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HomeMy WebLinkAboutUntitled • LAW OFFICES OF ' (( )) 1 Eckherg, Lammers, Briggs. Wolff & Vierlings, . . . I 01835 Northwestern Avenue Lyle .I. Lelcberg Stillwater. Minnesota 55082 Susan D. Olson [. James 1 . Lammers (612) 439-2878 Dave K. Snyder Robert G. Briggs** FAX (612) 439-2923 Marl, .l. Vierling* Paul A. Wolff Gregory G. Gallon* Direct Dial (612) 351-2118 09414996) Thomas J. Weidner* *Qualified Neutral Arbitrator& Mediator *Qualified Neutral Arbitrator *Certified Rea!Estate Spceialiat September 26, 1997 RAMSEY COUNTY COURT ADMINISTRATOR k ! i} CIVIL DIVISION + RAMSEY COUNTY GOV'T CENTER II SEP 9 1997 15 WEST KELLOGG BLVD 1U 1 SUITE 600 ST PAUL MN 55102 RE: City of Lake Elmo and Town of Baytown v. The Minnesota Municipal Board City of Oak Park Heights, Intervenor Court File No. C9-97-8893 Dear Administrator: Enclosed herewith for filing please find Memorandum of the City of Oak Park Heights in Opposition to Petition for Writ of Mandamus, Notice of Motion and Motion to Intervene, Answer in Intervention by City of Oak Park Heights, Memorandum in Support of Application for Intervention and proposed Order in regards to the above-referenced matter. Also enclosed please find our firm check in the amount of $132 . 00 to cover the cost of the filing fee in this regard. If there is anything further that you require, please feel free to contact me directly. Yours very truly, - '71( Mark J. Vierling MJV/smp Enclosures cc : Mr. Michael Robertson/ • • I mit LAW OFFICES OF 111 r Eelcber . Lammers, Briggs, Wolff & Vierlin , P,L.L.P. 1855 Northwestern Avenue Lye J. LL I. II Stillwater. Minnesota 53082 C f CK�crg Suntan D. Olson James F. Lammers (612) 459-2878 !)avid K. Snyder Robert G. 13riggst. FAN (G 12) -13�)-2023 Mark ._�. ��ierling* Pant A. Wolf( Gregory G. Gall,* Direct Dial (612) 351-2118 (191.1-1996) Thomas stomas J, Weidner* *Qualified Neutral Arbitrator& Mediator *Qualified Neutral Arbitrator September 26, 1997 *Certified r;ed steal Estate Special;et MR DAVID T MAGNUSON ATTORNEY AT LAW 333 N MAIN STREET P 0 BOX 438 STILLWATER MN 55082 RE: City of Lake Elmo and Town of Baytown v. The Minnesota Municipal Board City of Oak Park Heights, Intervenor Court File No. C9-97-8893 Dear Mr. Magnuson: Enclosed herewith and served upon you by U. S. Mail please find Memorandum of the City of Oak Park Heights in Opposition to Petition for Writ of Mandamus, Notice of Motion and Motion to Intervene, Answer in Intervention by City of Oak Park Heights, Memorandum in Support of Application for Intervention and proposed Order in regards to the above-referenced matter. It is our understanding that you have agreed to accept service on behalf of the Town of Baytown Township and We thank you for your courtesies extended herein. Yours very truly, *? / Mark J. Vierling MJV/smp Enclosures cc : Mr. Michael J. Robertson Mr. J. Scott McDonald • T LAW OFFICES OF r �/ Eekberg. Lammers. Bri��ss. Wolf �/'i rling. P.L.. P• �-' 1835 Northwestern Avenue Lyle J. t,He{c6er Stillwater. Minnesota 55082 Susan I). 018011 .)amen F. Lammers (612) 439-2878 David K. Snyder Robert G. Briggs** FAX ((j 12) 439-2925 baric .{. Vierling* Raul A. Wolf Gregory1G. Galler• Direct Dial (612) 351-2118 (1911-t99G) Thomas J. Weidner* *Qualified `eutrat .Arbitrator& Mediator *Qualified Neutral Ar6.trator September 26, 1997 *Certified Real Estate Specialist MR KENNETH E RASCHKE ASSISTANT ATTORNEY GENERAL 525 PARK • SUITE 200 ST PAUL, MN 55101 RE: City of Lake Elmo and Town of Baytown v. The Minnesota Municipal Board City of Oak Park Heights, Intervenor Court File No. C9-97-8893 Dear Mr. Raschke: Enclosed herewith and served upon you by U. S. Mail please find Memorandum of the City of Oak Park Heights in Opposition to Petition for Writ of Mandamus, Notice of Motion and Motion to Intervene, Answer in Intervention by City of Oak Park Heights, Memorandum in Support of Application for Intervention and proposed Order in regards to the above-referenced matter. • It is our understanding that you have agreed to accept service on behalf of The Minnesota Municipal Board and we thank you for your courtesies extended herein. Yours very truly, 5/ Mark J. Vierling MJV/smp Enclosures cc : Mr. Michael J. Robertson Mr. J. Scott McDonald • LAW OFFICES OF ' � Eckberg. Lammers. Briggs. Wolff & Vierling. 1835 Northwestern Avenue Lyle .1 EeLC6crg Stillwater. Minnesota 55082 $„yan D. OlsonJames F. Lammers[[a (612) 439-2878 David K. Snyder Robert G. Briggs*. FAX (612) 439-2923 Marl, J. Vierling* haul A. Wolff Gregory G. Gaiter* Direct Dial (612) 351-2118 (19.1-1-199G) Thomas .1. Weidner* *Qualir,ed Neutral :\r6;trator& Mediator .QYa',r,ed Xeulfel Ar6,lrator September 26, 1997 *Certified r,ed heal E t4tr SPrw el,al MS MARY KUEFFNER CITY ADMINISTRATOR CITY OF LAKE ELMO CITY HALL 3880 LAVERNE AVENUE NORTH LAKE ELMO MN 55042 • RE: City of Lake Elmo and Town of Baytown v. The Minnesota Municipal Board City of Oak Park Heights, Intervenor Court File No. C9-97-8893 Dear Ms. Kueffner: Enclosed herewith and served upon you please find Memorandum of the City of Oak Park Heights in Opposition to Petition for Writ of Mandamus, Notice of Motion and Motion to Intervene, Answer in Intervention by City of Oak Park Heights, Memorandum in Support of Application for Intervention and proposed Order in regards to the above-referenced matter. Yours very truly, Mark J. Vierling MJV/smp Enclosures cc: Mr. Michael J. Robertson ✓ Mr. J. Scott McDonald A6 S I STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Court File No. C9-97-8893 City of Lake Elmo, a Case Type: Other - Mandamus Minnesota municipal corporation, and the Town of Baytown, a Minnesota Township, Petitioners, NOTICE OF MOTION AND MOTION TO INTERVENE vs . The Minnesota Municipal Board, Respondent, and City of Oak Park Heights, a statutory City and political subdivision of the State of Minnesota Applicant for Intervention, and David R. Screaton Partnership; Oakgreen Farms, Inc. ; Low & Associates, Inc. ; A.L.K. Partnership; Frederick Kemper; Calvin J. Brookman; Bernard and Loella Nass, Applicants for Intervention. TO: THE CITY OF LAKE ELMO AND ITS COUNSEL, JEROME FILLA, 300 MIDWEST FEDERAL BUILDING, 50 EAST FIFTH STREET, SAINT PAUL, MINNESOTA 55101; THE TOWN OF BAYTOWN AND ITS COUNSEL, DAVID T. MAGNUSON, 333 NORTH MAIN STREET, SUITE 202, P.O. BOX 438, STILLWATER, MINNESOTA 55082; THE MINNESOTA MUNICIPAL BOARD AND ITS COUNSEL, KENNETH E. RASCHKE, JR, ATTORNEY GENERAL'S OFFICE, 525 PARK, SUITE 200, SAINT PAUL, MINNESOTA 55101 : I PLEASE TAKE NOTICE, that on the 13th day of October, 1997, at 3 : 00 p.m. , or as soon thereafter as counsel may be heard, before a Judge of District Court at the Ramsey County Courthouse, 15 West Kellogg Boulevard, Room 1370, St . Paul, MN 55102 . Applicant for Intervention, City of Oak Park Heights, will move the Court for an Order as follows : 1 . Pursuant to Rule 24 . 01 or in the alternative Rule 24 . 