The fight with Waterford Township: communication and transparency issues again bite City of Northfield in the ass

Five items to suggest that the City hasn’t yet learned the importance of communications and transparency:

  • bite_me_toilet Posted to the Nfld News at 7 pm yesterday: City may have violated Open Meetings Law. “Five City Council members have now confirmed that they met individually with the city administrator to discuss withholding tax reimbursements from Waterford Township, an apparent violation of state Open Meetings Law.”
  • Wed. Nfld News: Fighting words arise over 30-year-old annexation agreement: “The city’s decision to review the agreement at next Tuesday’s city council meeting is “unethical,” since it doesn’t provide enough time for Waterford to weigh its legal options, Dudley said after discussing the issue with city officials at the township’s regular meeting on Monday night.”

  • Managing Editor Suzy Rook in her Writer’s Block column: Jim Pokorney says he didn’t intend to say the News acted unethically. “During a discussion of an apparent “security breach” at City Hall in which the newspaper ended up with a document the city administrator says he asked staff and council members not to share, Pokorney said we should have given the document back to its rightful owner.”
  • Jane McWilliams observer report: “There are yet unanswered questions about whether and how the staff got direction to request the memorandum, as there has been, to the knowledge of the League observer, no recent public discussion about the matter.”
  • Council Betsey Buckheit’s blog post, What I’m still learning: "Have staff overstepped their authority? Yes, I believe they have. Why have they done this? Because the Council (and previous Councils – this is an entrenched cultural problem, not a one time error) has allowed it to happen. Transparency in the workings of city government is paramount.   The council has failed to make clear that anything that smacks of secrecy, or strategic withholding of information, and or non-public process are all unacceptable.

185 thoughts on “The fight with Waterford Township: communication and transparency issues again bite City of Northfield in the ass”

    1. If any one would like to see the opinion of Mark Johnson, who represented Waterford, please let me know.

      Liz Messner

  1. I would be happy to if someone could give me direction on how to do so. Can drop off a hard copy anytime.

    Liz

    1. Liz, is it only available in hard copy? If you’re going to be at your store tomorrow (Thurs.) I can stop by and pick it up – will scan and get back to you.

  2. Thanks for all the paperwork, everyone. Very interesting reading, even for a non-lawyer type like me. And to my non-lawyer eyes it sure looks like the Waterford township lawyer makes the more compelling argument. Don’t get me wrong; I think paying for lost taxes indefinately is pretty much bogus. But it looks like Waterford knew what they were doing back in 1980 when they got this agreement!

      1. Patrick: Do you think so? Waterford doesn’t have anything more than what it started with. Northfield is getting all kinds of additional revenue, and now it wants it all.

    1. Phil,

      Reading the reimbursement provision suggests that Waterford is only getting the amount of property taxes that it would have received if the property had remained in Waterford as undeveloped property; it looks as if Northfield gets all of the difference between the developed and undeveloped price. On first glance, I don’t how it could be more fair.

      I think we also need to remember that the property owner is still paying the same amount of taxes to the government. So, this dispute isn’t going to create additional tax wealth. Fighting will cost both entities attorney’s fees. And, if Northfield isn’t careful, they might just end up paying fees for both lawyers and end up without any additional revenue.

      1. RE: Patrick’s 105.3

        Patrick, research Hostile Annexation. It’s messy but allowable … and potentially overrides the veto. The outcome, as I understand, is determined by a state agency reviewing all the circumstances and making the “greater good” decision.

        Unfortunately, I believe in most cases, the decision would come down on the side of the property owner’s request and the City’s desire.

        David Ludesher seems to have the stronger hand of logic and reasoning on this question. I’m sort of amazed some of the Councilors don’t follow suit.

        What is it about a contract that you don’t see as binding? And more to the point, what of Northfield’s motivation … what’s its gain?

        Regardless, As Ms Messner points out, over and over, Waterford, situated in the Metro Counties, has a unique position in the matters of its sovereignty and voice in these matters.

        Again, what’s Northfield’s motivation, keeping the staff busy?

        .

      2. Victor,
        I have done a bit of research on the subject; check out my links in posts earlier in this discussion.

        As you say,

        Unfortunately, I believe in most cases, the decision would come down on the side of the property owner’s request and the City’s desire.

        I agree, although I’d leave out the “Unfortunately.” I’d say that is as it should be, given the goals of MN annexation law.

