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HomeMy WebLinkAbout10-19JANUARY 26, 2010 10 -19 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE AGREEMENT FOR RIGHT -OF -WAY ACQUISITION / WASHBURN STREET RELOCATION PROJECT INITIATED BY: CITY ADMINISTRATION WHEREAS, by Resolution 06 -56 adopted February 14, 2006 the Common Council approved a revised relocation order and approved a Determination of Necessity pursuant to Sec. 32.07 of the Wisconsin Statutes, to acquire certain land for right -of -way purposes on North Washburn Street, between Robin Avenue extended and Westowne Avenue; and' WHEREAS, by Resolution 06 -269 adopted on September 13, 2006, the Common Council approved a jurisdictional offer of $233,200 to acquire property known as Parcel 3, the former Countryside Restaurant parcel, from Countryside Restaurant, Inc., Richard C. Naslund, William Manske, Virginia Manske, Racette Ford of Oshkosh, Inc. Associated Bank, NA; and WHEREAS, the City of Oshkosh acquired title to the property by filing with the Winnebago County Circuit Court an Award of Damages; and WHEREAS, by subsequent landowner appeal, the circuit court ordered the parties to mediation over the disagreement as to the appropriate amount of compensation for this acquisition and the parties reached the following tentative agreement, subject to final Council approval: The City will pay an additional $ 60,000 to settle this litigation which includes a full release and discharge of any and all claims that were made or could have been made arising out of the City's acquisition of the property. NOW, THEREFORE, BE IT RESOLVED by the Common Council for the City of Oshkosh that the tentative agreement is hereby approved and that the proper City officials are authorized and directed to sign all documents and to undertake those steps necessary for implementing this resolution. Money for this purpose is appropriated from: Acct. No. 315 - 0410 - 7480 -00000 Street Improvement Fund Expenditures CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54903.1130 City of Oshkosh ( 0- QlHKQfH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: January 7, 2010 RE: Approval of Settlement Agreement with Countryside Restaurant, Inc. — Appeal from an Award of Damages in Eminent Domain for Property located along Washburn Street BACKGROUND Countryside Restaurant, Inc. and other owners of property located along Washburn Street immediately south of the Highway 21 filed an Appeal from an Award of Damages in an eminent domain action related to the taking of property for the Highway 41 /Highway 21 Interchange project. The City of Oshkosh was responsible for acquiring certain property for the project including the former Countryside Restaurant parcel. In the Appeal, the City was represented by Attorney Ben Southwick whose practice focuses on eminent domain litigation. The parties to the lawsuit participated in mediation with Attorney Timothy A. Hawley acting as the agreed upon mediator. A proposed settlement was reached which is contingent upon approval by the Common Council. This memorandum is being provided in anticipation of bringing this proposed settlement before the Council for approval. The subject property was commercial property located on the west side of the City of Oshkosh, south of Lake Butte des Morts and west of Highway 41, just south of the intersection of Highway 41 with Highway 21. The property had street access to North Washburn Street. The date of taking of the property was October 10, 2006 and the City paid $233,200 as its Award of Damages payment. The area taken was approximately 13,500 square feet and included an area of asphalt pavement and trees. In addition, a temporary easement for construction purposes was also taken. co If there are questions or concerns relative to this matter, this would be appropriate for a closed session pursuant to section 19.85(g) of the Wisconsin Statutes which would allow the Council to meet with legal counsel concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved. Therefore, if any member of the Council has questions or concerns regarding the proposed settlement please contact the City Attorney's office to discuss the matter and/or to request that this matter be placed on the Council's Agenda for a closed session to allow for additional discussion. If a closed session is not requested, this matter will be placed upon the Council's next agenda for action as a resolution to approve the attached settlement. ANALYSIS The City paid $233,200 for the property taken for the interchange project. Statutes allow the owners of property to appeal an award of damages when property is taken. The property owners in this case obtained an appraisal valuing the property at $312,500. The proposed settlement requires the City to pay an additional $60,000 to the property owners making the total amount of compensation paid for the property $293,200. In exchange the City would receive a full release of all claims relating to the property acquisition. With regard to the risks of not approving the proposed settlement, if the City would proceed to litigation the City would incur additional attorney fees, costs for experts and other costs associated with a trial. In addition, should a jury award the property owner an amount more than 15% greater than the original award of damages, by statute the City would be liable for all of the property owner's litigation expenses, including its attorney fees. Should a jury uphold the Award of Damages, the City would incur no additional costs for compensation but would incur the additional legal fees and costs of litigation. If a jury awarded less than the original Award amount, the property owner may have to repay amounts previously paid. FISCAL IMPACT The proposed settlement would result in an additional payment to the property owner of $60,000. RECOMMENDATION Based upon all of the facts of this case and consideration of the law governing the eminent domain process, the Staff recommends that the Council approve the settlement agreement. ectfully Submitted, L�/nn. Loren—so City Attorney Approved: �-. ,CK. A'44- Mark A. Rohloff City Manager