HomeMy WebLinkAbout08-13-2007A.
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MINUTES
MAPLEWOOD CITY COUNCIL
7:00 p.m., Monday, August 13, 2007
Council Chambers, City Hall
Meeting No. 07-014
CALL TO ORDER
A meeting of the City Council was held in the City Hall Council Chambers and was called to order
at 7:00 p.m. by Mayor Longrie.
PLEDGE OF ALLEGIANCE
ROLL CALL
Diana Longrie, Mayor Present
Rebecca Cave, Councilmember Present
Erik Hjelle, Councilmember Present
Kathleen Juenemann, Councilmember Present
Will Rossbach, Councilmember Present
APPROVAL OF AGENDA
Councilmember Juenemann added M1. National Night Out.
Mayor Longrie added M2. Old Gladstone Fire Station Parcel and M3. City Website Information.
City Manager, Copeland added G3. Fire Department Federal Grant and N1. Data Practices
Claim.
Councilmember Cave moved to approve the agenda as amended.
Seconded by Mayor Longrie.
APPROVAL OF MINUTES
Ayes — All
Minutes from the July 23, 2007, 5 p.m. Council/Manager Workshop.
Councilmember Juenemann telephoned Citizen Services Manager and City Clerk, Karen
Guilfoile, with a correction. The July 23, 2007, City Council Workshop minutes should reflect
Rebecca Cave as the Acting Mayor in Mayor Longrie's absence rather than Acting Chairperson.
This correction should be made in the City Council Workshop minutes and in the regular July 23,
2007, City Council minutes.
Councilmember Cave moved to approve the Council/Manager Workshop minutes of July 23,
2007, 5 p.m. as amended.
Seconded by Councilmember Hjelle.
Ayes- Cave, Hjelle, Rossbach
Abstention — Juenemann, Mayor Longrie
August 13, 2007, City Council Meeting
2. Minutes from the July 23, 2007, 7:00 p.m. City Council Meeting.
The same correction should be made to the City Council Minutes as noted by Councilmember
Juenemann during the approval of the City Council Workshop minutes.
Councilmember Cave moved to approve the City Council Meeting minutes of July 23, 2007, as
amended.
Seconded by Councilmember Hjelle. Ayes- Cave, Hjelle, Juenemann, Rossbach
Abstention — Mayor Longrie
F. VISITOR PRESENTATIONS
Brian Gardner, Eagle Scout from BSA Troop 902, 1963 Maryknoll Avenue North,
Maplewood. Brian announced an upcoming Emergency Preparedness Workshop being
held at the Church of Jesus Christ of Ladder Day Saints, Little Canada, 2400 Edgerton
Street North, August 18 from 1-4 p.m.
2. Bill Kayser, 6408 - 81" Avenue North, Brooklyn Park, addressed the council. He
presented the council with a handout which he said he had also mailed to them.
3. Nancy Lazaryan, (in propria persona, in summon jure), 10734 West Lake Road, Rice,
addressed the council. Ms. Lazaryan gave a copy of the Notice of Motion and Motion from
Judge Joanne Smith from August 21, 2007, to the City Clerk, Karen Guilfoile.
4. Victoria Marchetti, 1033 Conway Street, St. Paul, addressed the council. Ms. Marchetti
wanted to introduce herself and let everyone know she was present if anyone needed to
speak to her.
5. Ron Cockriel, 943 Century Avenue, Maplewood, addressed the council. He spoke
regarding Minnesotans who were recently deployed and those who are currently serving
our country in the war. He also expressed how people deal with change. Both change in
day to day life and change in the City of Maplewood.
6. Joe and Ms. Michael Bailey, 1615 Sterling Avenue South, Maplewood, addressed the
council. Ms. Bailey said she supports both Rose Lorsung and Schoell Madson in the work
they have done in the South Maplewood Land Use Study along with the work they have
done with the neighbors in South Maplewood. She felt they were very professional and
their ideas and plans were easy to understand.
G. APPOINTMENTS/PRESENTATIONS
Citizen Services — Recreation Program Report — Karen Guilfoile, Citizen Services
Manager.
Ms. Guilfoile gave a Recreation Program presentation regarding events and recreation
programs over the past 6 months. Also included was statistical information showing an
increase in participation from 2006.
August 13, 2007, City Council Meeting 2
2. Public Works — Parks Maintenance Report — Chuck Ahl, Director of Public Works &
Engineering.
Mr. AN spoke regarding the recent storm that hit certain areas in the City of Maplewood
and gave brush pick up instructions for areas between Larpenteur Avenue and Conway
and McKnight and Century Avenue. Then Mr. AN gave a Park Maintenance Report
informing the city council of the benefits of blending the Park and Public Works
Maintenance Departments in the 2007 budget.
3. Fire Department Federal Grant — Chief Lukin
Maplewood Fire Chief, Steve Lukin, stated the city had applied for and received a
$150,000 federal grant to pay for laptop computers that would be installed in the city's
police and ambulance vehicles allowing emergency personnel to receive faster and more
complete information from the Ramsey County Dispatch Center. This will allow
Maplewood's emergency personnel to better serve the public.
H. PUBLIC HEARINGS
1. The Shores Senior Housing Development 940 Frost Avenue.
a. Land Use Plan Clarification — Gladstone — High (Requires 4 votes)
b. Street Right-of-way vacation
C. Public easement vacation
d. Preliminary Plat
e. Conditional Use Permit for Planned Unit Development
f. Design Approval
1. Planner, Shann Finwall gave the report.
2. Chuck Ahl, Public Works Director answered questions
3. Link Wilson, Kaas Wilson Architects, answered questions.
4. Denny O'Donnell, representing Walker Methodist, gave a report.
5. Linda Olson, Chairperson, Community Design Review Board, gave a
report.
6. Lorraine Fischer, Chairperson, Planning Commission, gave a report.
7. Steve Lukin, Fire Chief, answered questions
Mayor Lon , rq ie opened the public hearing and the following individuals spoke:
(a) Richard Currie, Historical Preservation Commission, 1937 Kenwood Dr W Maplewood.
(b) Linda Olson, 2005 County Road C East, Maplewood.
(c) Joy Tkachuck, 1088 Gordon Avenue, Maplewood.
(d) Jan Steiner McGovern, 1876 East Shore Drive, Maplewood.
(e) Mindy MacRunnel, 1890 Adele Street, Maplewood.
Mayor Longrie closed the public hearing.
August 13, 2007, City Council Meeting 3
Councilmember Cave moved to approve the comprehensive land use amendment resolution.
This resolution clarifies the comprehensive land use map definition for the Gladstone high density
land use designation as follows:
Gladstone High (G -H): Locations with stacked housing units with densities ranging from
12 to 30 units per acre.
Seconded by Mayor Longrie. Ayes — Mayor Longrie, Councilmember's
Cave. Hjelle
Nays — Councilmember's Juenemann,
Rossbach
The motion failed by a vote of 3 to 2 (Comprehensive Plan Amendments require 4 votes)
Councilmember Cave moved to approve the public vacation resolution. This resolution is for the
public vacation of 20 feet of right-of-way along East Shore Drive and the vacation of a sanitary
sewer easement located on the west side of the property at 940 Frost Avenue. Prior to the city
recording this resolution, the applicant must complete the following:
a. The applicant shall grant the city a right -of -entry to complete the sanitary sewer
abandonment work.
b. The applicant shall dedicate additional right-of-way to the city at the southwest corner of
the Frost Avenue and East Shore Drive intersection for the construction of the proposed
roundabout.
