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2019-07-16 Council PacketCITY OF MENDOTA HEIGHTS CITY COUNCIL AGENDA July 16, 2019 – 7:00 pm Mendota Heights City Hall 1. Call to Order 2. Roll Call 3. Pledge of Allegiance 4. Moment of Silence – In memory of Officer Scott Patrick (EOW July 30, 2014) 5. Adopt Agenda 6. Presentations a. Update on Fire Station Expansion/Remodel by Paul Oberhaus, CPMI 7. Consent Agenda a. Approval of July 2, 2019 City Council Minutes b. Approval of July 9, 2019 Council Work Session Minutes – City Attorney Interviews c. Approval of July 9, 2019 Joint Council–Parks Recreation Commission Work Session Minutes d. Approve Temporary Liquor License for Holy Family Maronite Church for Sept 6-8, 2019 e. Approve Agreement with Seminole Funding Resources, LLC, and Northfield Solar LLC, relating to a subscription to a solar garden in Rice County f. Approve Purchase Orders for the Control of Invasive Plant Species within Valley Park, Rogers Lake Park, Copperfield Ponds Park, and the Oheyawahe/Pilot Knob Historic Site g. Approve Out of State Travel for Fire Department h. Acknowledge May 2019 Fire Synopsis i. Acknowledge April – May Par 3 Financial Reports j. Approval of the Building Activity Report k. Approval of Claims List 8. Citizen Comment Period *see guidelines below 9. Public Hearings a. Resolution 2019-50 Order Plans for the Town Center/Village Boulder Retaining Walls Improvements 10. New and Unfinished Business a. Resolution 2019-51 Approving (or Denying) a Variance to ISD No. 197 for new Aquatics Center at Henry Sibley High School, 1870 Delaware Avenue (Planning Case No. 2019-18) b. Resolution 2019-46 Denying (or Approving) a Variance for Reduced Driveway Setback at 1562 Wachtler Avenue (Planning Case No. 2019-14) c. Resolution 2019-52 Appointment to the Parks and Recreation Commission d. Approve Contract for Municipal Law Services with Best and Flanagan 11. Community Announcements 12. Council Comments 13. Adjourn Guidelines for Citizen Comment Period: “The Citizen Comments section of the agenda provides an opportunity for the public to address the Council on items which are not on the agenda. All are welcome to speak. Comments should be directed to the Mayor. Comments will be limited to 5 minutes per person and topic; presentations which are longer than five minutes will need to be scheduled with the City Clerk to appear on a future City Council agenda. Comments should not be repetitious. Citizen comments may not be used to air personal attacks, to air personality grievances, to make political endorsements, or for political campaign purposes. Council members will not enter into a dialogue with citizens, nor will any decisions be made at that presentation. Questions from the Council will be for clarification only. Citizen comments will not be used as a time for problem solving or reacting to the comments made, but rather for hearing the citizen for information only. If appropriate, the Mayor may assign staff for follow up to the issues raised.” DATE: July 16, 2019 TO: Mayor and City Council FROM: Mark McNeill, City Administrator SUBJECT: Moment of Silence—In Memory of Officer Scott Patrick COMMENT: INTRODUCTION At its meeting of July 16th, the City Council and members of the audience will be asked to observe a moment of silence to remember Officer Scott Patrick. BACKGROUND Officer Patrick lost his life while in the service of others on July 30, 2014. As a way to remember his sacrifice, it is the practice of the Mendota Heights City Council to observe a moment of silence at its second regular July meeting. This is the meeting which is the closest to, and in advance, of the anniversary date of his death. A permanent memorial for Officer Patrick was dedicated on July 30, 2018, at Market Square Park, at the Village of Mendota Heights. A public commemoration of the 5th anniversary of his passing will be held at 12:20 p.m. on that day. The public is invited to attend. ACTION REQUIRED Those in attendance at the July 16th City Council meeting will be asked to observe a moment of silence to honor the memory of Mendota Heights Police Officer Scott Patrick. _________________________ Mark McNeill City Administrator To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Construction Manager Update Date: July 16, 2019 Comment: Introduction: The Construction Manager for the Fire Station project will be in attendance at the July 16thth meeting to provide an update on the progress of the project. Background: CPMI has been hired by the City to be the Construction Manager for the Fire Station expansion and remodeling. Paul Oberhaus is employee assigned to the Mendota Heights project. At the Tuesday meeting, Mr. Oberhaus will be providing one of his monthly updates on construction activities at the Fire Station. Mark McNeill City Administrator page 4 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, July 2, 2019 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 Garlock called the meeting to order at 7:00 p.m. Councilors Duggan, Paper, and Petschel were also present. Councilor Miller was absent. PLEDGE OF ALLEGIANCE Council, the audience, and staff recited the Pledge of Allegiance. AGENDA ADOPTION Mayor Garlock presented the agenda for adoption. Councilor Petschel moved to approve the agenda with the removal of agenda item 5i.) Acknowledge April Par 3 Financial Report and 9a.) Resolution 2019-46 Variance for 1562 Wachtler Avenue. These two items would be considered at a later date. Councilor Duggan seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) CONSENT