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2011-06-21 City Council minutesJune 21, 2011 Page 1 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, June 21, 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 Council, the audience and staff recited the Pledge of Allegiance. AGENDA ADOPTION Mayor Krebsbach presented the agenda for adoption as presented with one change. City Administrator McKnight explained that agenda item 10c is being removed due to the absence of Assistant to the City Administrator Sedlacek. This item will be discussed at the next city council meeting. In its place there will be a discussion on the 2011 Fireworks Proposal with Mendakota. Councilmember Duggan moved for the adoption of the revised agenda. Ayes: 5 Councilmember Petschel seconded the motion. Nays: 0 APPROVAL OF MINUTES Councilmember Vitelli moved approval of the minutes of the regular meeting held on June 7, 2011. Ayes: 5 Councilmember Povolny seconded the motion. Nays: 0 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. j June 21, 2011 Page 2 a. Acknowledgement of the May 2011 Fire Department Report b. Acknowledgement of the June 2011 Parks and Recreation Commission Meeting Minutes c. Acknowledgement of the May 2011 Treasurers Report d. Adopt a "RESOLUTION ACCEPTING A DONATION TO THE CLIFFORD TR" MEMORIAL FISHING DERBY" e. Adopt a "RESOLUTION ACCEPTING WORK AND APPROVING FINAL PAYMENT FOR JOB 201007' f. Approve a Sign Permit for 770 Highway 110 (Massage Elements) g. Approve a Building Permit for 2360 Pilot Knob Road (U.S. Venture Inc.) h. Approve the Purchase of a Radio for Police Department Reserve Program Vehicle i. Approve a Massage Therapy License for Pamela Latterell j. Approve Parks and Recreation Seasonal Staff k. Approve an Agreement with Northern Technologies, Inc. for Materials Testing Services 1. Approve the Contractors List m. Approve the Claims List Ayes: 5 Councilmember Vitelli seconded the motion. Nays: 0 PUBLIC COMMENTS There were none. BID AWARD Public Works Director Mazzitello explained that this item is the annual contract for cleaning and televising sanitary sewers in a portion of the city. Earlier this year the council authorized advertisement for bid for this contract. Sanitary sewers in the north end of the city, north of Wentworth and east of Wachtler, will be cleaned and televised. Also included are Evergreen Knolls and the subdivisions immediately adjacent to Wachtler and Wentworth. The bid opening was held on June 15, 2011. Councilmember Vitelli moved approval of a Resolution Accepting Bids and Awarding Contract for 2011 Sanitary Sewer Cleaning and Televising Project. Ayes: 5 Councilmember Duggan seconded the motion. Nays: 0 June 21, 2011 Page 3 PUBLIC HEARINGS UTILITY EASEMENT VACATION Public Works Director Mazzitello stated that at the May ON LOT 6 BLOCK 1, MENDOTA 17, 2011 city council meeting staff recommended to call PLAZA EXPANSION for a public hearing on this easement vacation. Drawings of the parcel that were included in the May 17, 2011 packet were shared. Mr. Mazzitello continued by explaining that as part of the Mendota Plaza expansion, a utility line that was previously located within this easement has been relocated and the old utilities have been abandoned in place so there are no longer functional utilities within this easement. As part of the plat agreement with the developer, the easement is no longer needed and the developer has requested the easement be vacated. Under the process of easement vacation, a public hearing is required by statute. The public hearing was noticed to neighboring property owners and scheduled for tonight. Once the public hearing is conducted and closed, the vote to vacate the easement does take a four - fifths majority vote of council. Staff recommends that council hold the public hearing, take comments from the public, close the public hearing, and then adopt the resolution by a four -fifths majority vote. Mr. Ken Henk of Paster Enterprises confirmed Mr. Mazzitello's comments as to the reasoning for the vacation request. Mayor Krebsbach asked Mr. Henk what the vacated parcel would be used for. Mr. Henk replied that the easement area runs in the middle of Lot 6 and will probably be under a building or parking surface in the future. Mayor Krebsbach inquired if the city chooses to vacate the easement will Mr. Henk be able to build on the whole lot. Mr. Henk responded that this would be correct. Councilmember Vitelli moved to close the public hearing. Ayes: 5 Councilmember Duggan seconded the motion. Nays: 0 Councilmember Vitelli moved approval of a Resolution Vacating an Easement at Lot 6, Block 1, Mendota Plaza Expansion Ayes: 5 Councilmember Povolny seconded the motion. Nays: 0 UNFINISHED AND NEW BUSINESS