Seconded by Mayor Longrie. Ayes — All
PUBLIC VACATION RESOLUTION 07-08-133
WHEREAS, Link Wilson, Kaas Wilson Architects, Representing the Owner and
Developer, Bart Montanari of Dabar Development, has applied for the vacation of a portion of the
East Shore Drive right-of-way adjacent the property at 940 Frost Avenue and a sanitary sewer
easement located on the west side of the property at 940 Frost Avenue as follows.
Right -of -Way: The westerly 20 -feet of East Shore Drive running the entire length of the property
at 940 Frost Avenue.
Sanitary Sewer Easement: Part of E. 10 acres of the W. 20 acres of Government Lot 2 described
as follows: Beginning at intersection of W. line of said 10 acres and S'ly line of Frost Ave. as now
located; thence S. 27006' E. a distance of 811.06 feet to intersection of E. line of said 10 acres
and N'ly line of East Shore Drive; thence N. on said E. line 189.3 feet; thence W. at right angles
67.5 feet; thence NW'ly at an angle of 61057' to the right a distance of 613.05 feet to said S. line
of Frost Ave.; thence SW'ly thereon 17.3 feet, more or less to beginning; all in Sec. 16, T. 29, R.
22, together with that portion of the above described land S. of the previously described line
August 13, 2007, City Council Meeting 4
which lies W. of a line running NW'ly from the SE corner of the said E. 10 acres of the W. 20
acres of said Government Lot 2 to a point 189.02 feet N. of and 50 feet W. of said SE corner,
which easement shall include the perpetual right of said Village of Maplewood, its successors or
assigns, to construct, maintain, operate and repair underground sewer mains, pipes and
appurtenances over and across the strip of land hereinbefore described, together with perpetual
easement for ingress and egress, all without additional compensation.
WHEREAS, the history of these public vacations is as follows:
On July 17, 2007, the planning commission held a public hearing about the proposed
vacations. The city staff published a notice in the Maplewood Review and sent a notice to
the abutting property owners. The planning commission gave everyone at the hearing a
chance to speak and present written statements. The planning commission also
considered reports and recommendations of the city staff. The planning commission
recommended that the city council approve the vacation.
2. On August 13, 2007, the city council reviewed this proposal. The city council also
considered reports and recommendations of the city staff and planning commission.
WHEREAS, after the city approves the vacation of the right-of-way, public interest in the
right-of-way property will go to the following abutting property:
Address: 940 Frost Avenue
Property Identification Number: 162922310024
Existing Legal Description: That part of Government Lot 2, Sec. 16, T. 29, R. 22, Ramsey
County, Minnesota which lies S' of Frost Avenue as described in Document No. 1999021, W' of
Frost Avenue Connection as described in Document No. 1999021, N' of East Shore Drive as
described in Document No. 367903, and NE' of a line described as commencing at the center of
said Section 16, thence S 89 degrees 32 minutes 38 seconds W, assumed bearing, along the N
line of said Government Lot 2, 1130.00 feet, to the point of beginning; thence South 27 degrees
23 minutes 03 seconds East, 1121.18 feet to an angle in the north line of said East Shore Drive,
said angle point being 658.56 feet westerly of the East line of said government lot 2 as measured
along the N line of said East Shore Drive and said line there terminating.
New Legal Description (After Platting): Lot 1, Block 1, The Shores.
August 13, 2007, City Council Meeting 5
NOW, THEREFORE, BE IT RESOLVED that the city council approve the above-described
right-of-way vacation for the following reasons:
1. The city's proposed road improvements along East Shore Drive do not require such a wide
right-of-way, and therefore the vacation of the 20 -foot -wide portion of the right-of-way is in
the public interest and will allow the applicant additional land for development.
2. Installation of sanitary sewer along East Shore Drive is part of the public improvements
planned in connection with the development. As such, the existing sanitary sewer line
located on the west side of the property will be abandoned and removed. The sanitary
sewer easement will no longer be needed and therefore the vacation of the easement is in
the public interest.
Prior to the city recording the vacation of the right-of-way and sanitary sewer easement the
applicant must complete the following:
1. The applicant shall grant the city a right -of -entry to complete the sanitary sewer
abandonment work.
2. The applicant shall dedicate additional right-of-way to the city at the southwest corner of the
Frost Avenue and East Shore Drive intersection for the construction of the proposed
roundabout.
The Maplewood City Council adopted this resolution on August 13, 2007.
Seconded by Councilmember Cave. Ayes — Mayor Longrie, Councilmember's
Cave, Hjelle, Juenemann
Nay — Councilmember Rossbach
Mayor Longrie moved to approve the preliminary plat date-stamped April 19, 2007, for the Shores
(previously called Lake Phalen Estates) located at 940 Frost Avenue. Approval is subject to the
following conditions:
a. Have the city engineer approve final construction and engineering plans. These plans
shall comply with all requirements as specified in the city engineering department's May
22, 2007 review and SEH engineering consultant's May 17, 2007 review.
b. Prior to final plat approval, the following must be submitted for city staff approval:
1) Dedication of drainage and utility easement agreements around all public storm
water facilities on the site.
2) Dedication of a 10 -foot -wide drainage/utility/pedestrian easement along the south
side of Frost Avenue, along the entire northerly boundary of the Shores property.
3) Dedication of an 8 -foot -wide pedestrian easement along the proposed trail to be
located on the west side of the building running from the Frost Avenue sidewalk to
the East Shore Drive sidewalk.
4) Rename the plat The Shores.
August 13, 2007, City Council Meeting 6
C. Record all easement agreements with the final plat.
Seconded by Councilmember Cave. Ayes — Mayor Longrie, Councilmember's
Cave, Hjelle, Juenemann
Nay — Councilmember Rossbach
Mayor Longrie moved to approve the conditional use permit resolution attached in the staff report
(Attachment 29). This resolution approves the conditional use permit for a 180 senior housing
planned unit development within the Shoreland Overlay District of Phalen Lake.
CONDITIONAL USE PERMIT RESOLUTION NO. 07-08-134
WHEREAS, Link Wilson, Kaas Wilson Architects Representing the Owner and Developer,
Bart Montanari of Dabar Development, applied for a conditional use permit for a planned unit
development to construct a 180 -unit senior housing complex known as The Shores.
WHEREAS, this permit applies to the following property:
Address: 940 Frost Avenue
Property Identification Number: 162922310024
Existing Legal Description: That part of Government Lot 2, Sec. 16, T. 29, R. 22, Ramsey
County, Minnesota which lies S' of Frost Avenue as described in Document No. 1999021, W' of
Frost Avenue Connection as described in Document No. 1999021, N' of East Shore Drive as
described in Document No. 367903, and NE' of a line described as commencing at the center of
said Section 16, thence S 89 degrees 32 minutes 38 seconds W, assumed bearing, along the N
line of said Government Lot 2, 1130.00 feet, to the point of beginning; thence South 27 degrees
23 minutes 03 seconds East, 1121.18 feet to an angle in the north line of said East Shore Drive,
said angle point being 658.56 feet westerly of the East line of said government lot 2 as measured
along the N line of said East Shore Drive and said line there terminating.
