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HomeMy WebLinkAbout10-266AUGUST 24, 2010 10 -266 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE AGREEMENT FOR RIGHT -OF -WAY ACQUISITION / JACKSON STREET - MURDOCK AVENUE INTERSECTION IMPROVEMENT PROJECT INITIATED BY: PUBLIC WORKS DEPARTMENT WHEREAS, by Resolution 08 -469 adopted December 9, 2008, 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 at the Jackson Street and Murdock Avenue intersection; and WHEREAS, by Resolution 09 -286 adopted on July 28, 2009, the Common Council approved a jurisdictional offer of $6,150.00 to acquire property known as Parcel 18, owned by Nathan C. Mecklenburg and Miranda M. Mecklenburg, and Universal Mortgage Corporation ; 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 $9,000.00 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 the proper City officials are authorized and directed to sign all documents and to undertake those steps necessary for implementing this resolution. BE IT FURTHER RESOLVED that 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 — OlHKQIH TO: Honorable Mayor and Members of the Common Council FROM: David J. Praska, Assistant City Attorney DATE: August 20, 2010 RE: Approval of Settlement Agreement with Nathan C. and Miranda M. Mecklenburg — Appeal from an Award of Damages in Eminent Domain for Property located at Jackson Street — Murdock Avenue Intersection Improvement Project BACKGROUND Nathan C. and Miranda M. Mecklenburg own the residential property at 1707 Jackson Street. As part of the Jackson Street — Murdock Avenue intersection improvement project, they received a jurisdictional offer of $6,150.00 for a portion of their property along Jackson Street in an eminent domain action. They filed an Appeal from the Award of Damages in Circuit Court. The City of Oshkosh was responsible for acquiring certain property for the Jackson /Murdock project including the former Mecklenburg 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. This proposed settlement was reached in mediation, but is contingent upon approval by the Common Council. The subject property is residential property at the northwest corner of Jackson Street and Hobbs Avenue. The Council approved the jurisdictional offer and its payment on July 28, 2009. The area taken was approximately 273 square feet for right of way purposes. In addition, a temporary easement of 1,089 square feet for construction purposes was also taken. If there are sensitive questions or concerns relative to this matter, I recommend that they be discussed in 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. Non - sensitive questions regarding this matter can, of course, be discussed in open session. Therefore, if any member of the Council has questions or concerns co 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 remain on the Council's as a resolution to approve the attached settlement. ANALYSIS The City paid $6,150.00 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 $20,500.00. The proposed settlement requires the City to pay an additional $9,000.00 to the property owners making the total amount of compensation paid for the property $15,150.00. 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 owners of $9,000.00. 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. 2pectfu y Submitted, Davi J. Praska Assistant City Attorney Approved: Mark A. Rohloff City Manager