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Minutes are not a verbatim transcription but rather an attempt to capture the intent of the speaker by the City Clerk.

ITEM 1 - CALL TO ORDER

Mayor Murphy called the meeting to order at 7:00 p.m. in the Council Chambers, Lakewood Civic Center South, 480 South Allison Parkway, Lakewood, Colorado.

ITEM 2 - ROLL CALL

Those present were: Mayor Bob Murphy, Presiding

Adam Paul
Debbie Koop
Karen Kellen
Doug Anderson
Ed Peterson
Diana Allen
Tom Quinn
Sue King
Vicki Stack
Cindy Baroway

Others in attendance: Mike Rock, City Manager
Tim Cox, City Attorney

Full and timely notice of this City Council meeting had been given and a quorum was present.

ITEM 3 - PLEDGE OF ALLEGIANCE

The Pledge of Allegiance was recited and a moment of silent prayer was observed.

ITEM 4 - INTRODUCTION - CHIEF OF POLICE

Mayor Murphy introduced Kevin Paletta as the new Chief of Police. Chief Paletta gave a brief overview of his goals and upcoming events that the police department will be involved in.

ITEM 5 - RESOLUTION 2008-3 - TO RE-APPOINT A MEMBER TO THE LAKEWOOD VICTIM ASSISTANCE COMPENSATION BOARD

Councilwoman Allen made a motion to adopt Resolution 2008-3 to re-appoint Carrie Evans to the Lakewood Victim Assistance Compensation Board. Councilman Peterson seconded the Motion.

Vote: 11 Ayes. No Nays. The motion carried.

Mayor Murphy moved Item 11 from the Consent Agenda to become Item 5a.

ITEMS 5a (ITEM 11) - RESOLUTION 2008-26 - APPROVING THE APPOINTMENT OF MEMBERS TO THE CITY OF LAKEWOOD CITY COUNCIL BUDGET AND AUDIT COMMITTEE

Councilwoman Allen made a motion to adopt Resolution 2008-26 to appoint members to the City of Lakewood City Council Budget and Audit Committee. Councilman Peterson seconded the Motion.

Mayor Murphy introduced Jon Ludwigson, Brian Bissell and Zenat Shariff Belkin who are the citizen representatives of this Committee.

Vote: 11 Ayes. No Nays. The motion carried.

ITEM 6 - PUBLIC COMMENT

Frederick Taake - 10251 W. Exposition Drive, Lakewood, CO stated that he represents the Lakewood Legacy Foundation and provided a history of the Foundation and details for the "Links for the Legacy " golf tournament/fund raiser in May.

Jack Barton - 11305 W. 6th Avenue, Lakewood, CO stated that he is the Secretary/Treasurer and Founder of Kacey Fine Furniture and that they had been Lakewood taxpayers since 1983. He spoke about FasTracks and how it has and will affect their business. He expressed his concerns about the permits that had been approved for the improvements that have recently been made with the knowledge of FasTracks and how the improvements will be worthless once the wall is constructed. He asked for help to keep Kacey in Lakewood by assisting them to find other land to move to.

Mayor Murphy responded that the Economic Development team would be willing to work with Kacey if relocation is necessary.

Duncan Philp - 305 W. Magnolia, Ft. Collins, CO stated he was in attendance to support Galen Foster. He believes that it is inappropriate for government to be involved in private enterprise or development and that Lakewood could not bode well with all of the lawsuits coming down the pike. He doesn't believe the fees that RTD will charge will ever pay for the light rail and stated that Mr. Marsella has publicly admitted that he is "stealing the land and selling it off at a profit in order to fund RTD" which flies in the face of the bill of rights and is a form of communism. They don't need an entire city block to house a 1,000 vehicle parking structure.

Brian Wareing - Applewood gave examples of problems with FasTracks nationwide and stated that the project isn't what was originally proposed to the voters.

Dave Minshall - Greenwood Village, CO stated that he was asked to speak on behalf of Dave Crespin who owns a Jeep junkyard at 12th and Benton. He indicated that they have to sell their home because they can't make the payments because the only access to their property is across the new RTD line and that no one will tell him when he can't go across his property any longer or if they will buy him out or help him relocate. He said the business is a family owned and has been in Lakewood for twenty years. They need an answer on whether they can use the tracks or get a crossing. He asked Mayor Murphy for an answer.

Mayor Murphy answered that the City will do their best to give the Crespins an answer as soon as possible.

Steve Fesch - 15714 E. 11th, Aurora, CO stated that he owns property at 2758 W. 14th Avenue and south of that where he wants to develop a bar. He is concerned about losing this land to RTD and met with members of City Council, which restored his faith in the system. He noted a loophole in the Capped Debt Theory stating that RTD can get around that by raising the rates so the fares will be so outrageous it may not make sense to use it. State representatives are sponsoring bills against taking-of-land. They are taking land for more than economic interests. The Fosters have been in Lakewood for over twenty years and you're going to run them out for a parking garage and mall. He added that while he's scrambling to rescue his investment and dreams, RTD introduced a bill to give themselves a pay raise; meanwhile, they are taking our land to profit on. It's a bad deal and he said he was embarrassed that the Mayor could sit there and smile at him and look him in the eye while there are families being destroyed in town.