New Legal Description (After Platting): Lot 1, Block 1, The Shores
WHEREAS, the history of this conditional use permit is as follows:
1. On July 17, 2007, the planning commission held a public hearing. City staff published a
notice in the paper and sent notices to the surrounding property owners. The council gave
everyone at the hearing a chance to speak and present written statements. The planning
commission also considered reports from the city staff.
August 13, 2007, City Council Meeting 7
2. On August 13, 2007, the city council reviewed this request. The city council also considered
reports and recommendations of the city staff and planning commission.
NOW, THEREFORE, BE IT RESOLVED that the city council approve the above-
described conditional use permit, because:
1. The use would be located, designed, maintained, constructed and operated to be in
conformity with the city's comprehensive plan and code of ordinances.
2. The use would not change the existing or planned character of the surrounding area.
3. The use would not depreciate property values.
4. The use would not involve any activity, process, materials, equipment or methods of operation
that would be dangerous, hazardous, detrimental, disturbing or cause a nuisance to any
person or property, because of excessive noise, glare, smoke, dust, odor, fumes, water or air
pollution, drainage, water runoff, vibration, general unsightliness, electrical interference or
other nuisances.
5. The use would generate only minimal vehicular traffic on local streets and would not create
traffic congestion or unsafe access on existing or proposed streets.
6. The use would be served by adequate public facilities and services, including streets, police
and fire protection, drainage structures, water and sewer systems, schools and parks.
7. The use would not create excessive additional costs for public facilities or services.
8. The use would maximize the preservation of and incorporate the site's natural and
scenic features into the development design.
9. The use would cause minimal adverse environmental effects.
Approval is subject to the following conditions:
1. The engineering department shall review and determine approval of all final construction and
engineering plans. These plans shall comply with all requirements as specified in the city
engineering department's May 22, 2007, review and SEH engineering consultant's May 17,
2007 review.
2. All construction shall follow the plans date-stamped April 19, 2007, and with revisions as
noted in this approval. The city council may approve major changes to the plans. City staff
may approve minor changes to the plans.
3. The project is approved with 120 underground and surface parking spaces (emphasizing the
use of underground parking) and 30 proof of parking spaces. This is a parking reduction of
210 parking spaces (360 parking spaces are required per city code). The applicant shall
maximize the use of pervious pavers for the surface parking spaces.
4. The project is approved with a 141 square foot floor area reduction in the required unit floor
area for the memory care and assisted living units (580 square foot units are required per city
code; 490 to 509 square foot units are proposed).
August 13, 2007, City Council Meeting 8
5. The project is approved with a 20 -foot front yard setback along Frost Avenue for the one-story
kitchen portion of the building (30 -foot front yard setback required per city code).
6. The project is approved with storage space of not less than 48 cubic feet for the memory care
and transitional care units (120 cubic feet of storage area per unit required per city code).
7. The project is approved with four floors.
8. All signs on the property must be approved by the community design review board.
9. Approval is conditioned on the owner constructing or funding a Gladstone neighborhood entry
monument sign at the intersection of Frost Avenue and East Shore Drive. Signage proposal
to be submitted to the Historical Preservation Commission for approval.
10. Approval is conditioned on the applicant implementing interior of -and exterior signage which
reflects the previous use of the property as the St. Paul Tourist Cabin site. Signage proposal
to be submitted to the Historical Preservation Commission for approval.
11. The approved landscape plan and tree preservation requirements shall be subject to
monitoring by city staff to assure compliance. Minor modifications to these plans shall be
subject to review by staff while major modifications shall require city council approval.
12. The proposed construction must be substantially started within one year of city council
approval or the permit shall end. The city council may extend this deadline for one year.
13. The city council shall review this permit in one year.
The Maplewood City Council adopted this resolution on August 13, 2007.
Seconded by Councilmember Cave. Ayes — Mayor Longrie, Councilmember's
Cave, Hjelle, Juenemann
Nay — Councilmember Rossbach
Mayor Longrie moved to approve the plans date stamped April 19, 2007, for the 180 -unit, four-
story Shores senior housing development to be located at 940 Frost Avenue. Approval is subject
to the applicant doing the following:
a. Repeat this review in two years if the city has not issued a building permit for this
project.
b. Prior to issuance of a grading or building permit, the applicant must submit to staff for
approval the following items:
1) Verification the Shores plat has been recorded.
2) Have the city engineer approve final construction and engineering plans. These
plans shall comply with all requirements as specified in the city engineering
department's May 22, 2007 review and SEH engineering consultant's May 17,
2007 review. In addition, the engineering plans should be revised as follows:
August 13, 2007, City Council Meeting 9
a) Tree Preservation:
The revised grading plan shall preserve the large specimen
cottonwood tree (heritage tree) located on the north side of the
property, adjacent Frost Avenue (48 -inch tree).
2. Revision to the grading plan showing that the most easterly
retaining wall is shifted to the west to make every effort to preserve
the three specimen oak trees and other significant trees in the area.
3. Revision to the grading plan shifting the retaining wall located on
the north side of the wetland to the north, toward the building, to
make every effort to preserve significant trees in this area.
4. The applicant shall work closely with the city engineering
department to reduce the size or quantity of rainwater gardens
needed on the site in an attempt to reduce grading and ultimately
preserve trees.
5. The applicant shall work closely with the city engineering
department to reduce the amount of grading needed along the Frost
Avenue and East Shore Drive property lines in an attempt to
preserve trees and screen the property from these streets.
b) The applicant shall work closely with the city engineering department to
reduce the size or quantity of rainwater gardens needed on the site in an
attempt to reduce grading and ultimately preserve trees.
C) Revision to the grading plan to incorporate pervious pavers or pavement on
the following areas: loading dock, northwest patio, parking spaces located
in the center of the curved driveway, under the entry canopy, and at the
memory care entrance.
d) The applicant shall work with staff to incorporate turn lanes on Frost
Avenue and East Shore Drive into the development if possible.
3) Revised site plan showing:
a) The location of trash and recycling receptacles throughout the site.
b) The location of benches scattered throughout the site, along the trails and
sidewalks.
C) Removal of the south driveway on East Shore Drive.
d) Relocation of the -a handicap accessible trail on the west side of the
building to wrap around the south side of the building and exit onto East
Shore Drive, south of the driveway.
e) Location of all required surface and proof of parking spaces.
August 13, 2007, City Council Meeting 10
f) Location of a crosswalk on East Shore Drive. Crosswalk to extend from the
trail located on the south side of the driveway across the street to the
existing trail/sidewalk on the east side of East Shore Drive.
4) Revised elevations showing:
a) An increase in the height of the loading dock screening fence to 6 -feet high
along Frost Avenue. This can be accomplished through the use of design
elements proposed on the arcade/trellis to increase the height and create
more of a screen to the loading dock.
b) The proposed northwest patio and entry door on the building elevations.
C) The proposed fence around the healing garden.
d) Roof vents must be placed on the west side of the roof if possible. All roof
vents must blend into the roofline with compatible colors.