02, of the Minnesota Rules of Civil Procedure, the Applicant respectfully moves the Court for an order granting Applicant' s motion to intervene as a party Respondent in the above-captioned matter. This motion is based upon the attached Answer, Memorandum, exhibits and upon the proceedings herein. All responsive pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The court may, in its discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in rulingon the motion or matter in question. Dated: 9-2 Z. , 1997 ECKBERG, LAMMERS :RIGGS, WOLFF & VIERLI, , P.L . vow— By: Mar J. Vierling ( • . 2823) At orneys for City • Oak Park Heights 1835 Northwestern Avenue Stillwater, MN 55082 (612) 439-2878 I STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Court File No. C9-97-8893 City of Lake Elmo, a Case Type: Other - Mandamus Minnesota municipal corporation, and the Town of Baytown, a Minnesota Township, Petitioners, vs . ANSWER IN INTERVENTION BY THE CITY OF OAK PARK The Minnesota Municipal HEIGITS Board, Respondent, and City of Oak Park Heights, a statutory City and political subdivision of the State of Minnesota Applicant for Intervention, and David R. Screaton Partnership; Oakgreen Farms, Inc. ; Low & Associates, Inc. ; A.L.K. Partnership; Frederick Kemper; Calvin J. Brookman; Bernard and Loella Nass, Applicants for Intervention. TO: THE CITY OF LAKE ELMO AND ITS COUNSEL, JEROME FILLA, 300 MIDWEST FEDERAL BUILDING, 50 EAST FIFTH STREET, SAINT PAUL, MINNESOTA 55101; THE TOWN OF BAYTOWN AND ITS COUNSEL, DAVID T. MAGNUSON, 333 NORTH MAIN STREET, SUITE 202, P.O. BOX 438, STILLWATER, MINNESOTA 55082 ; THE MINNESOTA MUNICIPAL BOARD AND ITS COUNSEL, KENNETH E. RASCHKE, JR, ATTORNEY GENERAL' S OFFICE, 525 PARK, SUITE 200, SAINT PAUL, MN 55101 . . • 101 Comes now the City of Oak Park Heights, a statutory City and Municipal corporation and for its Answer to the Petition for Writ of Mandamus served on behalf of the City of take Elmo and Baytown Township, states and alleges as follows : I. Except as is hereinafter admitted or otherwise qualified, each and every allegation within said Petition is denied. II. That this answering Respondent admits the content of the following paragraphs 1, 2, 3 , 4, 5 and 6 . III. That this answering Respondent is without information or knowledge sufficient to form a belief as to the truth of the allegations contained within paragraphs 7 and 9 and thereby denies same putting Petitioners to the strict proof thereof . IV. With regard to the allegations contained within paragraph 8 of the aforementioned Petition, this answering Respondent hereby denies that the Board' s sole function is to approve every resolution submitted under Minn. Stat . §414 . 0325 (1) . The law controlling this matter is not governed exclusively by Minn. Stat . 2 • 1 §414 . 0325 (1) , and an examination of existing law demonstrates that when the Board receives competing petitions for the same parcel of land, it has the authority to use its discretion. V. That with regard to the allegations contained within paragraph 10 of the aforementioned Petition, this answering Respondent hereby denies the truth of the allegation that no comments were received by either Lake Elmo or Baytown within the thirty (30) day period. Petitioners were fully informed and aware of the competing petition and supporting resolution for the same area which was filed with the Board prior to Petitioner' s joint resolution. Furthermore, Petitioners were informed of the Board' s decision to table the Petitioner' s orderly annexation agreement and to grant a hearing on Respondent' s petition for annexation of the same area on August 15, 1997 at the Board's meeting. This answering Respondent admits the remaining allegations of paragraph 10 . VI. The contents of paragraph 11 are hereby denied. The statutory language of §414 . 0325 (1) does not mandate the Board' s approval in this matter for the reasons stated in paragraph IV of this Answer. WHEREFORE, Respondent, City of Oak Park } eights requests the following relief : 3 • 1 . For an Order of the Court dismissing the Petition for Writ of Mandamus as well as an Order Quashing the Alternative Writ of Mandamus . 2 . The City further requests that it be awarded its reasonable attorneys fees, court costs and disbursements incurred within these proceedings. 3 . For such other and further relief as to the Court is just and equitable in the premises. Dated: ?- , 1997 ECKBERG, V ERS, BRIGGS, WOLFF & V 'RLING, P.L. ' . By. "�� Mark J. Vierling #11 Attorneys for City of Oak Park Heights 1835 Northwestern Avenue Stillwater, MN 55082 (612) 439-2878 4 • VERIFICATION STATE OF MINNESOTA ) ss. COUNTY OF WASHINGTON) JUDY HOLST, being first duly sworn upon oath deposes and says that she is the Deputy Clerk for the City of Oak Park Heights, one of the Respondents in the above-entitled action, and that he has read the foregoing Answer in Intervention of the City of Oak Park Heights and knows the contents thereof, and that the same is true and correct, except as to those matters therein stated on information and belief, and as to those matters he believes them to be true. CITY OF OAK PARK HEIGHTS ,3134T//41-6'1- Deputy Clerk Subscribed and sworn to before me this �J'h day of coptstrn 131 n ;, , 1997. t_a, • c Notary Public WI&WW1 NOTARY M!suc-MSN1ESOTA WASHINGTON COUNTY My Commission Expires 1.31.2000 5 • ACKNOWLEDGEMENT Pursuant to Minn. Stat . §549 . 211, the party or parties represented by the undersigned attorneys acknowledge (s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other party; the assertion of an unfounded position solely to delay the ordinary course of the proceedings or to harass; or the commission of a fraud upon the Court. Dated: l - , 1997 ECKBERG, A ^ERS, BRIGGS WOLFF & V . RLING, . .P. By: -. 0181 Mar J. Vierling (No. 11 = Att.rneys for City of Oak Park Heights 1835 Northwestern Avenue Stillwater, MN 55082 (612) 439-2878 6 . • STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Court File No. C9-97-8893 City of Lake Elmo, a Case Type : Other - Mandamus Minnesota municipal corporation, and the Town of Baytown, a Minnesota Township, Petitioners, vs . MEMORANDUM OF THE CITY OF OAK PARK HEIGHTS IN The Minnesota Municipal OPPOSITION TO PETITION Board, FOR WRIT OF MANDAMUS Respondent, and City of Oak Park Heights, a statutory City and political subdividion of the State of Minnesota Respondent-Intervenor, and David R. Screaton Partnership; Oakgreen Farms, Inc. ; Low & Associates, Inc. ; A.L.K. Partnership; Frederick Kemper; Calvin J. Brookman; Bernard and Loella Nass, Respondent-Intervenors. TO: THE CITY OF LAKE ELMO AND ITS COUNSEL, JEROME FILLA, 300 MIDWEST FEDERAL BUILDING, 50 EAST FIFTH STREET, SAINT PAUL, MINNESOTA 55101; THE TOWN OF BAYTOWN AND ITS COUNSEL, DAVID T. MAGNUSON, 333 NORTH MAIN STREET, SUITE 202, P.O. BOX 438, STILLWATER, MINNESOTA 55082; THE MINNESOTA MUNICIPAL BOARD AND ITS COUNSEL, KENNETH E. RASCHKE, ASSISTANT ATTORNEY GENERAL, 525 PARK, SUITE 200, SAINT PAUL, MINNESOTA 55101 : This Memorandum is submitted to the Court on behalf of the Respondent-Intervenor City of Oak Park Heights