TERMINATION OF CONDITIONAL USE PERMIT 1976 -19 (MENDOTA PLAZA) June 21, 2011 Page 4 Public Works Director Mazzitello explained that the conditional use permit 1976 -19 was recorded on the same parcel in Mendota Plaza as the easement that was just approved to be vacated. The conditional use permit is for the existence for a stormwater pond that no longer exists. As part of the redevelopment of the Plaza, Lot 6, Block 1 was re- graded and the stormwater pond was relocated to tit the new redevelopment plan. Therefore, the conditional use permit is no longer needed on the parcel. Conditional use permits tend to travel with the property, not the property owner. The conditional use permit has existed since 1976 and, as part of the redevelopment plat the city has determined it is no longer needed. The termination document details the conditional use permit along with the document number. Under paragraph d under the recitals, it should be noted that the resolution number is not 08 -11; that is the planning case number for the Mendota Plaza Redevelopment. The approval resolution number is 09 -29, which was adopted by the city on April 21, 2009. Mayor Krebsbach inquired if the net effect, if this resolution is approved, is that the land is further cleared for the owner to use the property. Mr. Mazzitello replied that since the purpose of the conditional use permit is no longer present on the site and it is not intended to be re- established in the future, the purpose of the conditional use permit is no longer needed. Mayor Krebsbach further inquired if by the city agreeing to this it is relinquishing that there be this pond on the property. Mr. Mazzitello replied that the conditional use permit gives permission to build a stormwater pond, which is no longer needed as the stormwater from this site is planned for elsewhere within the development. Mayor Krebsbach inquired, as clarification, that the net effect is that the city is clearing this so that Paster Enterprises can build. Mr. Mazzitello replied that yes, Paster Enterprises can build on it with the conditional use permit still in place. But because it is no longer needed the city is clearing it off of the property record. Ayes: 5 Nays: 0 ADOPT ORDINANCE 436 REPEALING ORDINANCE 237 AND RESTATING TITLE 3, CHAPTER 3 OF THE CITY CODE PERTAINING TO PEDDLERS, SOLICITORS /CONVASSERS AND TRANSIENT MERCHANTS June 21, 2011 Page 5 Mr. Ken Henk of Paster Enterprises added that there was a large pond running parallel to the existing drainage way that was created in the 1970's. With the redevelopment they created the two ponds that are there now. They are still in the same general area. Mayor Krebsbach asked Mr. Henk if he is in agreement with the removal of this conditional use permit. He replied in the affirmative. Councilmember Duggan asked for clarification of the language in the agreement "therefore, in consideration of the premises and of the good and valuable consideration." The old language was that in consideration meant you were getting something in return for something. City Attorney Diehm replied that the standard language in any agreement or any sort of contract contains some form of consideration. The consideration here is simply the recitals that are stated up above and that is restating the history of the project and the fact that both parties have determined that this conditional use permit is no longer necessary. Councilmember Duggan moved Approval of the Termination of Conditional Use Permit 1976 -19 (Mendota Plaza) Councilmember Povolny seconded the motion. Mayor Krebsbach stated that this is a fairly complex ordinance and probably is the type of item that the council should have in a workshop so they can sit around a table and discuss it. It was on the agenda last week and is on again tonight. Council may not resolve it tonight because there is some additional information. City Clerk Thone explained that this is Ordinance 436, which is restating city code pertaining to peddlers. The current ordinance was adopted in 1987 and the restated ordinance was created from the League's recommendations. City Attorney Diehm has reviewed and revised it. The significant changes include: 1) License approval period changed from immediate to ten days June 21, 2011 Page 6 2) A background check plus criminal history has been added 3) License period has changed from a one day permit to a thirty (30) day permit 4) Farmers' markets have been exempt from this ordinance Ms. Thone also noted that there is an option to make the ordinance more restrictive. Police Chief Michael Aschenbrener explained that the police department receives many complaints about solicitors and/or peddlers each year. Approximately one year ago, research efforts were begun