CALENDAR Mayor Garlock presented the consent calendar and explained the procedure for discussion and approval. Councilor Petschel moved approval of the consent calendar as presented, pulling item e.) Approve Change Order for Lexington Highlands and Mendakota Neighborhood Improvements, for additional discussion. a. Approval of June 18, 2019 City Council Minutes b. Acknowledge the May 28, 2019 Planning Commission Meeting Minutes c. Approve Resolution 2019-45 Approve Park Bench Donation to Ivy Hills Park d. Approve Resolution 2019-43 Approve Joint Powers Agreement with Dakota County for the Marie Avenue Pedestrian Underpass Replacement e. Approve Lexington Highlands & Mendakota Neighborhood Improvements – Change Order f. Approve Resolution 2019-49 Authorize the Donations of Bicycles and a Popcorn Machine g. Approve Out of State Travel Request for City Administrator h. Approve Out of State Travel Request for Police Department i. This item was pulled to be brought back at a future date page 5 j. Approve Mendota Heights Athletic Association Lease Agreement k. Approve the May 2019 Financial Report l. Approval of Claims List Councilor Duggan seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) PULLED CONSENT AGENDA ITEMS E) APPROVE LEXINGTON HIGHLANDS & MENDAKOTA NEIGHBORHOOD IMPROVEMENTS – CHANGE ORDER Mr. Ruzek explained that this change order was for some additional drainage improvements behind the business properties on South Plaza Drive. There was an error in the memo included in the packet. The change order being requested is for the amount of $22,600 for creating and draining and armoring ditches behind 780, 790, and 800 South Plaza Drive. Councilor Duggan noted that he could not understand the need to do paperwork for a change order of $1,085. Mr. Ruzek replied that the change order is for $22,600. Councilor Petschel moved to approve the change order to Midwest Asphalt for the swale grading behind 780, 790, and 800 South Plaza Drive in the amount of $22,600. Mayor Garlock seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 (Duggan) Absent: 1 (Miller) Councilor Petschel made the observation of the ponding of water that occurs between Gemini Medical and Walgreens, and asked that Public Works take a look at this situation. Mr. Ruzek replied that this would be the responsibility of The Plaza, but he would review the situation. PUBLIC COMMENTS There were no public comments made. PRESENTATIONS A) 2018 AUDIT Mr. Matt Mayer from BerganKDV presented the results of the 2018 Audit. The key points made included that this is an Independent Auditor’s Report. City m anagement is responsible for the financial statements. The Auditor is responsible to express an opinion on the financial statements. They provide assurance that the financial statements are fairly presented in all material respects. The city had a balanced budget, meaning the inflow equaled the outflow. Revenue was $340,000 better than anticipated. He said that Department heads did a nice job of staying within the parameters page 6 established for spending. Spending was approximately $687,000 less than what was budgeted. Approximately $270,000 was transferred out during the year to the golf course and to the equipment fund. At the end of the year, the city had a surplus of approximately $749,000. The General Fund balance at the end of 2018 was $8,836,600, or approximately 107% of the year’s expenditures, which is a very healthy financial position. The Par 3 Golf Course Enterprise Fund revenue dropped from $147,187 in 2017 to $132,066 in 2018. The Sewer Enterprise Fund increased revenue from 2017 to 2018 by approximately $250,000. The fund has $700,000 in reserves at the end of 2018. The Storm Water Enterprise Fund has $300,000 in reserves at the end of 2018. Councilor Petschel asked if the Par 3 Golf Course needed to be handled as an Enterprise Fund. Mr. Mayer replied that it did not. He stated the city could consider a Special Revenue Fund (subsidized activity) or incorporating it into the General Fund. He recommended a Special Revenue Fund for transparency. PUBLIC HEARING There were no public hearings scheduled. NEW AND UNFINISHED BUSINESS A) RESOLUTION 2019-46 DENYING (OR APPROVING) A VARIANCE FOR REDUCED DRIVEWAY SETBACK AT 1562 WACHTLER AVENUE (PLANNING CASE NO. 2019-14) This item was pulled from the agenda and will be brought back for consideration at a future date. B) RESOLUTION 2019-47 APPROVING A PRELIMINARY PLAT OF SWEENEY ADDITION AT 777 WENTWORTH AVENUE (PLANNING CASE NO. 2019-17) Community Development Director Tim Benetti explained that Mr. Ed Sweeney had requested to split his 3.22 acre property into three lots. The proposed new lots would all meet the R-1 district standards for lot area and width. Mr. Sweeney would reside on the middle lot. It was noted that approximately 0.68 acres of the subject parcel is assigned as county road right-of-way. This new plat is scheduled to be reviewed by the Dakota County Plat Commission on July 8, 2019. Subject to the outcome of that review, the city will ensure the final plat meets all city and county requirements and standards prior to any future final plat approvals. Councilor Duggan expressed his concern that the Council is not guaranteeing that Mr. Sweeney would be able to subdivide the middle lot (Lot 2). He asked, if that middle lot were to be split again, where the split would be made. Mr. Benetti replied that if the middle lot were to be split in the future, it would be split right down the middle. Since a dwelling or building cannot be over a lot line, the current