5) Watershed district approval.
6) Building material samples showing color scheme for the project as shown on the
power point presentation presented to the Community Design Review Board
during the July 24, 2007, meeting.
7) Enter into a developer's agreement with the city which will cover the installation of
all public improvements surrounding and within the property.
8) Sign a maintenance agreement for the ongoing maintenance of all required
rainwater gardens and infiltration basins.
9) A cash escrow or an irrevocable letter of credit for all required exterior
improvements. The amount shall be 150 percent of the cost of the work.
C. The applicant shall complete the following before occupying the building:
1) Replace any property irons removed because of this construction.
2) Provide continuous concrete curb and gutter around the parking lot and driveways.
3) Install all required landscaping and an in -ground lawn irrigation system for all
landscaped areas.
4) Install all required outdoor lighting.
5) Install all required sidewalks and trails.
d. The lighting and photometrics plan is not approved. The applicant must submit a revised
lighting and photometrics plan for community design review board approval which
complies with city code and is compatible with the Phase I Gladstone public
improvements.
August 13, 2007, City Council Meeting 11
e. Signage is not approved. The applicant must submit a sign plan for community design
review board approval. The plan must show a monument sign to be located at the
intersection of Frost Avenue and East Shore Drive which announces the entryway to the
Gladstone Neighborhood and any exterior signage advertising the Shores.
Landscape/tree replacement/shoreland screening plan is not approved. The applicant
must submit a revised landscape/tree replacement/shoreland screening plans showing:
1) Detail of south elevation from the center of Lake Phalen showing compliance with
shoreland screening requirements (code requires that the building be at least 80
percent screened from the lake).
2) Tree preservation plan shall maximize preservation of the significant/specimen
trees on the site.
3) Landscape plan which shows:
a) Additional plantings in front of the loading dock.
b) The location of all proposed ground mechanical units which are screened
by landscaping.
C) The installation of underground irrigation for the landscaped areas. The
applicant should explore the use of conservation sensor sprinkler devices
which will shut off when it is raining.
d) Theplanting of 25 -foot -high evergreen trees along the east property line
(adjacent East Shore Drive) to ensure screening of the building from
rom
residential properties to the east.
4) Rainwater garden plantings based on any grading changes. Rainwater gardens to
be reviewed and approved by the city's naturalist prior to issuance of a building
permit.
g. If any required work is not done, the city may allow temporary occupancy if:
1) The city determines that the work is not essential to the public health, safety or
welfare.
2) The above -required letter of credit or cash escrow is held by the City of
Maplewood for all required exterior improvements. The owner or contractor shall
complete any unfinished exterior improvements by June 1 of the following year if
occupancy of the building is in the fall or winter or within six weeks of occupancy of
the building if occupancy is in the spring or summer.
h. All work shall follow the approved plans. City staff may approve minor changes.
Seconded by Councilmember Hjelle. Ayes — All
August 13, 2007, City Council Meeting 12
Councilmember Rossbach moved to adjourn the meeting at 11:07 p.m.
Seconded by Councilmember Hjelle. Ayes — Mayor Longrie,
Councilmember's Hjelle, Juenemann,
Rossbach
Nay — Councilmember Cave
The city council meeting will resume Thursday, August 16, 2007, at 5:00 p.m. beginning with the
Consent Agenda.
August 13, 2007, City Council Meeting 13
August 13, 2007 The Shores- City Council meeting
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Siteline study: from Phalen Lake. Not Phalen Lake. Where are the apartments? Are
they really claiming this is an accurate rendition of their complex? Where are the
exsisting homes?
My siteline study: If the Phalen site line is ginned up, how much of mine is just guess
work? Do the trees accurately show where they are putting pine trees and their height?
The siteline for the house #3 is a more accurate view of what we will see from our living
room, kitchen, deck and even more so from our bedroom windows. 2 stories will be
above the trees. They even show that in one of their own views. We will see this entire
Complex, we face it directly. No one else does.
Trees: Mr. Wilson has stated twice that Mr Montonari owns a tree farm and will be
putting in 25-30 ft. pine trees.
I first heard of it at the Planning Commission meeting. I've been fighting to keep the
trees along E. Shore Dr. and I'm now requesting that 2 rows of 30 ft pine trees be placed
at street level on E. Shore Dr. so the 7 months out of the year that the leaves are down we
will not have to see the entire complex.
The Report summary states the current plan is short on the number of actual large trees
being replaced. Replacing the thick deciduous trees and shrubs on the west side of E.
Shore Dr. from approximately the Utility pole (as the starting marker by our house on the
eastside of E. Shore Dr).south, coming as close to the driveways as possible and
continuing down to the edge of the complex property.
Lighting: I've looked at the present light plan that Mr. Wilson presented on Thursday
and no matter what the city code is you can't stop light from shining. Example the
Moon has no light of its own but it shines in my back yard all the same. There was very
little light coming from the trailer park or the street lights, which are located up at Frost
and E. Shore only, we have major concerns with this huge complex and the amount of
light that will be needed to light it up at night. And the applicant has not satisfactorily
addressed it.
Driveway: I have taken a look at the change and all I can tell is the 2nd driveway is still
there in the same place and they reworked the path around into it. The main driveway is
right at the curve. I would like to request that we compromise on the location of the
driveway and move the north (main) driveway halfway, further south toward the 2nd
driveway. And the re -worked 2nd path/driveway to come in the way it is on the original
plan straight off the back of the complex .
Linda Olson, DRB, thought that location in the middle of the curve would slow cars
down. No it won't, it hasn't for all these years and I doubt whether adding more cars and
the round -about will do anything but exasperate the problem on both E. Shore and Frost.
Public Community Room: The plan still shows a huge community room. Mr. Wilson
has stated that they are changing their concept and not opening it to the public. Where is
that officially stated in writing?
I looked at the floor plans that show the common areas/rooms and there are no
dimensions on the plans that are readable to be able to verify that the size of the rooms
ARE what the developer says they are. We've stated that there is almost 1/3 of this
complex going into common areas. They stated originally 100,000 sf of commons.
After challenging them, they now state there is 40,000 sf, that's a big difference. Are they
changing their statements to fit the questions and to give us the old "sell job"?
We still contend that they could utilize some of this area for resdential units and back off
the 4 stories and still achieve the high density they are requesting. The Public community
room they are getting rid of alone and 2 stories above it, when made into residential units,
could go a long way to getting this building down to 3 stories. Plus there are atriums,
solariums, club rooms and separate dining areas. Are some these areas redundant?
Also Linda Olson asked during the Design Review meeting what was the maximum
capacity for residents. Mr. Wilson evaded the question by saying 6 units are 1150 sf and
2 bedrooms, blah blah blah. He never directly answered exactly what the total capacity
of the entire complex is. What is it when all the beds are full, including the 2 bedroom
rental units?
Regarding the fire safety of the 4 stories, Mr. Hjelle and the chief will say no one has
ever died in a 4 story sprinkled modern building. Quoting DFL Senator Amie Klobochar
"Bridges don't fall down in Minnesota" Well 35W bridge did. Does one dementia
patient have to get confused and die in a 4 story that wasn't suppose to happen either.
