5.1. SR 02-22-2005
Item # 5.1.
MEMORANDUM
TO:
FROM:
Mayor and City Council
Michele MCPhers~ctor of Planning
DATE:
February 22, 2005
SUBJECT:
Discuss sidewalk on I 85th Avenue
Attachments
. E-mails from Dale Dhooge dated February 10 and February 15,2005
. Reference Material Regarding Pedestrian Facilities submitted by Mr. Dhooge
. F ox Haven Development Plan
Background
At the February 7, 2005 City Council meeting, during consideration of the conditional use
permit for the Westbound liquor store, Mr. Dhooge spoke regarding the need for a sidewalk
along 18sth Avenue. This would provide a pedestrian facility from Fox Haven to Riverplace
development, within which is located Riverplace Park. Riverplace is approximately 3/8 of a
mile from Fox Haven. Currendy, there is a sidewalk on the south side of 18sth Avenue along
the commercial lots, and a detached trail along the north side that ends at Naples Street.
After the public hearing for Westbound, the Council provided no direction to staff regarding
Mr. Dhooge's request. We have since received the attached emails from Mr. Dhooge and
have scheduled this item to be discussed further by the City Council.
In the past, it has been the City's policy to add sidewalks at the time of street reconstruction.
This street (18sth Avenue) was considered for possible reconstruction when the Business
Center Drive extension and Waco Street intersection was completed. Completion of the
utility extensions was contemplated but determined to be cost prohibitive due to the amount
of concrete that would have been required to be removed from the 18sth Avenue roadbed.
Since 18sth Avenue is the travel lane of past Highway 10, there is a significant amount of
concrete that will need to be removed when it is reconstructed. When 18sth Avenue is
reconstructed, its design will include off-road pedestrian facilities as in other road designs.
Memo to the Mayor and City Council
I 85th Avenue Sidewalk Request
February 22, 2005
Page 2
Request
Staff asks that the City Council provide direction as to how they would like to proceed with
this request.
S:\PLANNING\Michele McPherson\MEMOS\02 22 05 Dhoog req.doc
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500 IDS CENTER
80 SOUTH EIGHTH STREET
MINNEAPOLIS, MN 55402-
3796
INCLUDING THE LAW FIRM HALL &
BYERS, P .A.
1010 WEST ST. GERMAIN STREET, SUITE
600
ST. CLOUD, MN 56301
612 632-3000
FAX: 612 632-4444
www.gpmlaw.com
320 252-4414
FAX: 320 252-4482
www.gpmlaw.com
MEMORANDUM
TO: Mayor Stephanie Klinzing and
Members of the City Council
FROM: Peter K. Beck, City Attorney
RE: City Liability for Decisions with Respect
to the Installation of Sidewalks
DATE: February 17,2005
Councilmember Dietz has asked that I provide the City Council with a brief
Memorandum outlining the City's potential liability for decisions related to the location
and installation of sidewalks.
Pursuant to Minnesota Statutes Section 466.03, Subd. 6, the City is immune from
liability for, "any claim based upon the performance or the failure to exercise or perform
a discretionary function or duty, whether or not the discretion is abused". Discretionary
functions or duties are policy or planning level decisions made by the City, not day-to-
day or "operational" decisions. To be protected by this immunity the policy or planning
level decision must be based upon social, economic and political factors. The Courts
analyze such factors as budget, personnel, safety and priority of other projects.
If decisions with respect to where to locate sidewalks and when they will be
installed are planning decisions, they are protected by the statutory immunity and the City
will not be liable for a claim based on the failure to install a sidewalk. This policy or
planning decision must be based upon social, economic and political factors.
The discretionary immunity exception is created by Minnesota state law.
Therefore, judicial decisions from other states or jurisdictions are not necessarily relevant
to determining whether there will be liability in the State of Minnesota. The most recent
Minnesota case I could find on this issue is Fawzy v. Flack, C4-00-846 (Minn. App.,
November 21,2000), in which the Minnesota Court of Appeals found that the
Metropolitan Airports Commission was not liable on a claim that failure to build a
pedestrian walkway along a service road resulted in the death of the plaintiff, because the
decision not to build the pedestrian walkway was a planning decision protected by the
statutory immunity.
It is my understanding that the City's policy is to install pedestrian facilities
concurrent with the reconstruction of roadways. This policy is driven by both economic
and policy considerations, including the fact that installing sidewalks prior to
reconstruction of the roadway would be prohibitively expensive and result in the new
sidewalk being destroyed when the roadway is reconstructed.
If the failure to install a sidewalk along 185th Avenue is a result of City planning
and policy decisions with respect to the installation of sidewalks, under current law there
would be no liability for failure to install a sidewalk. The City Council has the right, of
course, to order a sidewalk installed or to order a study as to the feasibility of installing a
sidewalk. However, failure to install the sidewalk, provided that the decision not to do so
is a policy and planning level decision, would not result in liability to the City under
current law.