residence would need to come down, as well as any other structures. page 7 Councilor Paper noted that less than one-half of Lot 3 is buildable and he asked for clarification that it was not up to the Council to determine what could be built on that lot. Mr. Benetti confirmed and explained that any new house pad that comes forward would have to be reviewed under a separate Wetland Permit and then the city would find out exactly how the house would fit onto the lot and ensure that the slope would not be impacted. Councilor Petschel noted that the County was requesting a 50-foot right-of-way. She stated she was relieved that they have asked for that and that the city’s trail falls within the county right-of-way. Her preference would be that there be no need for a trail easement. Councilor Petschel asked if there were any utility easements on the lot splits. Mr. Benetti replied in the affirmative and explained that they were the normal 10-foot and 5-foot easements. Mr. John Sonnek, Charles Cudd Co., stated that he has been working with Mr. Sweeney on this project. They have talked and addressed the trail easement issue. Councilor Duggan suggested that Condition 1 needs to be clarified that the total amount due for parkland dedication is for the two new lots. Staff agreed to clarify the language. Councilor Duggan moved to adopt RESOLUTION 2019-47 APPROVING A PRELIMINARY PLAT (SUBDIVISION) OF “SWEENEY ADDITION” LOCATED AT 777 WESTWORTH AVENUE. Councilor Petschel seconded the motion. Ayes: 5 Nays: 0 C) RESOLUTION 2019-48 APPROVING (OR DENYING) VARIANCES FOR INCREASED STRUCTURE HEIGHTS IN THE R-1 RESIDENTIAL DISTRICT AT HENRY SIBLEY HIGH SCHOOL, 1870 DELAWARE AVENUE (PLANNING CASE NO. 2019-18) Community Development Director Benetti explained that Independent School District (ISD) No. 197, acting on behalf of Henry Sibley High School, has applied for a variance to increase the height allowance for a proposed new aquatics center, gymnasium, and a main entryway addition to the high school located at 1987 Delaware Avenue. The Planning Commission has scheduled a special meeting to consider the aquatics center portion of the application on July 11, 2019. Councilor Duggan requested to know what the total square footage is of all buildings (current and proposed) on the site. He requested to see three dimensional-type drawings to get a sense of the heights and proportions being proposed. He asked for an explanation of how visitor and staff parking would be addressed. He stated he would prefer to hear all of the requests at the same time to see the overall impacts of the proposals. Councilor Paper said that the City Council was given everything through the Planning Commission, including the aquatic center information. All of this was to move forward and the reason the aquatic center has been delayed was to accommodate the neighbors and have additional dialogue. The Council is trying to move this along to keep the project moving forward. page 8 Mr. Benetti replied that this is a large institutional structure facility located in a residential zone, which dictates the standards to be applied. This is not a typical single-family structure. The current building is over 60 feet tall. The School District has held a number of neighborhood meetings. They are limited by the R-1 standards. Councilor Paper asked for the height of the proposed gymnasium. Mr. Benetti replied that it is proposed to be 50 feet 5 inches in height. Councilor Paper then asked for clarification on the tallest height of the school. Mr. Benetti replied that the main school facility is 65 feet; so the gymnasium would still be under the highest point of the school structure. However, he did point out that the gymnasium would be approximately 5 feet above the current gymnasium structure simply because they are building it on top of the current loading area. The peak of the roofline it not going higher. Councilor Petschel asked if this wasn’t similar to what had been approved at Friendly Hills. Mr. Benetti replied in the affirmative. Councilor Duggan, referring to the proposed aquatic center’s proximity to Delaware Avenue, asked if there were any plans to move it back by 10 feet or more. Mr. Benetti replied that, after speaking with the architect, they are considering moving the addition back and doing other requested modifications to the plan to accommodate some of the neighboring residents’ requests. They will be presenting those modifications, landscaping, and noise mitigations at the July 11th meeting. Councilor Duggan asked if there were any larger drawings showing the front entrance. Mr. Benetti replied that what was in the packet is all that was submitted by the applicant. Ms. Jennifer Anderson-Tuttle with LSE Architects came forward and explained that the packet provided to the Council does include all of the critical information. It describes the elevation, and what is asked for in a variance application. They can provide additional information if the Council desires. Councilor Duggan reiterated his belief that they should be provided with clearer representations of what is being proposed. Ms. Anderson-Tuttle replied that there have been many community meetings where renderings were provided. She could explain that the materials proposed for both the new entryway and the gymnasium addition include metal panel curtain wall systems and brick – all that are equal or better materials than required and provided in the existing building. She would be willing to provide the requested renderings at the July 11th meeting; however, she