Phyllis Murray - 2074 S. Balsam Street, Lakewood, CO stated that she is a Bear Creek High School swim team mom and a booster representative who has been asked by the coaches to speak regarding the Carmody pool. The closure of the pool has severely affected the high school swimming programs with over a month of swim time lost. There are no other pools for competition and teams are split to other facilities outside of Lakewood. She requested that the pool be repaired as soon as possible.

Mayor Murphy answered that assuming the first reading on the consent agenda passes, Council will be visiting this issue at the next regular meeting on February 11, 2008 and encouraged anyone with comments on the Carmody pool to visit at that time.

Kim Snyder - 1398 Wadsworth, Lakewood, CO offered condolences to the Mayor for his personal loss. She stated that she owns the southeast corner of 14th Avenue and Wadsworth Boulevard and is of the opinion that if they own it, they should be able to dispose of it in any manner that they feel proper, whether it be through development or sale. She is coming to Lakewood for help because they were told that they are a landmark and she wants to know what the City does to protect their landmarks.

Mayor Murphy responded that as he told them, on more than one occasion, he would do everything he could do to try to protect their property. One of his first orders of business as Mayor was to have several meetings with RTD and, at that time, they showed us the plans for the parking garage for transit purposes and the footprint of the garage does include their property.

Kim Snyder added that she felt like the people at Kacey Fine Furniture did, on a smaller scale, trying to work with the City and doing everything right and now are being stomped on. Brenda Tierney said in numerous interviews that our property was identified years ago and, if so, why did we receive the notice of intent on September 28? The bottom line is that Lakewood never stopped us from getting permits when we had our house fire and we redid the entire thing because, if we would have known what the situation was, at least we would have maybe had the option of doing something different. We felt that Lakewood was very disingenuous in their role in that.

Natalie Menton - Ward 5 stated that she just heard "we'll do anything we can to protect citizens" but at the last meeting we agreed through an Intergovernmental Agreement to participate with RTD as co-petitioner in eminent domain proceedings for right-of-ways and necessary improvements. At that time, she mentioned that in 2005, RTD had gotten a law passed where they may only pay fifty percent of the value for a property and, at that time, most of the Council was unaware of that situation along with the legal representation. She asked if a Denver Post article from 2005 could be given to the City Clerk and a copy be provided to all of Council.

Mayor Murphy indicated that could be done.

Natalie Menton added that after reading this article and looking at the bill to see what was put into law, how can Lakewood participate in the IGA without some kind of amendment that states we will not follow that state statute and we will give people full market value for their property. She doesn't see how we are protecting the citizens and has great concerns. When we use eminent domain in other areas (i.e. blighted area) we were told that Council will review all eminent domain cases and she would like to know if the ones with the co-petition will be the same situation; will it come before Council or will it be only through RTD? She provided the article to the City Clerk for copy and distribution.

Galen Foster - 1398 Wadsworth - Lakewood, CO indicated that he is upset with all of Council and all they do is "stroke" people and say one thing and then do another putting the public off. He believes strongly that the City of Lakewood is in collusion with RTD and each keeps blaming the other. However, this is everyone's problem and there isn't enough Preparation H to get rid of him. He has a successful business in a great location and he isn't going to let the City of Lakewood or Marsella get him out. He passed around two pictures to Council and stated that Roger Wadnall had told him that what he has there can't be replaced and you can't put a price on something you can't replace. He demanded that someone come to the table with them soon as the clock is ticking.

Sarah Lindhorst - Ward 2 stated that she had been violated as a citizen of Lakewood and elsewhere and previously tried to contact Mr. Anderson and Mr. Elliott and was told she had to go through channels. She presented a letter to Mayor Murphy through the City Clerk.

Public comment closed.

Tim Cox, City Attorney responded to Natalie Menton's comment regarding a state statute involving partial takes versus full takes and the suggestion that we not follow this statute stating that information had been provided to Council by way of Eminent Domain attorneys with background on that statute, how it has been used and whether it's ever been used Lakewood (it has not). This was a statute applicable to the Colorado Department of Transportation (CDOT) for many years before RTD came into its jurisdiction a couple of years back. In the IGA that was approved and executed with RTD for cost sharing, there is reference to the City and RTD being co-petitioners on any necessary condemnations for the City to acquire bits of right-of-way to replace portions of right-of-way that RTD has to acquire as part of the FasTracks project. In that same provision in the IGA, there is language to the effect that the process and the mechanisms by which RTD and Lakewood will participate in any condemnation processes will be worked out in an as-yet-to-be-drafted IGA regarding property interest reconciliations. This is where the process is to be identified and there is very little detail on that point in the current IGA for that reason. His recommendation to Council was to hold a study session before that IGA is finalized and he would raise it at that time.

Mayor Murphy asked Mr. Cox what his legal recommendation would be about the suggestion that we not follow state statute and the suggestion that we somehow incorporate it into an IGA, which, by the way, we have already passed and executed.