on finding other options around the county and the metro area and then going back to the base ordinance to see what the League had available to work with. As indicated there were several holes in the existing ordinance, definitions clearly delineating on what is allowable and not allowable, for what reasons a permit would not be issued such as to convicted burglars, thieves, sex offenders and the existing ordinance did not have those components within it. After the research was finished, staff sat down and started to re -write the existing ordinance. It was determined that there was enough information to start over and go from there. The definitions are taken from the League and the research that was done on what is allowable and what is not allowable and is delineated in there. The end product is believed to be more of a compromise than anything else on what is permitted. The existing ordinance has a list of exemptions. These are not required to be exempted and can be prohibited exclusively. If the definitions are reviewed, there are classifications that are protected constitutionally by the Supreme Court action on interstate commerce. So solicitors, even though we would love to ban them, if they are truly participating in interstate commerce we, as the city, do not have the right to regulate them. They may do their business in our city without undo regulation on behalf of local government. The local government does have the right to check and see who they are and to make sure that they are registered but the local government cannot prohibit them from going door -to -door. People running for political June 21, 2011 Page 7 office, people with religious issues, clean water issues, clean air issues, etc. where they are not really selling anything or giving anything away, they are trying to educate people and are constitutionally protected and the city must allow them to go door -to -door. Staff worked through this and came up with this delineation. An e -mail was sent out a few months ago to the council that pointed out the high points and asked for feedback regarding the following points; desired hours, how often, time of day, any days to be prohibited, such as Sundays, concerns about only allowing locally grown produce in a farmers' market. It was also indicated in the e -mail that staff does not have the ability to do background checks on multiple people on a daily basis and turn around a peddlers permit. Staff needs approximately ten days to process these requests. Those were the issues that came forward as staff was addressing this. As they ran into multiple questions on this, the one option that was not discussed is that the council could choose to state in the ordinance that none other than those constitutionally protected activities may go door -to- door in the City of Mendota Heights or the council could look at the list of recommended exemptions and state only constitutionally protected activities and those things listed in the exemptions may go door -to -door. Staff felt, due to the number of people that are arrested in jail on a yearly basis, this does warrant our looking at it as a city and dealing with this question. Councilmember Povolny asked Chief Aschenbrener if he is comfortable with this totally. Chief Aschenbrener replied that he would like to see it be a little bit stricter but he is fine with it. Staff worked through the issues and he feels they have a very reasonable ordinance in front of the council that allows staff to feel pretty comfortable with who goes door -to -door. Councilmember Povolny asked if he thinks it is fair. Chief Aschenbrener replied in the affirmative. Councilmember Petschel commented that she was intrigued with the wording and suggested making it more restrictive, plus she thought it made it so simple. She would really like June 21, 2011 Page 8 to explore that further and to come up with some language to be considered. She believes that in the process of defining exemptions, it is a bulky document and it gets wordy. To boil it down to the statement just made, unless you are constitutionally protected or you are one of the exemptions, the exemptions being things such as the Schwan's guy, we are just not going to have that going on in the city. Mayor Krebsbach concurred with Councilmember Petschel's comments. She liked the simplicity of the e -mail that was sent. She believes the council should hold off and have that incorporated. She is uncertain what provisions would be struck on terms of what that final document would look like. Chief Aschenbrener stated that section two, page 81 of the overall document, or page two of nine in the proposed ordinance lists bullet points of what would be allowable if the council wanted to go with