Proctor Journal

REGULAR CITY

COUNCIL MEETING

Monday, November 17, 2008,

6:00 p.m.

MEMBERS PRESENT: Councilors Jake Benson; Dave Brenna; Troy Foucault; Tom Lavato; Mayor Stephen Anderson

Others in attendance included Jim Rohweder, City Administrator; John Bray, City Attorney; Walt Wobig, Police Chief; Shawn McGovern; Gordy Downs; Aaron DeBaiso

The following motions were approved:

Motion by Lavato, seconded by Brenna and carried: To approve the November 3, 2008 Proctor City Council regular meeting minutes; November 5, 2008 City Council special meeting - canvassing General Election local races results; October 13, 2008 Proctor Public Utilities regular meeting minutes; PUC September 2008 Income Statement. M-300-08-401

Motion by Lavato, seconded by Benson and carried: To approve the amended agenda to include 6.F. Legislative Agenda; and combine agenda items 6.B. and 7.F. M-301-08-401

Motion by Brenna, seconded by Lavato and carried: To suspend the agenda to take input from the audience (5.A.). M-302-08-401

Motion by Lavato, seconded by Foucault and carried: To approve the consent agenda as listed under 1. Communications; 3. Clerk Advises Council; and 4. Committee Reports. M-303-08-401

3.A. To approve the Government Fund payroll period ended November 9, 2008 in the amount of $32,850.89 and the Liquor Fund payroll period ended November 9, 2008 in the amount of $3,414.79

4.A. To accept the November 3, 2008 Liquor Control Committee meeting minutes

4.B. To accept the October 23, 2008 Proctor Economic Development Authority meeting minutes

Motion by Lavato, seconded by Foucault and carried: To accept the November 11, 2008 Tourism Committee meeting minutes. M-304-08-401

Motion by Brenna, seconded by Foucault and carried: To instruct the Tourism Committee that City Council wants a link to proctormn.com on their website. Councilor Benson: abstained. M-305-08-401

Motion by Lavato, seconded by Brenna and carried: To accept the November 13, 2008 Parks & Recreation Committee meeting minutes. M-306-08-401

Motion by Benson, seconded by Foucault and carried: To amend Schedule of Fees to reflect new rates for Peddler/Solicitor/Transient Merchant Permits (One Day $25.00; One Week $50.00; One Month $75.00; One Year $100.00). M-307-08-401

Motion by Lavato, seconded by Benson and carried: To table the proposed 2009 Golf Course Budget. M-308-08-401

Motion by Foucault, seconded by Brenna and carried: To accept City Administrator’s decision to allow trapping. M-309-08-401

Motion by Brenna, seconded by Foucault and carried: To request the CN to donate an old ore car, ie. 1948, to the City of Proctor. M-310-08-401

Motion by Lavato, seconded by Benson and carried: To close City Hall offices on Friday, November 28, 2008, with employees using vacation/compensatory time. M-311-08-401

Motion by Brenna, seconded by Foucault and carried: To approve an expenditure up to $5,000 for the joint purchase of a siren system with the City of Duluth, with the understanding that Midway will be approached to ascertain interest and to also have an agreement in place which specifies the City of Duluth’s maintenance obligation and the City of Proctor’s ability to access the system. M-312-08-401

Motion by Lavato, seconded by Brenna and carried: To enter into a Property Transfer Agreement between Douglas Paul Bolander and the City of Proctor Police Department. M-313-08-401

Motion by Lavato, seconded by Brenna and carried: To accept a recommendation which will change the City of Proctor’s Data Practices Procedure, Appendix R, to charge 25 cents, per page, for copying/duplicating expense. M-314-08-401

Motion by Lavato, seconded by Brenna and carried: To approve the General Fund bills list in the amount of $218,157.10 and the Liquor Fund bills list in the amount of $34,959.25. M-315-08-401, 481

Motion by Lavato, seconded by Brenna and carried: To adjourn the meeting at 8:43 p.m. M-316-08-401

The following First Readings were held:

Ordinance No. 07-08

506A.05 Hearing Procedures And

Hearing Officer

Section 506A.05 Hearing.

Any person contesting an administrative offense pursuant to this Section may, within fifteen (15) twenty (20) days of the time of issuance of this the receipt or mailing of the written notice of violation notice, or in the case of a parking offense, within five (5) days of the time of issuance of the notice, request an administrative hearing to contest the fact that a violation has occurred. The hearing officer shall have authority to dismiss the violation or reduce or waive the penalty. If the violation is sustained by the hearing officer, the violator shall pay the penalty imposed. Failure to pay the administrative penalty for the violation cited may result in the person being cited for a criminal violation. be issued a State Citation requesting a hearing through St. Louis County District to determine if a violation has occurred.