        I support a carrot-and-stick approach to this negotiation. I would be very happy to see a renegotiated annexation agreement, which removes the absolute veto and the lack of an end date. Failing that, I believe that it is in the city’s best interests to pursue other paths to a policy that will be consistent with the long-term well-being of our community.

        Unfortunately, the present agreement is not sustainable over the long term.

    2. David,
      Waterford extracted an absolute veto power, supposedly in perpetuity, over annexations. It didn’t have any such veto power under state law without the agreement, and as far as I can tell, it is the only township in the state that has achieved such a level of power and control over the growth of the adjacent city.

    3. Patrick: True enough. But, as Carol points out, there wasn’t anything unfair about what Waterford did.

      1. David,
        I didn’t say Waterford did anything unfair. I said, “Well, they certainly did achieve a very advantageous arrangement for themselves.”

  3. Tracy – What can you tell us about the map in the Comp Plan which illustrates the extension of Thye Parkway to Highway 3 (Map 7.4 Future Roadway Functional Classification, in the Transportation chapter.) ? Is there an anticipated time line for such an extension? Would it require annexation or could right of way be sought from property owners for it to be created?

    In the recent discussion at the joint meeting between the township and the city, the extension was mentioned. It would help if more people knew what the comp plan envisions about this. Do you know whether anyone in the city mentioned this concept to the Waterford Board when It was included in the comp plan? I can understand the need for an east west route to Highway 3, but because this goes through the township, it is a concern for the folks there.

  4. Jane, that’s an excellent point, I’m glad you brought it up.

    Even though multi-modal transportation and streets are an integral part of planning and land use, Northfield has kept it in a separate silo, which is something that should be addressed and corrected.

    When the Comp Plan was revised and updated, the Transportation Plan was also undergoing a thorough revision, and the Planning Commission was told that the Transportation chapter of the Comp Plan would essentially be a condensed, conceptual version of the Transportation Plan; the commission had very little input.

    I believe the the extension of Thye Parkway to Hwy 3 was first found on a concept map–it’s a logical idea–and eventually became institutionalized in the Transportation Plan. I’m not sure if it was deliberate, or if it’s just one of those things that happen when a series of people inherit documents and ideas whose origin is unknown to them.

    Ross could probably speak to this issue better than I. It was a particular interest of his when he was Chair of the Planning Commission, and I think he knows a lot more of the history than I do.

    Ross?

    1. Tracy –

      Gosh, we’re talking about a pretty dusty corner of my brain with this topic. By the way, you owe big-time for dragging me into this discussion with your e-mail.

      As I recall, our work included reviewing the 1998 City of Northfield Transportation Study, the 1998 Trail Master Plan, the 2000 Northfield Industrial Corporation Plan, and the 2001 Comprehensive Plan Transportation Task Force. There may have been a few other studies or reports that I’m not recalling at the moment.

      There seemed to be ten or twelve themes or projects that were common to all these studies, issues that were raised, discussed, and rarely resolved, over the years. One of these projects was often referred to as the “Northern By-pass”.

      To summarize to the best of my ability, there are big trucks that pass through Northfield, many, if not most, traveling along Highway 19, going from west to east or east to west. These trucks, or their drivers, have no intention of stopping in Northfield, even to eat at one of our many fine restaurants.

      This “through traffic” apparently puts some stress on our system. In particular, the approximately one-quarter mile segment where our great north-south road, Highway 3, and our great west-east road, Highway 19, run together, from 5th Street to 2nd Street, experiences some undesirable side-effects from this traffic.

      So, for about, I’m guessing, twenty years, folks have talked about a “Northern By-pass” taking some of the traffic out of this already very busy segment. I’m pretty sure that every study or plan had some kind of Northern By-pass at least mentioned, if not drawn.

      Apparently, due to the substantial development of housing, it keeps shifting further north. Originally, North Avenue was discussed. But we “lost” North Ave. to development, so then it was Thye Parkway.

      Some have suggested that Thye Parkway can no longer be an option. They talk about 320th Street. Others say that if it’s too far north of Highway 19, no one will take it and they’ll continue to come through the intersection of Highways 19 and 3.

      I can understand that the Waterford Township people don’t want it in their backyards. I’ve heard that it was the North Avenue people who kept it out of their backyards. I’ll bet that the folks along 320th Street don’t want it in their backyards either.

