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2011-07-05 City Council minutesJuly 5, 2011 Page 1 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, July 5, 2011 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, Minnesota was held at 7:00 p.m., at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Krebsbach called the meeting to order at 7:00 p.m. The following members were present: Councilmembers Duggan, Povolny, Petschel and Vitelli. PLEDGE OF ALLEGIANCE Ayes: 5 Nays: 0 Ayes: 5 Nays: 0 Council, the audience, and staff recited the Pledge of Allegiance. Mayor Krebsbach presented the agenda for adoption as presented. Councilmember Duggan moved adoption of the agenda as presented. Councilmember Petschel seconded the motion. Councilmember Duggan moved approval of the minutes of the regular meeting held on June 21, 2011. Councilmember Petschel seconded the motion. CONSENT CALENDAR Mayor Krebsbach presented the consent calendar and explained the procedure for discussion and approval. Councilmember Duggan moved approval of the consent calendar as presented and authorization for execution of any necessary documents contained therein, pulling items c. Adopt a "RESOLUTION APPROVING A STATE OF MINNESOTA JOINT POWERS AGREEMENT WITH THE CITY OF MENDOTA HEIGHTS ON BEHALF OF IT'S CITY ATTORNEY AND POLICE DEPARTMENT" and f Approve a Sign Permit for 1345 Mendota Heights Road (Brown College) a. Acknowledgement of the June 2011 Building Activity Report b. Adopt a "RESOLUTION ACKNOWLEDGING THE RECEIPT OF GIFTS FOR THE MENDOTA HEIGHTS PARKS CELEBRATION" Ayes: 5 Nays: 0 Ayes: 5 Nays: 0 APPROVE A SIGN PERMIT FOR 1345 MENDOTA HEIGHTS ROAD (BROWN COLLEGE) July 5, 2011 Page 2 c. Adopt a "RESOLUTION APPROVING A STATE OF MINNESOTA JOINT POWERS AGREEMENT WITH THE CITY OF MENDOTA HEIGHTS ON BEHALF OF IT'S CITY ATTORNEY AND POLICE DEPARTMENT" d. Adopt a "RESOLUTION APPROVING FINAL PLANS AND SPECIFICATIONS AND AUTHORIZING ADVERTISEMENT FOR BIDS FOR 2011 SANITARY SEWER REHABILITATION PROJECT" e. Approve the Purchase of an Air Compressor from Aspen Equipment at a Cost of $24,043.67 f. Approve a Sign Permit for 1345 Mendota Heights Road (Brown College) g. Approve Purchase Orders for the Purchase of a SRO Vehicle from Elk River Ford ($23,040) and Emergency Automotive Technologies ($4,500) h. Approve the Contractors List i. Approve the Claims List Councilmember Vitelli seconded the motion. Councilmember Duggan complimented the police chief on a document that is just one word short of perfect and moved for adoption of a "RESOLUTION APPROVING A STATE OF MINNESOTA JOINT POWERS AGREEMENT WITH THE CITY OF MENDOTA HEIGHTS ON BEHALF OF IT'S CITY ATTORNEY AND POLICE DEPARTMENT" Councilmember Vitelli seconded the motion. Assistant to the City Administrator Jake Sedlacek explained that there are two places on the agenda where Brown College is seeking signs. This first item is on the consent agenda because all of the signs, except two, are compliant with city code and, as with normal sign permits, just needs council review. The council package shows everything. The two items to be discussed later as a planning application include the monument signs on Mendota Heights Road and on Northland Drive. Everything else within the application package, the signs on the building, the way finding signs, July 5, 2011 Page 3 the parking signs, are all code compliant and just simply here for the standard review by the city council. Mayor Krebsbach asked if the artist's representations are just in this packet or are they in both. Assistant to City Administrator Sedlacek replied that they are in both packets. Councilmember Duggan moved to Approve a Sign Permit for 1345 Mendota Heights Road (Brown College). Ayes: 5 Councilmember Povolny seconded the motion. Nays: 0 PUBLIC COMMENTS There were none. RENEWAL OF AN ON -SALE WINE City Clerk Sandie Thone explained this is a public hearing INSTITUTIONAL LICENSE FOR for Le Cordon Bleu's renewal of an on -sale institutional WESTERN CULINARY INSTITUTE wine license. Their building at 1315 Mendota Heights LTD./LE CORDON BLEU COLLEGE OF Road is yet to be completed so they are seeking renewal CULINARY ARTS on their existing license for 1440 Northland Drive. Councilmember Vitelli moved to close the public hearing. Ayes: 5 Councilmember Duggan seconded the motion. Nays: 0 Mayor Krebsbach asked if this is now extended to the council's next meeting. City Clerk Thone replied no, this is just a one public hearing for a renewal. Mayor Krebsbach asked what City Clerk Thone recommended. City Clerk Thone recommended that if there is no comments then close the public hearing and approve the renewal of the on -sale wine institutional license for Le Cordon Bleu. Councilmember Duggan moved to Approve the Renewal of an On -sale Wine Institutional License for Western Culinary Institute Ltd./Le Cordon Bleu College of Culinary Arts. Ayes: 5 Councilmember Povolny seconded the motion. Nays: 0 2011 NPDES ANNUAL HEARING Mayor Krebsbach explained that this is a required annual meeting for NPDES Phase II Stormwater Permit for Municipal Separate Storm Sewer System. July 5, 2011 Page 4 City Engineer Ryan Ruzek explained that it is required to hold an annual meeting. The Minnesota Pollution Agency administers a program, which is required from the Environmental Protection Agency. So this is a federally mandated program. All cities and entities discharging stormwater to public waters must complete six minimum control measures as part of their annual permit. Mendota Heights has their permit program set up to do Public Education and Outreach, Public Participation and Involvement, Solicit Discharge Detection and Elimination, Construction Site Run -off and Control, Post - Construction Run -off Control, and Pollution Prevention and Good Housekeeping. Public Education and Outreach: Staff uses the Heights Highlights, Blue Thumb Seminars in conjunction with our local watershed management organizations, and Dakota County's Soil & Water Conservation District. Staff also works with the Lower Mississippi Watershed Management Organization, which we do run a "Keep It Clean" video on the local cable channel. City Engineer Ruzek believes this video ran over 2,000 times last year. Staff also supplies handouts in the city hall lobby and has homeowner guides and other information on the city website. Public Participation and Involvement: Staff answers resident complaints and concerns by meeting with residents on -site and discussing the improvements that they are looking to do themselves and staff is an active participant in the Gun Club Lake and Lower Mississippi Watershed Management Organizations. Solicit Discharge Detection and Elimination: Staff inspects 20% of the stormwater outfalls, ponds, and wetlands annually, so everything gets inspected over a 5 -year period. Staff also participates in the Dakota County Wetland Health Evaluation Program (WHEP) and passing of the Stormwater Ordinance in 2009 to have an ordinance in place for enforcement for any illegal discharges. Construction Site Run -off and Control: Staff developed a Land Disturbance Guidance Document, which they supply with all building permits as they are issued. Staff inspects development projects periodically as they are happening. July 5, 2011 Page 5 City Engineer Ruzek believes last year the only large project was the Mendota Plaza improvements. Post - Construction Run -off Control: Staff has been attempting to construct many rain gardens. This year they replanted one rain garden. There are below ground infiltration systems that were installed on Simard Street last year. Staff also reviewed building permits and development applications for compliance with the city ordinances. Pollution Prevention and Good Housekeeping: Staff maintains a map of the city's storm sewer system; annually clean the sump manholes; and annual inspection of the stormwater discharge points. Staff is also in the process of initiating a pond management program. City Engineer Ruzek also presented some good housekeeping issues for homeowners. • Fertilize smart (phosphorous free) • Sweep up any extra fertilizer that spills onto hard surfaces to prevent it from washing into nearby lakes, streams, and storm sewers • Do not blow grass clippings into the street, keep them on the lawn • Re -use run -off and direct downspouts into a rain garden or rain barrel, use rainwater to water lawn and garden • "Scoop the Poop ". Don't leave animal waste in the yard, grab a bag when you grab a leash and pick up after your pets • Use chemicals wisely — read and apply according to their labels, consider alternatives or natural remedies • Keep a healthy lawn — aerate, feed bare patches, mow at a higher setting • Plant a rain garden • Replace turf with native plants • Reduce footprint, replace stone pavements with pavers or pervious pavement • Adopt a storm drain — keep seeds, grass, leaves off of the storm drains • Vegetative buffers around ponds Councilmember Duggan asked how many calls the city gets on a monthly basis, or in the summertime for things like the rain gardens. Is there much interest in that? City Engineer Ruzek replied that as far as rain gardens, they probably get July 5, 2011 Page 6 one question per year. There are approximately 15 — 20 rain gardens around town and a couple of those residents will periodically call and ask about maintenance issues. Councilmember Duggan asked, with the reconstruction of Wagon Wheel, has there been any interest expressed. City Engineer Ruzek answered that there has been one homeowner that has expressed interest. He believes two other homeowners expressed interest but the topography of their lawns and yards would not make one feasible for that location. Councilmember Duggan also asked if there is a steady drain on the brochures that are available. City Engineer Ruzek replied that right now they are only available on the website. The watershed management organizations that the city is involved with post an annual newsletter that is kept in the city hall lobby. Those newsletters have disappeared but he is unable to say how fast. Councilmember Duggan asked if some of the steps that were just presented would be available if a resident came into city hall. City Engineer Ruzek replied that yes that would be available along with additional information that there is no room for in the lobby. Councilmember Duggan asked about curbs. City Engineer Ruzek answered that curbs help to keep the run -off in the street where it is directed to an environmentally friendly sump manhole, which can be cleaned annually, versus going directly to a lake, stream, or pond. Councilmember Duggan moved to close the public hearing and recognized the presentation and the work of the city in the regard of keeping the lakes, streams, and ponds clean through the stormwater system. Ayes: 5 Councilmember Vitelli seconded the motion. Nays: 0 1 1 C 1 Case 2011 -11: Paul Elias Assistant to City Administrator Jake Sedlacek explained 2242 Lexington Avenue. "RESOLUTION this is a request for a conditional use permit for a detached APPROVING A CONDITIONAL USE garage and a variance for a detached garage greater than PERMIT FOR A DETACHED GARAGE 750 square feet. The subject parcel is on Lexington AT 2242 LEXINGTON AVENUE" and just north of Wagon Wheel Trail, the second residential lot "RESOLUTION DENYING A VARIANCE FOR A DETACHED GARAGE LARGER THAN 750 SQUARE FEET AT 2242 LEXINGTON AVENUE" July 5, 2011 Page 7 to the north. The site plan, as proposed, that the applicant Mr. Elias has provided includes removing an existing single car detached garage and then constructing a new garage. He is seeking a garage that is 24 feet deep by 36 feet wide, which is larger than allowed in the detached garage code, which is for 750 square feet. The Planning Commission had a lengthy discussion on this matter, primarily around whether the applicant provided evidence of a practical difficulty that required a garage larger than 750 square feet and if there were conditions on the site that were not of the owner's own making. Ultimately, the Planning Commission did go along with the planner's recommendation. They have recommended