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HomeMy WebLinkAboutRM 02-17-781. SOUTH BEND REDEVELOPMENT COMMISSION County -City Building Room 1200 227 West Jefferson Boulevard South Bend, Indiana 46601 COMMISSIONER'S REGULAR MEETING Friday, February 17, 1978 10:00 A.M. PRESIDING OFFICER: F. Jay Nimtz, President CALL issioners: F. Jay Nimtz, President Donald A. Wiggins, Vice President A. Peter Donaldson, Secretary Lloyd Robinson, Sr., Member Legal Counsel: News Media: Guests: Kevin J. Butler Edward Chapleau Jeanne Derbeck, South Bend Tribune, Reporter David W. Anderson, Reporter, WNDU -TV Lester Howard, Photographer, WNDU -TV Beverly Fisher John Lindstaedt LPA Staff: C. Wayne Brownell Marc Brammer Mrs. Gertrude E. Barth Mrs. Jane A. Zimmerman 2. APPROVAL OF MINUTES On ion by Mr. Wiggins, seconded by Mr. Cira and carried, the Minutes of the oetgular Meeting of February 3, 1978, were approved as mailed. 3. APPF¢OVAL OF CLAIMS On notion by Mr. Wiggins, seconded by Mr. Robinson and carried, the claims werE approved, as submitted, and were allowed and ordered to be paid- - totalling $92,572.63. The authorized claims are: REDEVELOPMENT REVOLVING FUND - I Payroll: 1 -28 -78 to 2 -10 -78 Com unity Development Services, Inc. Credit Bureau of South Bend - Mishawaka I.B.M. Corporation Indiana Bell Telephone Company Indiana Bell Telephone Company Smi h Petroleum Company TOTAL $2,903.65 84.00 7.00 155.20 188.52 167.26 98.63 3,604.26 Redevelopment Commission Meeting Friday, February 17, 1978 3. APPROVAL OF CLAIMS (CONT -D) P.E.A. IND. R -66 Kevin J. Butler Edw rd A. Chapleau P. E A. E -6 Redevelopment Revolving Fund MER Y AVENUE PROJECT Redevelopment District Capital Fund TOTAL TOTAL TOTAL 312 LOAN Abstract Co. of St. Joseph County, Inc. TOTAL REDEVELOPMENT DISTRICT CAPITAL Abstract Co. of St. Joseph County, Inc. TOTAL GRAND TOTAL $ 892.75 280.00 $ 1,172.75 $37,755.62 $37,755.62 $50,000.00 $50,000.00 $ 25.00 $ 25.00 $ 15.00 $ 15.00 t09 977 tit Mr. Wig ins suggested that he felt it would be well for the Department to keep a log ii the future, of long distance calls so we could check the log against the telephone bill. Mr. Brownell stated that the department is dividing up the numbers and we will charge 11 of our calls to one number, while other departments would charge to a diffe ent number. Mr. Brownell mentioned that we would be glad to maintain a logo calls being made. -2- Redevelopment Commission Meeting Friday, February 17, 1978 DISCUSSIONS: Mr. Brownell: A meeting was held the other day in the Mayor's office, although the Mayor was unable to attend. It was conducted by I &M officials and was attended by several members of the City Council, the Ci y Clerk, and a number of the department heads. Included in your packets is a memo from Mayor Nemeth directed to all department heads and Bureau Managers, and a copy of the news release from I &M is enclosed with the memo. The I &M news release includes the precise order of the Public Service Commission which meets every Friday. I &M has issued this order which will be a mandatory enforcement when their coal pile gets down to a 40 -day supply. When their coal supply gets down to 30 -days there will be another set of orders issued, which will also be mandatory. As Lee Flanagan and Bill Miller explained, I &M has no choice, and no discretion. The order is mandatory and when their coal supply reaches its 30 -day supply, they will have to go into half hour brownouts of power. There are about 18 different circuits which will be browned out during the daytime hours, hopefully, around town. These circuits will affect almost everyone, and they don't know who is on the various circuits. They have arranged so that the brownout will not hit the municipal buildings, fire stations, police, and hospitals, etc., but the circuits are not run in definite districts. Some of the brownouts may affect downtown, and some in outlying areas. For example, across the street the gas station will be able to run its pumps, while on the other side of the street, a station would not be able to operate at all. There is absolutely nothing a person can do to change the order, and if you were to call I &M, they couldn't change anything; one reason being that they will not know who is on each circuit. I have presented this information to you just as news, because at the present time, it is primarily news of what will happen when I &M reaches their 40 -day coal supply. The day the meeting was held, they had a 45 or 46 day coal supply. I thought perhaps the Commissioners would like to have a copy of this memo and the attached news release, to relay the information that I received from this meeting. Mr.l Nimtz: This will be received and placed on file. Mr. Brownell: I don't think that we want to make any determination at this time, but I have received a letter from S.M. Dix for review and investigation, and they have come back with a rather lengthy report which is still subject to negotiation. There is approximately $23,000 