Section 506A.05a Hearing Officer.

An individual designated in writing by the City Administrator shall be the hearing officer for purposes of this section. The hearing officer is authorized to hear and determine any controversy relating to the administrative offenses provided for in this section. This process is intended to replace any existing administrative procedures previously established by ordinance with regard to violations enumerated herein.

Section 506A.06 Failure to Pay.

In the event a party charged with an administrative offense fails to pay the penalty provided by this section, and administrative fee, a misdemeanor or petty misdemeanor charge may be brought against the alleged violator in accordance with applicable statutes, code, or ordinance. If the penalty is paid or if an individual is found not to have committed the administrative offense by the hearing officer, no such criminal charge may be brought by the City for the same violation.

Section 506A.09 Subsequent Offenses.

In the event a party is charged with a subsequent administrative offense within a twelve (12) month period of paying an administrative penalty for the same or substantially similar offense, the subsequent administrative penalty shall be increased by twenty-five percent (25%) above the then existing administrative penalty for the same offense.

Section 506B: Administrative Hearing Process

506B.01 Purpose.

The City Council has determined that there is a need for a standard method of addressing administrative appeals and an alternative method of enforcing certain violations of City Code or Ordinances which provide for the imposition of administrative penalties and fees instead of criminal penalties. Accordingly, the City Council finds that the use of administrative citations and the imposition of civil penalties is a legitimate and necessary alternative method of enforcement with regard to certain types of Code or Ordinance violations. This method of enforcement shall be in addition to any other legal remedy which may be pursued by the City for City Code and Ordinance violations.

506B.02 Amending Existing Administrative Hearing Processes.

Presently, City Code 702.04 Subd. 8.(c) 5 provides for administrative hearings which extend due process to those individuals or merchants that are alleged to have bartered or sold alcoholic products to individuals that are under legal age. Provisions contained in 702.04 Subd.8.(c) 4 presently provide for civil penalties which involve the payment of administrative fees and license suspension with regard to violations. At the time those sections were adopted the system of conducting administrative hearings was untested. Given the experience that has been gained by enforcing those sections, and in the interest of consistency and fairness, it is the express intent of this section to provide for a consistent administrative hearing process for all hearings conducted pursuant to those sections and any other ordinances that the City Council may hereinafter adopt which provide for the imposition of administrative fees and penalties.

506B.03 Administrative Citations.

Hereafter, all administrative citations issued with regard to violations of City Code or Ordinances will be issued by a City Police Officer or another City Official authorized by the City to issue a citation regarding the prohibited conduct. All such citations must be issued in person or must be sent by mail to the person or entity responsible for the violation or must be attached to the motor vehicle involved in the violation in the case of a vehicular offense. The citation must state the date, time, and nature of the offense, the name of the issuing officer or authorized individual, the amount of the scheduled administrative penalty, and the manner for paying the administrative penalty or for appealing the citation. The person responsible for the violation must either pay the scheduled administrative fee as provided for in the section for which they are cited or request a hearing within twenty (20) days of the receipt or mailing of the written notice of violation.

506B.04 Administrative Hearing Process.

The City Council hereby ordains that all administrative hearings will be conducted before a hearing officer who is either licensed to practice law in the State of Minnesota, is a retired Judge, a hearing officer, or is a trained arbitrator or mediator. The City Administrator is hereby authorized to select a hearing officer to hear and determine matters for which a hearing is requested provided that the person selected as a hearing officer is not a City employee and is not a person that would have a personal interest in the outcome. The cited individual in any given instance shall have the right to ask that the hearing officer assigned to the case be removed from the case, for cause, as long as a written request is filed with the City Administrator within five (5) days after the cited individual or person has been notified as to the identity of hearing officer chosen. If denied, any subsequent requests must be directed to the assigned hearing officer directly and must also be based upon cause. The assigned hearing officer will then decide whether or not he or she can fairly and objectively review the case. If the hearing officer assigned determines that cause exists for removal, that officer shall remove himself or herself from the case and the City Administrator shall assign another hearing officer. A hearing officer is not a judicial officer but is a public officer as defined by Minnesota Statute §609.415.