approval of the conditional use permit for a detached accessory garage up to 750 square feet and have recommended denial of the variance off of the findings listed. This was a public hearing at two meetings and there were no comments on the matter. Mayor Krebsbach stated that she has read this over and is in agreement with the Planning Commission's recommendation. Councilmember Duggan asked if there were, in the ordinance language in the past, a preference on the part of the city that garages would be no larger than approximately 2/3 of the size of a house; that a garage should not dominate and be larger than the house. Assistant to City Administrator Sedlacek replied that is not a codified bit of language. He does think that something would be in the back of minds when thinking about the character of the neighborhood. Councilmember Povolny asked for clarification on what the applicant is requesting, as there is a list of options supplied by the applicant. Assistant to City Administrator Sedlacek explained that this is exactly what the Planning Commission wrestled with at their first meeting on this. The applicant provided a list of options with what they preferred, but then was not able to clear or articulate that for the Planning Commission. So it was tabled at the May meeting, came back to the June meeting where the applicant had defined their preferred option as being the one that was then included in the council's packet. It is a three -car garage with a loft in the upper level for cold July 5, 2011 Page 8 storage. This is the option the applicant is seeking to construct. They are proposing to do lap siding to match the existing home, they are intending to side both the garage and the home with the same material. Councilmember Povolny asked if there is anything the council can do. He feels that a garage is important but it has to match the house. Is there anything that can be put in the plans to make this architecturally; that the house will match the garage? Councilmember Duggan pointed out that this is already in the resolution. Mayor Krebsbach explained that if the council denies the request, the applicant has a certain amount that he is working with, which is 750 square feet, and then he can design the garage. One of the things is that, at least as long as she has been on the council, the council does not approve the loft above the garage. She then asked if it is clear in the resolution that there is to be no loft if this application is denied. Assistant to City Administrator Sedlacek replied that the requirement used in regards to a loft over a garage is that it has to be under a maximum height of 15 feet. The applicant is submitting a proposal, including an illustration, which shows that with the loft, the structure would be less than 15 feet of maximum height. So the proposal right now is a three -car garage with a loft, which is height wise compliant but in terms of area it is larger than 750 square feet. Councilmember Povolny stated that realistically a person could not really stand up in it. In the proposal, it states that the ceiling is approximately nine feet. Realistically it would be an attic, no one would be able to stand up in it. Assistant to City Administrator Sedlacek referred to the document and explained that there is a height of 99 inches for the height inside the loft, which equates to eight feet three inches at the peak. Mayor Krebsbach explained that this is what the applicant is requesting. If the council supports the Planning Commission and denies this request, the applicant is also getting approval to do a detached garage, which fits the ordinance of 750 square feet. Mayor Krebsbach asked, in those 750 square feet, is he free to design the garage interior as he wishes, as long as it isn't a loft that would be July 5, 2011 Page 9 occupied. Assistant to City Administrator Sedlacek replied that this is correct. Mr. Paul Elias, the applicant, addressed the council and stated that he looked into many different types of garages and the one style that he found coordinates with the house structure and the roof structure. It is his intention to match the house the best he can. He did request 36 by 24 but can scale it down to 32 by 24 but that is 18 feet beyond the 750. He supposes he can scale it down to 31 by 24. He has a long, narrow lot and has been thinking about this for many years, trying to figure out how to make it work. Mayor Krebsbach stated that garages are one of the city's more detailed elements. She has sat through many garage votes. However, the Planning Commission recommends that the applicant can have a detached garage but they are also recommending, and she is in support that it stays at 750 square feet. Councilmember Vitelli asked what is the intended use of the loft. Mr. Elias replied that it is primarily for storage. Councilmember Vitelli asked if there would be a stairway. Mr. Elias replied that the print has a stairway on the inside but he is hoping to put it on the outside of the garage, away from the neighbor so no one would see it. The original 36 by 24 plan has the stairway on the inside, but if the stairway is put on the outside then it removes the four feet, making the plan 32 by 24. However, he will be making it 31 by 24 and still putting the stairs on the outside. Mayor Krebsbach stated that it is her understanding that the council does not approve lofts in a garage. There was a big loft issue a long time ago. Councilmember Duggan suggested, in relation to the outside stairs, which he would not support without seeing a design and drawings, a floor could be put in loft -wise (if you want to use that word) with a pull-down stepping. It is easy, would save a lot of money, and would use less space. But since there is no design showing where these steps are and how they would impact anything, he would be uncomfortable moving forward with this. But he knows that anyone can get an attic floor that would have pull - down steps so it can be reached from inside the garage. July 5, 2011 Page 10 Mayor Krebsbach stated that if the council approves this, there is no outside stairwell. Councilmember Duggan said that since there is no design showing the stairwell, the council couldn't approve what they do not have in front of them. Mr. Elias then asked if he could have a 32 by 24 foot garage. Mayor Krebsbach replied that she would not support that. Councilmember Vitelli also stated that he is not comfortable with an outside stairwell because that also implies a door. He believes the stairs should be kept inside. Mr. Elias replied that having the stairs on the inside would take even more space away. He would want a four -foot wide stairway and a big enough area to be able to maneuver things around up in the attic. Councilmember Vitelli stated that, unfortunately there is an ordinance in the city and 750 is the max. Other residents have dealt with that. Unless Mr. Elias can indicate some unique difficulty, other than just wanting more space, there is not much for the council to support in this request. Mr. Elias pointed out that his neighbor has a 1,100 square foot garage that was built within the last 10 years. When talking about the uniqueness of the area and setting precedence, garages in the neighborhood have already been built that are larger than 750 square feet. He is not trying to change anything; he just has a unique situation where he needs a storage area. Councilmember Duggan asked staff and/or the city attorney to visit and help Mr. Elias understand the content of the variance since he mentioned it, and what are the challenges, what are the rules and regulations about variances. Councilmember Petschel stated that she had attended the Planning Commission meeting and the Planning Commission, both during the meeting and afterwards, had an extensive discussion with Mr. Elias explaining about the variance. The conclusion on the part of the Planning Commission is that the hardship is really created by the amount of stuff Mr. Elias has as opposed to any kind of extreme or unique difficulty with the loft. July 5, 2011 Page 11 Councilmember Duggan explained that he just wanted to have the attorney talk to the council , since this is a whole brand new topic and subject. There has not been a variance request since the state changed the rules and regulations. City Attorney Tami Diehm stated that Councilmember Duggan is correct in that there has recently been a change in the state law. The council members received a short summary from the planning staff. Following a Supreme Court decision last year, councils really stepped back and have not even been issuing any variances in most municipalities throughout the state because of the way in which the court had interpreted that hardship standard. The legislature this year did add some clarification and allows applicants to show that they have practical difficulties, which is not quite as high of a threshold to meet as it was under the Supreme Court's interpretation. But the council is correct and needs to look at the character of the property itself and not at a situation that is created by the individual factors that may be personal to the applicant. She believes the council is using a proper analysis in looking at the property. With respect to the conditional use permit, if council would like to add a seventh condition, council does have language in there right now about a specific site plan or plan alternative that must be selected by the applicant. However, she recommends that council add a condition number seven, which clarifies that nothing shall extend beyond the footprint of that building so that there is no confusion about an external staircase. Mayor Krebsbach added Item 7: Nothing shall extend beyond the exterior of the building. Councilmember Povolny asked for clarification in that the applicant will try to make the garage match the house. Mr. Elias replied that everything would be color, material, and esthetically coordinated. Councilmember Duggan suggested that the conditions be read for Mr. Elias and it is on the record that the council has touched on all of the points. July 5, 2011 Page 12 Mayor Krebsbach read the resolution, if approved, which would give Mr. Elias a conditional use permit for a detached garage that would be 750 square feet: 1. The city approves the requested accessory structure area variance or the applicant revises his request to meet the 750 square foot maximum floor area. 2. A specific plan alternative be selected by the applicant. Such plans drawn to scale shall be modified to specify proposed finish materials, colors, and structures. 3. The garage shall not exceed 15 feet in height. 4. The garage match the principal building in color and show compatibility in materials. 5. The applicant consider matching the garage roof style and roof pitch with that of the principal building. 6. The existing detached accessory structure on the site be removed and reestablished in turf or pavement as part of the project. 