in opposition to Petitioner' s Petition for a Writ of Mandamus to force the Minnesota Municipal Board to approve the orderly annexation agreement made between the City of Lake Elmo and Baytown Township. STATEMENT OF FACTS The pertinent facts are not in dispute . The substantive issue before the Court is how the Minnesota Municipal Board should accommodate competing annexation proceedings concerning the same township land, but initiated by different municipalities . This matter concerns a portion of land approximately 240 acres in size situated in Baytown Township, legally described as follows : All that part of Section 6, Township 29 North, Range 20 West lying westerly of the centerline of Stillwater Boulevard, also known as State Highway 5, Washington County, Minnesota. On April 22, 1997, twenty-percent (20%) of the landowners owning this parcel of land signed a petition for the annexation of this unincorporated property to the City of Oak Park Heights . (Screaton Petition, hereinafter known as "Exhibit A") . This petition was made pursuant to Minnesota Statutes section 414 . 031 which states in relevant part that : A proceeding for the annexation of unincorporated property abutting a municipality may be initiated by submitting to the executive director and the affected township . A petition of 20 percent of the property owners or 100 property owners, whichever is less, in the area to be annexed. 2 Minn. Stat . § 414 . 031 (1) (c) (1996) . The landowners commenced the petition because : 1 . the area in question is in need of sewer and water services which cannot be provided by the Town of Baytown; 2 . the landowners believe that all of this property is or is about to become urban or suburban in character; 3 . studies indicate that the City of Oak Park Heights could provide such services in a more efficient manner than any other municipality. (See Exhibit A at p. 2) . On July 22, 1997, the City of Oak Park Heights passed • Resolution Number 97-07-26 in support of the Screaton petition. (Resolution attached as "Exhibit B" ) . The City recognized that the area "continues to develop as an urban industrial/commercial area with the potential for commercial and suburban development" and that the City will need additional land in the future to accommodate growth. Id. at 1-2 . Moreover, the City found that a municipal form of government would best protect the health, safety and morals of the landowners and that the City could efficiently extend police protection and water and sewer connections to the area. Id. The Screaton Petition and the Resolution of the City of Oak Park Heights were submitted to the Minnesota Municipal Board pursuant to the procedures outlined in Minnesota Statutes, section 414 . 031 and the Board numbered the petition as "A-5821 Oak Park Heights" . After fulfilling all requirements under Minn. Stat . 3 110 §414 . 031, the City of Oak Park Heights and the landowners were entitled to a hearing before the board, to be scheduled within 30 to 60 days from receipt of the petition. As demonstrated by Minn. Stat . §414 . 09 (1) : Proceedings initiated by the submission of an initiating document or by the board of its own motion shall come on for hearing within 30 to 60 days from receipt of the document by the board or from the date of board action and the board must submit its order no later than one year from the date of the first day of the first hearing. Thereafter, on August 4, 1997 the City of Lake Elmo and the Town of Baytown adopted a joint resolution for orderly annexation pursuant to Minn. Stat . §414 . 0325 (1) which was submitted to the Minnesota Municipal Board and numbered as "OA-497/OA-497-1 Lake Elmo/Baytown Twp" on August 6, 1997 . The joint resolution described the same property as that described in the Screaton Petition and Resolution of the City of Oak Park Heights . The language of Minn. Stat . §414 .0325 (1) indicates that : If a joint resolution designates an area as in need of orderly annexation, provides for the conditions for its annexation, and states that no consideration by the board is necessary, the board may review and comment, but shall, within 30 days, order the annexation in accordance with the terms of the resolution. At the Municipal Board' s August 15, 1997 meeting, the Board invoked Minn. Stat. 414 . 01 (6) , requiring the parties to meet and discuss possible resolutions to the conflicting petitions . Per past practices of the Board in reconciling two conflicting petitions for the same land, the Lake Elmo/Baytown Resolution was 4 tabled and a hearing date to invoke jurisdiction for the Screaton/Oak Park Heights Petition was set for September 17, 1997 . After the Lake Elmo/Baytown Resolution was not approved, these petitioner' s filed for a Writ of Mandamus from this court . ARGUMENT I. INTRODUCTION The essential question presented to the Court is how the Minnesota Municipal Board should address a situation where competing annexation proceedings are initiated by different municipalities seeking to annex the same township land. The Municipal Board has chosen to resolve the issue in a way that allows both municipalities to present their cases, yet the City of Lake Elmo contends that such a solution is not legally tenable. Lake Elmo argues that Minnesota Statute section 414 . 0325, subdivision 1, which states that "the board shall, within 30 days, order the orderly annexation according to its terms, " is the solution to the conflicting petitions. However, this solution denies David Screaton and Oak Park Heights their statutory right to a hearing on the matter as granted by Minnesota Statute section 414 . 031, subdivision 3 . The Minnesota Municipal Board decided this issue correctly, in light of the history of Minnesota Statutes Chapter 414, principles of statutory construction and applicable case law. 5 !II II. THE HISTORY AND LEGISLATIVE PURPOSE OF CHAPTER 414 DEMONSTRATE THAT A HEARING WAS INTENDED FOR CONTESTED CASES The historical roots of Chapter 414 demonstrate that the Minnesota Municipal Board was given some discretion to carry out its function in the most efficient way possible . It is "an independent administrative agency vested with broad powers to facilitate the orderly growth of Minnesota municipalities . " Village of Farmington v. Minn. Mun. Comm'n. , 284 Minn. 125, 170 N.W. 2d 197, 202 (1969) (hereinafter Farmington) . In the earlier history of Chapter 414, the Board was commanded to consider petitions based solely on when the petition was filed, applying a first-in-time rule when competing petitions were received. State ex rel . Harrier v. Spring Lake Park, 245 Minn. 302, 71 N.W.2d 812 (1955) . If this rule were in existence today, the Screaton petition would be considered first, as it was filed first . Perhaps recognizing that such a rigid rule undermines the efficiency of the board and its conclusions, the legislature amended Chapter 414 and once again the Supreme Court was called upon to interpret the board' s powers in the case of Village of Farmington v. Minnesota Municipal Commission. The Court found that the Board' s "intended role and function" was in "aiding, advancing, and authoritatively controlling the orderly expansion of existing municipalities and incorporation of new municipalities . " Farmington at 202 . The Court noted that the board was given the broad powers to increase and decrease the size of the area to be annexed and that the chair had the power to order consolidation in 6 i 1 the interest of economy and expediency. See Minn. Stat . §§ 414 . 