11/08/10 Board of Public Work Minutes

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REGULAR MEETING NOVEMBER 8, 2010 342 Quotation was submitted by Mr. John Staton QUOTATION: $2,920.00 Upon a motion made by Mr. Littrell, seconded by Mr. Inks and carried, the above Quotations were referred to Engineering and Community and Economic Development for review and recommendation. Upon review, Mr. Toy Villa, Engineering, recommended the quotation be awarded to the lowest responsive and responsible quoter, Central Rent -A- Crane, in the amount of $2,920.00. Therefore, Mr. Inks made a motion that the recommendation be accepted and the bid be awarded and the Construction Contract approved as outlined above. Mr. Littrell seconded the motion, which carried. PUBLIC HEARING - RESOLUTION NO. 71 -2010 —1050 BURNS AVENUE Mr. Gilot opened the Public Hearing, advising that this was the date set for the Board's Public Hearing concerning Resolution No. 71 -2010, Award of Damages on Account of Exercise of Eminent Domain at 1050 Burns Avenue. Cheryl Greene, Board Attorney, informed the Board that they have a choice of using the regular eminent domain statute or an expedited process provided when the Board is acquiring the property to "open, change, lay out, or vacate a street, an alley, or other public right- of-way" (IC 32- 24 -2 -6). Since both properties are being taken for use as a street, the expedited process is appropriate she noted. Ms. Greene stated that on June 14, 2010, the Board approved Resolution No. 38 -2010, stating its intent to acquire the properties. The Board heard remonstrances as to this issue on July 12, 2010 and adopted Resolution No. 43- 2010 confirming the original resolution. The Board subsequently adopted Resolution No. 67- 2010 for the Curry property and Resolution No. 68 -2010 for the Kariuki property specifying the amount of damages and setting a hearing on those damages for today. Ms. Greene informed the Board that all the procedures of the statute have been followed, and at today's Hearing the only action for the Board is to "sustain, or modify the damage awards ". If the property owner disagrees with the Board's decision, the property owner has twenty (20) days to file an appeal with a court. Ms. Greene noted the appeal affects only the assessment or award of damages. Mr. Jaynes Masters, Attorney for Mr. Curry, was present and addressed the Board. He noted that the letter of remonstrance he had forwarded to the Board had an error in paragraph four (4). The second line should state "the Board of Public Works is following a statutory procedure that does not apply..." Ms. Greene requested Mr. Master's summary of the remonstrances be incorporated into the legal record for both parties. She noted the Board will consider each property separately so they should be discussed individually. Assistant City Attorney Larry Meteiver addressed the Board stating he would first discuss Resolution No. 71 -2010 regarding 1050 Burns Ave., owned by Mr. Wayne Curry. Mr. Meteiver stated Resolution No. 67 -2010 was adopted by the Board on October 25, 2010 establishing acquisition costs at $114,000.00. The staff negotiated to come up with a purchase price and comparables within a six mile radius were evaluated. Subsequently $209,900.00 was offered to Mr. Curry on September 10, 2010 for his property. The offer was rejected by Mr. Curry, and his attorney Mr. James Masters has filed a remonstrance on behalf of Mr. Curry. Mr. Meteiver stated the only issue for the Board today is to establish the amount of the award of damages sustained. Mr. Masters informed the Board that there is a process of law involved that must be gone through before going to court and the City is not following the proper process in the taking of these properties. He stated the City is following the process for the taking of property for the purpose of laying out a street, and in this situation the property is being taken for the development of a private subdivision, not for a municipality. Mr. Masters noted the subdivision site plan shows Mr. Curry's property to be incorporated within new subdivision lots that will be developed by a private developer. For that reason, Mr. Masters noted, the taking is governed by the eminent domain statute. Mr. Masters noted the Statute requires the City to look at all good faith alternatives, including the consideration of a reasonable alternative to the exercise of eminent domain. He stated the City failed to consider the reasonable alternative of relocating Mr. Curry's home to another comparable lot in the proposed new subdivision. Mr. Masters stated there is no statutory provision or any other legal authority for the Clerk of the Board of Public Works to execute the proposed "Clerk's Deed" to transfer Mr. Curry's real estate to the City of South Bend. He added that should the Board of Public Works and the Clerk cause such executed documents to be recorded, that action will be a cloud on Mr. Curry's property and will be considered the basis for legal action against the City. He noted any attempt to take possession of Mr. Curry's property will be considered to be trespassing and will be dealt with as such according to law. Mr. Meteiver stated the Resolution before the Board contains alternatives of confirming or modifying the amount offered. He noted at the prior public hearing on the taking, the issue of laying out a street was discussed. He noted Mr. Masters stated the City