Tim Cox added that it is not clear whether the City has the option of opting out of that formula which is used by appraisers when valuing property. The original CDOT statute came into being in connection with the E-470 highway and the purpose there was that was land in the eastern plains that was essentially disconnected from major access routes and all of a sudden it has the equivalent of an interstate running through it that has a positive impact on the value of the property and that was to be reflected in valuing the property for eminent domain purposes. We don't see a parallel to the situation here at this time but then again, we don't know which parcels are going to be partially taken. We are not aware of any jurisdiction opting out of that statute but it may be something the City could do.

Councilman Anderson asked for clarification on the IGA that was passed at the last meeting asking if there is a property that this process is going to be used on and if there is an opportunity for Council to address this issue in a future IGA with RTD.

Tim Cox responded that the existing IGA provides for this and, at this time, he is not aware of what properties have been identified at all, let alone which ones might be implicated by this statute and by the time of the next IGA, we may or may not know what those properties are but that is when we are going to discuss the process.

Councilman Anderson further asked if Council would be precluded from discussing the issue because of something they already passed.

Tim Cox answered not at all.

Mayor Murphy further clarified that we are aware of what RTD calls "full takes" of which we know every one of those. This statute applies to "partial takes" and as of what we know now, there are no partial takes.

Tim Cox added that what RTD has identified as property it needs for transit purposes, THEY are all "full takes" where there is no residue left to gain value which would be reflected in the compensation. Those condemnations are also outside the scope of the IGA that was approved and executed. What is referenced in the IGA are those referring to City needed right-of-way and, at this point, we don't know what parcels those will involve.

Councilwoman Allen stated that voters supported FasTracks, it is going to be built and the West Corridor is going to be the first part of that project. There are a number of agencies that are involved. People are going to be upset and we've heard people speak about win-win situations. However, when you're building a light-rail corridor from the middle of Denver out to the Jefferson County building, it's not going to be a win-win for everyone and it's naïve to think that some people aren't going to be unhappy because unfortunately, properties are going to be taken and some deals aren't going to be to what the property owners want to do with their property. What we, as City Councilors, are committed to do is to work on our citizen's behalf to the best of our ability so that most of us can live with what happens.

Councilman Paul stated that he is hearing that there might be a lack of communication between the City of Lakewood and people whose property may be taken and wants to make sure that every effort is being made to be in contact with these people. He stated that he is concerned with how RTD is treating the citizens of Lakewood and wants to make sure that we are aware of what is going on and how RTD is doing it. He added that he does not have a clear understanding of RTD's processes.

Mike Rock, City Manager indicated that at each of the Councilors places, there is a package which has a map that shows the properties that are involved for an RTD acquisition giving the physical address with an aerial photograph; an information sheet on the process that RTD uses; contact information within the City of Lakewood; and information from Becky Clark, Deputy Director of Community Planning and Development regarding relocation of Kacey Fine Furniture. He added that could not address the Jeep location that was mentioned during public comment but would have Becky Clark follow up with that.

Councilwoman Stack stated that the map shows nine properties but sixteen had been mentioned. She asked if there is another map.

Mike Rock answered that there are sixteen along the entire RTD route.

Councilwoman Stack inquired if the only place that RTD will be taking properties is along Wadsworth.

Mike Rock responded that that is our understanding and that those are the letters that have gone out so far.

Councilwoman Baroway asked if there is actual case law that has been cited and have trials actually taken place on this particular issue with the fifty percent.

Tim Cox responded that the statute was amended to apply to RTD in 2005 but it actually dates back to the 1980's and there was a decision of the Supreme Court in 2004 regarding E-470 that found that that system of valuing property was constitutional. It has always been the practice that if the residue of a property that is partially taken is benefited in some special way, then the damages paid for the residue can be offset because of those special benefits. That applies when the benefits are on the property that was taken or immediately adjacent thereto. It is not a general concept that everyone in the area is going to benefit from this project. There have not been any cases interpreting the application of special benefits to the property that is taken, and that is what is different about this statute.

Mayor Murphy added that this discussion is taking place because of a voter-approved project that RTD is building through our community and the acquisitions that are being made for transit purpose are being made by RTD. In some cases, there are small strips of right-of-way that the City may be involved in. We are committed to do what we can to ensure our citizens and property owners are treated fairly in the context of this transportation project.