(A) Notice of Hearing. Notice of a prospective administrative hearing must be served in person or by mail on the person or the entity alleged to be responsible for the violation at least seven (7) days in advance of the proposed hearing unless a shorter time is agreed to by all parties. At the hearing, the City will be required to proceed first to present testimony and question any witnesses that the City believes supports the alleged administrative fee or citation sought to be enforced. The strict rules of evidence will not apply and the hearing officer shall receive and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent people in the conduct of their personal affairs. Either party is entitled to be represented by an attorney at their own cost and the hearing will not be transcribed by a court reporter unless a transcript is requested and paid for by the person or entity requesting the hearing. Any person requesting that the hearing be transcribed agrees to provide the City with a copy of the transcript at no cost to the City.

(B) Hearing Officer’s Authority. The hearing officer chosen herein is authorized by the City Council to determine whether or not a violation has occurred, whether it is proper to impose the scheduled administrative penalty, or whether or not it is proper to reduce, stay, or waive a scheduled penalty.

1. Subpoena Authority. Upon the hearing officer’s own initiative or upon written request of an interested party demonstrating the need, the hearing officer may issue an administrative subpoena requiring the attendance of witnesses or the production of books, papers, records, or other documents that are material to the matter being considered. The party requesting the subpoena shall be responsible for serving the subpoena in a manner provided for civil actions and for paying the fees and expenses and mileage of any witnesses required to attend. A person served with an administrative subpoena pursuant to these provisions may file an objection with the hearing officer promptly but not later than the time specified in the subpoena for compliance. The officer may cancel the subpoena, the hearing, or modify the subpoena if it is unreasonable or oppressive or if the proposed witnesses provide adequate grounds for modification of the subpoena’s requirements. However, any person who fails to file an objection, or, without just cause, fails to or refuses to attend and testify or to produce the required documents in obedience to an administrative subpoena issued herein shall be guilty of a misdemeanor. Alternatively, the party requesting the subpoena may seek a continuance of the hearing and an Order from the District Court directing compliance with the subpoena issued pursuant to this section.

2. Decision. The hearing officer’s decision and supporting reasons must be stated in writing and must be completed within ten (10) days of the date of the hearing. That decision will be produced in writing and provided to the City Administrator and the parties involved within ten (10) days from the date of the hearing. If mailed, the hearing officer will be given an additional three (3) days to provide for mailing.

(C) Judicial Review. Any person that maintains that they are aggrieved by an administrative decision consistent with this provision may have that decision reviewed in the district court consistent with Minnesota Statute §462.361.

506B.05 Recovery of Civil Penalties or Administrative Fees.

If a civil penalty or administrative fee assessed pursuant to code or ordinance or determined after an administrative hearing requested herein is not paid within the time specified, it shall constitute a lien against the real property on which the violation occurred if the property or improvements on the property was the subject of the violation and the property owner was found responsible for the violation, and/or, be a personal obligation of the violator in all other situations.

1. A lien assessed herein may be assessed against the property and collected in the same manner as taxes.

2. A personal obligation may be collected by any appropriate legal means.

3. Failure to pay fine or administrative fee assessed herein is grounds for suspending or revoking a license associated with the violation.

4. During the time that any civil penalty administrative fee remains unpaid, the City will be entitled to assess interest based upon the prevailing judgment interest rate and provided by law by the State District Courts.

506B.06 Additional Criminal Penalties.

The following are misdemeanors, punishable in accordance with state law:

A. Failure without good cause to pay a fine or final determination made by the hearing officer as provided herein.

B. Failure to appear at an administrative hearing requested and scheduled pursuant to this section or for failure to comply with an administrative subpoena without filing a timely objection as provided herein.

C. Failure to pay a fine imposed by the hearing officer within sixty (60) days of the date of citation or no later than thirty (30) days after the date of any written decision to determine that a violation has occurred and all appeals there from.

Ordinance No. 08-08

Proposed Amendment to Proctor City Code

§506.01 Disorderly Conduct

Disorderly Conduct: (Replace old ordinance to reflect the State Statute)

506.01. Disorderly Conduct. No person shall commit or cause to be committed in any

apartment or other dwelling owned, occupied, or controlled by him any rioting, quarreling, fighting, brawling, reveling, shouting, loud music or electronically amplified noise, or disorderly conduct which unreasonably disturbs or annoys another person in a neighboring apartment or other dwelling or in a neighboring building or lawfully in the vicinity of a neighboring dwelling or building. No person in any public or private place shall take part in or incite or encourage any brawling, shouting, dancing, or noise production which unreasonably disturbs others lawfully in the vicinity.

506.01 Disorderly Conduct. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

(1) engages in brawling or fighting; or

(2) disturbs an assembly or meeting, not unlawful in its character; or

(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

A person does not violate this section if the person’s disorderly conduct was caused by an epileptic seizure.