      As I recall, the “traffic scientist” that presented to us modeled what would happen if we never created a Northern By-pass. According to him, at some point the traffic on Highways 19 and 3 would get so bad that people would start taking side streets. I believe that he mentioned St. Olaf Avenue and Greenvale Avenue as being likely candidates for an improvised by-pass.

      Now, we’re living in a new reality. Maybe Northfield, and the surrounding areas, won’t continue to experience the same growth, or change, that we did in the recent past. Perhaps we don’t have to worry about a Northern By-pass for another ten years…or, who knows, maybe another twenty.

      Hey, we could hire another consultant and get another study or report written. Maybe we can draw the map differently for this one.

  5. On behalf of Waterford Township I will say that in the 11 years I’ve been on the Board, there have been no explaintions as to why part of Waterfoed is inculded in the prioity growth area, the urban expansion area or why Thye Parkway goes through our Township. Yes, we had been to the open houses and were told there ‘not to worry about it, it’s just something on the map.’ At one point residents in that area came home to find survey flags on their property with no previous mention of survey work or any reason for it. The Town Board has not been approached about any of this. This is why I questioned it at the meeting, unfortunatly it seems that no on knows. The extention of Thye Parkway also incluldes parts of Greenvale Township, as well as crossing a paved road and 2 railroad tracks. There has to be a better access route available, as the cost of working over these existing areas would be great.

    Liz Messner
    Waterford Supervisor

  6. Thanks for all the primary documents! That’s much needed in any discussion like this.

    As I see it, Waterford did a good job of negotiating and Northfield doesn’t like it. Yeah, so what! Parties can and do agree to anything, and Northfield can whine and cry all it wants but they can either entice Waterford to alter their position, or they can try to get the agreement voided by a judge. Waterford is under no obligation to alter the agreement. Northfield were represented by counsel, the City Council stamped their approval on the agreement, and have far greater monetary, politlcal and other resources and power than Waterford — Northfield can’t argue it was an uneven playing field, some extreme disadvantage. In either case, abusive behavior will not help. If I represented them (again, more free advice, worth whatever), I’d push them to focus on what would entice a change, and to lay off the negative pressure — each push by Northfield makes a Northfield-favorable outcome less likely.

  7. As someone who periodically needs to get to the Northfield Hospital as quickly as possible, I have to say that east-west travel on the north end of Northfield is problematic, at best.

    All those twisted, slowly-winding suburban roads up there make a new north-side thoroughfare an unfortunate, but eventual, necessity.

  8. Carol,
    There’s no reason that the mistakes of the past are required to be carried on in perpetuity.

    1. Patrick – Ummmmmmm, yes there is! Unless the parties AGREE to change the agreement, yes, there is a requirement — it’s that little matter of a legally binding contract. If the City doesn’t like it, it will have to work something out if they want something different, and it’s in their best interests to focus on what actions will get them where they want to be and what they would have to give Waterford to get them to alter their position. This is an example where “enticement” would be a good thing…

      1. Carol,
        Ummmmmmm, that’s only true if the courts agree with your interpretation of whether or not the 1980 agreement is validly arranged, and truly binding in perpetuity. At least some legal opinions hold that it is not.

        In a matter of this long-term importance is in dispute, I fully support renegotiation. Failing an acceptable renegotiation, I support taking our case to a court to determine the legal truth of the matter.

      2. Patrick: It’s not clear why this issue is important. Do you know what the potential financial gain is? (I heard $3000 per year from someplace.) Prudence dictates that the consequences of the options be considered. There is no sense going to litigation just to discover who can p*ss further.

        Another thing to consider – someone is going to have to break the contract before the court is going to interject itself into the action.

        Think about it this way: if Northfield does break the contract, and Waterford sues and wins, do you think Waterford is ever, ever, ever going to negotiate with Northfield? It will have Northfield by the short hairs.

        A win for Northfield might be worse. Think about all the bad blood it would create. How is Northfield going to be able to negotiate with Greenvale, Bridgewater, Waterford, Dundas, etc. if it (we) have a reputation for breaking our contracts?

      3. Thank you, David, for so artfully expressing it in true legalese. It’s all about “p*ssing” and “short hairs” in something that is not consistent with being a good neighbor, much less a contractual party. Pushing like Northfield is is just bad policy, a classic example of how not to do it, boneheaded… I hope the City will back off and rework its approach to something that might work and won’t harm relations with its neighbor.