did request that the Council approve the variance applications for height to allow for the project to stay on schedule. They have been advised by the contractor that a delay of even two weeks would have significant cost impacts. City Attorney Andre Pratt explained the resolution approving the variances. The three practical difficulties tests are: 1. The property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance 2. The plight of the property owner is due to circumstances unique to the property, not created by the property owner 3. The variance will not alter the essential character of the neighborhood and economic considerations alone do not constitute practical difficulties page 9 He agreed that it may be a bit awkward to have it piecemeal; however, these technically can be submitted in an individual fashion at different times. In the resolution of approval, Section B. iii. talks about the excess height of the gymnasium addition and the entryway addition, and that they all are under or equal to what exists today. Ms. Anderson-Tuttle explained that the height of the gymnasium is no less than what is required to build a gymnasium and have competition courts for basketball and volleyball. The entryway, which is 24 feet below the existing height, is a height that is both aesthetically pleasing to the front entry and provides a nice two-story welcoming space. This is something they were told from the community and the task force was desired. It was meant to beautify the building and the campus. Councilor Duggan expressed his concern about approving a variance request based on something that already does not comply with the city code. Attorney Pratt agreed but believed it to be covered under the variance tests in the resolution. The request has to run through the variance tests. That has been done in this resolution to his comfort level. Councilor Duggan stated that he was supportive of the school; however, he is not supportive of the city going forward with approvals that are contrary to the standards in place. Ms. Anderson-Tuttle replied that the school is an allowable use. Councilor Petschel noted that the hardship here is that it is a school in an R-1 district and anything they would do would need a variance. Councilor Paper moved to adopt RESOLUTION 2019-48 APPROVING VARIANCES FOR A NEW GYMNASIUM ADDITION AND FRONT ENTRYWAY ADDITION AT HENRY SIBLEY HIGH SCHOOL – 1897 DELAWARE AVENUE (PLANNING CASE NO. 2019-18). Councilor Petschel seconded the motion. Ayes: 3 Nays: 1 (Duggan) Absent: 1 (Miller) D) ORDINANCE NO. 542 AMEND TITLE 12, CHAPTER 1, ARTICLE D, GENERAL ZONING PROVISIONS REGARDING CERTAIN FENCE REGULATIONS AND STANDARDS Mr. Benetti explained that due to an increasing number of requests and complaints from local residents and fence installers, city staff has initiated this application to consider amending the city’s fence standards. The majority of the requests were related to allowing residential fences to be 100% opaque. Complaints have also been received regarding the city’s front-yard fence height limitation of 36 inches. Mr. Benetti reviewed the proposed changes to the ordinance with City Council. Councilor Petschel noted that privacy fences do not allow for any air to move and some residents are concerned with climate change and heat islands; they are not healthy for the environment. She asked if it would be possible to have a privacy fence that still allows air to move. Mr. Benetti replied that what was shown in his examples were images of a solid-screen fence. The city does allow for a 4-inch gap to be page 10 placed on the bottom; this is usually to allow for weed control. The other fence images provided had lattices, etc. He shared an image of an ‘alternate board’ or ‘shadow-box’ fence and explained that it would breathe. It would not be a solid privacy fence but it would meet the 30% opaque rule. Councilor Petschel said she could live with that type of fence as it allows for a high degree of privacy but still allows the air to move and to breathe. However, she is not comfortable with board-to-board. Councilor Duggan asked how many recorded complaints the city has received. Mr. Benetti replied that complaints are received starting early spring and continue throughout the summer. Councilor Duggan requested that the ordinance include a statement that fences between neighbors be a merging of heights. He asked, referring to fences on commercial properties next to a residential home, what if the resident objects to a fence. Mr. Benetti replied that under the ordinance, for any business or industrial zoned property abutting a residential zone, the property has to be fenced. If the resident objects, then they would work with the business owner. The fence would be the property of the business and be located on their property. Councilor Duggan raised a concern that he had concerning a resident not being able to put a fence directly on the property line. He was unsure if the city had a legal right to tell a property owner where he had to put a fence. Mr. Benetti replied that the current ordinance says a resident can place a fence up to the property line. He has heard from fence companies that they recommend to their clients that they hold the fence back six or more inches from the property line. If they want to put it on the line they can; however, he was unaware of many fence companies that would recommend that. Referencing Section 3.C.2 of the proposed ordinance where it reads, “Fences on business and industrially zoned properties abutting residentially zoned property