031 (4) (m) , 414 . 01 (5) (1996) . These two sections indicate that the legislature knew that conflicting petitions would be presented to the board, and so the board needed to have some discretion in order to operate efficiently. Farmington at 202 . The Court went on to conclude that the commission had "jurisdiction to consider and act upon the petitions in any sequence it deemed appropriate to carry out its administrative function and the underlying purpose of c. 414 . " Id. The purposes of the Minnesota Municipal Board are to aid, advance and control the efficient and orderly expansion of existing municipalities and the incorporation of new municipalities . As the Farmington Court wrote : [Chapter 414] was designed to eliminate many of the difficulties which had arisen under prior statutes governing municipal incorporation and annexation by delegating to the commission, as a state-wide administrative agency, broad powers to facilitate the orderly growth of Minnesota municipalities by ending the uncontrolled proliferation of small suburban municipalities in the metropolitan area and resolving the conflicting claims of existing municipalities seeking to enlarge their boundaries. Farmington at 202-203 . Simply granting annexation of the township land to Lake Elmo without determining which city would best serve the land would not be inconsistent with the purpose and functions of the board, thereby going against the history, policy and object of Chapter 414 . The City of Lake Elmo argues that the enaction of Minn. Stat . §414 .0325, subd. 1 (annexation by joint resolution) and Minn. Stat . §414 . 033 (annexation by ordinance) created exceptions whereby the board' s discretion was transferred to the local authorities . This 7 • 1111 is onlytrue when there is an agreement as to what the boundaries 9' are and to which city the land will be annexed. The legislative history of Chapter 414 demonstrates that the legislature intended that contested municipal boundary changes should be determined by an independent board. The statute providing for orderly annexation, Minn. Stat . §414 . 0325 (previously Minn. Stat . §414 . 032) , was enacted by the 1969 legislature. 1969 Minn. Laws Ch. 1146, §11. This statute gave the Minnesota Municipal Commission the power to deny the orderly annexation after considering several factors similar to the ones listed in our current annexation by board order statute, Minn. Stat . §414 . 031, subd. 4 . It was not until 1983 that the legislature amended the orderly annexation statute by providing that: If a joint resolution designates an area as in need of orderly annexation, provides for the conditions for its annexation, and states that no consideration by the board is necessary, the board may review and comment, but shall, within 30 days, order the annexation in accordance with the terms of the resolution. 1983 Minn Laws Ch. 18, §1. The bill which proposed this additional language, H. F. 56, was discussed before the Committee on Local and Urban Affairs where Representative Frerichs stated that the bill' s purpose was to "encourage towns and cities to get together and come to agreements at the local level. " See Sound Recording of the Committee on Local and Urban Affairs (Mar. 1,1983) (on file with the Minn. Historical Soc'y) . This statement indicates that the legislative intent was to provide a quicker route for annexation matters when there was no conflict among municipalities concerning the land at issue. Here, there is no agreement between the 8 411 111 municipalities having an interest in the disputed land. The only agreement here is that between the City of Lake Elmo and Baytown Townshiptry to to undermine the efforts of David Screaton and Oak Park Heights . If Oak Park Heights, the City of Lake Elmo, Baytown Township and Mr. Screaton all agreed to the terms of annexation, an expedient process would be appropriate . However, there is conflict over the disputed land and the legislature intended that contested cases be heard by an independent board, the Minnesota Municipal Board, for a determination. Further, the Municipal Board' s action in this case and in previous cases, while not controlling, tends to demonstrate that the action of tabling a review and comment application until the resolution of a petition concerning the sameland with a hearing requirement is in keeping with the legislative purpose of Chapter 414 . The Board' s Order at issue here was adopted by a unanimous vote, and such action has been upheld previously in Township of Winona v. Minnesota Municipal Board, No. C3-95-4981, D.Ct .2d Judicial District (1995) . The Board' s Order is the typical action taken when a case such as this one arises . Certainly, the Board' s own interpretation of the statutes it is inlcharge of monitoring should be given some weight in determining legislative purpose. "A literal construction is not to be adopted contrary to the general policy and object of the statute . " In; re Reynold' s Estate, 219 Minn. 449, 452, 18 N.W. 2d 238, 241 (1945) . The history of Chapter 414 shows that disputes over annexation of the same land by 9 • different municipalities were meant to be heard before the Board, where all interested parties can participate . See Minn. Rule 60000 . 01000 (2) (1996) (allowing any person or entity affected favorably or adversely by the annexation proceeding to essentially become a party to the dispute and present a case) . It is hard to imagine that the drafters of Chapter 414 included provisions for orderly annexation and annexation by ordinance so that these procedures may be used as a weapon to undercut another municipality' s effort to annex. II. STATUTORY CONSTRUCTION AND THE ASHBACKER DOCTRINE 1. PRINCIPLES OF STATUTORY CONSTRUCTION INDICATE THAT THE MINNESOTA MUNICIPAL BOARD ACTED WITHIN ITS POWER IN ALLOWING OAK PARK HEIGHTS AND DAVID SCREATON THEIR STATUTORY RIGHT TO A HEARING Each and every argument the City of Lake Elmo makes to support the its contention that orderly annexation should be granted can be used to reach the opposite conclusion. The City of Oak Park Heights and David Screaton filed a petition for board ordered annexation, pursuant to Minnesota Statutes section 414 . 031 . This statute requires that the Municipal Board hold a mandatory contested-case hearing on such a petition. The language of statute is not conditional, but mandatory. The Board "shall designate a time and place for a hearing in accordance with section 414 . 