The City Clerk read the following Consent Agenda items into the record:

ITEM 7 - RESOLUTION 2008-11 - CONTINUED FROM 1/14/2008
AUTHORIZING CONDEMNATION OF PROPERTY INTERESTS ACROSS 11501 WEST COLFAX AVENUE AND 1485 SIMMS STREET FOR THE COLFAX/SIMMS STREET INTERSECTION IMPROVEMENT PROJECT

ITEM 8 - RESOLUTION 2008-2 - FOR RENEWAL OF CONTRACT FOR THE 2008 CONCRETE REPAIR PROGRAM

ITEM 9 - RESOLUTION 2008-24 - AUTHORIZING AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT WITH THE REGIONAL TRANSPORTATION DISTRICT (RTD) FOR THE DESIGN AND CONSTRUCTION OF BIKEPATH BRIDGES OVER KIPLING STREET AND WADSWORTH BOULEVARD

ITEM 10 - RESOLUTION 2008-25 - ACCEPTANCE OF BID AND AUTHORIZING A CONTRACT FOR CONSTRUCTION OF WADSWORTH - WEIR GULCH UNDERPASS IMPROVEMENTS

ITEM 12 - ORDINANCE 2008-2 - AUTHORIZING THE RENOVATION OF THE CARMODY RECREATION CENTER AQUATICS FACILITY INCLUDING A SUPPLEMENTAL APPROPRIATION TO THE 2008 ANNUAL BUDGET [AND THE TRANSFER OF THE SUPPLEMENTAL FUNDS FROM THE GENERAL FUND TO THE CAPITAL IMPROVEMENT FUND], FURTHER AUTHORIZING THE USE OF OR WAIVERS FROM VARIOUS SECTIONS OF THE PURCHASING ORDINANCE AS NEEDED FOR THIS PROJECT, AND DECLARING AN EMERGENCY

ITEM 13 - APPROVING MINUTES OF CITY COUNCIL MEETING

Special City Council Meeting January 14, 2008

ITEM 14 - ACCEPTING MINUTES OF THE BOARDS AND COMMISSIONS

Planning Commission Meeting November 7, 2007
Planning Commission Meeting December 5, 2007

Councilman Peterson pulled items 7 and 9 from the consent agenda.

Councilman Anderson asked for clarification on the pulled items. Item 16 is scheduled for an Executive Session; he asked if the pulled items would be voted on before or after the Executive Session.

Mayor Murphy responded that they would be voted on before the Executive Session.

Public comment: None. Public comment was closed.

Councilwoman Allen made a motion to approve the Council minutes, for acceptance of the minutes of Boards and Commissions, order all Ordinances introduced on first reading to be published in the Rocky Mountain News with Public Hearings set for the date included in the Ordinance, and for adoption of Resolutions, all of which are included in the Consent Agenda items introduced into the record by the City Clerk minus the two items that were pulled. Councilman Peterson seconded the Motion.

Vote: 11 Ayes. No Nays. The motion carried.

ORDINANCES ON SECOND READING AND PUBLIC HEARINGS

ITEM 15 - ORDINANCE O-2008-1 - AMENDING MUNICIPAL WARD BOUNDARIES FOR THE CITY OF LAKEWOOD, COLORADO

Public comment: None. Public comment was closed.

Councilwoman Allen made a motion to adopt Ordinance O-2008-1 amending municipal ward boundaries for the City of Lakewood, Colorado. Councilman Peterson seconded the Motion.

Mayor Murphy stated that the Ordinance is to amend the boundaries to reflect the Federal Center annexation in 2007 and the Colorado Academy annexation in south Lakewood in 2004. There is no change in voters, these are not residential areas, this is a geographic change and ward boundaries have to be officially changed to reflect that.

Vote: 11 Ayes. No Nays. The motion carried.

ITEM 16 - GENERAL BUSINESS

A. (ITEM 7) - RESOLUTION 2008-11 - CONTINUED FROM 1/14/2008
AUTHORIZING CONDEMNATION OF PROPERTY INTERESTS ACROSS 11501 WEST COLFAX AVENUE AND 1485 SIMMS STREET FOR THE COLFAX/SIMMS STREET INTERSECTION IMPROVEMENT PROJECT

Jay Hutchison, City Engineer stated that this is a standard part of many capital improvement projects in the City but an infrequent action by Council. Typically, on a capital improvement project, all of the acquisitions are successfully negotiated to conclusion.

There are twelve different property owners who will be affected by the Colfax and Simms project, ten of those ownerships have completed negotiations and the acquisitions are finalized. There are two left which are the subjects this evening.

The City hires an independent appraiser to establish the value for the acquisitions that have to occur and the property owners are welcome to hire an independent appraiser of their choice and frequently, such as in this case, the City offers to pay for that appraisal. CDOT is involved in approving the design of the project, the appraiser selection, any offers made for acquisition and ultimately and settlements that occur. If negotiations are not successful, there is a third party arbiter that will make the decision on what the valuation is. By law, the third party arbiter is the court. Public money is involved so a balance needs to be achieved even in the property acquisition negotiations. Project schedules are also important.

In 2003, the need was identified in the City's Annual Safety Report and it was significant. Over the preceding three year period, there were 181 property damage accidents which equates to about five a month through the period. There were also thirty-nine injury accidents, which is the equivalent of more than one per month. The traffic growth projected for the area was a factor in obtaining a federal grant for most of the costs. Over 1.8 million dollars in federal money is involved and then in 2005, City Council allocated about $670,000 for the project. In 2006, design began and property owners were contacted. In September of 2006, City Council passed an Ordinance that authorized the acquisitions necessary for the twelve property owners, and it authorized a number of steps in that acquisition process up to and including condemnation, if necessary, by the courts. By December 2007, ten of the twelve acquisitions were complete at an expense of about $290,000. There are two remaining and the project cannot be built without those two, there is physically not enough space to do it so we need to bring the acquisition process to a conclusion in order for the construction to occur. We received a proposal from one of the property owners today and will respond to that.