The provisions of Minnesota Statute 609.72 regarding disorderly conduct are adopted by reference.

Ordinance No. 09-08

Proposed Amendment to Proctor City Code §806.01 Hunting Deer By Bow And Arrow

806.01. Hunting Deer by Bow and Arrow (Need to add this to the code)

806.05 Penalty. Violation of this Section shall be a misdemeanor, and shall be subject to 506A of this Code.

The following Second Readings were held:

Ordinance No. 05-08, Proctor City Code §905 Abandoned And Junk Motor Vehicles

Ordinance No. 06-08, Proctor City Code §601.03 Applications

The foregoing is only a summary of the proceedings of the regular City Council meeting described above.

The complete minutes of such meeting are available in the office of the City Administrator during regular business hours of the City.

/s/ James A. Rohweder

James A. Rohweder

City Administrator

PROCTOR CITY

COUNCIL/PROCTOR PUBLIC UTILITIES COMMISSION - THIRD AVENUE PUBLIC IMPROVEMENTS FINAL

SPECIAL ASSESSMENTS

CERTIFICATION HEARING

Monday, November 17, 2008,

6:00 p.m.

Prior to the start of the hearing, City Administrator, Jim Rohweder, administered the Oath Of Office to Jake Benson.

MEMBERS PRESENT:

Councilors Jake Benson; Dave

Brenna; Troy Foucault; Tom

Lavato; Mayor Stephen Anderson

Commissioners Bill Sweeney; Tom Vanneste; Mick Ward

Others in attendance included Jim Rohweder, City Administrator; Jim Schulzetenberg, Deputy City Clerk; John Bray, City Attorney; Carol Lind, Commission Secretary; Greg Stoewer, City Engineer (LHB); Shawn McGovern; Christine Erven; Arlene Okstad; Dick & Sandee Carroll; Mary Jo White; Don Hamski; Peter Privett; Kathy Hannan; John Hannan; R. Wilke; Robin & Michael Sullivan; Carl Davidson; Fred Molitor

Motion by Lavato, seconded by Foucault and carried: To approve the agenda. M-295-08-401

City Administrator read into the record the public hearing notice:

NOTICE OF PUBLIC HEARING

PROCTOR CITY

COUNCIL/PROCTOR PUBLIC UTILITIES COMMISSION

THIRD AVENUE PUBLIC IMPROVEMENTS

FINAL SPECIAL ASSESSMENTS CERTIFICATION HEARING

DATE: Monday, November 17, 2008

TIME: 6:00 P.M.

LOCATION: Proctor Community Center, Council Chambers, 100 Pionk Drive

PURPOSE: To certify the final assessment rolls of the Third Avenue Public ImprovementProject (the “Improvement”)

General nature of the Improvement: The Improvement covers an area described as Third Avenue from 5th Street to 16th Street, including driving surface on 12th Street between 3rd and 2nd Avenues, continuing approximately 300 feet along 16th Street between 3rd Avenue and St. Louis River Road, and consists of improvement of driving surface and surface drainage, reduction of erosion and clogging of ditches, curb and gutter, miscellaneous water and sanitary sewer improvement, storm sewer (buried and ditches) installation and 16th Street curve corrections.

Total amount of the proposed Assessment: The total cost of the Improvement is $ 820,117 of which $481,246 is proposed to be certified as assessments at an annual interest rate of 4.6215%.

Area proposed to be assessed: Every lot, piece or parcel of land abutting and benefited by said Improvement.

Assessment roll open to inspection: The proposed assessment roll is on file with the City Administrator and open to public inspection.

Written or oral objections: Written or oral objections by any property owner will be considered at the hearing.

Limitation on appeal: No appeal may be taken as to the amount of any assessment adopted by the City Council unless a written objection signed by affected property owner is filed with the City Administrator prior to the assessment hearing or presented to the presiding officer at the hearing. All objections to the assessments not received at the assessment hearing in the manner prescribed by Minnesota Statutes Section 429.061 are waived unless the failure to object to the assessment hearing is due to a reasonable cause.

Right of appeal: Any owner of property to be assessed may appeal the assessment to the District Court of St. Louis County pursuant to Minnesota Statutes, Section 429.081 by serving notice of the appeal upon the Mayor or City Administrator of the City within 30 days after the adoption of the assessment and filing of such notice with the District Court within 10 days after service upon the Mayor or City Administrator of the City.