09 . " Minn. Stat . § 414 .031 (3) (1996) . A petition "shall come on for hearing within 30 to 60 days" and the Board "must submit its order no later than one year from the date of the day of the first hearing. " Minn. Stat . § 414 . 09 (1) (1996) . In addition, the word "shall" is used several more times to describe various specific 10 401 procedural requirements for the board ordered annexation process . See Id. A literal reading of the statute gives the City of Oak Park Heights and David Screaton an absolute right to a hearing within the specified timelines, especially considering that the Screaton petition was filed first . The language of the orderly annexation statute also uses the word "shall . " The mandatory language contained in each statute poses a serious problem when each statute is being used simultaneously to annex the same portion of land. Where two provisions in a statute appear to be inconsistent, the court must interpret the statutes in light of one another. Beaver Creek Mutual Ins . Co. v. Comm' r of Jobs and Training, 463 N.W.25 535, 538 (Minn. Ct . App. 1990) . If the Board approves the orderly annexation of the City of Lake Elmo, David Screaton and Oak Park Heights will be denied their statutory right to a hearing under Minnesota Statutes § 414 . 031 . If the Board tables Lake Elmo' s orderly annexation until the outcome of the hearing on the Screaton Petition, Lake Elmo will have to present its case on the merits . The word "shall" may be construed as being directive and not mandatory. Sullivan v. Credit River Twp. , 299 . Minn. 170, 175, 217 N.W. 2d 502, 507 (1974) . When presented with the conflicting nature of these same two statutes, Judge Shumaker of the Second Judicial District noted that : 11 111 Both §414 .0325 and §414.031 direct the Board with the word "shall. " In this case the statutes conflict and because of that conflict the statutes have become ambiguous. It is therefore reasonable to interpret the word "shall" in both of these statutes as directory, thereby allowing the Board to hold a hearing on the petitions rather than forcing an annexation which may not be in the best interest of the municipalities involved. Twp. of Winona v. Minn. Mun. Bd. , No. C3-95-4981, D.Ct . 2d Judicial Dist, (July 12, 1995) at 5 . So, given the ambiguous language of the statutes, it is reasonable and proper for the Board to conclude that the word "shall" is directive and not mandatory. The Board' s decision to table the Lake Elmo orderly annexation was correct because a hearing will allow all interested parties to express their views. The City of Lake Elmo argues that in cases where statutes conflict, the specific shall prevail over the general . LaCrescent Twp. v. City of LaCrescent, 515 N.W. 2d 608 (Minn. Ct . App. 1994) . However, here it is not the case that the orderly annexation statute, Minn. Stat . §414 . 0325, is any more specific than the statute providing for board-ordered annexation, Minn. Stat . §414 . 031, which is being utilized by Oak Park Heights and David Screaton. The orderly annexation statute provides that when certain procedures are followed, and there is no necessary action by the Municipal Board, the Board is simply to review and approve the annexation. Under the board-ordered annexation statute, when proper procedures are followed, the Board is to grant and hold a hearing. Both statutes are specific, and thus one does not prevail over the other under rules of statutory construction. 12 • 2 . THE ASHBACKER DOCTRINE SHOULD BE ADOPTED BY THE COURT TO RESOLVE THE ISSUE OF MUTUALLY EXCLUSIVE APPLICATIONS AND AN APPLICANT'S STATUTORY RIGHT TO A HEARING "The fundamental requisite of due process of law is the opportunity to be heard. " Grannis v. Ordear}, 234 U.S. 385, 394 (1914) . David Screaton and the other petitioning residents have a fundamental liberty and property interest at stake in these proceedings and if Lake Elmo' s orderly annexation is approved, they will be denied their statutory right to be heard under Minn. Stat . §§414 . 031 (3) , 414 . 09 (1996) . It only makes sense that when two statutes conflict and a choice is to be made on how to resolve the issue, the decision-maker should apply the rule of law which affords a hearing to all interested parties. This common-sense approach has been applied, and in fact required, to be used by Federal administrative agencies by the United States Supreme Court . In Ashbacker Radio Corp. v. F.C.C. , the United States Supreme Court was presented with a situation in which two applicants, each of whom had a statutory right to a hearing before the Federal Communications Commission, had come before the F.C.C. seeking approval for access to the same radio frequency. 326 U.S. 327 (1945) (cited with approval most recently by Metro Broadcasting, Inc. v. F.C.C. , 497 U.S. 547 (1990) . The F.C.C. granted one application and scheduled a hearing on the other application for a later date. The Court held that the hearing would be meaningless because the inherent limitations of broadcast frequencies made the applications "actually exclusive . " Id. at 332 . The Court asserted that because the grant of one application 13 • 111 actually precluded the other, and thus rendered the statutorily required hearing a nullity, comparative review of both applications before the F.C.C. was required. Id. at 333 . The Court noted that : We do not think it is enough to say that the power of the Commission to issue a license on a finding of public interest, convenience or necessity supports its grant of one of two mutually exclusive applications without a hearing on the other. For if the grant of one effectively precludes the other, the statutory right to a hearing which Congress has accorded applications becomes an empty thing. Id. at 330 . The importance of one' s right to a hearing can be seen again in the Court' s holding: " [W] here two bona fide applications are mutually exclusive, the grant of one without a hearing to both deprives the loser of the opportunity which Congress chose to give him. " Id. at 333 . The "Ashbacker Doctrine" essentially provides that when an administrative agency is confronted with mutually exclusive applications, neither applicant shall be deprived of the statutory right to a hearing. While it is true that Ashbacker is not binding upon this court because it dealt with F.C.C. regulation and adjudicatory hearings, the reasoning employed by the Court is universally applicable to help resolve issues of mutually exclusive petitions and statutory rights to a hearing. The Ashbacker Doctrine has been widely accepted throughout federal and state courts . All Federal administrative agency adjudications follow its mandates. See Huron Valley Hospital, Inc. v. Michigan State Health Facilities Comm'n, 312 N.W. 2d 422, 426 (Mich. Ct . App. 1981) . Additionally, several states, when confronted with mutually exclusive petitions concerning the same item, have applied Ashbacker in other 14 S administrative settings . See In re Carriers, Inc . , 827 P. 2d 1291 (N.M. 1991) ; Charter Medical v. HCA Health Services, 542 N.E. 2d 82 (Ill . Ct . App. 1989) (competing certificates-of need applications for construction of hospital) ; Bostick v. Sadler, 55 Cal .Rptr. 332 (1966) (Savings and Loan Commission) ; Peoples Gas Light & Coke Co. v. Buckles, 182 N.E.2d 244 (Mass . 