7. There will be no extension beyond the footprint of the building. Councilmember Vitelli stated that he does not feel comfortable supporting this at this point because of the lack of definition and the obvious unhappiness of the applicant. He is unsure of the best thing to do; however, he would like to see the applicant come back with a picture of what this garage is going to look like. If Councilmember Vitelli had not asked the question about loft versus attic, the council would not even know about the outside stairway. Councilmember Vitelli continued by stating that the applicant is not happy and he would like to see the applicant happy with the conclusion. Therefore, he suggested Mr. Elias come back in two weeks and provide some detail to define exactly what he is going to build. Councilmember Povolny expressed his agreement with Councilmember Vitelli. If the 15 -foot height restriction is maintained, then the only storage space attainable is a crawlable attic, not a walkable second floor. Mayor Krebsbach stated she would like to determine if there is a motion to approve this conditional use permit with Item 7. It does say that before Mr. Elias can begin to build he has to come in with specific plans submitted to Ayes: 5 Nays: 0 July 5, 2011 Page 13 staff. Or if there is a motion to table this until he presents his plan of what he would like. Mayor Krebsbach made it clear that she does not want Mr. Elias coming back with a plan that extends that roof so he can have an attic. Councilmember Vitelli stated again that he would like for the applicant to be happy, he would like for the resolution to have more definition, and he would be happy to support it then; however, he does not feel comfortable now. He asked the city attorney if the council should table or what should they do. City Attorney Tami Diehm replied that one suggestion would be — there are really two issues in front of the council — the conditional use permit and the variance. It sounds like, based on the discussion, that there is support to follow the Planning Commission's recommendation, which would be to deny the variance. If that is something council is comfortable with, one option would be to vote tonight to deny the variance and then ask the applicant to come back based on that denial with a plan that council could support for the conditional use permit. The conditions in the conditional use permit talk about whether the council approves or denies the variance. If the council acts on the variance this evening, perhaps Mr. Elias can come back in two weeks with a plan that meets that 750 square feet, meets the height, and the council could look at it and feel more comfortable approving. Councilmember Vitelli moved to Deny the Request for Variance. Councilmember Duggan seconded the motion. Mayor Krebsbach explained to Mr. Elias that he at least has a clear decision from the council. He can come back and council will consider a conditional use permit that does not require a variance. If he wants a detached garage, which is a conditional use, for 750 square feet, he can present a plan. Mayor Krebsbach asked for clarification that Mr. Elias does not have to go back to the Planning Commission. City Attorney Diehm replied that this is correct. Next there would be a motion to table the conditional use permit request and table that to the next meeting. Councilmember Vitelli moved to Table the Application for a Conditional Use Permit to give the applicant time to Ayes: 5 Nays: 0 Case 2011 -13: New Cingular Wireless, 1196 Northland Drive. "RESOLUTION APPROVING A CONDITIONAL USE PERMIT FOR WIRELESS FACILITY SITING AT 1196 NORTHLAND DRIVE" July 5, 2011 Page 14 provide good definition to what he proposes to build and receive continued support from Public Works and the city engineer. Councilmember Duggan seconded the motion. Mr. Elias stated that he has not purchased the actual plan yet. He asked if he should spend approximately $200 to purchase the plan to show the council how he plans to downsize it to fit into the 750 square foot footprint. Mayor Krebsbach replied that the council wants Mr. Elias to present the garage he plans to build. Councilmember Vitelli explained that what the council needs is not a detailed plan showing two by four's, etc. What they need is a summary sketch that he might find in the plan, plus some indication of the doors, and some indication of the siding. It does not have to be a big plan that is folded out. What is currently available to the council is not an adequate definition for what Mr. Elias has just described. Assistant to City Administrator Sedlacek stated that typically what is received is a detailed plan with dimensions on that plan. Now that the variance has been denied, Mr. Elias will know that he will not be getting a garage over 750 square feet and that might help him make the decision of whether or not it is worth the investment in plans, which show those dimensions. Staff and council do not need building permit materials but they do need proof of what this will look like and what the dimensions of it will be. Assistant to City Administrator Sedlacek explained that this is a request to upgrade equipment on the cellular tower, which is on the corner of Northland Drive and Highway 55. The parcel of land is actually owned by the City of Mendota Heights, the tower itself is owned by AT &T and they lease the property from Mendota Heights. The changes themselves are only to the equipment on the top of the tower. The applicant provided full details on the request. The applicant is seeking to replace the top set of antenna on the tower, the mounting arms and the antenna themselves. The maximum height is not changing. What is changing is that instead of having single pole arms to July 5, 2011 Page 15 mount the antennas to, the applicant is seeking to construct a platform. It was described at the Planning Commission as being a little bit more substantial in size with a lower profile. So what the aesthetic difference would be for the residents is that they would have a platform up instead of three arms. The planner did review this application and felt that this equipment change out was in keeping with the code requirements for this conditional use permit for wireless facilities. There was a public hearing. There were no comments on it and ultimately, the Planning Commission did go along with the planner's recommendation to recommend approval of the equipment change out wireless facility siting. Councilmember Duggan asked what color is the platform. In the past council has been concerned that platforms blend in with the area. Assistant to City Administrator Sedlacek replied, as mentioned in the planning materials and was reiterated by the planning applicant, the pole will not be changing colors. The new platform and antenna will match the existing color. This request meets all code and is a very straightforward application. It is only before the council this evening because it is within the critical area and the policy is to have all critical area permits come before the community in a public hearing format. It is a single story and they are going to construct the addition on top of an existing patio and then adding a new patio to the south of that addition. Councilmember Vitelli moved Approve a Resolution Approving a Conditional Use Permit for Wireless Facility Ayes: 5 Siting at 1196 Northland Drive Nays: 0 Councilmember Povolny seconded the motion. Case 2011 -15: David Bergh, 996 Caren Assistant to the City Administrator Sedlacek explained that Court. "RESOLUTION APPROVING this is a proposal for an addition to the rear of the home at A CRITIAL AREA PERMIT FOR AN 996 Caren Court. This property does happen to fall within ADDITION TO THE HOME AT 996 the critical area overlay. Anytime there is an application CAREN COURT" in the critical area that application is reviewed in regards to any impact it has upon the river in terms of aesthetics and in terms of any impact it might have to the natural resource of the river. Typically that means any changes to stormwater runoff. This request meets all code and is a very straightforward application. It is only before the council this evening because it is within the critical area and the policy is to have all critical area permits come before the community in a public hearing format. It is a single story and they are going to construct the addition on top of an existing patio and then adding a new patio to the south of that addition. July 5, 2011 Page 16 There was a public hearing held on this during the June Planning Commission meeting and there were no comments at the public hearing and ultimately the Planning Commission went along with the planner's recommendation to recommend approval of this critical area permit. The applicant, Ms. Maxine Bergh, expressed her appreciation of city government and all of the work they do, and she is a supporter of the critical corridor. She found out about the critical corridor when she was on a citizens committee fighting a very intrusive development. That being said, this is a total waste of council's time and their time. They have no flight line to the river. There is a bar, two gas stations, and a huge housing development between their property and the river. This was intrusive to her and it is a waste of their time, the council's time, and the contractor's. It has cost everyone money. She had to make her point known that she thinks this is a waste. Councilmember Duggan moved Approval of a Resolution Approving a Critical Area Permit for an Addition to the Ayes: 5 home at 996 Caren Court. Nays: 0 Councilmember Vitelli seconded the motion. Mayor Krebsbach responded to Ms. Bergh's comments by stating that they have asked to have the critical area line pulled back because it does impact residents on Douglas, James, and Caren Court. There has been no movement on that request. It is an added fee and it is an added time constraint for people that do live in it. It was designed to keep a contiguous green bluff buffer for the river, but as you can tell, that is not necessarily the case. Case 2011 -16: Michael Waldman, 560 Assistant to City Administrator Sedlacek explained that this Watersedge Terrace. "RESOLUTION is an application for a wetlands permit for a privacy fence. APPROVING A WETLANDS PERMIT The applicant is seeking to construct a six -foot tall standard FOR A FENCE AT 580 WATERSEDGE privacy fence, board -on- board, constructed of wood, in the TERRACE" backyard as was illustrated on the site plan. The wetlands permit requires that any development, which occurs within 100 feet of a wetland requires a wetland permit. This gives council and staff a chance to review that in terms of impact upon the wetland. The Planning Commission did review this application at their last meeting. If anyone July 5, 2011 Page 17 visits the site, it is noted that there is considerable vegetation in between where the fence is proposed and the wetland area. It is felt that this is sufficient. The city typically recommends a minimum of 25 feet so this is a situation where they are maintaining an adequate vegetative strip. While there were no comments at the public hearing, staff did receive two comments on this application by post notification. Both of those related to the aesthetics of the fence. This is one of those tough situations where as a body, our authority is around the impact upon the wetland but still wanted to have it noted in the public record that there are two citizens that were concerned about the aesthetic impact of this fence as it is viewed from the pond area. There was also some concern about potential covenant implications of a fence in this area. That resident was made aware that the city does not get involved in a matter with the covenant. The Planning Commission did hold a public hearing on this matter at their June 28 Planning Commission meeting. There were no comments specifically at that meeting and ultimately the commission did recommend approval of the fence as proposed in the site plan. Mayor Krebsbach wanted it made clear that the standard is 100 feet from a wetland. So the council would be granting 60 feet, as they would be 40 feet from the wetlands, correct? Assistant to the Administrator Sedlacek replied that the fence is proposed to be 60 feet from the wetland. Councilmember Duggan commented that this is to grant a permit and has nothing to do with distance. Mayor Krebsbach stated that the reason the council has any decision making authority is that they can decide if something encroaches in that 100 foot setback in a wetlands permit. Assistant to Administrator Sedlacek commented that this is not a setback per se, it is 100 feet of buffer and our level of review is so that we can make sure that what is being proposed does not have a negative impact, and that is something that is considered on a case -by -case basis. The analysis the planner used on this one is that the only impact in regards to the wetland is the digging for the postholes July 5, 2011 Page 18 and where that dirt may ga. So there is very minimal impact in this situation. Mayor Krebsbach commented that this would not be in front of the council if they did not have some authority to make this decision because it is a departure from that 100 - foot setback. City Attorney