exemptions, or the council could simply say those items that are constitutionally protected may go door -go -door. So the council could go as narrow as no boy scouts, no girl scouts, no cookies, no newspaper, nothing coming door -to -door and only allow those activities that are constitutionally protected or the council allow those constitutionally protected plus allow the activities listed as exemptions in section two. Councilmember Petschel stated that she likes the latter. She would like the girl scouts to be able to go door -to -door and any person making deliveries of perishable food and dairy products to a customer on an established delivery route. She also feels that the residents would be happy to have that exemption. Mayor Krebsbach agreed and stated that otherwise the resident would have to deal with it at the door. To clarify, Mayor Krebsbach asked if what is being proposed is page 81, section two, the exemptions to definitions be included and then the constitutionally protected. She inquired whether all of the other items that follow such as the fees be included as well. Chief Aschenbrener replied that since they would not be issuing any permits there would be no need for any fees. The constitutionally protected activities June 21, 2011 Page 9 would simply come in and register. There would not be any permitting process. Councilmember Petschel stated that this would save officer time and expense. Councilmember Vitelli concurred. Councilmember Duggan stated that he would like to know what is being excluded that is currently permitted. His concern is that this is being sort of anti- entrepreneurship. Mayor Krebsbach recommended that the council not vote on this issue tonight but get the finished document at the next meeting. Even though the council received a clear explanation, it would be better to have the actual document in front of them. Councilmember Petschel stated that she would like an example of the kind of entrepreneur Councilmember Duggan thinks would be going door -to -door, that would not be able to get a license. Councilmember Duggan replied that this is what he is asking Chief Aschenbrener. He is not there at the time of processing to see who applies. He is curious who comes in and says they want to sell XYZ product door -to -door. Chief Aschenbrener stated that the nine people who came in yesterday wanted to sell magazine subscriptions. Those would not be allowable under this ordinance. They are not participating in interstate commerce, they are not pushing their religion, and they are not running for political office. But if you had a manufacturing business in the State of Minnesota and sent someone to the State of Wisconsin, they would be allowed to go door -to -door, as would a business from the State of Wisconsin that is in manufacturing selling interstate, that would be an allowable activity under this as long as it is a legitimate business. Councilmember Duggan stated that on page 87 under the hours of operation it states 8:00 in the morning until sunset. At this time of year sunset is around 9:30 p.m. and he personally would not care for someone to come to his door at 9:00 p.m. in the evening. On the other hand in the wintertime they would be done at 4:30 p.m. or shortly after. June 21, 2011 Page 10 Mayor Krebsbach recommended the council get the document back and that this may be a non - issue. Councilmember Duggan stated that his other concern is with Sunday operations. It states activities may not operate on Sundays or holidays when the City of Mendota Heights is closed and wondered what the impact on the businesses of part-time people such as college students would be if they could only work Monday through Friday. He inquired whether the Sabbath should be included and how we get around that particular issue. Mayor Krebsbach commented that she is unsure if those items will be included in the final document that they are going to be approving. She asked the council to agree to recommend the changes that Chief Aschenbrener has brought before them, which are the exemptions and the allowable due to constitutional rights. Because they would not be doing any permitting all of the rest of it does not pertain. Councilmember Vitelli moved this issue be tabled under the conditions made by Mayor Krebsbach. Mayor Krebsbach stated that the council would get the final document back at the next meeting and then if there is something that the council is seeing that is missing, it would be put in the exemptions. Councilmember Petschel stated that her other question, just for purposes of clarification, is in regards to farmers' markets. The language was left out because there is a group that wants to move forward with a farmers' market. The original language