My husband would be here tonight but he is on call all night to take medical calls from
already the over burdened EMS systems in the Gladstone area for assisted living and
nursing home care complexes.
STATE OF M ,
INNESOTA ji�j •.5� �/YI , DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
City of Maplewood
Plaintiff,
V. Notice of Motion
and Motion
Evelyn C. Wallace, et al
Defendants
Case type: Quiet Title
Court file #62-C4-06-010365
Judge: Joanne Smith
PLEASE TAKE NOTICE that on August 21, 2007 before the honorable Judge Joanne
Smith at 11:00 AM at the Ramsey County Courthouse, 15 West Kellogg, St. Paul, Minnesota, in
Courtroom 1530, Defendant Nancy C. Lazryan will move the court as follows:
1. For an Order to Amend Findings in its July 13, 2007 Order denying Lazaryan's
Motion for Default, pursuant to Rule 59 and Rule 60.02(f) of the Minn. Rules of
Civ. Proc., and/or alternatively:
2. For an Order giving Lazaryan leave to supplement/amend her responsive pleading
by adding her Counterclaim, pursuant to Rules 13.01, 13.06 and 15.04 of the
Minn. Rules of Civ. Proc., and/or alternatively:
3. To Remove Judge Joanne Smith for Bias and/or Mental Disability, pursuant to
Rules 63.01, 63.02 and 63.03 of the Minn. Rules of Civ. Proc.
MOTION TO AMEND FINDINGS
On May 21, 2007, multiple Motions were brought before the court. Lazaryan sole
Motion before that court on May 21, 2007 was a Motion for DEFAULT. In this court's Order,
the court states:
"Kayser also brought a motion to dismiss Plaintiff's Complaint and is requesting a
default judgment against Plaintiff. Defendant Nancy Lazaryan has brought a motion to
dismiss and requests a default judgment. In their motions to dismiss, Defendants argue
that the Court should dismiss Plaintiff's Complaint based upon the arguments already
raised and addressed by Defendant Evelyn Wallace's attorney. The Court's ruling
applies equally as well to these Defendants." (page 13 of this court's Memorandum,
dated July 13, 2007.)
The court also found: "Defendants Kayser and Lazaryan both have also brought motions
to compel and for sanctions." (page 14).
On May 21, 2007, neither Lazaryan nor Kayser had brought Motions to Dismiss.
Lazaryan never brought a motion to compel or a motion for sanctions. These findings by the
court are unsupported by the record.
The court, on page 14 of said Memorandum, finds, "Pursuant to Minn. R. Civ. P. 15.01,
that Defendants missed the 20 -day deadline under the rule.... Because the deadline was missed, a
party must obtain permission from the opposing party, or the moving party must obtain leave of
the Court to serve and file the amended Counterclaim."
Minn. R. Civ. P. 15.01 states, "A party may amend a pleading once as a matter of course
at any time before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not been placed upon the trial calendar, the
party may so amend it at any time within 20 days after it is served. Otherwise a party may
amend a pleading only by leave of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires..." The court misstates the law by requiring
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Lazaryan to get leave of the court to file the amended Counterclaim. In fact, the law states leave
of the court is necessary to amend pleadings. Thus, the so stated finding by the court is
unsupported by the law.
As well, the courtfailed to address the arguments made by Lazaryan concerning the
operation of Rule 13.01 of the M.R.C.P. Under rule 13.01, Lazaryan has the right to serve a
counterclaim, at a time other than with her responsive pleading. See the law as follows:
"Rule 13.01 of the M.R.C.P.
A pleading shall state as a counterclaim any claim which at the time of serving the
pleading the pleader has against any opposing party, if it arises out of the
transaction that is the subject matter of the opposing party's claim and does not
require for its adjudication the presence of third parties over whom the court
cannot acquire jurisdiction, except that such a claim need not be so stated if, at
the time the action was commenced, the claim was the subject of another pending
action." (emphasis added)
When a party argues the facts and the law, it is upon the court to address those arguments
in complete findings of fact and conclusions of law. See the law as follows:
"Practice by district judge of announcing decision and requesting prevailing party
to prepare findings of fact and conclusions of law which are adopted nearly word-
for-word in support of courts previously announced decision is disapproved
because fair compliance with Rule 52(a) requires trial court to find facts on
every material issue, including relevant subsidiary issue and to state
separately its conclusions thereon with clarity. EEOC v Federal Reserve Bank
(1983, CM) 698 F2d 633, 30 BNA FEP Cas 1137, 30 CCH EPD ¶ 33269, 12 Fed
Rules Evid Sery 279, 35 FR Sery 2d 976, revd on other grounds 467 US 867, 81 L
Ed 2d 718,104 S Ct 2794,35 BNA FEP Cas 1, 34 CCH EPD 134445,39 FR
Sery 2d 301;
Fair compliance with Rule 52(a) requiring trial court to find facts specially and
state separately its conclusions of law thereon is mandatory; findings of fact on
every material issue are statutory requirement. Kweskin v Finkelstein (1955,
CA7 Ill) 223 172d 677.
Fair compliance with Rule 52(a) requires trial court to find facts on every
material issue, including relevant subsidiary issues and to state separately its
conclusions thereon with clarity. Kruger v Purcel (1962, CA3 VI) 300 F2d 830, 5
FR Sery 2d 802"
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The court (also on page 13) finds, "It should be noted that the Court has thoroughly
reviewed Defendants' Amended Counterclaim, and of the twenty-four counts, it appears that
only two have to do with this Quiet Title action and the property which is the subject of that
action. Therefore, if permission from the Court had been sought, it would have been denied on
that basis."
The Quiet Title action before this court was commenced because of Lazaryan and
Jonathan Kayser's actions of July 13, 2006, in which they posted the property, which is the
subject matter of this case, with "no trespassing signs".
Plaintiff, in their formal criminal complaint against Lazaryan and Jonathan Kayser, for
the posting of the signs on July 13, 2006, as well as in open, public city council meetings,
described the property that was posted with the "no trespassing" signs as "2516 Linwood".
Accordingly, Lazaryan in her Amended Counterclaim, refers to the property by the same
description that the Plaintiff refers to the property, "2516 Linwood".
"2516 Linwood" was the proper description of the property, prior to 1995, when the City
began asserting an interest in the approximately 2/3 southern portion of 2516 Linwood.
"2516 Linwood" has ALWAYS been private property. Plaintiff's assertion, in the formal
complaint and at open, public city council meetings, that Lazaryan and Jonathan Kayser were
posting "no trespassing signs" on "2516 Linwood" is a declaration against interest, made by the
city. It is a "declaration against interest" because 2516 Linwood has only been private property,
never a "public park".
This court found that, "only two of counts in Lazaryan's Amended Counterclaim have to
do with this Quiet Title action and the property that is the subject matter of this action."
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On July 13, 2006, Lazaryan was on the property, that is the subject matter of this lawsuit,
and posted said property with "no trespassing" signs. Twenty-two of the twenty-four counts
brought by Lazaryan have to do with the actions of Plaintiff, made against Lazaryan, on July 13,
2006, while Lazaryan was on the property that is the subject matter of this lawsuit.
If this court does not amend this so stated finding, then what property is the subject
matter of this lawsuit? The evidence upon the record does not support the finding by the court,
that, only two counts of Lazaryan's Amended Counterclaim have to do with the property that is
the subject mater of this lawsuit.