Tami Diehm wanted it made clear that there is not any type of variance being granted it is just that within those 100 feet the city has to approve anything that goes on because that is considered the wetland buffer area. Councilmember Petschel wished to have it clarified that this is board -on -board construction of the fencing and it is natural material; it is wood. Assistant to Administrator Sedlacek replied that it was a little confusing with the image that was included but the planner's memo actually said that it was a white vinyl fence. The image did not copy over well but it is proposed to be a wooden fence. Councilmember Duggan commented that based on his understanding of the ordinance that a six -foot fence is allowable in their backyard. Although to him it is intrusive, but wanted to establish that a six-foot fence is permitted. Assistant to Administrator Sedlacek replied that this is correct. Councilmember Duggan also asked if this fence has the 30% opacity that is required in the ordinance as well. Assistant to Administrator Sedlacek answered that it has been recognized by staff for quite some time that a board -on -board construction does give the 30% openness. Councilmember Vitelli suggested that the condition that the fence be wood be added to the wetlands permit. Mayor Krebsbach replied that the application states that the fence will be constructed of wood. Assistant to Administrator Sedlacek stated that in the Letter of Intent, it is stated by the applicant that this fence will be constructed of wood materials. Councilmember Petschel asked if the primary objection on the part of the neighbors was aesthetic and obstruction. Mayor Krebsbach commented that there is a neighbor in attendance that can speak to that question. Councilmember Petschel stated that there was more than July 5, 2011 Page 19 one letter and she just wanted it clarified. Assistant to Administrator Sedlacek replied that the other neighbor did not provide a name or address; they live across the pond and were unhappy about the fact that they would possibly be looking at this high fence instead of a rear yard. Mr. Carl Cummins, 584 Watersedge Terrace, commented that the applicant moved in several months ago and they have had several very cordial conversations across their front yards. During the course of the conversations he mentioned that he might want to build a fence and Mr. Cummins asked to be informed of when it was to be constructed and given an opportunity to look at the design. The applicant chose not to do that and the Cummins were out of the country when the notices were sent out. They first became aware of this a few days before the council meeting. Mr. Cummins does object to the design of the proposed fence, as it is intrusive on his property. He was also involved in drafting the covenants for Copperfield and is aware of the reasons why there were restrictions placed on building fences of this type, or any type, adjacent to wetlands. He feels that this is not in keeping with the spirit of the covenants, recognizing it is not the city's responsibility to enforce those covenants. In any event, he is requesting that the council lay the matter over to give him an opportunity to speak with Mr. Waldman and find out exactly what the design is since he did not have a chance to see it before this evening. Mayor Krebsbach commented that it is customary, if there is an objection, for council to hear it. She is comfortable with putting this over until the next meeting so there is an opportunity for Mr. Cummins and the applicant to have a conversation. Councilmember Vitelli agreed that he is comfortable putting this over; however, he fails to find any reason to disallow this. If the council starts making decisions based on neighbor's opinions of the looks of things, they would spend a lot of time in court. He asked Mr. Cummins, since he has been on the council before, if he sees any reason for them to deny this request. Mr. Cummins replied that he believes that the council has the authority to deny based on the 100 -foot setback from the wetland but would defer to counsel on that. He is not asking today for the July 5, 2011 Page 20 council to deny the request, he is just asking for an opportunity to speak with the applicant. Councilmember Vitelli asked if it is true that the council can deny the request based on the 100 -foot buffer. City Attorney Diehm replied that the council's authority here is to consider the impact that this will have on the wetland. So the resident is correct in that council has an authority to deny it if they were to find that the building of this fence had an unacceptable impact on the wetland. What has been presented in the planners report and what went before the Planning Commission and is recommended to council tonight is that this fence will not have an impact on the wetland. Councilmember Vitelli commented that the only impact was the digging for the posts but he does not feel this brings forth reason to assume that this has a tremendous affect on the wetland. Councilmember Duggan commented that he would be in support of holding this over for a couple of weeks. He also pointed out that there is the aesthetic of the wetlands itself to be considered, which is valued and why it is maintained. When you start going in the face of that aesthetic, which to him is much larger than any individual fence. That is why he chose to put a fence that can be seen through on his property, which is on the other side but within the covenants of Copperfield. The other part that he would ask the applicant and Mr. Cummins to come back with is the concept of privacy. What exactly is the privacy concern here? Sometimes it is to keep pets or children in the backyard, are there other ways to provide the desired privacy? He would like to hear more from both sides. Mayor Krebsbach summarized that when there is no dissent, it really is to have the awareness of the neighbors and an opportunity to comment with one another and to be here. That timing did not work in this situation, and therefore she would support the tabling. The purpose of where the council comes in to make a decision is the impact of the wetland. So any discussion the neighbor and the applicant might have about the use of the fence or why he needs the fence can be their own private discussion. The applicant can bring that information forward if he July 5, 2011 Page 21 wants to as well. City Attorney Diehm replied that Mayor Krebsbach summarized correctly. Councilmember Duggan moved to table Resolution Approving a Wetlands Permit for a Fence at 580 Ayes: 5 Watersedge Terrace Nays: 0 Councilmember Vitelli seconded the motion. Councilmember Petschel asked Mr. Cummins who currently enforces the covenants in Copperfield. Mr. Cummins replied that he is unaware that anyone enforces the covenants. Councilmember Petschel asked then of what value they really are. Case 2011_.. -17: Michael Cornick, 1176 Assistant to Administrator Sedlacek explained that the Sibley Memorial Highway. applicant has a home on Sibley Memorial Highway among "RESOLUTION APPROVING A a sliver of Lilydale, but it is in Mendota Heights. As of CRITICAL AREA PERMIT TO today, there is an existing home on the parcel. The CONSTRUCT A NEW HOME AT applicant for this critical area permit, is seeking to demolish 1176 SIBLEY MEMORIAL HIGHWAY' the existing home, remove it, and then to construct a new home with a larger footprint and a new garage. As a part of this project they are changing driveways. They currently have one driveway off to the eastern edge of the lot and a second driveway on their actual parcel. They would be seeking to tie into that for access to the home and the new garage. Assistant to Administrator Sedlacek shared an image of the front of the proposed home. The home itself is compliant with all critical area rules. It is compliant in regards to height, setbacks, and grades. It is a significant project, which very fortunately for the applicant, fits all criteria for the critical area. The applicant is showing staff the materials to be used. It is a vinyl siding but it is made to look like natural materials. It is intended to be a longer lasting product. It will have a view from the lower level but it is very nicely fitting within all of the criteria. The applicant has worked a couple of times on different iterations on this parcel and is finally made this application for this project. The existing home and the newly proposed are at the base of the bluff, which goes up at a fairly significant grade, up into the Kingsley Estates townhomes at the top of the parcel. The parcel of land itself is actually quite large, encompassing the bluff itself. July 5, 2011 Page 22 At the Planning Commission, there was a little bit of concern about an easement, which runs through the parcel. It is noted that the driveway goes over that easement. The applicant is aware that this is an actual public easement that the city may need access to at some point. The other question that came up at the Planning Commission meeting was for the portable shed and whether or not that was also compliant. It is 144 square foot accessory structure, well under 15 square feet in height — no lofts on this one — that is compliant with both code and specifically the critical area ordinance. Councilmember Vitelli asked where the proposed driveway goes off to — there is a Y in the picture. Assistant to Administrator Sedlacek replied that it is actually another home, which is in Lilydale. That is the existing condition as this driveway, which is on Mr. Cornick's parcel of land but accesses the property further down Highway 13. So the proposal is within his own land, to then hook up that Y to access that and have a better grade for his driveway. Councilmember Vitelli asked if this meets the guidelines with regard to the increased size of the impervious surface. Assistant to Administrator Sedlacek replied that in the critical area, there is not a specific number tied to that. However, the engineer reviews the plans, looks at impervious surface, and makes a determination if there is any kind of negative impact. City Engineer Mazzitello has looked at these plans in detail and would be willing to comment on them. Public Works Director /City Engineer John Mazzitello stated that staff has worked extensively with the applicant on developing these plans, not only with the easement but with the layout of the house and the access issues and the impervious surface issues. The applicant received a copy of the land disturbance guidance document and the stormwater management provisions within it. They are aware of the construction management and stormwater management post - construction that they will be accounted for. He stated that he is satisfied that the plan adequately addresses the stormwater management ordinances. Councilmember Duggan asked if the new driveway would be entirely in Mendota Heights. Assistant to Administrator Sedlacek referred to the site plan and pointed out the border �, ) between Mendota Height and Lilydale. The driveway is July 5, 2011 Page 23 within Mendota Heights. Councilmember Duggan asked if the driveway was compliant. The answer was in the affirmative, as proposed the driveway is compliant. Going back to the impervious surface, Councilmember Duggan commented that the big challenge is that when a larger impervious surface is created there is the potential to create more runoff. Is it correct that the engineer has determined that this will either be controlled or it is not significant? City Engineer Mazzitello replied that the ordinance and guidance document govern how many additional square feet — that new impervious surface — constitute the need for a retention pond for rain control. This does not meet that threshold. Councilmember Duggan commented that on the image shown, it looked like the roof looked like it had a greenish tint to it. Assistant to Administrator Sedlacek replied that the image is a black and white photo so that is an optical illusion. Councilmember Vitelli stated that he completely supports this. It is an excellent and beautiful home and it would be a great