which is still subject to negotiation. Mr. Nimtz: Has Mr. Butler seen a copy? Mr. Brownell: No. -3- P.edevel pment Commission Meetinn Friday, February 17, 1978 DISCUSSIONS: Mr. Nimtz: The Chair directs that this be referred to legal staff and the Commission, and any Commissioner who wants to take a copy of the report for review. We will place this item on the agenda for our next meeting. Mr. Wiggins: Are we currently in litigation on that matter? Mr. Nimtz: No, it's a natter of negotiation. Ms. Jeanne Derbeck: Is this the old claim? Mr. Brownell: Yes, this is the one that has been pending for a year and a half. Mr. Nimtz: We settled the I &M and paid it. Mr. Brownell: It was reduced from $379,000 to $319,000. When the $319,000 was paid, the matter was settled; but this one has still been under investigation for two reasons; -- one is that we wanted to find out what the facts are, and two--we want to negotiate the amount. Ms. Jeanne Derbeck: How much is the whole thing? Mr. Brownell: The figure is approximately $263,000. Mr. Nimtz: Any further.comments? Mr. Brownell: There is nothing to bring before the commission at this tim , unless.Mr. Butler cares to comment. Did you get the lease Kevin? Mr. Kevin Butler: My secretary, Jane will bring it over this morning. Has the lease been approved at a previous meeting Wayne? Mr. Brownell: I believe they have authorized the execution of the lease. Mr. Nimtz: With whom? Mr. Brownell: With the Park Department. Mr. Butler: Why don't we put the matter before the Commission at this tim ? -4- Redevelopment Commission Meeting Friday, Fe ruary 17, 197£ DISCUSSIONS: Mr. Br wnell: What we are concerned about at this time is leasing of the Plaza ark land consisting of four acres along the river to the City, for the be efit of the Park Board at a very nominal rental. Mr. Ni�tz: Is it because they don't have the money to pay us? Mr. Br wnell: This is one reason; another reason is because Housing & Urban evelopment won't approve Community Development funds to buy it from US. Mr. Ni tz: They don't have the money to buy it from us, so to remove the le al liability on the land, we rent it to them. Mr. Br wnell: The only other matter that I would like to raise at this time is that there were two acts of vandalisms, which were major acts. One act of vandalism occurred when someone tried to burn the bridge, but we have repaired the bridge and have paid all the expenses incurred. The other act of vandalism which occurred was damage to the lights, and that consisted not only of pushing the globes off, but someone also tore the wires. This will require a contract, probably with an electrical firm, to have the lights repair d. At this time, in view of the shortage of coal, I see no reason to rush in and repair the lights contained in the lease, and would suggest that the lights be repaired at an appropriate time so that the park would be complete. It will take four or five thousand dollars worth of electrical work to repair the damage. This was the only item that we agreed to fix, henceforth we would expect the park board to maintain the park themselves. Mr. Ni tz: Is it your desire to have the Commission approve the lease of the Plaza Park to the Park Department for one year? Mr. Bultler: I have set the leasing for a three year period. Mr. Niimtz: Subject to cancellation if they get the money to pay us for the land. Does anyone have any questions concerning this? Mr. Ro inson: Is that the stipulation; "subject to" according to what Mr. Ni tz just mentioned? Mr. Brownell: Yes. Mr. R binson: Will they take over complete maintenance after the park is lease to them? Mr. Butler: Yes, they have the responsibility of maintaining and keeping it re aired. -5- Redevelopment Commission Meeting Friday, February 17, 1978 DISCUSSIONS: Motion was made by Mr. Robinson to approve said lease of Plaza Park to the Park Department and authorize the President and Secretary of the Commission to sign the lease; to run for a period of three years, subject to cancellation, if funds are made available for them to purchase the land; seconded by Mr. Wiggins and passed by unanimous vote. Mr. Dave Anderson: What was the price tag? A dollar a year? Mr. Butler: Yes; but there is a penalty provision included. If they hold over, it is five times the daily rate ... beyond the three year term. Mr. Nimtz: This is just legal conversation to remove the liability fr m us to the Park Department, who really has the facility and the staff to do things. Mr.1 Dave Anderson: What was the price tag on the vandalism on the lights? Mr. Brownell: We have estimated the damage to the lights at approximately $4,000. The damage to the bridge has been paid for already amounting in about $2,500. Actually, the Park Board has been operating the park, maintaining the upkeep, watering the lawns etc, but this would make it official. Mr. Nimtz: To summarize this, the City was going to buy the land from us, but didn't have the money to do so, and secondly, they can't use