precluded sale of any produce except produced within the city. That has been excluded and how does that stand now, if someone wants to do a farmers' market. Mayor Krebsbach replied that this is an exemption. She also stated that the council might want to define farmers' market as locally grown. Councilmember Petschel stated that she does not believe this is a good idea. The City of Lake Elmo did that much to their detriment. City Clerk Thone commented that many cities do not have the locally grown clause in their ordinance. The council may want to consider either changing that, which would June 21, 2011 Page 11 allow for the farmers' markets or to use both the exemption of the farmers' market if the council keeps the locally grown language in. Mayor Krebsbach stated that the language is very specific and states locally grown in the City of Mendota Heights. Ms. Thone replied that this is language that transferred from the 1987 ordinance. She has done a lot of research and this is not indicative of the language contained in most cities' ordinances. Councilmember Vitelli made a motion to table Ordinance 436 Repealing Ordinance 237 and Restating Title 3, Chapter 3 of the City Code Pertaining to Peddlers, Solicitors /Canvassers and Transient Merchants. Ayes: 5 Councilmember Duggan seconded the motion. Nays: 0 DISCUSSION ON THE 2011 City Administrator McKnight stated that the Mendakota FIREWORKS PROPOSAL WITH Country Club has approached the city to help support their MENDAKOTA 4th of July Annual Fireworks Show. The city and Mendakota have a long history of partnering on this very successful program. During 2010, the council discussed with Mr. Milner and Mr. Watson potential funding amounts for 2011. At that time, the council decided to support providing up to one -third of the cost to a maximum of $4,000 for the 2011 fireworks show. The 2011 budget does include $4,000 for this purpose. Mendakota submitted this request after the agenda had already been prepared, which is why it has been added today. Mr. McKnight apologized for the short notice but after speaking with the mayor, it was decided that with the new council and the late submission that it would added to the agenda just to get the council's blessing on the decision that last year's council made. City Administrator McKnight is looking for direction to provide up to $4,000 for the 2011 fireworks show. Councilmember Vitelli moved to approve the provision of up to $4,000 to the Mendakota Country Club for the 2011 Ayes: 4 Fireworks Show. Nays: 0 Councilmember Duggan seconded the motion. Abstention: 1 ( Krebsbach) ADDITIONAL COMMENTS Mr. Ken Henk of Paster Enterprises stated that there were June 21, 2011 Page 12 two items on tonight's consent calendar regarding Massage Elements which he welcomes into his shopping center. Ms. Ann Short with Massage Elements is present if the council would like to hear something about this new tenant. Mayor Krebsbach asked the pleasure of the council. Councilmember Vitelli stated that an introduction and description of the business would be good. Ms. Short explained that she is the owner of Massage Elements, which will be opening July 11, 2011. She has nine therapists, one whose license was approved this evening. Massage Elements focus is relaxation, deep tissue, and orthopedic. They are coordinating with different members of the community and health organizations to make this a community effort. Mayor Krebsbach asked if they have one who is qualified to get healthcare reimbursement. Ms. Short replied that they do not have insurance at this time. Councilmember Duggan asked how close they are to approaching the point where they have a therapist with enough hours of experience to be able to send off and be reimbursed by insurance. Ms. Short replied that her therapists have a minimum of 800 hours and she herself has over 1,200 hours. She believes the city ordinance states 100 hours. People who have car insurance claims and worker compensation claims can apply for reimbursement and Massage Elements will provide documentation that is accepted. COUNCIL COMMENTS Councilmember Duggan stated that at the last meeting he neglected to congratulate the fire department for the work that they have contributed to the Celebrate Mendota Heights Parks as they do with their trucks and equipment. They do that without question and there is usually eight or ten. Considering that it is a volunteer fire department, this time that they devote to the young people in Mendota Heights and giving them an excellent impression of the importance of the fire department is absolutely outstanding. Councilmember Duggan continued by stating that the next council meeting will be after July 4, 2011 and he is thrilled June 21, 2011 Page 