addition. Councilmember Petschel echoed Councilmember Vitelli's sentiments. She expressed her appreciation of the way the homeowners have come in and worked with staff and been meticulous in terms meeting all criteria for this lot. It is a challenging project and she feels that it will be a beautiful addition. Councilmember Duggan agreed. Mayor Krebsbach commented that she believes this shows how Mendota Heights has maintained the bluff. If anyone wonders about those extremely tall buildings, they have a garage underneath so their first floor starts on top of the garage. Councilmember Vitelli moved to Approve the Resolution Approving a Critical Area Permit to Construct a New Ayes: 5 home at 1176 Sibley Memorial Highway. Nays: 0 Councilmember Duggan seconded the motion. Case 2011-18: John and Rebecca Driscoll, 21 Dorset Road. "RESOLUTION APPROVING A CONDITIONAL USE PERMIT FOR A COVERED FRONT ENTRY AT 21 DORSET ROAD" July 5, 2011 Page 24 Assistant to Administrator Sedlacek explained that before the zoning code update, this was a common request for a variance. In 2010, when the city updated city code, it was decided that perhaps this was better off as a conditional use permit. They are something that is deemed reasonable but staff still wants to have control over these requests to make sure they meet specific conditions. The nature of this request is the existing home on this parcel is a rambler style home, single level that is actually on an angle on their lot. It actually just touches on the 30- foot front setback, according to the Dakota County property records. The applicant is proposing to construct a new covered entry to this home, which is eight feet out from the home. A portion of this covered front entry then goes into the 30 -foot setback. The conditional use permit for this is actually specific to a portion of this covered front entry. This was a matter that staff considered carefully to make sure they were doing the right process on this — should it be a variance, should it be conditional use. The planner's analysis was that, yes this does fit as a conditional use under the revised code and under that there are requirements that it be built with an open style construction that can have no more than 50 square feet inside of the area and no more than five feet of length into the front parent setback. This application meets all of those requirements. The Planning Commission asked a couple of more questions specifically about how might sidewalks access this parcel of land. The applicant showed that sidewalks would be constructed after the final completion of this and then they would decide the best place for a sidewalk. It is of interest but it is not a part of council's authority to decide where the sidewalks to this covered front entry would go. The applicant also provided images from both Dorset Road and Staples Avenue showing limited impact for sight lines along that way, addressing planning commission concerns about any kind of chance in making that corner less safe for pedestrians or vehicles. There was a public hearing, there were no comments at that public hearing, and ultimately the Planning Commission agreed with the planner's recommendation and is recommending approval of this conditional use permit. Ayes: 5 Nays: 0 Case 2011 -19: Beverly Sargent, 1140 Sibley Memorial Highway. "RESOLUTION APPROVING A CRITICAL AREA PERMIT TO CONSTRUCT A PATIO AND RETAINING WALL AT 1040 SIBLEY MEMORIAL HIGHWAY' July 5, 2011 Page 25 Councihnember Vitelli moved to Approve Resolution Approving a Conditional Use Permit for a Covered Front Entry at 21 Dorset Road. Councilmember Duggan seconded the motion. Assistant to Administrator Sedlacek explained that this address is familiar because there have been a number of critical area requests out of this parcel. It is located on the corner of Mayfield Heights Road and Sibley Memorial Highway. One month ago there was a request for a privacy fence along the eastern edge of this parcel. This request is to now construct a patio on the east side of the home, which is 20 feet by 20 feet. The applicant describes it as being constructed with pervious pavers in that the dirt that would be removed in order to make this patio flat and usable would be used to fill in the low spot between large maple trees to the east of the home and then also to fill in a retaining wall they wish to construct around the upper of those two trees. The Planning Commission called out the fact that this retaining wall was not a part of the original planning application added that language into the conditions of the approval, which identified that the retaining wall is where it is illustrated on the site plan and that it will also be constructed of natural or stone materials. There were no comments on this application at the public hearing. After some discussion about how to ensure that stormwater is not a negative impact on the site, the Planning Commission did go with the planner's recommendation approving this critical area permit for a patio. Relating to the last point mentioned about controlling stormwater, the conditions leave a number of factors up to city engineer to make sure, as this project is completed, that it meets those requirements and does not have a negative impact on the stormwater in the area. After the Planning Commission meeting, the city engineer pointed out that this project would be subject to a grading permit, similar in process to a building permit for several projects. Public Works Director /City Engineer Mazzitello explained that staff has established, as part of their building procedures, a grading permit. A grading permit is for those projects that involve soil disturbance but are not affiliated July 5, 2011 Page 26 with any other permit, such as a building permit or a plumbing permit. These are commonly applied to parking lot extensions, driveway relocations, and projects of the like. Because this is a patio that is not affiliated with any type of structural building permit necessary, it would be required to have a grading permit obtained prior to construction start. The purpose of that grading permit is to look at the soil disturbance and any soil relocation on the site to ensure there is not going to be an adverse impact to stormwater management on the site. City Engineer Mazzitello contacted the applicant this afternoon and left a voice mail informing her of that and offered to walk her through the process should council decide to approve the critical area permit. Councilmember Petschel asked what the slope is on this site. Assistant to Administrator Sedlacek referred to the grading map and explained that these are two -foot contours, so it is approximately three feet from one end of the patio to the next. This figures to be about a 12% slope, which is less than the 18% that would be insisted. Councilmember Petschel commented that her concerns about that would be addressed by the inclusion requiring a grading permit and an indication where the relocation of the soil and dirt is. There is going to be more disturbance if there is a 13% slope as opposed to an area that is totally flat. Councilmember Duggan stated that it is an approximately 22 -foot drop from the area proposed for consideration down to Sibley Memorial Highway, as he looks at the map. Mayor Krebsbach asked Councilmember Petschel if she was recommending the addition of another bullet. Councilmember Petschel replied that no, she looked at the contours on the original plan and thought that this was not a flat area and just wanted to clarify that. Mayor Krebsbach asked what kind of cost is this grading recommendation adding. City Engineer Mazzitello replied that the grading permit is a flat fee, just to cover the staff review time. A grading permit costs $100 and staff can turn a properly drawn set of plans around in a day. Councilmember Vitelli moved to Approve a Resolution Approving a Critical Area Permit to Construct a Patio and July 5, 2011 Page 27 Ayes: 5 Retaining Wall at 1040 Sibley Memorial Highway. Nays: 0 Councilmember Duggan seconded the motion. Case 2011 -21: David Albrecht, 1345 Mayor Krebsbach noted that this is at Brown College and Mendota Heights Road. "RESOLUTION the applicant is not present. Assistant to Administrator DENYING A REQUEST FOR Sedlacek explained that Brown College is locating to a VARIANCES FROM THE REQUIRED parcel on Mendota Heights Road. They have a complete SETBACKS FOR MONUMENT SIGNS sign package that they have put together. The majority of AT 1345 MENDOTA HEIGHTS ROAD" signs do not have any issues with code; however, the proposed locations for the two monument signs do have issues with code. They are seeking to construct those two monument signs right off of the right -of -way on both Mendota Heights Road and Northland Drive. Within the sign package, the applicant shows a very good image because it gives an approximate location of the right - of -way, just outside of the trail on Mendota Heights Road. The existing monument can be seen in the image at a 20- foot setback, which is much more common application in the industrial park. The original PUD, when this area was developed, had a standard of 20 feet for these entrance monuments. The applicant is requesting that these be placed immediately upon the front yard line. However, the applicant was not able to articulate to the Planning Commission either any kind of practical difficulty, why they needed to be there and was not able to address alternatives that they had considered in terms of placing these at the 20 -foot setback, which has been more standard in the area. The Planning Commission expressed a support for the sign themselves, as being attractive signs, but asked the applicant to do further homework into where alternative locations could be or what type of landscaping could be done sparingly to ask for a 20 -foot setback, as had been allowed on this parcel in the past. There was a public hearing held on this matter. There were no comments at this public hearing. Staff did hear from one additional business in the area, which happens to have a sign right on the front setback line, but they did not wish to make any comment, they just inquired as to the nature of this request. July 5, 2011 Page 28 Mayor Krebsbach asked if they had a variance. Assistant to Administrator Sedlacek replied that he was unable to rind out if they have a variance as the call came in late in the day, but it is just a matter of trying to find out more. Ultimately there is a request, no public feedback has been received on it, and currently there is an applicant that has not provided staff with any further detail as requested by the Planning Commission to warrant issuing these variances. The Planning Commission did adopt the findings of the planner for denial. Councilmember Duggan asked if the proposed location would obstruct visibility for the cars trying to exit the grounds and enter the road. Assistant to Administrator Sedlacek replied that staff would say this is the very reason why they have the setback in code. Councilmember Duggan commented, other than visibility versus the previous sign, the distance back is eight to ten feet and the speed in that area is not much more than 35 miles per hour. He supports the recommendation but has a challenge on number four of the resolution .. . therefore it be resolved . . . He asked legal staff if that should be included in the resolution. He would be uncomfortable including that and trying to determine "granting of this grant would be establishing a privilege for this property which has been denied to others in the district." When something like this is stated, he would want to know what were the deniables and on what reason were they denied. Since that is not included he would have a hard time supporting that particular claim. Councilmember Duggan suggested that, instead of the stated number four, that this language be added; "sightlines exiting the property in this particular area are dramatically reduced and therefore a safety hazard." Mayor Krebsbach stated that she believes they can remove number four and include one of the reasons to deny is sightline for