Court affidavit calls decision-making in Afton into question

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• Complaint: FOC, LLC vs. City of Afton

It’s a document just nine pages long, but it is already causing ripples throughout Afton.

The Woodbury Bulletin has obtained a copy of an affidavit by former city administrator Shelly Strauss relating to one of two lawsuits which remains outstanding against the city of Afton.

The affidavit was filed at the Washington County court on Thursday, Aug. 28, in conjunction with a motion to compel the city to release a number of documents requested by the plaintiffs. That motion is due to be heard by a judge on Thursday (Sept. 11).

In her affidavit, Strauss makes a number of claims with regard to the case of FOC, LLC and Atomic Properties, LLC against the city of Afton, which centers on the ordinances and zoning that govern property on the south side of Hudson Road in Afton, which was planned for the expansion of FOC and Atomic Properties and sits within Afton’s industrial zone.

Strauss, who left her post at Afton City Council in February, in her affidavit:

• Says she met with council members Peg Nolz, Joe Richter and Mayor Julia Welter several times between the November election of 2006, when all three were voted into power, and their swearing-in on January 3, 2007.

• Claims she was told one of the goals of the new council majority (Nolz, Richter, Welter) was to revert the zoning of the FOC property from industrial back to residential.

• Writes that the three council members had decided prior to their swearing-in that they would enact a moratorium on the FOC property to prevent construction work from commencing, and says she was led to believe the reason for the action was personal and political animosity between the new majority and the former Mayor of Afton, Charlie Devine, who owned a stake in FOC.

• Says the three new council members had also interviewed between the election and their swearing-in a new city attorney who was believed to be more responsive to their vision and who was appointed at the first meeting of the new council without, Strauss says, the prior knowledge of the two incumbent councilmen (Nick Mucciacciaro and Randy Nelson).

• Asserts that conditions placed on the FOC property in Aug. 2007 were malicious in nature and designed to prevent the expansion of business on the land. Strauss cites the examples of a reduction of the impervious surface allowed on the property from 65 percent to 10 percent while other lots in the same zone were permitted 25 percent; a buffer zone of 200 feet on the property, which Strauss felt was excessive; and the height restriction of 25 feet which was to be placed on any warehouse on the parcel, although a house could be built up to 35 feet.

• Claims the decision to place the conditions on the FOC land resulted in a loss of tax revenue for the city of Afton, as the parcel was subsequently devalued by Washington County in light of the restrictions.

Speaking Friday, Sept. 5, council member Joe Richter explained he could not respond to the affidavit’s specific claims in light of the ongoing FOC lawsuit against the city.

“The attorneys have requested that we don’t make public comments as to the ongoing litigation,” he said.

“The allegation of my having some sort of malice or sinister intent against Charlie Devine or FOC is totally false…

“Coming into office, I hardly knew Charlie Devine before that. We had done, I think, a project at the pre-school years and years ago, then we really had no contact with Mr. Devine for years and years, until we were involved in the election…

“There were no specific meetings to discuss strategy or intent on FOC.”

Richter added, “What we are concerned with mostly is making sure Afton remains that way we like to see it.”

Study commissioned

At a planning commission meeting held Monday night, Sept. 8, Richter informed planning commissioners the city council had requested a study on the FOC land to examine some of the issues raised in the lawsuit, including the question of impervious surface area.

“[We are looking to see] whether or not the information that we had on that property was adequate to make [the impervious area] 10 percent,” he explained.

“We are having an engineering study done — it may be done this month if we are lucky.”

If the study is completed in time, Richter indicated there could be a public hearing scheduled for October, at which any ordinance amendments necessitated by the engineering report would be heard.

Mayor Julia Welter said she would prefer not to comment while the litigation was ongoing.

Council member Peg Nolz had not returned phone calls by the time the Woodbury Bulletin went to press, and efforts to contact the city’s legal counsel at the League of Minnesota Cities were also unsuccessful.

Strauss was the city administrator for Afton from March 2007 through February 2008. She also acted as the interim city administrator from December 2006 through March 2007.

She was originally named as a defendant in the lawsuit filed by FOC, but resigned as city administrator in January 2008, citing a hostile working environment and saying she believed she had endured personal consequences for ethical decisions she made. She was then dropped as a defendant by FOC.

In an interview about her resignation with the Woodbury Bulletin in January, Strauss claimed she had experienced difficulty communicating with council members Nolz and Richter.

Speaking on Friday, Sept. 5, Strauss said she stood by the allegations in her affidavit, which is dated Aug. 20 and was sworn on Aug. 25.

“[Council members] Nolz and Richter have indicated that the affidavit was untrue,” added Strauss.

“I don’t know what to say about that, other than I certainly stand by my affidavit, and their denial of facts contained in the affidavit is between them and God.”

Political motivation?

Charlie Devine, who was the Mayor of Afton for two terms between 2001 and 2004, and is one of four partners owning FOC, said he believed the actions of the three city council members alleged in the affidavit were politically motivated.

“I can’t explain their behavior,” he said. “There’s no explanation for that kind of behavior.”

He said that the driving force behind the FOC land purchase in Afton had been the city’s designation of the land as industrial zone, with permitted uses including purposes required by the company.

The 2007 moratorium and subsequent ordinance changes were, therefore, a devastating setback to FOC’s expansion plans, Devine said.

“If the city chose to [permit the industrial use of the land], great; if not, fine, we would go somewhere else,” he explained.

“When the city re-zoned it and we bought it, we relied on their commitment to do that.”

City council member Randy Nelson, who was not criticized in Strauss’s affidavit, said he had been disappointed at the manner in which the appointment of a new city attorney had been conducted.

“Regardless of who they wanted as an attorney, those are decisions that should be made at the table,” he said.

FOC and attorneys representing the city of Afton will be back in court on Thursday, Sept. 11, to argue two motions.

Christine Swanson, of the St. Paul law firm Kelly and Lemmons and representing FOC, said Strauss’s affidavit would form part of the motion to compel Afton to release further documents to the plaintiffs.

“It’s our position that cities should have an open... form of government,” Swanson added.

Afton’s counsel is expected to request a protective order, asking the judge to prevent FOC’s attorneys from conducting depositions of some potential witnesses.

A jury trial is currently scheduled for February, although Swanson indicated both legal teams are looking to request more time.

Tags: news, affidavit, afton, richter, strauss, nolz, nelson, nick