Delays on construction projects make costs go up and there is a significant grant involved and the parties who are involved in making those grants like entities who meet the schedules they promise. In this case, the grant was accepted with an anticipated 2008 construction period.

The action tonight is a resolution that was required by the ordinance that the Council already passed authorizing the acquisition and condemnation. That ordinance included a provision, which required staff to come back with a resolution identifying the particular properties that might require court action in order to resolve the acquisition process and that is where we are tonight.

Public comment was opened.

Leland Bieker - 1485 Simms Street, Lakewood, CO stated they are looking for justice and they are not objecting the widening of Simms Street rather the time it has taken. He claimed that they were not contacted until October 2006 and it wasn't until October 2007 when they received their first offer, which was discouraging. To date, there are no specifics on this project and all he knows is that there is going to be a privacy wall because it was so close to the house. He was told they would be contacted and kept informed as to the different types of material used in the wall and that it was going to be eight to ten feet. Later in the year, an appraiser came out and told them the wall would be twelve to fourteen feet. It wasn't until he contacted former Mayor Burkholder that he did get a returned call but there has been little to no communication with the City of Lakewood. He cited over ninety pages of properties listed in the Denver metro area of vacant land and stated that there are only four of them that come close to the price that they were offered on their property and only one of them is less.

Joan Bieker - 1485 Simms Street, Lakewood, CO stated that they will have to install air conditioning because of the removal of the shade trees and that their water bills will probably go up as well. She thought they would get a decent offer but knows it will be condemned and taken because that's what happens. The first time thirty years ago when they took half of the front yard, she doesn't believe it was condemned but it was taken. Now they are taking half of the remaining half and they are concerned that they can never sell the property because they have less and less land to sell. All parties should benefit and she doesn't believe that the party that's losing the land should not benefit for the good of all.

Tom Wamboldt - 6035 Garrison Street, Arvada, CO stated that he is the President of the Colorado Property Rights Coalition and asked if the resolution will authorize condemnation and if there an IGA with CDOT involved since Colfax Avenue is a state highway. If there is, does this mean that there will be a partial taking, which is subject to the fifty percent takings clause? You've heard them say they're not getting enough money so is this because of the fifty percent clause? With that being a state highway, and with federal grant money being involved, President Bush recently stated after a decision that there would be no federal funds used in eminent domain proceedings so where does that stand with this project? Will you lose the federal grants by using the eminent domain?

Jimmy Helton, 852 S. Vance, Apt. E-105, Lakewood, CO stated that RTD needs to look over their auto insurance, emission tests, drug and alcohol classes, valid driver's licenses, emission tags on busses, and property background records. Where are they getting all this money? Where are they getting all the fuel to transfer busses from one end to the other end? He gave a document to the City Clerk.

Brian Wareing - Applewood stated to Councilwoman Allen that she had been lied to about the size of the cost and dimensions of the RTD railroad. He stated that people's property is being taken away for nickels on the dollar and that the residents who Council is supposed to be representing are the ones who are suffering.

Public comment was closed.

Tim Cox provided a brief overview of the condemnation process as was earlier presented by Jay Hutchison.

Mayor Murphy asked Jay Hutchison if there is an IGA with CDOT and if it is a partial taking.

Jay Hutchison responded that there is an IGA with CDOT and these are partial takings. The appraisals are complete and the offers made did not include any discount based on the fifty percent rule that has been spoken about.

Mayor Murphy further inquired if anyone in Chambers had any knowledge of any comments President Bush may have made about Federal funding.

Mike Rock answered that he believed it was specifically related to a case linked to eminent domain takes for economic development purposes but do not effect any highway projects.

Councilman Anderson asked if in spite of the fact that CDOT is always capable of using the fifty percent rule, at times could they choose not to.

Jay Hutchison stated that he didn't know if CDOT had that option or not but it is not being applied in this project.

Councilman Anderson continued stating that it was implied earlier that because this is State law that RTD would always have to use it or would somehow risk not using an appraisal process properly.

Mike Rock responded that the more fundamental issue in the law is that it only applies when the appraisal demonstrates that the remaining property has had an increase in value that is measurable and exceeds any cost of acquisition. It is not applied uniformly, it is applied very rarely and it has never been used in Lakewood. It is only applicable when both appraisers and ultimately the judge and the three valuation panel members all agree that there is a measurable increase in value, that the property has somehow been benefited by the project but those conditions don't exist here.

Tim Cox further clarified that it is a function of the appraisal process and not an election by the condemning authority saying we think we need this statute in this case. The appraiser looks at the value and says what are the factors that go into determining the value of this property. The fact that it's a partial taking is not determinative, that's the starting point. With a partial taking, we're looking at two things; the value of the property taken and the value of the residual piece of property. The appraiser is the one who's going to look at the zoning, the use, the potential uses, location, comparable properties, etc. One of the factors the appraiser is going to look at is is there some special benefit to this property from the project that is the cause for the condemnation?