1962) (local utilities) ; Bay, State Harness Horse Racing and Breeding Assoc. , Inc. v. State Racing Comm'n, 175 N.E. 2d 244 (Mass . 1961) (state racing commission) . The facts at present are strikingly similar to those of Ashbacker. There are "mutually exclusive" applications for the same piece of land, Oak Park Heights and David Screaton have a statutory right to a hearing, and if Lake Elmo' s appeal of the Minnesota Municipal Board' s decision is successful, Oak Park Heights' and David Screaton' s right to a hearing "becomes an empty thing. " The consequence of denying the statutory right to a hearing is rather harsh considering the alternatives available which would allow all interested parties to advance their ideas and arguments . In Metro Broadcasting, Inc . v. F.C.C. , the United States Supreme Court clarified what sort of procedure should be employed when two mutually exclusive applications are received and one or more applicants have a statutory right to a hearing. 497 U.S. 547 (1990) . The Court wrote that the agency "was obligated to set the applications for a comparative hearing. " Id. at 554 . 15 111 This is exactly what the Municipal Board' s order accomplishes . Lake Elmo is given the opportunity to participate in the hearing as an intervening party. Lake Elmo is also given the chance to present its proof as to why it is better suited to annex the disputed land under Minn. Rule 6000 . 01000 (2) , which provides that intervention is allowed as of right to any party "affected either favorably or adversely" by "the outcome of the proceedings . " CONCLUSION The Minnesota Municipal Board decided the issues in this case correctly, in light of the history of Minnesota Statutes Chapter 414, principles of statutory construction and applicable case law. For these reasons, the City of Oak Park Heights respectfully requests that the Court deny all relief requested by the City of Lake Elmo and let the Municipal Board' s Order stand. Respectfully submitt- = , Dated: ".' , 1997 ECKBERG, LAMM ' S, BRIGGS, WOLFF & VIE' ING, P.L.L. ' By: F Mar J. Vierling #12823 Att•rneys for Petitioner City of Oak Park Heights 1835 Northwestern Ave . Stillwater, MN 55082 (612) 439-2878 16 . . STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Court File No. C9-97-8893 City of Lake Elmo, a Case Type : Other - Mandamus Minnesota municipal II corporation, and the Town of Baytown, a Minnesota Township, Petitioners, vs . MEMORANDUM IN SUPPORT OF APPLICATION FOR INTERVENTION The Minnesota Municipal Board, Respondent, and City of Oak Park Heights, a statutory City and political subdivision of the State of Minnesota, Applicant for Intervention, and David R. Screaton Partnership; Oakgreen Farms, Inc . ; Low & Associates, Inc. ; A.L.K. Partnership; Frederick Kemper; Calvin J. Brookman; Bernard and Loella Nass, Applicant for Intervention. TO: JEROME FILLA, 300 MIDWEST FEDERAL BUILDING, 50 EAST FIFTH STREET, SAINT PAUL, MINNESOTA 55101, ATTORNEY FOR THE CITY OF LAKE ELMO; DAVID T. MAGNUSON, 333 NORTH MAIN STREET, SUITE 202, P.O. BOX 438, STILLWATER, MINNESOTA 55082, ATTORNEY FOR THE TOWN OF BAYTOWN; KENNETH E. RASCHKE, JR. , ATTORNEY GENERAL' S OFFICE, 525 PARK, SUITE 200, SAINT PAUL, MINNESOTA 55101, ATTORNEY FOR THE MINNESOTA MUNICIPAL BOARD: • • o INTRODUCTION The City of Oak Park Heights Minnesota (hereinafter "The City") submits this Memorandum in support of its motion to intervene as a Respondent in the above-captioned matter. The motion for intervention was timely, the City has a substantial property interest in the subject matter of these proceedings and no existing party to the action can adequately represent the City' s interests . Accordingly, intervention is mandated. STATEMENT OF FACTS This matter concerns a portion of land approximately 240 acres in size situated in Baytown Township, legally described as follows : All that part of Section 6, Township 29 North, Range 20 West lying westerly of the centerline of Stillwater Boulevard, also known as State Highway 5, Washington County, Minnesota. On April 22, 1997, twenty-percent (200) of the landowners owning this parcel of land signed a petition for the annexation of this unincorporated property to the City of Oak Park Heights . (Screaton Petition, hereinafter known as "Exhibit A") . This petition was made pursuant to Minnesota Statutes section 414 . 031 which states in relevant part that : A proceeding for the annexation of unincorporated property abutting a municipality may be initiated by submitting to the executive director and the affected township . . . A petition of 20 percent of the property owners or 100 property owners, whichever is less, in the area to be annexed. 2 i Minn. Stat . § 414 . 031 (1) (c) (1996) . The landowners commenced the petition because : 1 . the area in question is in need of sewer and water services which cannot be provided by the Town of Baytown; 2 . the landowners believe that all of this property is or is about to become urban or suburban in character; 3 . studies indicate that the City of Oak Park Heights could provide such services in a more efficient manner than any other municipality. (See Exhibit A at p.2) . On July 22, 1997, the City of Oak Park Heights passed Resolution Number 97-07-26 in support of the Screaton petition. (Resolution attached as "Exhibit B" ) . The City recognized that the area "continues to develop as an urban industrial/commercial area with the potential for commercial and suburban development" and that the City will need additional land in the future to accommodate growth. Id. at 1-2 . Moreover, the City found that a municipal form of government would best protect the health, safety and morals of the landowners and that the City could efficiently extend police protection and water and sewer connections to the area. Id. The Screaton Petition and the Resolution of the City of Oak Park Heights were submitted to the Minnesota Municipal Board pursuant to the procedures outlined in Minnesota Statutes, section 414 . 031 and the Board numbered the petition as "A-5821 Oak Park Heights . " After fulfilling all requirements under Minn. Stat . 3 • 4110 §414 . 031, the City of Oak Park Heights and the landowners were entitled to a hearing before the board, to be scheduled within 30 to 60 days from receipt of the petition. As demonstrated by Minn. Stat . §414 . 09 (1) : Proceedings initiated by the submission of an initiating document or by the board of its own motion shall come on for hearing within 30 to 60 days from receipt of the document by the board or from the date of board action and the board must submit its order no later than one year from the date of the first day of the first hearing. Thereafter, on August 4, 1997 the City of Lake Elmo and the Town of Baytown adopted a joint resolution for orderly annexation pursuant to Minn. Stat . §414 . 