shall be erected a measurable distance from the property line not to exceed six inches (6”), shall be one hundred percent (100%) opaque. . .”, Councilor Duggan asked what would happen if the resident did not want a 100% opaque fence but wanted a 30% opaque fence. Mr. Benetti replied that it was not the resident’s call. The ordinance says that a commercially or industrially zoned property that has to put the fence up. He also pointed out that this language is already in the code. Councilor Petschel asked what constitutes a privacy fence. She could not approve the vinyl board-to- board privacy fence. Councilor Duggan echoed her comments. Mr. Tom Corrigan, owner of Midwest Fence, stated that over time the industry has changed. Years ago, one of the reasons communities wanted wind flow ordinances was because of something called spite fences-customers who put up a fence to spite their neighbors. Back in the 1970’s, owners would purchase fence panels and put the good side to their side and the bad side to the neighbors. In order to solve this, communities came up with wind-flow ordinances so that people were forced to put up a good neighbor fence – good from both sides. Over time, the industry has changed and materials have changed. The problem is that one cannot build a wind-flow type, good neighbor fence with some of these new materials – they are not strong enough. These wind-flow ordinances had nothing to do with wind; they were there to direct people to put up a certain type of fence that was good for the neighbor, good for the community, and would solve the problem of two neighbors who did not get along. page 11 In regards to the six inches from the lot line, when they put a fence up they have the property line defined and they keep the fence inside of the property four to five inches so that the entire concrete footing remains on the owners property. Councilor Duggan asked if the increase in fence height would require a larger fence footing. Mr. Corrigan replied in the negative. Ms. Debbie Smith, 1088 William Court, has been dealing with a slatted board fence for years. They have replaced many boards and it is expensive. The wood rots, they repaint, stain, and replace boards. They need a privacy fence that is not going to disintegrate. If the city requires a slotted PVC fence, it would cost $6,000 more than a solid privacy fence. She requested the Council approve this ordinance. Councilor Paper commented that not everyone coming in is going want to install a solid opaque privacy fence. This would allow someone with a permit to have it done right instead of doing it on their own. He did not foresee the shadow-box fences disappearing if they were to allow solid opaque fences. He would like to see it as an option. Under Section 2 B. 1. d., Councilor Duggan suggested that ‘black only’ or ‘black-preferred’ be added to the description of chain-linked fences. He asked, if one neighbor wants to install a fence 6 feet in height, and another neighbor has a pool and he is putting in a fence at five feet in height, how can the city ensure the fences meld together. Mr. Benetti replied that in regards to permits issued for pools – the minimum is five feet; however, most of them are at six feet. Most fence panels come in an even dimension. Mayor Garlock commented that he was comfortable with the approval of this ordinance as presented. This would provide another option for residents and he has no issues with it. Councilor Petschel asked if there was a way to insert language into the ordinance that reads ‘although a solid screen privacy fence is permitted in the city, it is the preference of the city that fences be erected to allow 30% air flow for the sake of the environment’. She would not be agreeable to requiring a Conditional Use Permit for a solid opaque fence. Mayor Garlock was agreeable to this language being added. Councilor Paper was also agreeable. Attorney Pratt stated that his main concern with ordinances was enforceability; making this amendment is not really geared towards any enforcement – it is only a statement of preference. Legally, he did not have a problem with this language being added. Councilor Petschel moved to adopt ORDINANCE NO. 452 AMENDING TITLE 12, CHAPTER 1, ARTICLE D. GENERAL ZONING PROVISIONS REGARDING CERTAIN FENCE REGULATIONS AND STANDARDS and requiring the City Attorney and Community Development Director Tim Benetti to approve the wording with regards to the city’s preference is for 30% opacity. Councilor Duggan seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) page 12 E) PAR 3 IRRIGATION CONTROL SYSTEM Recreation Program Coordinator Meredith Lawrence explained that the current irrigation control system used at the Par 3 Golf Course is approximately 30 years old. She noted that on June 10th, the power had been lost at the Par 3 golf course due a thunderstorm. On June 19th, staff determined that the course turf seemed abnormally dry. Staff determined that the irrigation system had been out since the power outage. MTI, the irrigation consultant, was out to diagnose the issue. The system was reprogrammed but continues to not work correctly. Staff has been manually watering and sanding the greens in an effort to retain the water. It has been recommended by MTI to replace the system at a cost of $28,485.83. A transfer from the General Fund is recommended for this expenditure. Councilor Paper asked for clarification that this purchase would only be for the control panel of the irrigation system and that staff would not be laying pipe or putting in new