community development funds to buy it from us. Mr. Mr. Lindstaedt: What is the purchase price? Brownell: $160,000. Mr. Nimtz: We have our legal staff present this morning, and as I am sure you are aware, from reading the paper or watching the television, Judge Miller did not grant the motion to correct errors, which is the old fashioned way of saying a "motion for a new trial. Mr. Chapleau asked for an appeal bond in the amount of five million dollars, and there immediately ensued some discussion as to whether a bond was required or not, and if so, how much. A hearing is set for Monday morning, February 20, 1978, at 9:00 A.M., by Judge Miller as to whether a bond will be required, and if so, how much the bond will be. Mr. Chapleau will you comment? Redevelopment Commission Meeting Friday, I February 17, 1978 DISICUSSIONS: Mr. Edward Chapleau: My only comments are that at this hearing we have to Jetermine by proof how much is involved, and what we can justify. I have been thinking about this since the last hearing--we may be able to prove that much or, we might be able to prove more. I am not certain if we are planning to meet and discuss this. I am presently working on this point as it may require some testimony. The problem involved here is that the parties asked for a stay of proceedings, and the Indiana trial rules provide for a bond. The purpose of the bond is to guarantee the damage that we may suffer if this project falls through, at least this is my opinion. I feel it is also important that the parties post this bond if they are going to get the stay. If the parties don't get the stay, it is my position that we should be able to proceed with this project, providing we don't do anything that would interfere with the rig is of the remonstrators. In other words, I don't see any way that their rights would be affected or hurt on anything we do, as long as it oesn't affect them directly. Mr. Nimtz: I agree with you. The point here is that we are not planning to take down their buildings in the immediate future, and we should be able to proceed with the appraisals, plan changes, and the other pre- requisites to put this project forward; and certainly that would not injure their rights in any way. Mr. Dave Anderson: When you mention procedure, are you speaking about the appraisals and getting ready for demolition. Does this mean there wou d be no actual demolition? Mr. thi Mr. Mr. Mr. app hav the pur pur Sim we bec Mr. Chapleau: Yes. Hiring people, who have to be hired to do certain ias, such as doing paper work, and preparing, planning etc. Anderson: What is all this process...your appraisals? Chapleau: Mr. Brownell is in more of a position to answer that question. Brownell: We have to have real estate appraisals completed, and fixture �aisals. We have contracted S.M. Dix to do this work for us and we to have determination of relocation benefits so people who are using property are entitled to relocation benefits when their property has been : hased. As a matter of fact, under our present plans, we hope to :hase real estate without disturbing its use at that time. We would )ly take over the tenant, or whoever is using the property at the time take title. For instance, if we bought land from an owner, he would then )me our tenant until such time as we have need to demolish the property. Anderson: If the bond is granted by Judge Miller on Monday? -7- Redevelopment Commission Meeting Friday,IFebruary 17, 1978 DISCUSSIONS: Mr. Nimtz: Yes, it is fixed; the amount of the bond is fixed by Jud a Miller. Mr. Anderson: If the bond is granted, would the project be able to start proceedings, and the stay be lifted? Is that what the proceeding is all about on Monday? Mr. Chapleau: The purpose of the bond, if a bond is posted, would cause the stay to be in effect. I don't think at the time he granted it, he considered the fact that the rule provides that the stay is not eff ctive unless they have a bond. So, the stay would be in effect if thQV post the bond; if they don't post the bond, then it is my position that the stay would not be in effect. Mr. Wiggins: I think it is important to realize, and I assume that everyone understands this, that they could lose, yet win, because if they are able to delay this project long enough to the point where the project does not go because of the delay, or fails because of the delay, then they could (as they have already lost it once) lose an appeal, but would still win because they would have accomplished their purpose. Mr. Chapleau: It is a very real fact that if we can't convince the Court of 4ppeals or the Supreme Court to give us a speedy hearing, this project may fall through. So they could win - -if you call that a victory, to stop this thing, then they would have succeeded. Mr. Wiggins: This is a very negative type victory; considering the fac that this has already had the full judical bit, the hearing, the ruling, etc.. Mr. Chapleau: I will go on record right now that I asked their attorney, Tim