13 and delighted the fireworks are going forward and added he might even get to go and watch this year. Councilmember Duggan asked staff, with the impending potential State closing, how it would impact Delaware Avenue, which he believes is the largest construction project involving MnDOT. Public Works Director Mazzitello replied that he has been in discussions with MnDOT this week and last week. The projects that he knows for sure will need to be stopped are those that receive direct state money. Since Delaware Avenue is a county and city shared project it will not be shutting down, nor will Wagon Wheel or Knollwood. Councilmember Povolny asked how the weather has been affecting these projects. Public Works Director Mazzitello replied that it is wet but so far everything is on schedule. Councilmember Vitelli stated that the City of Farmington has been in the news regularly and not for always the best reasons since both the school district and the city are recruiting from our area of town. For those residents that do not know, one of the finalists for the City Adminstrator of Farmington is our City Administrator, David McKnight. If you follow Patch. com you can see Danielle just released a news story that Jay Haugen is one of the finalists for the School Superintendent. He wished them both well. Councilmember Petschel commented that she along with the Airport Relations Commission and Administrator McKnight made a pretty incredible visit to the air traffic control facility in Farmington. They had a question answered as to why the air traffic control facility in Farmington located where it is. That was a decision made during the cold war so that if they decided to take air traffic control operations out of the main airport they would still have the remote operation available. But what that air traffic control center does is handle all planes passing through the air space of nine states that are at cruising altitude. So when the main tower hands off an aircraft when it reaches cruising altitude it gets handed off to this center. When planes are flying through Minnesota at cruising altitude, getting ready to land, they all operate through this center. The center covers Michigan, June 21, 2011 Page 14 Minnesota, North Dakota, South Dakota, Iowa, Kansas, part of Missouri, part of Wisconsin, and a small part of Illinois. They are part of Sector six, which is an interesting sector and a busy one that they have divided into three different altitudes because there are so many planes. They have them on three different levels and handle everything flying coast -to- coast. They also have a new busy sector in the Upper Peninsula that handles traffic flying to New York that needs to be rerouted because of storms. They have a fabulous computer program where they can punch it up and they can start assigning altitudes and air speeds to planes so they are not all arriving at New York at the same time. They come in exactly fifteen (15) minutes apart. Mayor Krebsbach stated that she made a comment to Mr. McKnight that she would like to take a tour of Farmington and asked if anyone else wishes to go. Councilmember Vitelli stated that he would be interested. Councilmember Vitelli asked how many people are employed at the Farmington center. Councilmember Petschel replied that there are approximately 35 employees. City Administrator McKnight stated that they are one of the top five largest employers in the city so he believed it must be in the hundreds. Councilmember Petschel stated that she was talking about the actual number of air traffic controllers because there are many people working there and not all of them are controllers. Councilmember Vitelli asked if everything is underground except for antennas. City Administrator McKnight answered in the negative. However, there are no windows. Mayor Krebsbach confirmed the city council meeting of July 5, 2011. She also asked if anyone knew the entertainment line up at The Village. Councilmember Duggan confirmed that the next entertainment at The Village was tomorrow night and stated additional information can be found on the sign at The Mendota Village. Councilmember Duggan stated that african beat music is scheduled for Thursday at the Landmark Center. ATTEST: Sandie Thone City Clerk June 21, 2011 Page 15 Mayor Krebsbach also brought to everyone's attention that Mendota Heights Par 3 is going to have free hot dogs and a drawing on Saturday, July 2, 2011 at noon in honor of its 50th anniversary. City Administrator McKnight asked if the council wanted to schedule the August budget work session tonight. He asked if Tuesday, August 9, 2011 would be acceptable. Mr. McKnight will confirm through e- mails. Mayor Krebsbach adjourned the meeting at 7:49 p.m.