The court finds, on page 8, "Subsequent to this motion being heard by the Court, on June
27, 2007, the court received from Mr. Kantrud a certified City of Maplewood Resolution
Ratifying Actions Taken and Approving Further Action." The court made the finding that the
resolution adopted by the Maplewood City Council (on June 11, 2007) renders the issue raised
by Defendant Wallace now moot. (Said issue being that the city council is required, by M.S. Sec.
412.221 to authorize lawsuits that are commenced in the name of the city.)
The action of this court, considering "evidence outside the record"... said evidence being
the June 27, 2007 ex parte communication from Mr. Kantrud to the court, is a gross violation of
the Defendants' secured right of due process. This court was wholly absent jurisdiction to
consider the ex parte communication from Mr. Kantrud. Plaintiff, upon creating the "resolution"
could have moved the court for a re -hearing, in which the Defendants would have been given the
full opportunity to argue against this "evidence". Plaintiff, instead, unlawfully communicated
with the court and this court used evidence, outside the court record, to make its findings.
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The finding by the court, that, "The resolution adopted by the Maplewood City Council
renders the issue raised by Defendant Wallace now moot," must, as a matter of law, be amended
because said finding is based upon facts not properly upon the court record.
As such, this court must now amend its findings, without "interference" by the Plaintiff s
improperly brought "evidence". The court must make findings that reflect the record of properly
brought evidence. Failure of the court to amend its findings to reflect the actual court record of
properly brought evidence, is a violation of the Defendants' right of due process, secured by the
Minnesota and United States constitutions.
The court, by law, cannot consider the ex parte communication received from Mr.
Kantrud on June 27, 2007. Absent this so stated communication, the court is restrained to look
only upon the facts, properly admitted and upon the record.
As such, the City of Maplewood is not a proper Plaintiff in this action. Chad Lemmons
cannot represent a Plaintiff that has failed to take the necessary steps to invoke the jurisdiction of
the court.
Accordingly, Chad Lemmons was without authority of law to invoke the jurisdiction of
the court on May 21, 2007, when he purportedly represented the interests of the City of
Maplewood. By law, there was no "Plaintiff City of Maplewood" properly before the court on
May 21, 2007. The Maplewood City Council, on or before May 21, 2007, had not passed a
resolution authorizing this action.
The City of Maplewood had been properly served Lazaryan's Counterclaim and
Amended Counterclaim. Lemmons, who was absent the authority of law to respond to said
Counterclaims, responded by letter to Lazaryan. This so stated response by Lemmons is moot,
as Lemmons had no authority of law to respond to Lazaryan. Accordingly, the City of
G
Maplewood failed to properly respond to Lazaryan's Counterclaim and/or Amended
Counterclaim. Lazaryan should be granted her Default.
Lazaryan moves this court to make "proper, lawful findings of fact"; findings of fact that
reflect the record of the evidence that is properly before the court.
MOTION FOR LEAVE TO AMEND RESPONSIVE PLEADING TO INCLUDE
AMENDED COUNTERCLAIM
In the alternative, if this court refuses to amend its findings to comply with the properly
admitted evidence upon the record, Lazaryan moves this court for leave to Amend her
Responsive Pleading to include her Amended Counterclaim.
As fully argued in the previous pages, Lazaryan, on July 13, 2006, was posting "no
trespassing" signs on the property that is the subject matter of this lawsuit. In fact, it was
Lazaryan's actions on July 13, 2006, that compelled Plaintiff to bring this action for Quiet Title.
On July 13, 2006, Plaintiff took Lazaryan's person, and without placing her under arrest,
transported her to the Ramsey county jail. Plaintiff then proceeded to prosecute Lazaryan,
originally, for "disorderly conduct", and then later changed the charge to "public nuisance".
These charges were brought against Lazaryan for Lazaryan posting the property, that is the
subject matter of this lawsuit, with "no trespassing" signs.
As previously argued, the City of Maplewood, in their criminal complaint was required to
prove an interest in the property, or face malicious prosecution charges from Lazaryan.
The criminal matter was finally adjudicated at the end of December 2006. Lazaryan
moved the district court to dismiss the charges, based upon the property being "private property"
(and, thereby not a "public park). The City of Maplewood failed to answer Lazaryan's Motion to
dismiss and the criminal action against Lazaryan was dismissed. The City of Maplewood did not
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appeal the dismissal of the charges, a dismissal based upon the fact that the property was private
property.
In Lazaryan's Response to Plaintiff's Amended Summons and Complaint, Lazaryan
argues that issue of the ownership of the property was to be determined in the pending criminal
action. Thereby, Lazaryan reserved her right, under Rule 13.01, to bring her Counterclaim at a
time other than in her Responsive pleadings.
Subsequent to the final determination by the Ramsey county district court, that the
criminal matter against Lazaryan was dismissed because the property was private property,
Plaintiff failed to appeal the determination by the district court. After the time tolled for Plaintiff
to appeal the determination that criminal charges were dismissed because the property was
Private property, Lazaryan brought her Counterclaim and Amended Counterclaim.
Lazaryan has a right, under M.R.C.P. 13.01 to bring her counterclaim, if the claim before
this court was the subject of another pending action. If Lazaryan's Motion to Dismiss had not
been granted by the district court, Lazaryan would have sought a writ of prohibition against this
court, restraining the court from hearing the matter (of ownership of the property), that was
properly before another judge, in the criminal case against Lazaryan.
Plaintiff has agreed that the property that Lazaryan was posting was "private property".
Plaintiff's actions of not responding to Lazaryan's Motion to Dismiss (based upon the fact the
property is private property), and Plaintiff's failure to appeal the dismissal of the criminal
charges are prima facia evidence of the "declaration against interest" the Plaintiff has made
concerning ownership of the property that is the subject matter of this lawsuit.
As such, pursuant to Rule 13.01 of the M.R.C.P. this court should grant Lazaryan's
Motion to Amend her Responsive Pleadings to include Lazaryan's Amended Counterclaim.
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NOTICE TO REMOVE JUDGE FOR BIAS and/or MENTAL DISABILITY
In the alternative, if this court denies either or both of Lazaryan's previous two Motions,
Lazaryan, pursuant to Rule 63 of the M.R.C.P., makes the following argument:
Minn. R. Civ. P. 63.03 provides that a judge may not be removed "except upon an
affirmative showing of prejudice on the part of the judge." Generally, this prejudice must arise
from an extrajudicial source prompting the judge to make a decision based on knowledge
acquired outside the judge's participation in the case. In re Estate of Lange, 398 N.W.2d 569,
573 (Minn. App. 1986). But "pervasive bias" is an exception to the "extrajudicial source" rule,
which occurs when the bias stems from events at trial that are "so extreme as to display [a] clear
inability to render fair judgment." Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147,
1155 (1994) (quotation omitted).
AFFIRMATIVE SHOWING OF `PERVASIVE BIAS" or MENTAL DISABILITY
The actions of Judge Joanne Smith in this case are clearly against logic and the facts on
the record.