thy Woods, to stipulate with me to request, either the Court of Appeals, or the Supreme Court to give us a speedy hearing, and he refused to do that. He said he would not do it. Ms . Mr. Ms. to pro wi tl Jeanne Derbeck: Did Mr. Woods say he wouldn't ask for a speedy hearing? Chapleau: He wouldn't agreed to do so. That is exactly what he said. Jeanne Derbeck: Isn't it a fact that merely by the process you now have Io through, getting the transcript, the filing process, and the answering :ess, that the length of time can be controlled by their attorney, which i that alone, swallows up to six months? Redevelopment Commission Meeting Friday, February 17, 1978 MUSSIONS: Mr. Chapleau: No. There is a provision in the Appelate rule that states you can request the Supreme Court to bypass the Court of Appeals and grant a petition to assume jurisdiction of the case, and allow you a speedy hearing. In order to do that you have to show them that this is an 'Important matter. I think that we.can do just that. Ms.lJeanne Derbeck That is if you go to the Supreme Court? Mr. Chapleau: That is right. I am not sure of our strategy, but I think that from our standpoint, we would be better off going to the Supreme Court, because if we stayed at the Court of Appeals level, they would still go to the Supreme Court anyway, so you may as well go to the top immediately, so that you don't have any further delays. Mr. Wiggins: This gets back to the question of their winning by default, by Mr. Chapleau: That is right. I can tell you what their theory is... their theory is that they want to go through each court so it takes longer to have this project heard, with the stay in effect during all the process. Then, they have two shots at the appeal, rather than one, if they go to the Court of Appeals, and the Supreme Court. If we can bypass the Court of ppeals, then they only have one shot, and they want the two shots, and thet want the delay. Ms. Derbeck: However, what I was referring to is that when I talked to Tim thy Woods, he said the next step is to ask for the transcript, which can take 90 days to file it in Indianapolis, or 60 days, I am not certain of the amount of days. Mr. Chapleau: This is not true. He has to file what they call "Praecipe for Transcript" within 30 days. Ms. Derbeck: What will occur after that? Mr. Chapleau: After that he has 60 days to file the transcript. Ms. Derbeck: To understand what you just said I am to understand that Mr. Woods has so many days to file a brief, approximately 30 days to file a b ief, then I would assume you would want to see his brief before you file you brief. At this time he will have 15 or 20 days to file the answering bri f to yours. Anyway, all of these steps add up to half a year. Except for your brief, he is the one who is going to control how long it takes? Mr. Chapleau: This is true normally; but the point I am making is that the Sup eme Court of Indiana can cut all of those time periods down; they have the power to do so. -9 Redevelo�ebruary ment Commission Meeting Friday, 17, 1978 DISC SSIONS: Ms. erbeck: From what you have stated, I understand they just change the hole process. Mr. hapleau: This is where the damage element comes in. When you consider what damages we have already suffered. These include the exile ses involved, plus any future expenses. Mr. imtz: Of course Jeanne, we will know more next week after we learn what Judge Miller's ruling is. Ed, how many days will Judge Miller give for the bond to be posted, or is that automatic? Mr. hapleau: I don't believe it is automatic. When the bond is posted the stay then becomes valid. Mr. imtz: First, we will have to have Judge Miller's ruling, and if he directs that a bond be posted, and if the parties involved furnish the bond or not, will be our decision in proceeding with the next step. Ms. Derbeck: What is really happening, consequently, is that two very small merchants have the possibility of wrecking this project? Mr. Brownell: That is exactly right Mr. Chapleau: If you want to say "practically speaking ", that is true. But, you also have to realize that two small merchants have the opportunity under our laws to have their rights adjudicated too. Mr. utler: This is one of the few areas in which the small businessman has a little bit of leverage. Mr. iggins: However, we are saying that they ought to be responsible for their actions; just as we are expected to be responsible for ours. Mr. hapleau: The comment Mr. Woods made in saying that the bond was astronomical, if you want to speak to that in terms of whether it is astronomical on the face of it, depends on how you want to characterize it. It ils astronomical, but it is absolutely necessary, and very reasonable. Ms. Derbeck: I would say one could look at the possible total losses, and the economics of future business in the City of South Bend. Five million dollars would be a drop in the bucket. Mr. Wiggins: This project means jobs. Actually what is transpiring here is that it will