Charlie Wilson from my office will be at the council meeting on February 22,
2005, to answer any questions you may have. In the meantime feel free to call me at
612/632-3001.
GP:I680826 vI
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Page 1 of 1
Mcpherson, Michele
From: Dale.Dhooge@upsher-smith.com
Sent: Tuesday, February 1S, 200S 11 :41 AM
To: Dale.Dhooge@upsher-smith.com; mmcpherson@cLelk-river.mn.us
Subject: Re: Municipal Liquor Store City Council Agenda
Dear Michele;
I was wondering if you had any feed back or direction on getting the sidewalks installed along 18Sth. I have not
heard from you. The only City Park on the north side of highway 10 must be accessed by this narrow road with a
40 mph speed limit and no sidewalk. With increase traffic volumes the surrounding communities believe this
needs further review. Other families are getting a petition put together. Some residents want to petition the
liquor store in general. I believe the petition will just be directed at getting sidewalks installed along 18Sth that is
what we believe we can influence. We have had one meeting on this and another planned this week. Some
members of the group requested contacting investigative reporters from two news stations (KSTP 5 and FOX).
I'm not in favor of doing this because I want to give the council & city the chance to work through the proces s. I
do not want make a big deal out of this I really don't have time and do not want unnecessary publicity for anyone
but, we have not receive much of a response on an issue we should not even have to petition. It should just be
done. Please drive the road it is common sense when two cars going 40MPH barely make it by each other let
alone a pedestrian on the road. I was surprised that at the city council meeting no city council members even
asked a question about residential! pedestrian safety it is a standard traffic planning practice to look at how
projects effects traffic flow. Surprising most of the people in the community do not even know the liquor store is
occurring. It is unclear who received notification of the project. I know I never received a notification of the
project from the city. All residents contacted so far within the Guardian Angels also have no knowledge of the
project (we have only contacted a few residents so far but just received the full list of residents). Will a petition
from our neighborhood be enough to get someone to respond to us and get some action? What other resources
can my community contact to help in this effort? For a few hundred feet of sidewalk I find it a waste of resources
to organize a large group that I can already tell has different agendas regarding the placement of the liquor store
in our neighborhood. I would really appreciate it if you would provide feedback if you feel a petition would be
sufficient to get some action we don't want to get anymore people involved than we have to.
I'm really sorry for bothering you about this I know you are busy but we would appreciate feedback we are just
trying to look out for our kids that like to go to the park down the street or visiting a friend.
Sincerely;
Dale Dhooge
612-221-0097
2/15/2005
Page 1 of 1
Mcpherson, Michele
From: Dale.Dhooge@upsher-smith.com
Sent: Wednesday, February 16, 20059:53 AM
To: Jerry Gumphrey; mmcpherson@cLelk-river.mn.us
Cc: pmotin@aol.com; farbers5@msn.com
Subject: "Thank You" Pedestrian accommodations on 185th with liquor store construction
Jerry & Michele;
Thank You for your responses and consideration. I just believe the impact on 185th has been overlooked since
the traffic will be increasing and we want a closer look at what can be done to complete the road to accommodate
pedestrian travel Currently 185th is grossly deficient according to any published guideline. The road has a 40
MPH speed limit and very narrow and is the only access to other neighborhoods and a city park. Last summer I
was biking with my kids over to the park in the neighborhood down 185th. I was helping my 4 year old ride her
bike while my six year old got about 100 feet ahead of me and a truck came around the blind corner and the
driver appeared to be looking for something and wasn't paying attention I witness my six year (a new bike rider)
wobbling down the right hand side of the road I screamed at him to get off the road about the same time the driver
looked up and locked his brakes my son turned off the road and hit the ditch falling off his bike. Fortunately
everything turned out OK other than a terrified kid with a few scratches. The memory of that day and the thought
of how it could have turned out terrifies me. I understand there is always risk in all that we do. I have worked in
risk management for years. When we moved into the Fox Haven neighborhood I was aware the lots were zoned
commercial so I truly understand I have no business opposing the development of the lots in front of our
development. I had the choice to move into neighborhoods without commercial development around it. I'm not
opposed to this liquor store however, as the development occurs so should the road that will be affected by the
development. I'm not the type to be a opposed to progress I'm more often pro growth. I do believe that this road
and the pedestrian accommodations needs to be address or the probability of an acc ident is higher than what is
acceptable especially considering traffic level will be increasing more than what I believe are estimated.
Thank you again for all of you responses I really appreciate you reviewing this. I don't envy your jobs I know you
can't make everyone happy. I do think improvements on this road will be in Elk Rivers best interest.
