OAH 11-0330-20498-BA
OAH 11-0330-20499-BA
MBA D-462 and D-463
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MUNICIPAL BOUNDARY ADJUSTMENTS UNIT
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In the Matter of the Petitions for the Detachment of Certain Lands from the City of Breezy Point pursuant to |
FIRST PREHEARING ORDER |
This matter came on for a telephone prehearing conference before Administrative Law Judge Barbara L. Neilson at 10:30 a.m. on June 3, 2009. The following individuals participated in the conference call:
Mary Ebnet and Patrick Ebnet participated on behalf of the Ebnet Petitioners[1];
Douglas Rach, Billie Jo Rach, Lou Ann Owens and Gerald Zwack (brother of Joseph Zwack) participated on behalf of the Rach Petitioners[2];
Andrew MacArthur, City Attorney; Kathy Millard, City Clerk; JoAnn Weaver, Mayor; and Jim Perry, Planner, participated on behalf of the City of Breezy Point;
Jim Brandt,
Supervisor, participated on behalf of
Bruce Galles, Board
Chair and Supervisor, participated on behalf of
The record opened
in the above-referenced matters on January 20, 2009, upon the filing of two
separate Petitions for Detachment with the Municipal Boundary Adjustment Unit. The Ebnet Petitioners requested the detachment
of approximately 248 acres from the City of Breezy Point to
During April, 2009,
the Municipal Boundary Adjustment Unit received written notification from the City
of Breezy Point and the property owner petitioners in both dockets advising
that they had failed to resolve contested issues through discussions and
declaring their willingness to proceed with a hearing. On April 27, 2009, the Chief Administrative
Law Judge issued an Order consolidating the two detachment petitions for
hearing. On April 28, 2009, the Director
of the Municipal Boundary Adjustment Unit transmitted notification that hearings
were requested. The undersigned Administrative
Law Judge was thereafter assigned to hear these matters.
Based upon the discussions during the prehearing conference and all of the files in these matters, the Administrative Law Judge makes the following:
1. The Administrative Procedures Act[3] and the Office of Administrative Hearings’ contested case rules[4] shall govern the conduct of these matters to the extent that they do not conflict with the specific provisions of Chapters 412 and 414 of the Minnesota Statutes.
2.
The parties to this proceeding consist of the
Ebnet Petitioners, the Rach Petitioners, the City of Breezy Point,
3. The following schedule is adopted in both of these matters:
Description Due Date
Parties’ Positions regarding Allocation of Costs of Proceeding June 18, 2009
Responses to June 18, 2009, Position Letters June 25, 2009
Parties’ Initial Identification of Expert Witnesses July 15, 2009
Parties’ Additional Identification of Expert Witnesses July 29, 2009
Discovery Completed August 3, 2009
Dispositive Motions Filed August 10, 2009
Responses to Motions 10 working days after
receipt of motion
Witness Lists, Exhibit Lists, Expert Reports, and August 17, 2009
Exhibits Exchanged and Filed
Notification to ALJ of Request for Court Reporter September 1, 2009
Telephone Conference Call regarding Status and to Set Time September 2, 2009
for Administrative Law Judge Tour of Subject Properties at 10:30 a.m.
Evidentiary Hearing September 9-10, 2009
Written Public Comments Submitted to ALJ September 10, 2009
Parties’ Post-Hearing Submissions To be determined at
hearing
ALJ Decision Due March 6, 2010
4. Information must be post-marked, emailed, faxed, or delivered to the Administrative Law Judge and the other parties by the due date referenced in the above schedule.
5. Each party will be responsible for its own attorney’s fees, expert fees, and trial preparation expenses. Minn. Stat. § 414.12, subd. 3, specifies that, if the parties do not agree to a division of the costs of the proceeding before the commencement of a hearing, the costs must be allocated on an equitable basis by the Chief Administrative Law Judge. If the parties to these matters have not been able to reach agreement on the allocation of costs of the proceeding by June 18, 2009, they will inform the Administrative Law Judge in writing of their positions on the allocation of costs at that time. Responses to these position letters shall be submitted by June 25, 2009. Copies of both submissions shall be sent to the other parties. After the evidentiary hearing is conducted, the Chief Administrative Law Judge will order a division of costs. Because the Chief Administrative Law Judge’s determination will not be made until the conclusion of the hearing, the parties are encouraged to continue to make efforts to reach agreement on the cost allocation up until the commencement of the hearing.
6. The expert witness disclosures to be made by July 15 and 29, 2009, must identify persons expected to be called as expert witnesses, describe the subject matter of each expert’s expected testimony, state the substance of the facts and opinions to which the expert is expected to testify, and provide a summary of the grounds for each opinion.
7. The witness lists provided by each party must include a brief description of the testimony expected to be offered by each witness.
8.
All exhibits to be offered by the parties at the
hearing will be premarked with exhibit numbers.
The Ebnet Petitioners’ exhibits shall be premarked in the lower
right-hand corner with numbers 1 through 99.
The Rach Petitioners’ exhibits shall be premarked with numbers
100-199. The City’s exhibits shall be
premarked with numbers 200-299.
9.
The hearing in this matter shall be held on
September 9 – 10, 2009, beginning at 9:00 a.m. each day, in the City Council
Chambers,
10. The Director of the Municipal Boundary Adjustment Unit shall arrange for the publication of the Notice of Reconvened Hearing in the appropriate newspaper of general circulation as the parties may advise.
11. Requests for subpoenas for the attendance of witnesses or the production of documents shall be made in writing to the Administrative Law Judge pursuant to Minn. Rules part 1400.7000. A copy of the subpoena request shall be served on the other parties. A subpoena request form is available at www.oah.state.mn.us .
12.
At this time, it is anticipated that the Ebnet
Petitioners will present their evidence and witnesses first at the hearing,
followed by the Rach Petitioners. The
City will thereafter present its evidence and witnesses in response to both
Petitions.
13. The hearing will be recorded by digital recording device unless one or more parties agree to absorb the cost of a court reporter.
14. No public comment hearing has been requested.
15. Written comments may be submitted by the public to the Administrative Law Judge at any time through September 10, 2009. They must be post-marked, faxed, emailed, or delivered by that date to:
Barbara L. Neilson
Administrative Law Judge
Office of Administrative Hearings
Fax No.: 651-361-7936
barbara.neilson@state.mn.us
16. The parties have not requested accommodation for a disability or appointment of an interpreter. The Office of Administrative Hearings shall be notified promptly if either an accommodation or interpreter is needed.
Dated: June 5, 2009
s/Barbara
L. Neilson
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BARBARA L. NEILSON Administrative Law Judge |
cc:
Docket Coordinator
[1] The Ebnet Petition was filed by Mary Ebnet, Theodore Ebnet, Kimberly Ebnet, Kelli Ebnet, and Patrick Ebnet. Mary Ebnet and Patrick Ebnet are spokespersons for the group.
[2] The Rach Petition was filed by Douglas Rach, Billie Job Rach, LouAnn Owens, Joseph Zwack, Thomas Thompson, Mavis Thompson, Jodell Rau, John Berry, Larry Rasmussen, and Diane Cleveland Airhart. Douglas Rach is the spokesperson for the group.
[3]
[4]