  9. I agree with Patrick in 111.1.1 above. I suspect it may be more an issue of contract law than annexation law.

    It’s a specious argument to say that “Northfield and Waterford determined that no termination date should be included in the agreement.” That’s just silly. If they had truly determined that, they would have tried to include some language that ensured the agreement was for 100 years, or in perpetuity, or whatever. They wouldn’t have just forgotten to include it.

  10. I’ll go back to my comment in #88..: The party seeking a change to a contract has the obligation to bring forth the changes they are seeking for the other party to evaluate.

    Two attorneys have commented here that Waterford has a valid contract: David Ludescher and Carol Overland, and of course we have the opinion of the Waterford attorney.

    What the heck is the big whoop with NF getting its act together and presenting the WF supervisors with a list of changes the NF council would like to make?

    Wouldn’t that be a lot simpler than all the posturing back and forth?
    Just do it…

    1. Tracy: I think that’s the issue although I am having a tough time figuring out if there is something else driving this discussion. Do you know how much we are talking about each year?

      (FYI, I don’t think Northfield is “paying” Waterford anything; Northfield is giving Waterford the agreed share of the tax receipts. Isn’t that right, Liz?)

      As a bit of irony, Northfield is collecting $10,000’s ($100,000’s?) of tax dollars every year of County and School money and putting it into the “Streetscape Fund”. Look for the County and School to start their own whining if Northfield keeps it up.

  11. Patrick – true enough, and that would require one of the parties to take it to court. And again, I’d strongly argue against taking it to the judge because I doubt they’d win, and the PR consequences would be high.

    Tracy – I also would strongly argue against taking the position that “If they had truly determined that, they would have tried to include some language that ensured the agreement was for 100 years, or in perpetuity, or whatever. They wouldn’t have just forgotten to include it.” That won’t fly in the court of legal intent. And yes, it’s obviously about contract law — it’s about a contract!

    Patrick and Tracy – Color me biased, I’m an attorney! For both of these arguments, it’s not a position I would want to take, I think it’s asking for Rule 11 sanctions, well, maybe that’s a bit extreme, but I wouldn’t stick my neck out because as arguments, I don’t see any legal merit.

  12. Forgive me for asking, but I fail to see how a new road (Thye Parkway) running west to east through Greenvale and Waterford Township makes it easier to get to the hospital. The hospital is to the west not the east. There is also no developement along what is proposed for Thye Parkway, nor can there be by Waterford Township Zoning Standards. We have had no complaints about hospital access from our residents or business owners or the people involved with the ambulance service.

    I would also like to point out that our Comp Plan and Zoning Ordinance mesh with what Northfield is looking for along it’s borders – green space. We have alot in common with the overall vision Northfield has, but we will retain the right to govern it for ourselves.

    Liz Messener
    Waterford

  13. Here’s the facts regarding the “payments”. We prefer call them a tax revenue sharing item. Which is what is is.

    For the years 1999 thru 2009 a total of $ 247,573.51 was generated and collected by Northfield for local tax. Of this a total of $ 37,933.36 was returned to Waterford Township based on the formula in the Annexation Agreement. This leaves a total net tax of $ 209,640.36 for Northfield. The property tax information is direct from the Dakota County Auditors Office who had faxed me the last 11 years of property tax statements for the Sheldahl Property in April of this year. This information was given to the City Councilors in April, and reviewed again at the meeting on June 21st.

    Liz Messner
    Waterford Township

    1. Liz – THANK YOU (yes, I’m shouting!) for posting the specifics. At an average of $3,800/yr, I hope the City is carefully considering the cost/benefit analysis of its options. I’m rolling my eyes… I can’t see how it could be worth the battle it would be.

  14. I believe that the council is less concerned about the monetary issue than they are about language in the 1980 Joint Resolution which seems to allow Waterford to decline to approve an annexation. Take a look at it and see what I’m referring to: http://www.ci.northfield.mn.us/assets/w/Waterford-Annexation-Discussion-Att-3.pdf

    This is from the packet of the April 13, 2010 council work session at which they met with the Waterford Town Board.

    Thanks, Ross, for the planning history. I mentioned the Thye Parkway “plan” because it seemed to me at the June 21, 2010 joint meeting it was a concern to Waterford. My greatest worry as a Northfield resident, is as you sugges, Carol in 111.1.3, that we haven’t been very “good neighbors” in the way we’ve handled discussing the Joint Resolution with our neighbors or informing them of our planning goals. Why can’t there be more regular communication with Waterford about our mutual planning policies and goals? I think this could lay the foundation for avoiding potential conflicts and could encourage focused discussion on resolving those which arise (or are codified in contracts.)