FACTS UPON THE RECORD
a. Lazaryan posted the property, that is the subject matter of this case, with "no trespassing
signs" on July 13, 2006, and then again on May 23, 2007.
b. Lazaryan has served and filed a Counterclaim and Amended Counterclaim against the
Plaintiff. Twenty-two of the counts in Lazaryan's Amended Counterclaim concern the actions of
Plaintiff in response to Lazaryan posting the property with "no trespassing" signs on July 13,
2006
C. Plaintiff moved the court and was granted a TRO and temporary injunction, based upon
Lazaryan's actions of posting "no trespassing" signs on the property.
0
d. In Judge Smith's Order of July 16, 2007, granting the temporary restraining order, Judge
Smith states in part:
"Defendant Lazaryan previously posted "no trespassing" signs at the park July 13,
2006. In that matter, the City of Maplewood charged her with criminal trespass.
The charge was later amended to public nuisance and subsequently dismissed by
the Honorable Michael Fetsch, with no objection from the Maplewood City
Attorney." (page 5)
e. On July 13, 2007, Judge Smith made a finding in her Order, concerning Lazaryan's
Amended Counterclaim. Judge Smith states:
concerning Lazaryan's Amended Counterclaim:, "of the twenty-four counts, it
appears that only two have to do with this Quiet Title action and the property
which is the subject of that action."
Judge Smith actions are clearly against logic and the facts on the record:
It is against logic and the facts on the record to issue a TRO and temporary
injunction against Lazaryan for posting signs on the property, and then to rule that
the property in twenty-two counts of Lazaryan's Amended Counterclaim (counts
based upon Lazaryan being forcibly removed from the same property for her
action of posting signs) is not the very same property of this lawsuit.
The property that is the subject matter of this lawsuit is the property that Lazaryan
was posting in July of 2006. Twenty-two counts of Lazaryan's Amended
Counterclaim concern the actions taken by Plaintiff, against Lazaryan, concerning
the ownership issues of said property.
Chad Lemmons, attorney for Plaintiff, argued that twenty-two counts in
Lazaryan's Amended Counterclaim have nothing to do with the property that is
the subject matter of this lawsuit. In fact, Judge Smith's "finding" is a mere
parroting of the argument presented by the Plaintiff.
E Plaintiff moved the court and was granted a TRO and temporary injunction, based upon
Lazaryan's actions of posting "no trespassing" signs on the property. At the hearing for the
temporary injunction, Lazaryan objected, arguing that the Plaintiff had failed to post a bond for
either the TRO or temporary injunction.
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g. Judge Smith issued both orders, without requiring the Plaintiff to post a bond.
Judge Smith actions that are clearly against the law and are an affirmative
showing of bias:
The law is clear, and as a judge, Judge Smith is required to know the law.
Lazaryan even noticed Judge Smith of the law, yet Judge Smith ignored the law.
See the law as follows:
"M.R.CY. 65.03 Security
(a) No temporary restraining order or temporary injunction shall be granted
except upon the giving of security by the applicant, in such sum as the
court deems proper, for the payment of such costs and damages as may be
incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained."
h. On May 21, 2007, Lazaryan brought a Motion for Default at a hearing before Judge
Smith. There were multiple other motions by other parties, yet this was the only Motion brought
by Lazaryan.
i. On July 13, 2007, Judge Smith issued her Order concerning said hearing. Judge Smith
finds, "Defendant Nancy Lazaryan has brought a motion to dismiss and requests a default
judgment." (page 13) "Defendants Kayser and Lazaryan both have also brought motions to
compel and for sanctions." (page 14).
Judge Smith actions are clearly against logic and the facts on the record:
Lazaryan had brought only a motion for default.
It is clear that Judge Smith is unable to determine what parties are bringing what
motions.
By her actions, Judge Smith has proven that she has no concept of either the
Property that is involved in this case, or of the parties that are involved.
She is clearly biased, or does not have the mental capacity to handle this case.
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j. On May 21, 2007, a hearing, upon multiple motions was heard before Judge Smith.
Defendant Wallace, through her attorney, argued that the Maplewood City Council had failed to
comply with M.S. Sec. 412.221, in that the council had not approved the lawsuit.
L The Maplewood City Council, since the commencement of this lawsuit in October of
2006, has been repeatedly noticed, by various Defendants, that it would be necessary, under the
law, for the council to approve the lawsuit.
1. On June 11, 2007, after the May 21, 2007 hearing, whereby Defendant Wallace moved to
dismiss based upon Plaintiff's noncompliance with M.S. Sec. 412.221, the Maplewood City
Council passed a resolution which states, in part, "That the Maplewood City Council does hereby
approve of the ongoing efforts to quiet title to the property known as Applewood Park and
specifically authorizes the use of the courts to settle the matter".
M. On June 27, 2007, Judge Smith received ex parte communication from Mr. Kantrud (city
attorney for Maplewood). Said ex parte communication contained the above-mentioned
resolution. It is unknown what other information and/or arguments were contained within said
ex parte communication.
n. In Judge Smith's July 13, 2007 Order (page 8), Judge Smith acknowledges the ex parte
communication with the Plaintiff, and then makes a ruling against Defendant Wallace, based
upon the ex parte communication.
o. On July 31, 2007 Lazaryan sent, pursuant to Rule 115.11 of the M.R.G.P, Judge Smith
(and the other parties) a letter requesting reconsideration of Judge Smith's July 13, 2007 Order.
In said letter, Lazaryan argued the actions of Judge Smith accepting and considering the "new
evidence" of the Plaintiff (the resolution), without a motion for re -hearing by the Plaintiff, was a
violation of the Defendants' secured right of due process.
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P. Judge Smith denied Lazaryan's request for permission for a motion to reconsider.
Judge Smith actions are clearly against the law and are an affirmative
showing of bias:
When a judge shows favoritism to one party, that is a clear showing of bias.
And, when a judge acts completely outside the law, violating a defendant's due
process rights, so that the plaintiff no longer needs to obey the rules of procedure,
that judge must be removed from the bench.
Such are the actions of Judge Smith. Judge Smith clearly violated Defendants
secured right to due process when she accepted ex parte communication from the
Plaintiff, after the hearing, and used said communication to make her ruling
against the Defendants.
Defendant Lazaryan noticed Judge Smith of her violations of Defendants' secured
due process rights, in Lazaryan's letter requesting permission to bring a motion to
reconsider. Lazaryan's letter was, in fact, a demand that Judge Smith comply
with the law. Judge Smith refused.
Judge Smith's actions are a violation of the Minnesota Code of Judicial Conduct,
which states, in part:
"Canon 3(A)(7) A judge shall accord to every person who has a legal
interest in a proceeding, or person's lawyer, the right to be heard according
to law. A judge shall not initiate, permit or consider ex parte
communications, or consider other communications made to the judge
outside the presence of the parties concerning a pending or impending
proceeding, except that:
(a) Where circumstances require, ex parte communications for
scheduling, administrative purposes or emergencies that do not deal
with substantive matters or issues on the merits are authorized;
provided:
(i) the judge reasonably believes that no party will gain a
procedural or tactical advantage as a result of the ex parte communication,
and
(ii) the judge makes provision promptly to notify all other
parties of the substance of the ex parte communication and allows an
opportunity to respond.