Mayor Murphy reiterated that this was only the case with partial takes, not full takes.

Councilwoman Koop stated that she was concerned over the Bieker's comments that they didn't know what kind of wall was going to be put there. She asked if Jay Hutchison could provide an update on what is planned for the wall.

Jay Hutchison answered that he anticipates that the final decisions on the wall will be mutually acceptable. He added the we are open to colors and the appearance of the wall and wants to make it work well for the property owners who are going to be looking at it. It's going to have to be there and so it seems that it should be able to serve both purposes. The details are not ironed out and won't be until these conversations continue.

Councilwoman Koop added that something else to keep in mind is graffiti. She hopes for some type of textured wall that might not look so enticing to the graffiti artists.

Jay Hutchison responded that it is difficult to make it not look like a canvas but stated that we can do some things to it that make removal of graffiti easier and, in some cases, discourage it a bit.

Councilman Paul asked if there is a time expiration on the federal funds.

Jay Hutchison answered that it would be very unusual. Generally, the effect of the delay is on the next time that we want to obtain federal funds.

Councilman Paul stated that he doesn't have any background on the other property.

Jay Hutchison responded that the memorandum that Council received actually dealt with both properties. The other property on Colfax has multiple owners and there is a parking question, which is a challenging one along Colfax. We've about worked through that question that causes the differences in the appraisals. That property owner did obtain an independent appraisal in the time that was recommended, unlike the property on Simms.

Councilman Paul asked if there is anything else that can be done to try to bring the group together (with the Biekers) without having to go forward with the condemnation.

Jay Hutchison answered that he was hesitant to get too specific about negotiations in this type of setting but the main difference is not with what the physical features will be. There is a significant difference in the valuation of the ground itself (easement).

Councilman Quinn asked how the independent appraisers are selected.

Ted Van Horn, Right-of-Way Agent explained that for every project, a bid package is sent to five CDOT approved appraisers who submit bids to the City. The City typically selects the lowest bid.

Councilman Quinn asked if the Bieker's had chosen not to select their own appraiser and have that cost paid for by the City of Lakewood.

Ted Van Horn responded that that was the case and added that it was offered to them when the first letter was sent to them introducing the project. State statute requires that the appraisal be done within ninety days of that letter, which has now passed.

Councilwoman Stack inquired if any of the boundaries are within the Urban Renewal area.

Mayor Murphy answered that there is a reinvestment area that was created in late 2005 and the very southeast corner of Simms and Colfax would be in that area.

Councilwoman Stack stated that there is a park adjacent to the property that is slated for condemnation for temporary construction and asked if someone could speak on that.

Jay Hutchison responded that the park is to the south of this property and project, so there won't be construction on the park itself.

Councilwoman Stack further inquired why we are condemning for temporary use on private property when we have adjacent publicly owned property.

Jay Hutchison stated that the purpose for the temporary construction easements on the private property is to restore that private property and is not for stockpiling materials or for the contractor's construction yard. Because we will be doing work behind the wall that will eventually be built on the 1485 Simms property, we need to be able to go onto that portion of the property to restore that part of the yard. At the same time, the City has no interest in permanently owning those features or prohibiting other activities by the property owner in that area which is the reason we make that a temporary easement rather than a permanent easement.

Councilwoman Stack asked if, when we do restore, is that over and above the language in the contract with the property owner.

Jay Hutchison answered that those things need to be looked at in conjunction with each other and gave an example that one property owner may prefer that the City restore a concrete patio and another may prefer to do that work themselves. In the first case, the property owner would not be paid for the concrete because the City would take on that expense. In the second case, the agreement for acquisition would include a payment to the owner to restore that patio.

Councilwoman Stack inquired if this was part of the negotiation and is agreed upon prior to any restoration or, in this case, payment. She asked if there are two properties that are zoned the same, say commercial, and they are side by side, what causes the discrepancy in the appraisal value between those properties.

Jay Hutchison stated that it is a difficult scenario to deal with hypothetically because there is a series of things an appraiser would consider in their valuation.

Councilwoman Stack further inquired that if you had a property that needed a lot of replacements, such as trees or concrete, compared against another property that is just grass, the difference in value for the one with the replacement of the trees and things like this should be greater, is this the way we work this in our appraisals.

Jay Hutchison answered that in a general sense, that is true and in fact, in the amount that is offered to a property owner, there can be multiple components. One may be to the land itself and that may be equal between the two properties. A second may be for improvements that are going to be removed as part of the project and that may be different between two properties. A third being that there may be some residual damages to a property that might make the appraisals different for two similar properties.

Mike Rock added that you might have two properties side by side that are zoned commercial and one is vacant land and the other has a house or other improvements on it. The vacant land may be more valuable per square foot because it is ready to build for commercial purposes whereas the property that is zoned commercial but has a residential structure that would require demolition and replacement would have to factor in the demolition costs.