heads or valves. Ms. Lawrence confirmed and stated the purchase would be for two satellite stations and the control panel. Councilor Duggan moved to authorize the purchase and installation of a new Par 3 irrigation system in the amount of $28,485.83. Councilor Petschel seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) F) REVIEW OF THE MENDOTA HEIGHTS MUNICIPAL STATE AID CAPITAL IMPROVEMENT PLAN Public Works Director Ryan Ruzek explained that the Council was being asked to consider moving up a project in the Capital Improvement Plan (CIP) for the city’s municipal state aid streets. The City of West St. Paul has requested that Dakota County consider reconstructing Delaware Avenue from Marie to Dodd Road in the year 2025. This had been identified as a 2027 project. This portion of Delaware is scheduled to receive a mill and overlay this year (2019). Mr. Ruzek reviewed the current CIP with the Council and the impacts if this road were to be reconstructed in 2025. The city would hit a negative funding number in 2023; however, some of the projects could change. The city could also look at other funding sources, like grants or additional county or state funds that would offset some of the city’s costs. The question before the Council was if they were interested in moving the Delaware reconstruction project to 2025. The feasibility report would be started in 2023; the city’s 12.5% share would be $75,000 for the study. There would be right-of-way acquisitions in 2024 estimated to be approximately $250,000, and the city’s share of construction would be $600,000. At this time, there is no real capacity improvements planned for Delaware Avenue except for the construction of a pedestrian trail. Mayor Garlock asked what the condition of the road is currently. Mr. Ruzek replied that the county is planning to do a mill and overlay this year, so the pavement condition has deteriorated to that point. page 13 Councilor Paper asked if the mill and overlay would still happen. Mr. Ruzek replied in the negative, however, it is shown in the CIP. Councilor Paper asked if this were to be pushed out to 2027, would the county have a better handle on what has happened in northern Inver Grove Heights; would that have any impact. Mr. Ruzek replied that project would not impact this project. Most of the traffic studies showed an increase in traffic on Delaware Avenue between I-494 and Highway 62. He did not believe there was a large increase north of Highway 62. Councilor Petschel, in an effort to clarify, stated that the original agreed upon construction year for Delaware was 2027. Mr. Ruzek replied that at the end of June, the city is required to send a letter to Dakota County asking for projects to be included in the county’s CIP. Dakota County and West St. Paul are asking Mendota Heights if they are interested in supporting this project at a sooner year. This would need to be in the county’s CIP as the first study does show up in 2023. Councilor Petschel further stated that the issue for the City of Mendota Heights is that this is coming up sooner than we budgeted for. She indicated she was not supportive of moving up construction. She saw no reason to change that and she suggested it remain at 2027. Mr. Ruzek stated that the county, by 2027, may have an alternative cost share policy. Councilor Petschel stated that since the county has pulled itself out of the Greater Transportation System Contribution Program of the Metropolitan Council (Met Council), they should have more money to spend because it is not being contributed elsewhere. There should be more to spend locally. Councilor Duggan asked if the city had any costs expended in this area in the last few years. Mr. Ruzek replied that the city provides a resolution of support to the county’s CIP every fall. Two summers ago they did some major improvements in the Industrial Park where they converted the Northland Drive and Pilot Knob Road intersection to a three-quarter intersection. This past summer they installed all new signals on I-494 with the flashing yellows and the widening of Pilot Knob Road. Councilor Petschel mentioned the underpass under Highway 62. There have been a number of county projects. Councilor Duggan asked how the city could obtain a guarantee that they would not be charged over 12.5%. Mr. Ruzek replied that, as they get closer, all of the financing is actually part of a specific project joint powers agreement and all of the costs would be allocated at that time. Councilor Duggan then asked what the ramifications would be if the city were to say no at this time. Mr. Ruzek replied that he believed that West St. Paul was very interested in having a trail constructed along Delaware sooner; it would make a connection between some of the trails along the north end. Councilor Petschel moved to direct staff to adhere to the prior agreed upon year of 2027 for the Delaware Avenue improvements, which includes the street and the trail. Councilor Paper seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) page 14 G) RESOLUTION 2019-44 REJECTING BIDS FOR THE MARIE AVENUE AND WESLEY NEIGHBORHOOD IMPROVEMENTS AND AUTHORIZING AN ADVERTISEMENT FOR BIDS FOR THE WESLEY NEIGHBORHOOD IMPROVEMENTS Public Works Director Ryan Ruzek explained that bids were opened on June 26, 2019, for the Marie Avenue and Wesley Neighborhood improvements. There was a lot of interest in the project, however, only one bid was submitted in the amount of $2,841,905.40. The engineer’s estimate for the project was $2,228,615.40. The bid was 28% above the engineers