vehicles exiting the property. Councilmember Duggan moved Approval of a Resolution Denying a Request for Variances from the Required Setbacks for Monument Signs at 1345 Mendota Heights Ayes: 5 Road, with the New Item Four. Nays: 0 PROPERTY MAINTENANCE IN COMMERCIAL ZONES July 5, 2011 Page 29 Councilmember Vitelli seconded the motion. Mayor Krebsbach stated that this is one of the things she was interested in a year ago as a council member. Assistant to Administrator Sedlacek explained that this is information as requested by city council at the 2011 work session to follow up on the development on commercial property maintenance code for anything that is zoned Other Commercial or Industrial within the City of Mendota Heights. Currently there is code on residential property maintenance; there is no such code for commercial properties at this time. It was discussed in September of 2010 and at that time, with the potential of change in election, it was put off until the work session. At the work session city council gave staff direction to find out what it would take to get this new code developed. Staff has received feedback from Planner Grittman and Assistant to Administrator Sedlacek provided two estimates for developing this type of a code that would be something that could be implemented. The lesser of these two costs, basing any additional new code upon the residential property maintenance code, and involving public input, as this is an all new code to the City of Mendota Heights and there are a number of property owners that would be impacted — that process is estimated to cost $3,200. If a more involved process, looking at code across the Twin Cities, seeking out communities with similar types of code, and then a more involved process to get the business owners involved into it and to get buy -in — would be $7,200. There are some other concerns that Mayor Krebsbach has asked that would be included in any iteration, any draft of code for property maintenance in the commercial zone. So at this point, staff is seeking council feedback on if creating this new code should be pursued. If so, this is not a budgeted item for 2011 so is this something to go after this year or in to 2012, it could be integrated into the budget work sessions for the upcoming budget. The last item is that staff could do a lot of this work in developing a draft but would need to know what is the purpose of this code. The initial statement in any new code that is created needs to have some guidance on what the purpose is for the code. July 5, 2011 Page 30 Councilmember Duggan expressed his interest in what Mayor Krebsbach had to say. However, he stated that he would oppose it for many reasons. As he looks at what is contained and hears staffs report, he would be very concerned for the costs and the time involved in going forward with this. Mayor Krebsbach explained that one of the reasons that she brought this forward is last year there was plywood over the windows at the Mendota Hotel and there was nothing the city could do to require them to remove the plywood and replace it with a window or have material that matches the siding. They have now painted the plywood and stripes have been drawn on that siding. Also, there was the testimony from the people behind Fischerville and council had never really looked at the back of Fischerville, where it is not graded and it is not finished. The properties that are commercial and predate when everything was developed with TIF [tax increment financing]; everyone was required to finish four sides and have it landscaped. That does not mean there has to be a lot of planting but at least it is graded, seeded, maybe some bushes added to block trash. If one-were to look at any of the businesses in the industrial park — Taj Technologies Inc., General Pump — Mendota Heights has a very high standard that adds to the quality of the community. There are parcels that are here that predate all of that. The city has nothing in any kind of ordinance that even matches what is required of residential properties. Mayor Krebsbach does not mean for this to be onerous, and is surprised at the $3,200 cost, but feels this would be for Mr. Grittman to conduct hearings and meetings with those property owners who would be affected. It is her desire to no longer have anyone grandfathered in. This would take care of making it a level playing field for all commercial businesses in Mendota Heights. The city spent two years on the Mendota Plaza development and spends a lot of time on absolutely everything in terms of signage, etc. She feels the time has come. Right now there is nothing before the council that is really looking at someone specifically but she recommends it be done. July 5, 2011 Page 31 The only thing Mayor Krebsbach thinks sounds onerous is landscape. She would want to make sure that would mean that it is either seeded or lawn is placed around the building; it is either graded and finished in terms of parking surface or it is landscaped in terms of a finished looking product. Councilmember Vitelli stated that he is in support. He thinks that the city should have something similar to what is required of residential appearance. He likes the idea that the proposal would be, as stated, "utilizing the existing residential code as a basis" because then it is easier for council to understand and the residential code is not onerous. It is quite reasonable and it does not cause residents to jump through hoops to have their properties exist in our city. He supports the $3,200 and utilizing the residential code as a basis. Councilmember Povolny asked if council is going to go back and make all of the businesses comply with the new standard. Mayor Krebsbach replied that staff could enforce this ordinance on any business that is not compliant. Councilmember Povolny asked again if this includes all businesses; will someone be going into the back of every business and make them comply with the new ordinance. City Attorney Diehm replied that she believes that part of staff's hope as they work through this process is to develop language with the planner that will work as an ordinance. Then there will have to be a separate policy discussion with the council about what the intent is in terms of enforcement. One of the biggest challenges with a commercial maintenance ordinance is the enforcement and whether or not it will be operated on a complaint basis or if someone will systematically go through the community and look for violations. Those are discussions that would be proposed to have when staff comes back with some ordinance language for the council. Mayor Krebsbach stated that the options would be, assuming council goes ahead with this, that it is on a complaint basis or that staff goes through and identify all of those properties. She assumes there could be some level of notification that goes out to commercial owners, that this is now a new ordinance. City Attorney Diehm replied that she believes this to be true and the hope is, in working with July 5, 2011 Page 32 the planner, that the notification would go out to the commercial property owners beforehand so they feel like they are involved in the process of the adoption of that ordinance as well. Mayor Krebsbach stated that this is where the $3,200 cost is in terms of discussion. So staff would be at the front end identifying those properties. This is not meant to be anti - business. The businesses really have a high standard and she believes it is in fairness to all of the businesses, which she feels the majority comply with. So there are just a few left and this gets at it. Should another situation arise where something is unsightly and not really to the community standard happens, if the city does not have an ordinance like this all staff can do is complain to them, they have nothing to stand on. They might as well not even talk to them about it. Mayor Krebsbach expressed her desire and appreciation to support to go forward with this. Council could always, at some point, decide that this is too onerous if council hears from businesses. Councilmember Povolny asked if staff places the residential code that is there today on commercial / industrial, are there businesses that do not meet that type of code today. Mayor Krebsbach replied in the affirmative. Councilmember Petschel asked if something like this is enacted, what would be different on the two locations the mayor cited: the motel and Fischerville. What is it exactly staff would be able to compel these two businesses to do? Mayor Krebsbach replied that it would not only be focusing on these two businesses. Currently, houses are finished on all four sides with roughly the same materials. City Administrator David McKnight stated that if this ordinance were put into place, they would carry out whatever direction staff gives but they would not develop an ordinance specific to any one business in the community. Mayor Krebsbach stated that she only used the two businesses as an example. Mayor Krebsbach continued by stating that if one were to look at the residential ordinance and take a look at was required of businesses that came in under TIF financing, it July 5, 2011 Page 33 is really to bring in that last piece in the city that does not comply — and there is no reason for them to. There has not been a standard of compliance and the ordinance would establish that standard. Then it would be up to council to determine how it would be enforced. Councilmember Duggan commented that there is a comment in the proposal that it is retroactive and asked if she is asking for it to not be retroactive. Mayor Krebsbach replied that she is requesting that this would be retroactive. Councilmember Duggan stated that when one makes an ordinance, as in this case, practically for a single issue that is not the normal government process. He supports changes to or adding ordinances if there is a larger issue out there. This is a single issue — a window. He believes there is a language available to fix that issue, it is just a question of pursuing it. Mayor Krebsbach responded again that the issue with the window was not a single issue — it was a single example of a larger issue. Staff has not done a search through the city for where there are commercials that are not in compliance. Councilmember Duggan replied that there is no staff set up to do those, other then the existing residential code. Mendota Heights has always been a city that works with complaints; they are addressed. If the city sets up a group that goes around and polices to ensure that they are all in compliance with whatever this ordinance is — he suggests that staff reviews if this can be done with the existing residential. He would not support it himself. He feels that Mendota Heights is a city that most people are proud to live in, most people point at it and say that is a great place to be. He thinks this is going to set an unfriendly to business atmosphere with this foresight of a business, fully finished, graded and landscaped. Normally, most businesses, especially the larger ones, have larger parking lots. Some screenings of those have been done successfully. He believes council is going off in the wrong direction in trying to create an ordinance that they are unsure of what it might entail. The city has an excellent residential code that has given us a city that is second to none. Mayor Krebsbach stated that this is one of the options they are considering doing. July 5, 2011 Page 34 Councilmember Vitelli commented that he does not agree that this ordinance would be anti - business. Also, if one were to look back the city updated and improved the residential maintenance, it was retroactive, and is enforced. Councilmember Duggan clarified that the improved residential ordinance was not retroactive. This proposed commercial ordinance would be so the city would be telling an existing established business that they are not up to the code and they have to spend x number of dollars to fix it up. No one tells a residential owner they have to do that. Councilmember Vitelli replied that a residential property that looks like a dump