Agenda - Council - 04/08/1980 - Laserfiche WebLink

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county ditch which by-passed the property of the county board member although the existin§ ditch cut through a substantial area of his property. Nevertheless, he participated in preliminary pro- ceedings before the board regarding the feasibility of the improvement and the need for a preliminary survey though he absented himself from the final hearing. In using these facts as additional support for sustaining the order of the trial court vacating ~he county board's order, the Court said that since the preliminary proceedings may have a sub- stantial effect, on later actions taken at the final hearing, "it would seem clear that under well- established principles, he should not have patti- cipated in any of the proceedings regarding this 'project." The £enz case, decided 16 years later, speci- fically held that there is no disqualifying conflict of interest where four of the five managers of a watershed district own land which ~ill be benefited by the proposed district. The Court drew a parallel between the facts in the Lenz case and the situa- tion where members of a municipal council assess lauds owned by them for municipal improvements. This potential conflict of interest, the Court-said, does not itself disqualify them from participating ia the improvement proceedings. This view is in ~ccord with most of the cases elsewhere in the country, though there are some decisions to the contrary. Lewis v. Forest City Special Improvement ~isrrict, 156 Ark. 356,246 S.W. 867,870 (1923} - council member not disqualified because as owner he signed, petition for improvement; Jeffrey v. ~?a!h~as, 232 Cal. App. 2d 29, 42 Cal. Reptr. 486 (~965) formation of improvement district; Corliss v. Highland Park, 132 tVlich. 152, 93 N.W. 254, 95 N.W. 416 (1903) -formation of improve- ment district; City of Topeka v. Huntoon, 46 Kan. 634, 26 Pac. 488 {1891)- establishment of sewer district; Pursiful v. Harlan, 222 Ky. 658, 1 S.W. 2d 'i043 (1928} - change in street grade;Hamrick ~;. ']'owtt of AIbertville, 21 Ala. 465, 122 So. 488, 456 (1929) - street improvement; Goff v. Nolan, 62 How. Pr, N.Y. 323 {1881}- street widening. it is .conceivable that property ownership by a council member might result in more favor- able treatment of that property in the assessment. If that were to result, the assessment might be challenged for arbitrariness and set aside, whether or not the council member participated in the assessment proceedings. 6. Condemnation of land. There should be little doubt that a council member's ownership of land or a substantial interest, in land is sb direct and significant as to preclude participation by the council member in a resolution for condemnation of the land. (Eways v. Reading Parking Authoriry, 385 Pa 592,124 Atl. 2d 92, 1956.} The Minnesota court has not ruled directly on this question though, in holding that ownership of land ad- joining a proposed highway did not disqualify a board member from participating in proceedings to establish the highway, it hinted that its answer might have been different if the owner had been entitled to damages because the highway went. through his property. (Webster v. Board of Count), Commissioners of County of Washington, 26 Minn. 220, 2 N.W. 697, 1897.} .. 7. Street vacation. The Minnesota court has not passed on this question, but the Attorney General has ruled that under the reasoning of the case of Petition of Jacobsen, 234 Minn. 296, 48 N.W. 2d 441 (1951), a-council member who has an interest in property abutting a street proposed 'to be vacated may not participate in the street vacation proceedings. (A.G. Op. 396g-16, LMC '130d.) He relied also on Pyatt v. Mayor and Council of Borough of Dunellen, 9 N.J. 548, 89 Ail. 2d 1 (1952}. That case held that two. 'council members who were employees of 'the company whose plant abutted the street to be vacated were "infected with the taint of self- interest, that a street vacation proceeding before the council was judicial in character, and the or- dinance vacating the street.was therefore voidabib because of the ancient principle that "no man shall be a judge in his own cause." To the same effect is Smith v. City of Centralia, 55 Wash. 573, 104 Pac. 797 0909}'.. ' it is argUable that a street, vacation is not essentially different from the establishment of the street in the first instance as to which abuttifig owners have been held not to have a disqualifying interest. See 4 above. However, in view of cases like those cited above as welt as the Attorney General's ruling based on the Jacobsen case, it would be wise for a council member owning pro- perry abutting a street proposed to be vacated to refrain from participating in vacation proceeding. before the council -'~' .. 8. Zoning decisions. No Minnesota case 'has dealt with the conflict of interest principle as applied to council decisions in zoning matters. Probably whether or not the member's property ownership disqualifies him from participating in the council action will depend, to some extent at least, on the amount of that interest as compared to all land affected by the decision. At one extreme is adoption of a new zoning ordinance or a compre- hensive revision of an existing ordinance which may have an impact on all property in the city· Here the council member's interest is not personal and he should be able to participate. Otherwise, since almost all council members may be property- owners, no such ordinance could ever be adopted. At the other extreme is the application for a zoning variance or special use permit applying only to property owned by the council member. Clearly he has such a special interest here to disqualify him from participating in the proceedings except to submit the requisite application to the city. Between