0325 (1) which was submitted to the Minnesota Municipal Board and numbered as "OA-497/OA-497-1 Lake Elmo/Baytown Twp" on August 6, 1997. The joint resolution described the same property as that described in the Screaton Petition and Resolution of the City of Oak Park Heights . The language of Minn. Stat . §414 . 0325 (1) indicates that : If a joint resolution designates an area as in need of orderly annexation, provides for the conditions for its annexation, and states that no consideration by the board is necessary, the board may review and comment, but shall, within 30 days, order the annexation in accordance with the terms of the resolution. At the Municipal Board' s August 15, 1997 meeting, the Board invoked Minn. Stat . 414 . 01 (6) , requiring the parties to meet and discuss possible resolutions to the conflicting petitions . Per past practices of the Board in reconciling two conflicting petitions for the same land, the Lake Elmo/Baytown Resolution was tabled and a hearing date to invoke jurisdiction for the 4 sir • Screaton/Oak Park Heights Petition was set for September 17, 1997 . After the Lake Elmo/Baytown Resolution was not approved, these petitioner' s filed for a Writ of Mandamus from this court . ARGUMENT The City submits that it should be allowed to intervene in this matter because it is entitled to intervene as a matter of right or, in the alternative, the City submits that the Court should exercise its discretion to permit the City to intervene. It is respectfully submitted that the City has substantial property and economic interests at stake in these proceedings which are adequately representedresented by no present litigant . I. THE CITY IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT. Rule 24 . 01 of the Minnesota Rules of Civil Procedure provides as follows : Upon timely application anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant' s ability to protect that interest, unless the applicant's interest is adequately represented by the existing parties. The rule concerning intervention of right should be applied liberally, as it is the policy of the courts to encourage intervention whenever possible. Blue Cross/Blue Shield of Rhode Island v. Flam, 509 N.W. 2d 393, 396 (Minn. Ct . App. 1993) 5 II • i (hereinafter Blue Cross) . See also Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203 (Minn. 1993) ; BE & K Const . Co. v. Peterson, 464 N.W.2d 756 (Minn. Ct . App. L991) . Additionally, the intervention rule was designed to protect nonparties to the action from their interests adversely affected by litigation conducted without their participation. Gruman v. Hendrickson, 416 N.W. 2d 497 (Minn. Ct . App. 1987) . Rule 24 . 01 requires that the applicant make a showing that : 1) the application for intervention was timely; 2) the party has a recognized interest in the subject matter that might be impaired by the disposition of the litigation; and 3) the interest is not adequately protected by the existing parties. Erickson v. Bennett, 409 N.W.2d 884, 886 (Minn. Ct . App. 1987) . The City readily meets its burden and submits that applicable fact and law mandate its intervention in this proceeding. A. THE MOTION FOR INTERVENTION IS TIMELY Timeliness of an application for intervention depends on three essential factors : how far the suit has progressed, the reason for any delay in seeking intervention, and any prejudice to existing parties because of delay. Blue Cross at 397 . This proceeding is still nascent . The only action taken thus far has been the original submission of the petition for the Writ of Mandamus . Further, the other parties to this proceeding will not be prejudiced by inclusion of the City because it is prepared to proceed according to the schedule established by the Court . 6 111 111 Accordingly, the City respectfully submits that the motion to intervene is timely. B. THE CITY'S PROPERTY AND LIBERTY INTERESTS ARE PROFOUNDLY IMPLICATED IN THIS PROCEEDING AND THE DISPOSITION OF THESE PROCEEDINGS MAY IMPAIR THESE INTERESTS Intervention as a matter of right requires an interest relating to property or to a transaction which is a subject of the action. Heller v. Schwan' s Sales Enterprises, Inc. , 548 N.W.2d 287, 292 (Minn. Ct . App. 1996) . The City has established a property right in the parcel of land which Petitioners are attempting to annex through this Writ of Mandamus . On July 22, 1997, the City passed a Resolution supporting the Screaton petition for annexation. (Exhibit B) . The City has expended a significant amount of time and money in supporting the petitioning landowners . Furthermore, the City is in need of additional property due to expected growth patterns, and thus has a significant interest in the outcome of this matter. The City' s efforts and goals would not even be given a chance to materialize if this Writ of Mandamus is issued and the City' s right to a hearing is taken away by this court' s order. The City' s interest in this matter can also be characterized as a liberty interest . As the United States Supreme Court has noted, "The fundamental requisite of due process of law is the opportunity to be heard. " Grannis v. Ordean, 234 U.S . 385, 394 (1914) . The City has a statutory right to a hearing under Minn. 7 ! 111 Stat . §§414 . 031 (3) and 414 . 09 and the right to be heard is a liberty interest . If this Writ of Mandamus is issued and the City is not permitted to intervene, that liberty interest will be terminated without any chance for the City to be heard on the matter. It is respectfully submitted that the City has a substantial interest in the property and transactions which are the subject of this action. The City' s interest in the property itself is significant and the City' s liberty interest in its right to be heard is also substantial . Therefore, the City is entitled to intervene as a matter of law. C. THE CITY'S RULE 24 .01 INTERESTS ARE NOT ADEQUATELY REPRESENTED BY EXISTING PARTIES "A party must establish specific facts or reasons why rights will be impaired or why the party is not adequately protected" in order to intervene as a matter of right . Husfejldt v. Willmsen, 434 N.W. 2d 480 (Minn. Ct. App. 1989) . Here, there are several specific reasons and facts to support the conclusion that the City is not adequately represented in this matter. The Minnesota Municipal Board cannot adequately represent the City' s interests here. The consequences of granting this Writ fall more heavily on the City than on the Minnesota Municipal Board. The Board is arguing from the standpoint that it was following proper procedure in tabling the Lake Elmo/Baytown Resolution, however an adverse ruling will not affect the Board as severely as 8 111 110 it will affect the City. As stated earlier, the City has a substantial property and liberty interest in the outcome of this action. The City' s property and liberty interests are not similar to the Board' s interests in maintaining procedural norms for its processes . The City has invested a significant amount of time and effort in supporting the Screaton Petition, all of which will be a loss if the Writ of Mandamus is granted. The Municipal Board will not stand to lose interests similar to the City' s, and thus the City' s interest is so substantial that only the City should be arguing on its behalf . The potential consequences of the resolution of this matter will affect highly particularized interests of the City, interests which the Municipal Board will not be focused on in its arguments . The facts presented create unique consequences for the City, in that if intervention is not permitted, the City will be foreclosed from having any say in the matter, despite the fact that the City has a significant property and liberty interest at stake . The City' s interests cannot be adequately protected by the current parties to the action, accordingly, the City should be allowed to intervene as a matter of right pursuant to Minn.R.Civ. P. 24 . 