is not exempt from the update maintenance ordinance. Councilmember Vitelli continued by stating that he sees the initiation of this work as a learning tool. For example, how many businesses do not really fit with this ordinance and where would there be problems with the retroactive. Retroactive or no retroactive could be discussed. This is just the beginning of trying to provide commercial appearance definitions, just like the city has for residences. Mayor Krebsbach stated again that if there is no ordinance, there is no point in complaining about any commercial structure in this city. She does not think this is onerous; she thinks businesses would want this final step in the ordinances. The city has nothing to stand on in terms of ordinances about anything that would come along at the level of plywood over windows. Councilmember Duggan stated that he does not believe that there is nothing the city can do about complaints on the appearance of commercial properties. Councilmember Vitelli asked for clarification from staff on whether or not there is anything available to correct a complaint like the example. Assistant to Administrator Sedlacek replied that the specific example in mind, there was a broken window and it was asked that it be repaired. The property owner, without code requirements, complied by boarding up the window and finishing it like the rest of the building. Even under the current housing code, that complies. That is one of the issues that Mayor Krebsbach has requested be addressed, how would staff repair a July 5, 2011 Page 35 violation. In this situation, if the housing code was applied it currently complies. Fischerville also currently complies. Councilmember Petschel asked if council does go with what has been done residentially, what code language would have to change so that a commercial property owner would be compelled to comply. Mayor Krebsbach replied that she does not feel that council and staff is that inept that they cannot come up with a good ordinance that is not onerous, that it leads depth to some of these issues. What she was astounded at was there was nothing the city could do. In the example, they later painted over the plywood and drew lines on it to look like the siding. There was plywood over two windows. It is not her desire to over dwell on the motel. They maintain the grounds. It is Mayor Krebsbach's recommendation that this process be started. This is a very sharp city, there is a couple of spots left and she does not want this to be invasive on businesses. There has been a lot of time spent put into those site plans. Anyone that has come into the city, since probably 1990 if not before, in terms of business, be it an industrial park or commercial, have had have extensive plans. Anybody who was here before, they really do not have to comply with anything. This would at least give the city something that is of a standard. Mayor Krebsbach expressed her appreciation of Councilmember Vitelli's point that when staff went to a residential maintenance ordinance, no one went around and necessarily told everyone. It is just that the standard started to move and there is at least something on the books to work with if needed. She does not believe that the city is going to change its character in how businesses are run but it is deficient in an ordinance in this area. City Attorney Diehm commented that it is important that the council understand that there are general nuisance language in the code and also available under State Statute. If there is a condition that unreasonably interferes with the use and enjoyment and rises to the level of a nuisance, there is an enforcement action that the city can take. What some communities find the benefit to an ordinance like this is that it removes that determination of whether or not this is a nuisance, from that general kind of definition, and gives business owners a clearer road map as to what will be Ayes: 4 Nays: 1 (Duggan) July 5, 2011 Page 36 expected of them as business owners. It then gives the city an opportunity to cite very specific things, rather than trying to make a claim that one window rises to the level of a nuisance. There is where council has to decide if they are comfortable with just the very general language or do they want something specific in the code. Councilmember Povolny stated that the part he questions is if someone is going to be hired to go around and just follow the businesses or will it be done like the residential code, by complaint. Mayor Krebsbach replied that this could be determined. Councilmember Vitelli commented that this is the line that he sees; yes, an ordinance is needed for that type of thing but not if someone is going to go around and inspect properties and cite them for leaving a pallet on the ground for two days. Mayor Krebsbach stated that it would need to be determined in the ordinance if there should be outside storage. For example, when SuperAmerica came in they could not have outside storage. So there are a lot of businesses that are already complying with the standards that council was able to implement because of TIF financing. This can all be determined. Councilmember Vitelli moved that staff proceed with the drafting of a proposed ordinance utilizing the existing residential code as a basis, providing for a limited public input from impacted property owners. This is the process that would be started and some of these questions would be answered as the process goes along and council will determine what they feel is the right approach in regard with regard to retroactivity, etc. Councilmember Povolny seconded the motion. Councilmember Duggan expressed his concern on the word "limited" public input. How would one determine "limited ?" Assistant to Administrator Sedlacek explained that this was his language. It was described to him in the proposal that there would be one open house. So he deemed that as "limited" but it is not specific language. "Limited," in this instance, means that the planner is proposing that there be one open house with businesses. Councilmember Vitelli is in favor of deleting the word "limited." July 5, 2011 Page 37 Councilmember Duggan continued by stating that he believes that the motion and the second are very reasonable but would suggest that Planner Grittman to consider a $1,000 fee to tweak the existing residential code, which seems to have worked well both commercially and residentially, except for a couple of small instances. One of which was a building that been around forever and, technically, can be grandfathered in. There are other ordinance language and universal building code language in relation to nuisance that could apply. So rather than going to $3,200 he would ask if Mr. Grittman would consider a $1,000 fee to tweak the residential code and other areas to bring it to a commercial level. ORDINANCE 436 REPEALING City Clerk Sandie Thone explained that at the May 17th ORDINANCE 237 AND RESTATING meeting it was recommended by the council that staff work TITLE 3, CHAPTER 3 OF THE CITY to make ordinance 436 pertaining to peddlers more CODE PERTAINING TO PEDDLERS, restrictive while still allowing the constitutionally protected SOLICITORS /CANVASSERS AND activities and those deemed exemptions by the council. TRANSIENT MERCHANTS That ordinance is being brought back and it eliminates the licensing process completely and allows only a registration process. It reduces staff time and police attention with regard to these activities. Section two of the proposed code actually prohibits all peddlers, professional fundraisers, and transient merchants with the exception of those exempted in section three. Farmers' markets and temporary greenhouses are exempt with prior council approval. Farmers' markets are also only allowed on private property. Councilmember Petschel made an observation that this document has had a long journey but she is glad council and staff took their time and worked on it over the course of three meetings. She really appreciates the work that has been done on it and really likes the final copy of the document. She also wanted to make it clear, even though this is being described as more restrictive, that she believes it eliminates the nuisance of possible non -law abiding people going door -to -door, it does not prohibit anybody who is constitutionally allowed to go door -to -door, it does not bar the Girl Scouts or the Boy Scouts from selling Christmas July 5, 2011 Page 38 wreaths or cookies, or the school children from collecting for marathons or selling wrapping paper or plants — the kind of people residents do not mind having at the door. In fact, they enjoy having them at the door. That is going to continue. What the city is not going to have going door -to- door are the people who are not from here, who really have no business being here, sometimes have known criminal histories, and are in our neighborhoods. She would like it set up so that there is no judgment calls on this. They are just not allowed. The normal people, residents are very happy with going door -to -door is not going to change, but that level of really nuisance, unappreciated violations of the sanctity of the homes — that is the thing that is being eliminated. She does not feel that this is in the least bit anti - business, but thinks that entrepenneurs, and it is standard practice now, that if they want to do business they come to your house and leave a brochure. They don't have to ring the doorbell, all they do is put it on a rubber band around the door handle. But the people who will ring the doorbells are only going to be the people that are wanted. Mayor Krebsbach stated she would like to know if it could still be asked of someone if they have a permit to be there. Is it correct that the city will no longer grant permits? City Clerk Thone replied that this is correct, there will be no paperwork, no licensing, only registrations. Basically those that are required to register will come in and give their names and what they are going to do. Mayor Krebsbach asked if that person would get a registration card. City Clerk Thone answered that there will not be a registration card issued. Mayor Krebsbach asked how a resident could know if someone at their door is constitutionally permitted or if they had been registered. City Clerk Thone replied that this would be very difficult to do. Mayor Krebsbach stated that when someone has come to her door, she has asked if they have a permit to solicit and they have been able to show her the permit. Chief Aschenbrener stated that the simplest way is to just be aware of what is covered in the ordinance. If someone comes to the door and they are selling magazines subscriptions, they are not going to be covered by interstate July 5, 2011 Page 39 commerce and the resident could ask them if they realize that it is illegal for them to do this in this city and calling police. If they come to the door and it is Councilmember Vitelli running for office or it is the State Senator, they are constitutionally protected and that is something that is allowable in the city, or if it is someone at the door trying to solicit customers for a business in Wisconsin, under interstate commerce, that is allowable. Anything other than the constitutionally protected activities, selling interstate, doing water research, inquiring about clean air, save the river, and handing out literature educating the public is illegal. The language in the charitable solicit requires that the organization be a registered not - for -profit corporation in the State of Minnesota. That is where the registration process comes in. Any reputable organization will send the city a letter approximately one month in advance with a list of people who will be in the community from this day to this day and here is what they will be handing out. They will also provide their contact number should there be any questions. It gives staff a way to contact that organization back should there be any issues with one of their people. Mayor Krebsbach asked if a resident could still call the city if someone is at their door and ask if this person is