Councilwoman Stack stated that she had gone out to look at this property and if you take property to where the stakes are, there is very little property left in that area and since there are setbacks in Lakewood, she is concerned.

Jay Hutchison responded that set backs and the effect on the set backs could be a consideration to the appraiser to include in their valuation.

Councilwoman Stack added that if we changed zoning or were thinking about more of an urban style in an area, do we also take into consideration that they possibly would not be able to sell that home or area for any value because the new owner wouldn't be able to use it because it would be non-conforming or possibly, if they tore it down, they couldn't build the same size.

Mike Rock stated that an appraisal has to take into consideration any damages to the remaining property. For example, there is an acre of land at an intersection and we need to take three quarters of the acre to bind the intersection and there is only a quarter acre left and you couldn't build any buildings on it, then that would be considered a full take because the remainder would be uneconomic. The appraisal would have to factor that in and would have to say even though you only need a portion of the property, the remainder is an uneconomic remainder so you either have to pay for the entire property and take the whole thing or give value equivalent to it. You have the appraisal by the acquiring entity, you have the availability of an appraisal by the person who is being affected by the acquisition and then you have the judge who has to look at it and he appoints an independent panel of three experts who deal in valuation matters so you really have it looked at by six different people who have to come to some agreement and if there is a percentage difference as stated in the appraisals, then it requires a third appraisal.

Councilwoman Baroway stated that she believes a double left-hand turn is needed at this intersection and she expressed her empathies towards the Biekers for what they've had to deal with. She asked if there is any way that the City of Lakewood and the Biekers could get together and work this out without legal intervention. She asked if some of the trees that are being taken could be salvaged or if a large tree could be given back instead of a stick tree. Would we be violating any type of law by trying to get together with the two parties and if necessary, a third party arbitrator or mediator to sit down and try to resolve this?

Mike Rock responded that even though the time frame for the private property owner to get their appraiser paid for by the City has expired, we are happy to still do that. We would be cautious about creating a situation in which all of these started going to mediation. We do continually have discussions and that is why such a high percentage of these have simply been resolved. Occasionally they are not and we're willing to make the additional effort and expense to get that appraiser in and continue these discussions. What we don't want to do is see the project delayed and get out of a construction cycle because there are bids and all the things that come into play there and then the expenses go up.

Mayor Murphy clarified that the approval, if this resolution is approved tonight, does not stop the negotiations.

Mike Rock added that it does include equipment by the City to pay for independent third party appraiser selected by these homeowners.

Councilman Anderson asked if, no matter how this resolution is voted, the offer to the Biekers to pay for an appraiser would require an amendment.

Mike Rock answered that whoever makes the motion would need to note the offer that was made.

Councilman Anderson asked if it would be inappropriate for Council to use specific numbers on the two properties in question.

Mike Rock responded that was correct.

Councilman Anderson stated that it was mentioned that there was an appraisal on the Phillip's property and asked if it is within Council's ability or right to know how big of a gap was between their appraisal and the City's appraisal.

Jay Hutchison answered that the gaps are significant on both properties. The amount of the offers by the City for both properties would have to be multiplied by more than eight to get to the counter offers that were received from the property owners. That difference is a total dollar amount greater than the cost of acquiring the other ten properties combined.

Councilman Anderson asked if there were professional appraisers on behalf of the Biekers as there were with the Phillips.

Jay Hutchison responded that only the Phillips had had an independent appraisal.

Councilman Anderson indicated that there was still an extreme gap from one professional appraisal for the owners and one professional appraisal for the City.

Jay Hutchison stated that he was confident that the improvement kinds of questions like the trees and the walls can be resolved. Even resolving those, there is still a significant gap and negotiating a solution would be unlikely.

Councilman Anderson stated that there is a property to the north of the Bieker's that was voted on at the last meeting and in documents provided to Council, there was a figure of $27.50 which was a negotiated price. He asked if we are talking a number much bigger than that.

Mike Rock stated that property acquisitions couldn't be negotiated in this forum.

Councilman Anderson stated that is has not been possible for Council to look at what has been offered to these property owners or to hear from the appraiser as to how he came to his justification on this and asked if it was not their business.

Mayor Murphy responded that there are two independent appraisers on the Philliips property, which came in two vastly different amounts, which points out the need for the statute-based court process that has been discussed tonight to settle this.

Councilman Anderson asked if Mayor Murphy was saying that Council does not have the right to have the appraiser here and discuss how he came to his conclusions.

Mike Rock stated not at a public meeting.

Tim Cox added that negotiations are one of the bases' for Executive Session because you don't want the other side to hear your negotiating posture.

Councilman Anderson requested that due to the vastly different discussion as to the amount of contacts between the City and the property owners, can staff look and see where that miscommunication is happening because communication needs to be sent and received by both sides.

Public comment was closed.

Councilman Peterson asked if the independent appraiser selected by the Phillips was chosen from a standard procedure.

Jay Hutchison answered that the City's appraiser was selected in the way that Ted Van Horn described earlier. The City doesn't tell the property owner how to select their appraiser.