The ex parte communication between Judge Smith and the Plaintiff dealt with
substantive matters and issues on the merits. Judge Smith allowed said ex parte
communication, and used said ex parte communication in making her ruling.
Judge Smith did not notice the Defendants of said ex parte communication and
allowed no opportunity for the Defendants to respond.
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q. Judge Smith has had communication with at least one other judge, concerning the matters
involved,in this case. Judge Cleary of the Ramsey county district court sent Judge Smith
communication, concerning this case, in an attempt to bias Judge Smith.
Judge Smith actions that are clearly against the law and are an affirmative
showing of bias:
Judge Smith's actions are a violation of Canon 3(A)(7) of the Minnesota Code of
Judicial Conduct.
Judge Smith failed to inform Defendants of the ex parte communication between
herself and Judge Cleary. The ex parte communication between Judge Smith and
the Judge Cleary dealt with substantive matters and issues on the merits. Judge
Smith allowed said ex parte communication. Judge Smith did not notice the
Defendants of said ex parte communication and allowed no opportunity for the
Defendants to respond.
r. On or about August 5, 2007 Lazaryan received in the mail an Order from Judge Smith.
Said Order states in part:
a. 662. That the Amended Scheduling Order is hereby incorporated by reference.
Dated this 21 day of August 2007."
b. "2. This case is hereby placed on the standard jury trial calendar....
11. If necessary, at the conclusion of the pre-trial/settlement conference, a date
certain may be set during the three week trial block commencing
February 4, 2007 and ending February 22, 2007. The estimated length
of trial is 1-2 days. A jury trial has not been requested and fees have not
been paid."
Judge Smith is unable to comprehend the simple concepts of TIME.
The Order Lazaryan received, on or about August 5, 2007 is dated, by Judge
Smith, for August 21, 2007. Judge Smith orders the matter placed on the standard
jury trial calendar, but then states a jury trial has not been requested. In then,
apparently, according to her Order, the trial has already commenced, back in
February of 2007.
The case before the court is complicated. It is fully apparent by the actions of
Judge Smith that she is unable to properly issue a scheduling order, much less
handle the intricate details of this case.
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S. Judge Smith has a pattern of abusing the rights of the Citizens that appear before her.
It is common knowledge that Lazaryan is active in the reform of the judicial branch through
legislation that was introduced through her state representative and state senator. Judge Smith is
the topic of many conversations with the legislators, including, but not limited to State v.
Hudspeth, 535 N.W. 2d 292 (Minn. 1995), where it is reported that during a criminal proceeding
Judge Smith communicated with jurors outside the presence of the defendant, in violation of the
defendant's right to be present. And, in the case of Cich v. Cich, 428 N.W. 2d 446 (Minn. App.
1988), Judge Smith was found to have abused her discretion by issuing an order that was "clearly
erroneous and against logic and the facts on the record."
ARGUMENT
The case before Judge Smith involves multiple parties, over the course of many years.
Chad Lemmons, the purported attorney for the purported Plaintiff, has admitted in open
court, to altering deeds concerning the property that is the subject matter of this case. Chad
Lemmons is a key witness in the case, yet he is the attorney for the Plaintiff. Lemmons moved
and was granted a protective order. In Lemmons motion, Lemmons sought protection from the
court so that current and former members of the Kelly Fawcett law firm would not be required to
testify. Lemmons is a member of the Kelly Fawcett law firm, as is Patrick Kelly, another key
witness. Current Ramsey county Judge Bastian is also a key witness in this case.
This case is a political powder keg.
Judge Edward J. Cleary, author of The Obligation to Report and Retaliatory Ethics
Complaints breached his own ethical constraints and sent ex parte communication to Judge
Smith in an attempt to influence Judge Smith in this case.
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Whereas Lazaryan brings this Motion to Remove Judge Smith for Bias and/or Mental
Disability, the facts surrounding the Plaintiff's influence in this case is actual cause for great
concern for the integrity of jurisprudence within the Ramsey county district court.
Judge Smith has repeatedly violated the Minnesota Code of Judicial Conduct, having ex
parte communication with the Plaintiff, and at least one other judge of the Ramsey county district
court. Judge Smith's conduct, in making rulings based upon unsupported findings, and upon ex
parte communication, is a violation of her oath of office. Her actions have violated Defendants'
right of due process, secured by the Minnesota and U.S. constitutions.
A district court judge's lawful authority is limited by Article VI of the United States
Constitution, which provides, in pertinent part, that "This Constitution ... shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby.... [A]ll executive and
judicial Officers, both of the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution."
Either Judge Smith is biased, or is suffering from a mental disability. Judge Smith is
unable to determine what parties are bringing what motions. She is unable to ascertain what
property is the subject matter of this lawsuit. Judge Smith is unable to handle the concepts of
time, as proven by her Amended Scheduling Order. She allowed substantive ex parte
communications with the Plaintiff, then she used said communication in her rulings. She granted
injunctive relief without requiring the Plaintiff to post a bond, as proscribed by law.
Judge Smith, through her actions, has acted in a manner that is biased against the
Defendants, and has proven by her actions that she is not mentally capable to handle this case.
As a matter of law, she should be removed.
16
Our Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy
the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing
Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954).
Courts have repeatedly held that positive proof of the partiality of a judge is not a
requirement, only the appearance of partiality. Lil eberg v. Health Services Acquisition Corp.,
486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its
appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985)
Until such time that Lazaryan's Motion to Remove Judge Smith for Bias and/or mental
disability is heard, considered, and finally adjudicated (by the appellate court, if necessary),
Judge Smith, as a matter of law, loses all power and authority over this case. See as follows:
"The trial judge loses all power and authority over the case once a motion for
substitution is brought except to make those orders necessary to bring about the
change. People v Banks (4th Dist) 213 Ill App 3d 205, 156 Ill Dec 955, 571 NE2d
935."
PRAYER FOR RELIEF
Defendant Nancy Lazaryan hereby moves the court for an Order as follows:
1. Amending the court's findings in its July 13, 2007 to reflect the facts and
evidence that are properly upon the court record, including, but not limited to:
a. Finding that the Plaintiff, City of Maplewood failed to comply with M.S. Sec.
412.221, and the action by Plaintiff is Dismissed.
b. Finding that Chad Lemmons was not authorized to represent the Plaintiff,
pursuant to M.S. Sec. 412.221, and thereby, the City of Maplewood failed to
respond the Lazaryan Amended Counterclaim.
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c. Finding that Rule 13.01 of the M.R.C.P. authorizes Lazaryan to bring her
Amended Counterclaim at a time other that in her responsive pleadings.
d. Finding in favor of Lazaryan in her Motion for Default.
If the court denies Lazaryan's Motion to Amend Findings, Lazaryan moves the court, in the
alternative, to grant an Order that:
a. Allows Lazaryan to Amend her responsive pleadings to include
Lazaryan's Amended Counterclaim.
If the court denies either or both of these two motions, Lazaryan brings Notice of Bias and/or
Mental Disability of Judge before the court and demands a determination by the court of
Lazaryan's Affirmative Showing of Bias or Mental Disability before the court proceeds with this
case.
Movant Lazaryan rests.
August 12, 2007
ja�- " �IA'
ancy C. an, in propria per a, in summo jure
10734 West Lake Road
Rice, MN 56367
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