Birchmont Drive: Attorneys question plan to close reassessment talks
BEMIDJI – The attorney representing property owners in the Birchmont Drive assessments saga is raising questions about whether a planned closed-door meeting violates state open meeting laws.
The city of Bemidji and Northern Township are holding a closed meeting Monday to discuss “threatened or pending litigation” involving the assessments.
The town board is scheduled to meet later that night to resume the assessment hearing from Sept. 11. At that meeting, dozens of property owners filed objections to the latest reassessments for a utility extension project that was completed in 2008.
Zenas Baer, a Hawley, Minn.-based lawyer who has represented the property owners in past proceedings and filed the objections, said Thursday he believes the meeting violates open meeting laws.
“There has been no threat of litigation,” he said. The objections that were filed Sept. 11 didn’t send the issue to court. But property owners who may want to pursue litigation in the future would have had to first file an objection to the town board or city council, he said.
Mark Anfinson, an attorney with the Minnesota Newspaper Association, said a 2002 Minnesota Supreme Court ruling against Prior Lake appears to extend to issues like the one Bemidji and Northern Township are considering.
“In its decision, the court made clear that where a public body is considering a particular proposal, but has not yet taken final action on it, its meetings cannot be closed under any circumstances,” Anfinson told the Pioneer. “In the Prior Lake case, the city council was considering a special use permit application for a gravel pit, which many residents objected to; the applicant expressly threatened the council with litigation via a letter from his attorney if the application wasn’t approved.
“Nonetheless, the Supreme Court said that because the council had not made its final decision, it could not close any meetings to discuss the issue.”
In this case, neither the city nor the township has approved the assessment roll.
In addition, Anfinson said “even where a public body has taken final action on a particular proposal, the attorney-client exception still cannot be used unless there is a specific and credible threat of imminent litigation.”
City attorney Al Felix said Thursday that the case doesn’t exist in a vacuum. He said the issue went through the same objection process before it went to court twice before, and previous discussions with Baer indicate that litigation was pending.
“It’s not speculative at this point in time,” he said. “From our perspective, we believe that it in fact constitutes threatened litigation.”
At issue are reassessments that were mailed to residents in mid-August the Birchmont Drive utility project. The original assessments were vacated by a judge in 2009, and the case was dismissed earlier this year after the properties were reassessed.
Baer argued at the Sept. 11 meeting that the latest assessments exceed whatever special benefits the properties received and the method to determine how much the properties increased in value is invalid.
The Bemidji City Council also met in a closed session last Monday to discuss the reassessments on Birchmont Drive.