establish the economic future of this whole area for the next fifty years and conversely, if it fails to happen, it will also have an adverse effect on the economy of the area for a long period of time. -10- Redevelopment Commission Meeting Fri day, February 17, 1978 DISCUSSIONS: Mr. Nimtz: Is there anything further? Ms. Derbeck: Mr. Brownell and Mr. Butler were saying that you thought you could go ahead now with the appraisals, etc. even under the stay? Mr. Nimtz: No, no. Absolutely not. The point is ... if the stay is gra ted, we can't get appraisals, work on relocation, or anything; the whe is stop. Ms. Derbeck: I thought you said the stay was already granted? Mr. Nimtz: A stay has been granted, but only until Monday, February 20. Ms. Derbeck: In other words, if they don't put up a bond, or if a bond is set.... Mr. Wiggins: If Judge Miller sets a bond, and they don't come up with it, then.... Ms. Derbeck: Then the stay wouldn't be in effect. If the stay is not in ffect, do you feel you can do all these things mentioned while the app al is going on? Mr. Robinson: Not necessarily. It would be up to the Judge and what his decision is. He might not require a bond, and put the stay in effect. Mr. Chapleau: If the Judge does not require a bond, and he grants the sta , and makes it known that the stay is in effect, then it is our duty as zttorneys for Redevelopment to interpret the law, and if we feel he is wro g, then we have to make a decision as to whether we are going to direct Redevelopment to proceed anyway. Whether we are going to go to the Court of ppeals or the Supreme Court to overrule the trial court. There are sev ral possibilities, and I can't tell you what we would do. Ms. Derbeck: One would be to direct redevelopment to go ahead anyway; to o to the court of appeals or the Supreme Court and to hear the matter of he stay and for immediate hearing on the stay, or to do nothing and obe the order. Mr.lNimtz: Anything further? Ms. Derbeck: Have you heard anything further about whether those women are really going forward? -11- Redevel pment Commission Meeting Friday, February 17, 1978 DISCUSSIONS: Mr. Chapleau: This is another thing, we don't know whether they are goi g to appeal this case or not. Mr. Tim Woods says he thinks they are going to, but we don't know if they are going to or not; they mig t not do it. Ms. Derbeck: Is there more money involved for them outside of the fiv million? Mr. Mr. Chapleau: Right. Wiggins: There is also the sale of the land. Mr. Chapleau: The rule says "damages ", and I think damages would include the cost of hiring these appraisers, who have already done wor< and the other costs we have already incurred. It all goes down the drain if we don't succeed. These are damages the poor taxpayers pay. Mr. Butler: If the Court of Appeals and /or the Supreme Court rule in our favor, then by that time, it is too late; in that case we incur dam ges. Ms.l Derbeck: When is the deadline that you have to turn this over? Mr. Butler: April 1979, is the deadline. I don't recall if it is April 1 or May 1, which means that we have to have the property, and we hav to have title through clerk's deed or deeds from the property owners. Mr. Wiggins: That has to allow time for possible condemnation hearings, and all the rest of that sort of thing. Ms.l Derbeck: Which is a little more than a year away. Mr. Brownell: The other item that appears with this is that the owners of properties are calling us about completing the sale, and we can't go ahead with it. -12- Redevelopment Commission Meeting Friday, February 17, 1978 DISCUSSIONS: Mr. Butler: We were anticipating that by this time we would be well into the negotiations with the property owners. Within a month we would be filing condemnation actions on those where we were able to negotiate the purchases so we are well behind already. Mr. Wiggins: How about the guy who is stuck with a piece of property, or has a piece of property that he is not currently using. He is getting no ncome from it, he anticipated selling it to us, and now he can't sell it to us; he also has damages. Mr.lBrownell: We have precisely that situation. Mr. Chapleau: He is the one that really suffers.-.he's biting the bullet on hat. Mr. Brownell: We also have a situation where the owner of a property des res to sell his property, and we can't buy from him. We have another man where the roof is leaking on his property, and his tenants are com- pla ning. Now, he will have to spend money fixing up the roof. He would liki to sell it to us and have it torn down. We have all these situations but there is nothing I can do except tell them that we are under a stay by ourt order, and that we can't proceed. ADJOURNMENT Thee being no further business at this time, motion to adjourn the meeting was made by Mr. Don Wiggins, seconded by Mr. Robinson and car ied. The meeting was adjourned at 10:35 A.M. NEXT SCHEDULED MEETING The next Regular Commissioner's Meeting will be March 3, 1978. i � _7wM. - W110611 V -13-