estimate. The city consultant, TKDA, has reached out to a number of contractors for feedback. Concrete seems to be the issue, finding a curb contractor, the land bridge, and there were higher costs on some of the water main issues. TKDA’s recommendation is for the city to separate out the Wesley Neighborhood and the Dodd Road Trail from the Marie Avenue portion of the project, and try to rebid the project with only the Wesley Neighborhood/Dodd Road Trail improvements. This would be a smaller project. Then they would look at the entire Marie Avenue project to be bid this winter. It is hoped that the inclusion of the pedestrian underpass will make some bridge contractors a little more interested in the project. Councilor Duggan asked if the 28% over estimate was reflective of the increase the city experienced with the fire department addition. Mr. Ruzek replied that it was similar; however, the overrun on the fire station was for masonry work, not concrete work. The bridge and water main work did come in substantially higher than the estimate. Councilor Petschel asked who would bear the cost of the water main work. Mr. Ruzek replied that it would be borne by St. Paul Water. Councilor Petschel moved to adopt RESOLUTION 2019-44 REJECTING BIDS FOR THE MARIE AVENUE AND WESLEY NEIGHBORHOOD IMPROVEMENTS AND AUTHORIZING AN ADVERTISEMENT FOR BIDS ON THE WESLEY NEIGHBORHOOD IMPROVEMENT PROJECT. Councilor Paper seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) H) ACCEPT RESIGNATION FROM IRA KIPP, PARKS RECREATION COMMISSION ER City Administrator Mark McNeill stated that staff received notice of resignation from Park and Recreation Commissioner Ira Kipp. Staff requested direction on how to fill the unexpired portion of Mr. Kipp’s term, which would run through January 2021. Councilor Paper noted the good candidates that were not appointed this past January, and he suggested that staff contact those applicants to see if they are still interested in being appointed. Mr. McNeill stated that he would contact the applicants who were not appointed and see if they are still interested. The Council can then discuss this at a future workshop and/or meeting. page 15 Councilor Petschel moved to accept, with regret, the resignation of Ira Kipp from the Parks and Recreation Commission, and directed staff to contact the applicants from January 2019. Councilor Duggan seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) COMMUNITY ANNOUNCEMENTS City Administrator Mark McNeill announced that on July 4, 2019 is the fireworks display which will begin at dusk. The city concert series continues this month on July 19, 2019-Shaw Brothers Band and on July 24, 2019-Kids Dance. Mr. McNeill reported that Police Chief Kelly McCarthy has been appointed by Governor Walz to be the chair of the Minnesota Police Officers Standards and Training (POST) Board. COUNCIL COMMENTS Councilor Petschel recognized St. Thomas Academy for winning the state championship in baseball. Councilor Paper congratulated St. Thomas and recognized the players who once played with the Mendota Heights Athletic Association program. Councilor Duggan wished everyone a happy summer. He congratulated Police Chief McCarthy on her appointment. ADJOURN Councilor Paper moved to adjourn. Councilor Petschel seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) Mayor Garlock adjourned the meeting at 9:12 p.m. ____________________________________ Neil Garlock ATTEST: Mayor _______________________________ Lorri Smith City Clerk page 16 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the City Council Work Session / Closed Session Held July 9, 2019 Pursuant to due call and notice thereof, a work session of the City Council, City of Mendota Heights, Minnesota was held at the City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 1:00 pm. Councilmembers Duggan, Miller, Paper and Petschel were also present. City staff present included Mark McNeill, City Administrator and Cheryl Jacobson, Assistant City Administrator. INTERVIEW CITY ATTORNEY CANDIDATES The city council interviewed the following law firms for the city attorney position: - Kennedy and Graven - Campbell Knutsen - LeVander, Gillen and Miller - Best and Flanagan Following the interviews, the council discussed the applicants. There was consensus to proceed with contract negotiations with the Best and Flanagan law firm. ADJOURN The meeting was adjourned at 4:30 pm. ___________________________ Neil Garlock, Mayor ____________________________ Lorri Smith, City Clerk page 17 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Joint City Council – Parks Recreation Commission Work Session Held July 9, 2019 Pursuant to due call and notice thereof, a work session of the City Council and the Parks and Recreation Commission, City of Mendota Heights, Minnesota was held at the City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 6:30 pm. Councilors Duggan, Miller, Paper, and Petschel were also present. Parks and Recreation Commission members present included Hinderscheid, Klepperich, Meyer, and Sherer. Commissioners Miller and Goldade were absent. City staff present included Mark McNeill, City Administrator; Ryan Ruzek, Public Works Director; Cheryl Jacobson, Assistant City Administrator; Meredith Lawrence, Recreation Program Coordinator; and Lorri Smith, City Clerk. POLCO Assistant City Administrator Cheryl Jacobson updated the members on POLCO, which is being used to collect citizen input on a variety of issues. It was noted that residents are able to sign up to be a part of POLCO. They can then