Thank You for your time and any assistance would be greatly appreciated by our neighborhood. I look forward
getting your direction. I certainly do not want to put anymore time into this issue or contact more people in the
community. Thank you for your patience I hope nothing has been misinterpreted it often can be through email's.
have good intentions I want to make our neighborhood a safer place.
I travel frequently in my occupation and coach youth hockey. I'm not sure I can attend the next council meeting
however I will try. I do trust the correct step will be taken Thank You.
Dale Dhooge
2/1612005
Dear Mayor Klinzing;
I spoke briefly last night at the City Council Meeting about the concerns over the increase traffic on 185 th
and the increase probability of intoxicated drivers on the same street that has no sidewalk system. 185 th is
the only outlet of many of the neighborhood's on the north side of highway 10 this road is the only road that
children / pedestrians can travel between neighborhoods. If you observe North Bound Liquor for 15
minutes you will see a consistent stream ofvehic1es leaving the facility unfortunately a percentage of the
consumers have already consumed alcohol. I am not comfortable the probability of increase traffic (some
of which will be under the influence) on 185th without a sidewalk system for children or pedestrian travel.
I believe the city has a responsibility if they are going to profit from the liquor store to review the safety of
the access routes vs stating "when further develo pment occurs the street improvements may be made in
the future"that is not sufficient. I know there is a great deal of concern in regards to this project from many
of the neighbors I have talked with. I would like to understand what is the best approach to get this further
reviewed. I am not opposed to this project or any other progressive development in fact I'm in support of
Elk River generating revenue from liquor sales however, I believe in managing appropriate risk to the
community. I have worked in Risk Management & Environmental Impact's of developments for 15 years
and have worked on some of the largest privately funded projects in the nation in my previous job prior to
moving to Elk River last spring. I would like to understand what I can do to influence this change prior to
putting an effort into an organized community approach. I believe the Municipal Liquor Store can be a
successful part of our community as long as the appropriate improvements are addressed. Thank you for
your valuable time. I look forward to your direction.
Please advise me on the appropriate steps the city or I can take to address this concern.
Sincerely;
Dale Dhooge
18647 Lander St.
Mobile # 612-221-0097
For Your Reference
MNDOT has adopted the AASHTO "Green Book" as the guide for the state and local municipalities
to use as the local guideline.
State Pedestrian Coordinator (kristie.billiar@dot.state.mn.us) has filled a new MNDOT position will be
working with local municipalities if you need additional resources.
The Green Book guidelines state local cities responsibilities include:
In urban areas, provide pedestrian facilities within all new industrial, commercial, retail, and housing
developments to establish a pedestrian network which provides convenient and direct connections to
points within the development and to adjacent developments, streets, and transit stops.
Legal reference:
The Federal requirement for bicycle and pedestrian evaluation and development is a part of the 1982
Surface Transportation Assistance Act (Congressional Record, Section 126). Establishment of the
Minnesota Department of Transportation, in 1976, incorporated multi-model transportation planning and
development in its operational functions (Minnesota Statute 174.01-174.03). The enabling legislation for
Mn/DOT's Bicycle Transportation program can be referenced in Minnesota Statute 160.265. See
Appendix A-1 and A-2. American With Disability Act has some applicability due to the citizens with
disabilities in the neighborhood.
Latest legal case against local Municipalities. From NBC news archive Fontana, CA
City held negligent for not installing sidewalks Tuesday, September 28,2004
In a case that has ramifications for cities across the country, a California city has awarded almost $40 million
to the parents of a girl who was killed on a busy roadway with no sidewalks.
The street was in a residential area. The city had received many citizen complaints about the need for a
sidewalk but, instead of immediate installing the $6,000 sidewalks with their own money, had waited to apply
for a grant from the state.
According to an L.A. Times article:
In a verdict delivered Monday, the jury decided the city is 75% liable for the damages. The
parents of the driver are liable for the remaining 25%.
The city is still clueless:
Fontana [city] spokesman Edward Raya said the city believes Karen's death was due to a
negligent driver, traveling more than 50 mph, and not the absence of sidewalks.
"How that makes us responsible, I don't know," Raya said. "We're shocked at the size of
this verdict. It's extremely large for an accident of this kind." The city will appeal, he said.
The attorneys representing the girl's parents, Cruz and Agueda Miranda, argued that
Fontana failed to act on reports that lack of sidewalks created a hazard because of the heavy
volume of vehicle and pedestrian traffic. . .
Cities still think of things like sidewalks and on-street bicycle accommodations as "optional amenities".
This is not the attitude of federal law or standard traffic planning guides. Or common sense.
Fontana, like many cities, felt that it could install a road without installing a "complete street". With a $40
million judgment against it, perhaps the city will change its tune.
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