permitted to be going door -to -door in Mendota Heights. Chief Aschenbrener replied in the affirmative. Councilmember Povolny asked if this is passed, how will the public be educated on what is allowed and what is not allowed. City Clerk Thone replied that this requires legal publication before it can actually become code. That would be the first step. She feels that the complete ordinance should be published instead of just a luminary so that it is clear in the Heights Highlights, however, that will not come out until the fall. Staff could put it on the city website. Councilmember Petschel commented that it should be put on the website and in the Heights Highlights in the fall. Councilmember Vitelli asked Chief Aschenbrener and City Attorney Diehm if they are in support of this. They both replied in the affirmative. Ayes: 5 Nays: 0 ORDINANCE 438 AMENDING CITY CODE TITLE 7, CHAPTER 2, SECTION 2A PERTAINING TO FIRE CODE Ayes: 5 Nays: 0 • • • 0 INNOVATION PERF MEASUREMENT PROGRAM. "RESOLUTION •••• i PARTICIPATION IN TBE COUNCIL ON • July 5, 2011 Page 40 Councilmember Vitelli moved Approval of Ordinance 436 Repealing Ordinance 237 and Restating Title 3, Chapter 3 of the City Code Pertaining to Peddlers, Solicitors /Canvassers and Transient Merchants. Councilmember Duggan seconded the motion. Councilmember Duggan commented that he would like to have it in the front when people come into the city they could see notes in relation to if they are looking for a permit, registration, or anything else there is information there telling them to read this before going any further. He also clarified that what is being approved tonight is pages 171 through 174, Ordinance 436 Repealing Ordinance 237, and Ordinance 237 on pages 175 to 183 is not what is being repealed. City Clerk Thone replied that Councilmember Duggan is correct, that is what is being approved this evening. The second one is the previous ordinance. City Clerk Thone explained that this is a pretty straightforward simple code amendment with the fire code. The fire marshal brought to her attention that the permit fees have been deleted out of the fire codes since as far back as the codes have been in place and requested the fees be put into the fee schedule and to amend the code to include that inclusion. Staff has been charging the fees and has been performing the services. So the code just needed to be updated to reflect that and then at the next council meeting the fee schedule will be updated to include these fees, which have never been included thus far in the city's schedule and really needs to be. Councilmember Duggan moved Approval of Ordinance 438 Amending City Code Title 7, Chapter 2, Section 2A Pertaining to Fire Code. Councilmember Vitelli seconded the motion. City Administrator David McKnight explained that in 2010 the state legislature created the Council on Local Results and Innovation that has been working with the office of the state auditor in putting in place a potential performance measurement program for cities and counties in Minnesota. This is a voluntary program that they have put in place and July 5, 2011 . Page 41 INNOVATION PERFORMANCE put some specific performance measurement tools in place MEASUREMENT PROGRAM" for cities and counties to use if they would like to participate in it. As stated, it is a voluntary program and for those cities and counties that do participate they will offer reimbursement of up to $0.14 per capita, which would equate to just over $1,500 for Mendota Heights, and an exemption from levy limits in 2011. This was the topic of extensive discussion at the last administrators meeting in Dakota County. Most of the cities in the county are participating in this program just as a safeguard in the levy limits area. Mayor Krebsbach asked City Administrator McKnight to explain what a levy limit is. He replied that when state legislatures put levy limits in place, they tell a city that their levy can go up next year by x% and no higher. They also at the same time put exemptions in the levy limits in place, such as debt and other examples. City Administrator McKnight continued by stating that in looking at the program and what it might cost, he does not recommend that the city participate for a number of reasons. If council wants to do true performance measurements in Mendota Heights, then have that discussion with staff. Council and staff should determine what should be measured and put that amount of money in the budget and set that program up. Levy limits have never been a big issue with the council in Mendota Heights because of its conservative approach to budgeting. It has not been something that fearful. The reimbursement that is offered for this program is not a significant amount of money and it does not guarantee that it would cover the cost for staff to put this into place and they are offering it as local government aid. As council is aware, Mendota Heights lost local government aid many years ago so this has the potential of not being available in the future. City Administrator McKnight reiterated that he does not recommend participation in this program. If council wants to participate, he did include a resolution that council would need to approve. Councilmember Duggan stated that he had the same questions of what would be the cost of implementing this relative to the paltry sum of money that the city might get, and what was the explanation for that first paragraph of the July 5, 2011 Page 42 discussion; cities that choose to participate in the new standards measure program may be eligible for the reimbursement and may be exempt from levy limits. City Administrator McKnight answered those questions quite nicely. Councilmember Duggan moved Approval of Resolution Denying Participation in the Council on Local Results and Ayes: 5 Innovation Performance Measurement Program. Nays: 0 Councilmember Vitelli seconded the motion. Councilmember Vitelli stated that he wonders who the state legislature or auditors think they are to begin to establish performance levels for a city. It is like a shakedown — you do not need to buy our protection, but if you do, this is what we will do. This is not what the state government should be doing and he absolutely would never vote for this. Mayor Krebsbach commented that she does see this as unrelated in terms of $0.14 per capita and performance standards. Mayor Krebsbach stated that the city does have a very limited levy increase each year and asked if denying participation would preclude the city from doing that. City Administrator McKnight replied that once the legislature figures out what kind of levy limits they are going to have in place for next year, then he will know the answer to that question. Councilmember Petschel commented that the other thing she finds stunning is how little information is available and how un- precise and lax the requirements would be and what it is that would actually be learned. It appears to her like a "make work" project. She believes that the city, for a lot less money, using software that is already in existence, could survey the entire city and learn more than would ever be learned using their documents. COUNCIL COMMENTS Mayor Krebsbach asked to go first because she would like to suggest that on July 19, 2011 there be a council workshop at 6:00 p.m., prior to the council meeting. As is known, Mr. McKnight has accepted the position in Farmington. He still has his background to pass so no action can be taken tonight; staff has not received a formal July 5, 2011 Page 43 resignation. She recommended that on July 19, 2011 there be a workshop beginning at 6:00 p.m. to review the job description, discuss what the timeline might be, and how the search process might be handled. Then formal action could be taken at the council meeting afterwards. Mayor Krebsbach asked if she needs a motion in terms of scheduling the workshop. City Attorney Diehm replied that there is no need for a motion and that she could schedule a workshop. Councilmember Duggan expressed his opinion that a half an hour would be sufficient and they would start the workshop at 6:30 p.m. Mayor Krebsbach replied that she would rather have the meeting start at 6:00 p.m. to ensure they have plenty of time and are not rushed. Assistant to the Administrator Sedlacek stated that he could update the job description and include it in the packet so council would have it to review prior the workshop. Mayor Krebsbach stated that an agenda for the workshop will be put together but basically this is what the purpose of it would be and, being a workshop, there would not be any decisions made, and recommendations would be brought to the council meeting. Councilmember Petschel commented that she attended an emergency preparedness workshop with the mayor, put on by two speakers from Texas A &M. This was a service provided by FEMA to assess the county and city readiness for any kind of catastrophic event. She found it to be really interesting and the part that she really liked the most was that they took the Oklahoma City bombing, Katrina, and the 35W bridge collapse and they went through how all of those events were handled at the time, the participants assessed that, and then each one of the cities involved in those events did a critique afterwards of what they think they did well and what they think they did poorly, and if they had to do it again what they would they do. Councilmember Petschel also commented that, after looking at the planning applications tonight, a lot of people are working on their homes. If anyone is out and about in the community, there are painters, stuccoers, roofers — it might be the hard winter — but it is really exciting to see positive things that people are doing to their homes. July 5, 2011 Page 44 Councilmember Duggan recognized Councilmember Vitelli as he has reached a good age, but he has aged very well in doing so and he has a lot more to go. He expressed his congratulations to Councilmember Vitelli on his birthday, which was yesterday, and on his grandchild's first birthday, which was also yesterday. Councilmember Vitelli stated that he was born on the 0' of July 70 years ago, and coincidently his 15th grandchild was born on the same day last year. He spent the weekend with his family at the cabin. There were approximately 45 people, 29 of which were family members. It was really wonderful, the weather could not have been better, there was enough of a breeze to keep the mosquitoes away, and everyone had a great time. Councilmember Vitelli also congratulated City Administrator David McKnight on his selection in Farmington. Councilmember Vitelli has stated in the past that if people were not looking at stealing my people, then he should be worried; because then he has a bunch of dead wood and gold bricks. Councilmember Duggan commented that he was on his way to the Par 3 on Saturday because it was the 50f celebration of the Par 3, when he met up with Councilmember Povolny. They both went to the Par 3. Councilmember Duggan commented that everyone should think about Centerville and the challenges they face with ordinances and the languages. Councilmember Duggan also commented that the biggest challenge locally with the nice weather and all of the rain is the growth of algae in the ponds and lakes. Everyone should keep an eye on that in the hopes of controlling it better. Councilmember Povolny stated that he went to the fireworks and the city donation was great. Councilmember Petschel was there but she just could not get up to the golf course. Her doctor husband — he would not come up. Councilmember Petschel stated that she was sitting with all of the common people on Dodd Road. Councilmember Povolny again stated that the fireworks were amazing but TEST: Sandie Thone City Clerk July 5, 2011 Page 45 what really surprised him was how airplanes could fly through it. There were other comments from Council members praising the fireworks, the traffic management during the fireworks, and the volunteer fire department for taking care of all of the safety issues involved. Mayor Krebsbach adjourned the meeting at 9:27 p.m. Mayor Krebsbach