The Phillips are very engaged in the process and realize that ultimately the solution might be decided by a court so he guessed that they selected an appraiser that they thought would be well recognized by the court.

Councilwoman Allen made a motion to adopt Resolution 2008-11 authorizing condemnation of property interests across 11501 West Colfax Avenue and 1485 Simms Street for the Colfax/Simms Street intersection improvement project adding that the property owner on Simms Street may obtain an appraisal at City expense. Councilman Peterson seconded the motion.

Councilwoman Kellen stated that in recent conversations she has heard similar stories about communication issues and when there are very long gaps between tangible activities that affect someone, a long period of time with no contact makes them feel left out and forgotten She urged staff to do more to reach out to them and help them understand the process and keep that contact fairly constant over a period of time. She commented about the difficulty in valuing mature trees because you can't replace those trees in the state that they are in.

Councilman Anderson stated that the issue of democracy is the Golden Rule and it is important for us as individuals to reverse the situation and put ourselves in the Bieker's place knowing how they've been involved in the community for so many years. There are many good people who are going to be impacted and we have to make sure that we set policy as a Council as to how citizens of Lakewood are going to be treated. There are two fundamental ways of doing this, one is that we can have a study session in which we direct our City Manager to direct staff to go forward and use these types of methods in dealing with citizens and there is the procedural method of voting up or down on a particular issue and saying here we are going to set precedent. I will be voting no.

Councilman Peterson stated that there really is no perfect solution. This is what a City does, it grows and continues to try to improve it's infrastructure and when that improvement impacts its citizens, we need to take the extra steps to make sure that the impact is mitigated in a way that is fair to all of the taxpayers that contribute to this. He stated that he is concerned because of the great disparage between the number of contacts that were represented to be made on behalf of the City and the number of contacts that actually occurred by the property owner. He will be voting in favor of this primarily because we have gone the extra mile with respect to the appraisal.

Mayor Murphy stated that there was a very specific large number of documented contacts from staff. Those contacts occurred in discussions with both properties. We heard some vague assertions from the property owner that he didn't think he was contacted that many times. I am not drawing the conclusion from the testimony that I heard that our staff was delinquent in trying to contact the property owners.

Councilwoman Stack stated that Councilman Peterson talked about erring for the public good but as I look under "just compensation", it says that the fifth amendment's guarantee that private property shall not be taken for a public use without just compensation and it was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole, and because of this, I will be voting no.

Mayor Murphy thanked staff for their offer adding that the statute-based offer was made to the Bieker's to receive independent appraisal at the expense of the City and they chose not to exercise that and that time period has expired so the City has very graciously agreed to again offer that appraisal at our cost and that is part of this motion.

Councilwoman Baroway added that this is a very difficult decision and, at the same time, she thinks about the other property owners that have already reached an agreement and what message will we be sending to them to say that you've already done what you needed to do, you've reached an agreement and you're helping the greater good here by allowing this project to go through. I will be voting for this.

Vote: 9 Ayes. 2 Nays (Anderson, Stack). The motion carried.

B. (ITEM 9) - RESOLUTION 2008-24 - AUTHORIZING AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT WITH THE REGIONAL TRANSPORTATION DISTRICT (RTD) FOR THE DESIGN AND CONSTRUCTION OF BIKEPATH BRIDGES OVER KIPLING STREET AND WADSWORTH BOULEVARD

Tim Cox stated that a revised draft of the IGA had been received late last week that had an item that staff has not had time to consider how to address concerning the timing of construction. It is contemplated that construction will start on the Kipling Street bike path bridge in 2008 and, for that reason, the City has budgeted funds for that in the 2008 budget. It was not contemplated that work would begin on the Wadsworth bridge until 2009 and RTD has presented the idea beginning to procure materials during 2008 and wants to talk about how that funding can be addressed. Staff has not had the opportunity to work through this and and therefore are requesting that Council table this resolution until the next meeting of February 11, 2008.

Councilwoman Allen made a motion to continue Resolution 2008-24 - authorizing an amended and restated intergovernmental agreement with the Regional Transportation District (RTD) for the design and construction of bike path bridges over Kipling Street and Wadsworth Boulevard to a date certain of February 11, 2008. Councilman Peterson seconded the motion.

Vote: 11 Ayes. 0 Nays. The resolution is continued until February 11, 2008.

ITEM 17 - REPORTS

Mayor and City Council reported their attendance at previous meetings and events and announced upcoming neighborhood meetings and events.

Councilwoman Allen made a motion to hold an Executive Session for the purpose of developing strategy for the negotiations regarding economic development per CRS 24-6-4014(e) and the Lakewood Home Rule Charter Section 2.15c2. Councilman Peterson seconded the motion.

Vote: 11 Ayes. 0 Nays. The motion carried.

Mike Rock added that Council would not come back into session and take any action as a result of the Executive Session.

ITEM 18 - ADJOURNMENT

There being no further business to come before the Council; Mayor Murphy adjourned the meeting at 9:33 p.m.

Submitted by,
Margy Greer, City Clerk

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