Deferment of assessments: Under the provisions of Minnesota Statutes, Section 435.193 through 435.195, the City may at its discretion, defer the payment of assessments for any homestead property owned by a person 65 years of age or older or retired by virtue of permanent and total disability for whom it would be a hardship to make the payment. The City has established a deferment procedure pursuant to Minnesota Statutes, Section 435.193 through 435.195. Per City Code ‘ 302.08, application forms are available at City Hall (624-3641).

Mailed Notice: The notice of this hearing mailed to property owners contains additional information.

Comments on the above and other community needs may be made in person at the hearing through the use of a representative or in writing submitted in advance of the hearing date to City Administrator, Proctor City Hall, 100 Pionk Drive, Proctor, MN 55810, or calling 624-3641.

By Order of the City Council/Proctor Public Utilities Commission of the City of Proctor.

Mayor Anderson, addressing the audience, noted that the amount of assessments is lower than that mailed out and proceeded to read some examples of reductions. Mayor Anderson explained that the reductions were due to the final numbers being less than anticipated.

City Administrator read in the record three letters received (on file in City Hall).

Public discussion:

• feels no benefit received

• property owner claims she didn’t receive notices

Greg Stoewer, LHB:

• had removed existing bituminous to accommodate curb & gutter

• ditches had filled up

• had to redo 12th Street - was tipped to the south

• created a crown to divert some of the runoff from the down hill side

Mayor Anderson noted that now there should be less water and a better road.

• property owner questioned why curb & gutter didn’t go all the way?

Councilor Lavato questioned regarding the dirt piles and property damage - was all restored?

Greg Stoewer mentioned all work was done in right-of-ways, and not in private property.

Mayor Anderson described the assessment process:

• Council certifies the assessment roll

• the assessment is paid over a 15 year period

• the amount due each year shows up on the property tax bill

Councilor Lavato mentioned if the assessment amount is paid up front, interest expense will be saved.

Mayor Anderson mentioned if anyone is over the age of 65, they can look at a deferral program.

Property owner asked when the assessment could be paid before it goes to St. Louis County?

Commission Secretary told property owner that the amount could be paid before December 12, 2008.

Property owner asked if there was a possibility of some landscape funds being available? Mayor Anderson noted if the City does landscaping, it would come from General Funds.

Property owner mentioned she was concerned about the driveway blacktop - it is less than 1 1/2” thick. Greg Stoewer agreed to investigate this checking with Sinnott Blacktop.

Property Owner:

• who pays to maintain aprons?

• why concrete aprons not used?

Greg Stoewer:

• not in original intent of project

• added concrete curb & gutter, but used blacktop aprons (similar to Hermantown)

Mayor Anderson asked Mr. Stoewer what if the apron fails - who repairs or replaces it? Greg Stoewer mentioned there is a one-year warranty; after that City would pay for any repairs to aprons.

Motion by Lavato, seconded by Foucault and carried: To close the Third Avenue Public Improvements Final Special Assessments Certification Hearing at 6:40 p.m. M-296-08-401

Property owner mentioned that Northland Constructors were very good to work with as well as LHB.

Motion by Lavato, seconded by Foucault and carried: Councilor Benson: abstained: To adopt the following:

Resolution No. 10-08, Resolution Adopting Assessment, (improvement described as Third Avenue from 5th Street to 16th Street, including 12th Street between 3rd and 2nd Avenues, continuing approximately 300 feet along 16th Street consisting of improvement of driving surface and surface drainage, reduction of erosion and clogging of ditches, curb and gutter, storm sewer (buried and ditches) installation and 16th Street curve corrections, between 5th Street to 16th Street on Third Avenue (plus driving surface on 12th Street between 3rd and 2nd Avenues), then 16th Street to St Louis River Road)

Motion by Benson, seconded by Brenna and carried: To approve Final Pay Request for Third Avenue Public Improvements Project in the amount of $194,447.57, for a contract total of $590,823.65. M-297-08-401

Motion by Lavato, seconded by Brenna and carried: To approve Third Avenue Improvements - Supplement #7. M-298-08-401

Motion by Foucault, seconded by Brenna and carried: To adjourn the Third Avenue Public Improvements Final Special Assessments Certification Hearing at 6:45 p.m. Councilor Benson: abstained. M-299-08-401

The foregoing is only a summary of the proceedings of the Third Avenue Public Improvements Final Special Assessments Certification Hearing described above.

The complete minutes of such meeting are available in the office of the City Administrator during regular business hours of the City.

/s/ James A. Rohweder

James A. Rohweder

City Administrator

P.J. – December 11, 2008