01 . II. THE COURT SHOULD PERMIT INTERVENTION BY THE CITY PURSUANT TO RULE 24 .02 OF THE MINNESOTA RULES OF CIVIL PROCEDURE Minnesota Rule of Civil Procedure Rule 24 .02 provides that : 9 411 Upon timely application anyone may be permitted to intervene in an action when an applicant' s claim or defense and the main action have a common question of law or fact . . . In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Minn.R.Civ. P. Rule 24 .02 . It is public policy to encourage intervention whenever possible and it is within the trial court' s discretion to grant intervention. BE & K Const . Co. v. Peterson, 464 N.W.2d 756 (Minn. Ct . App. 1991) . The City' s proposed complaint satisfies the commonality requirement of Rule 24 . 02 . The outcome of this litigation will have profound effects upon the City' s property and liberty interests . Furthermore, no delay will result from allowing the City to intervene. The only action taken thus far has been the original submission of the petition for the Writ of Mandamus . The other parties to this proceeding will not be prejudiced by inclusion of the City because it is prepared to proceed according to the schedule established by the Court . For these reasons, the City should be allowed to intervene permissively and under the court' s discretion. CONCLUSION Based upon the foregoing, it is respectfully submitted that the City of Oak Park Heights should be permitted to intervene as a matter of right under Minn.R.Civ. P. Rule 24 . 01, or in the 10 411 110 7 alternative, should be permitted to intervene according to the court' s discretion under Minn.R.Civ. P. Rule 24 .02 . Dated: ��Z ' , 1997 ECKBERG, LAAMMERS BRIGGS, WOLFF VXERLING, P. . • . / By: ; Mark J. Vierling #112823 Attorneys for City of Oak Park Heights 1835 Northwestern Ave. Stillwater, MN 55082 (612) 439-2878 11 STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Court File No. C9-97-8893 City of Lake Elmo, a Case Type : Other - Mandamus Minnesota municipal corporation, and the Town of Baytown, a Minnesota Township, Petitioners, vs . ORDER The Minnesota Municipal Board, • Respondent, and City of Oak Park Heights, a statutory City and political subdivision of the State of Minnesota Intervener, and David R. Screaton Partnership; Oakgreen Farms, Inc. ; Low & Associates, Inc. ; A.L.K. Partnership; Frederick Kemper; Calvin J. Brookman; Bernard and Loella Nass, Interveners. APPEARANCES JEROME FILLA, 300 MIDWEST FEDERAL BUILDING, 50 EAST FIFTH STREET, SAINT PAUL, MINNESOTA 55101, ATTORNEY FOR THE CITY OF LAKE ELMO; DAVID T. MAGNUSON, 333 NORTH MAIN STREET, SUITE 202, P.O. BOX 438, STILLWATER, MINNESOTA 55082, ATTORNEY FOR THE TOWN OF BAYTOWN; KENNETH E. RASCHKE, JR. , ATTORNEY GENERAL' s OFFICE, 525 PARK, SUITE 200, SAINT PAUL, MINNESOTA 55101, ATTORNEY FOR THE MINNESOTA MUNICIPAL BOARD; s . 0 MARK J. VIERLING, 1835 NORTHWESTERN AVENUE, STILLWATER, MINNESOTA 55082, ATTORNEY FOR THE CITY OF OAK PARK HEIGHTS. This matter came on for hearing by this Court on day of , 1997, on the City of Oak Park Heights' motion to intervene pursuant to Rule 24 . 01 and Rule 24 . 02 of the Minnesota Rules of Civil Procedure, in this action involving the Writ of Mandamus requested by the City of Lake Elmo and the Town of Baytown to compel the Minnesota Municipal Board to order annexation of a certain portion of land that is the subject to an orderly annexation agreement between the Petitioners. Oak Park Heights argues that it should be allowed to intervene as a matter of right in this action because it has substantial property and economic interests that would be impacted if the Petitioner' s requested relief is granted. Oak Park Heights further contends that its interests are not adequately represented by the existing parties and that its motion is timely. Oak Park Heights argues in the alternative that it should be granted permissive intervention in this action because the City' s defense and the main action have questions of law and fact in common, and that the intervention will not unduly delay or prejudice the adjudication of the rights of the original parties . Accordingly, based upon the files, records and proceedings herein, including the briefs and arguments of counsel, IT IS HEREBY ORDERED that : The motion for Intervention is GRANTED. Dated: , 1997 Judge of District Court Enclosure 13B • LAW OFFICES OF EekDerg, Lammers. Briggs. Wonnt V�erl>ng, P.L.L.P. 1835 Northwestern Avenue Lyle 1. :c,iI,erq twatcr, Minnesota - 0 iO82SiiliSusan U. 01 son James F. Lammers (612) 439-2878 - David N. Snyder Robert G. Briggs** FAX (612) 139-2923 Ainr ..1. Vierling* Paul A. Wolff eDial (612) 351-2118 Direct Gregory G. Caller (19.11-199G) Phomas J. Weidner* September 17, 1997 *Qualified Neutral Arbitrator& Mediator •Qual�f�ed ;neutral Arbitrator *Cert,tied Real l:xtalr S(ie cial�xl MR JEROME P. FILLA MR DAVID MAGNUSON PERSON FRAM & BERGMAN ATTORNEY AT LAW 300 MIDWEST FEDERAL BUILDING P.O. BOX 438 50 EAST FIFTH STREET STILLWATER MN 55082 ST PAUL MN 55101-1197 Mr. Kenneth Raschke, Jr. Attorney General' s Office 525 Park, Suite 200 St . Paul, MN 55101 RE: Ramsey County District Court No. : C9-97-8893 City of Lake Elmo et .al. v. The Minnesota Municipal Board Gentlemen: We have received information that a suit has been filed in Ramsey County in the above-referenced matter. It is our position on behalf of our client, the City of Oak Park Heights that our client is a necessary and an indispensable party to this matter and we will therefore be bringing a Motion to Intervene in this matter shortly. Pursuant to the rules of civil procedure I am requesting each of you on behalf of your client indicate . ..ether or not you are willing to consent the City intervenin• -$ a - :ditional party respondent to these proceedings. I woul- ask at you so respond within 7 days . Your v- truly, APT"- , ark /, ark J. Vierling MJV/pja cc: Mr. J. Scott McDonald Michael Robertson, City , of Oak Park Heights, City Administrator The Honorable David Schaaf ss SEP I 91997