    It is never too late to start!

    1. Jane: Whomever is driving this “discussion” from the Northfield side needs to be more open about the political motives. As far as I can tell, Northfield has offered Waterford nothing to change the agreement. All it has done is threaten them using a hired gun out of the Twin Cities.

      Why should Waterford want to discuss anything? Northfield should give them an offer to change the agreement from what it is to whatever they want it to be, and provide Waterford some incentive to change the agreement.

  15. Well, as the people who know me might know, I have long been a proponent of regional planning. I have suggested that the two cities (Northfield and Dundas) as well as the surrounding townships need to address some issues not as their own stand-alone issues, but rather as partners with some shared visions. For example, transportation is an obviously regional problem, as township roads are heavily impacted by where the cities expand and where they guide traffic (e.g., Decker Ave), where Rice county sees need (e.g., CSAH 1) and where the state sees need (e.g., MN 19). The road system should be a cooperatively designed network that is well modeled once, with that model being maintained, updated and used by all government units to identify current and future needs. Other less obvious examples include water and sewer (e.g., the cities shared sewer plant and contingency plans to share water), schools, power (both the grid and local generation) and food production (farming). These are all issues that cross jurisdictional boundaries.

    We know there are local groups working towards the goal of regional planning. Balancing the needs of the collective with the property rights of the individuals is a balancing act that requires that our elected officials see themselves as both representative of the voters but also as teachers and decision makers. We do not hire them (through the ballot box) to simply reflect our demands — that way lies the madness of mob rule — nor do we hire them to be our masters. We hire them expecting them to become more informed than we are, to use that information to guide their decisions and to clearly explain their motives, their decision criteria and their ultimate decisions to us. We are the clients — not always right — but certainly expecting our public servants to serve.

    This LGN conversation has covered a lot of very useful background information, and it certainly informs my expectations for my future work (as a township supervisor for Bridgewater Township) negotiating with Northfield and Dundas. As a mediator for the Rice County Dispute Resolution Program I have learned many things about how guided discussions can bring two conflicting parties together to a mutually satisfactory condition.

    The key is good communication, and communication is not what I say, but rather what you hear. Without understanding, we have only posturing and rhetoric. The most critical component of this conversation is the signed agreement from 1980. That is the governing document. But the question has to be “what is the City trying to do?”

    At a Northfield City Council meeting I spoke out on the proper relationship between elected officials and their staffs. I said that if the elected city councilors and the elected township supervisors wanted to paint their roads red in the city and white in the township and candy stripped for the shared roads, then the role of staff and the legal counsel they employ is simple.

    • Inform us if we can afford it (money, such a nasty topic).
    • Inform us if it is legal.
    • And help us to make it happen.

    I suggested that we are much more partners serving the people than businesses competing for income, and as partners, we should be using our staffs and counselors not to find the loopholes and obfuscations that would let us “win” but rather to find the loopholes and obfuscations so that we can eliminate them. The first step is to have a shared vision, the next step is to use our staffs to help us reach that vision.

    So what do I take away so far from this conversation?

    • Northfield is only paying about $3,000 a year, so I presume money is not their primary issue (it’s a red herring).
    • Northfield appears to have no immediate need to expand northward, and there are no Waterford residents pounding on the city’s doors to be let in.
    • The northern bypass problem is a big one, and a regionally oriented solution would give people 10-20 years to get used to the idea of a highway coming through their back yard. The question is whether Northfield should continue to plan to NOT use North Avenue (extended) and continue to look further north.

    Regional planning would certainly help. Dundas could not come to terms with the idea of straightening out CSAH 1 to go through downtown, and tried to push it south. After working with the regional partners, there is now a compromise route that attempts to satisfy all the major players, or at least dissatisfy them equally (Northfield needs a southern bypass, Dundas needs its downtown, Rice County needs an east-west route and the township residents need to know where the roads might go if they want to join Dundas from the north side). Unfortunately, this compromise route has few champions as it is not optimal for any one jurisdiction. But the regional nature of the plan suggests that in any open meeting there will be representation to ensure that politics as usual does not result in another NIMBY solution (the active parties taking advantage of the relatively inactive parties).

    So, what about this conversation? I think it is time for the elected officials to meet with each other to start to figure out what they want their staffs to make happen. And those meetings should be cross-jurisdictions and guidance generating.

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