels and spending be limited to essentials such as Police, Fire, water, sewers and streets.
Wess Philome said he is concerned about the funding cuts for addiction and homeless services, and that rising costs for groceries, prescriptions and gas are hitting everyone hard.
John Sierman said over the last two years, his property taxes have gone up 9 percent and 15 percent, his electric bill has increased as has his food bill, yet he has only received a 4 percent raise at his job the last three years and he cannot do anything else to make more money. He said he is afraid he will lose his house and the elderly on fixed incomes are not going to be able to stay in their homes.
Eric Eisenlohr, who has worked for the Fargo Fire Department for 22 years, said cutting the budget would have a negative impact on the City due to the fact that retention and hiring in the Fire Department is a struggle, the starting wage for a firefighter is $18.61 an hour for a position where a person risks their lives every day and since 2009, the department has lost 40 percent of its workforce. He said within the next year, a quarter of the firefighters will have less than a year of job experience and that scares him.
Mayor Mahoney closed the public hearing and said the final budget and tax levies will be on the agenda at the October 2, 2023 Regular Meeting.

Applications for Abatement or Refund of Taxes #4545 and #4544 for 1201 Elm Street North Approved:
City Assessor Michael Splonskowski said applications for Abatement or Refund of Taxes #4545 and #4544 were filed by Jon and Dawn Sierman for property at 1201 Elm Street North. He said the owners appealed the value during the Board of Equalization process in March, citing structural issues with the house, which were discovered after the 2020 purchase. Upon review of the property, he said, the appraiser found the garage was sinking and pushing against the house foundation walls, causing instability and allowing snow to come into the basement. He said the owner provided a bid for foundation repair of $110,000.00 and the appraiser also noted there was significant structural pressure on some windows due to the shifting foundation, water leaks from windows and doors and potential drywall damage from moisture issues. The property was also reviewed in 2018, he said, and the condition was changed from average to fair; however, the foundation issues were either not known or not disclosed to the appraiser at that time. The cost approach was used to revalue the house, he said, and adjustments were made, accounting for all the deferred maintenance and repairs that would be necessary. This, along with an updated review of the condition of the entire house, led to a reduction in value for the 2023 assessment, he said, which was approved at the 2023 Board of Equalization. The owner is seeking a reduction in value for the two prior years’ certified values, he said, since the issue was present at the time of sale. Based on the information presented by the owner and the information of the appraiser’s onsite review of the property, he said, the Assessor’s Office agrees that the condition of the house was likely present at the time of sale and has a negative effect on the value; therefore, a reduction is warranted. He said his recommendation is to approve reductions of the property values at 1201 Elm Street North as follows: #4545, reduce the 2022 certified value to $151,000.00; and #4544, reduce the 2021 certified value to $125,300.00.
Commissioner Piepkorn moved based upon Mr. Splonskowski's recommendation that applications #4545 and #4544 filed by Jon and Dawn Sierman for abatement or refund of taxes for the 2021 and 2022 tax years on property at 1201 Elm Street North be approved, as presented.

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

Appointments to the Civil Service Commission:
The Board received a communication from Mayor Mahoney stating the terms of Paul Grindeland and Kurt Losee on the Civil Service Commission expired on June 30, 2023. Mr. Losee is no longer wishing to continue his service on the Commission, he stated; however, Mr. Grindeland is willing to continue his service until December 31, 2023. He said he recommends Mr. Grindeland be reappointed and Barb Ransom be appointed to the Civil Service Commission.
Commissioner Strand moved Paul Grindeland be reappointed to a partial term on the Civil Service Commission ending December 31, 2023, and that Barb Ransom be appointed to a three-year term on the Civil Service Commission ending June 30, 2026.

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

Liaison Commissioner Assignment Updates:
Commissioners gave reports on the Boards and Committees on which they serve.

Commissioner Kolpack moved that the Board adjourn to 5:00 o’clock p.m., Monday, October 2, 2023.
Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:38 o’clock p.m.

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