answer the questions that are posted. The use of POLCO has been publicized in the Heights Highlights, Friday News, at Parks Celebration, on the city’s website, Facebook and Twitter. There are currently 160 residents signed up. Ms. Jacobson reviewed the four questions that have been posted so far, and a breakdown of the responses received. REVIEW OF PARKS FINANCING Ms. Jacobson reviewed with the members the Special Parks Fund. She explained that this is funded through park dedication fees paid when development occurs in the city. These funds can be used for acquisition of park property, development of a park, or improvements to the City’s parks. The money cannot be used for operation costs or maintenance costs. A spreadsheet showing the actual and projected fees/expenditures from this fund was reviewed (2018-2020). It was noted that the Park Dedication fee for a new lot in a residential development was increased in 2016 to $4,000. It was noted that the Council will address how to sustain this fund in the future. The parks are also funded through the general levy. Existing financial obligations include the ice arena located in West St. Paul (2019-$83,333-final payment), and the City’s Par 3 golf course (approximately $244,000 - $248,745 per year, final payment to be made in 2022). page 18 INTERIM DOG PARK On August 4, 2015, the City Council approved an Interim Use Permit for city owned property located near Pilot Knob Historical site. The property is located south of Acacia Boulevard, east of Pilot Knob Road, and west of Highway 55. The permit would allow for a portion of the property to be used for a temporary off-leash dog area. The interim use permit would be good through December 31, 2020, or until the property is sold by the city. The permit could be renewed by the city. Parks/Rec Commission Pat Hinderscheid stated that he has received many positive comments on this dog area and would like to see the city make it a permanent dog park. Councilor Petschel stated that she has concerns because this property is zoned Industrial, but feels this is an excellent use for the property due to its proximity to the Pilot Knob Historical site. She stated that the Michael Development developer has stated that this is an amenity for the residents of this area. She stated she likes the idea of completing a feasibility study for this site. Mayor Garlock stated he feel this area should remain a dog park. Councilor Joel Paper stated that he feels the City is not getting the best use out of this entire site. Councilor Duggan stated that the Council needs to decide if they are committed to having a permanent dog park. Councilor Miller questioned if a feasibility study would really be needed. He feels the city could save $10,000. Comments from the public included: John Burbach, feels the current dog park is one of the best he has seen. Ken Dodge, questioned why the Council would want to still consider other locations for a dog park. Councilor Duggan stated the current off-leash dog area could be used for a commercial opportunity. Jeananne Krejchi, feels the current location, adjacent to Pilot Knob Historical site, is the perfect location for a dog park. Any other use may not fit in with the area. She encouraged the Councilmembers to keep the dog park where it is. Gail Lewellan, stated that this site where the interim dog park is located is within the boundary of a National Historic Park. This is an important space for Pilot Knob. She recommended the Council appoint an advisory group to research how to proceed with keeping the dog park at this location and how to make improvements. She suggested the Council proceed with changing the zoning of this property to make it a permanent dog park, legal and conforming. Tabia Turner, thanked all of the members for supporting the dog park. Leslie Pilgrim, stated this has been an off-leash dog area for almost five years. She encouraged the elected officials to make a commitment. The Councilors discussed the two residential properties located on the west side of this property. They discussed the zoning for the entire property and how to go about changing it to Open Space. page 19 PAR 3 TRAIL Public Works Director Ryan Ruzek presented a request from residents to build a new trail segment from Wachtler Avenue to Bachelor Avenue. This could be built on an undeveloped right of way in this area. Extensive landscaping would be required to buffer the existing homes along this stretch. The cost is estimated to be $100,000. Mr. Ruzek reminded the Council that this trail segment may take away some of the pedestrians and bikers that currently use Dodd Road, which is not the safest route. Councilor Miller questioned if the trail would need to be hard-surfaced. Mr. Ruzek stated that the cost for only the pavement portion of the proposed project is be estimated to be $15,000. Commissioner Sherer stated that youth wander through this area now, so a trail would make the area safer. Comments from the public included: Cindy Johnson questioned if this trail segment were built, would the city still work to complete a trail along Dodd Road. Alexis Hovlund stated she has walked through this area and a trail segment would connect the two neighborhoods nicely and make the area more livable. PARKS CAPITAL IMPROVEMENTS The members were given a list of potential future projects to be included in the Capital Improvements Plan. Along with the new trail segment from Wachtler to Bachelor, they were asked if any other projects should be included with this list. Councilor Miller asked that Lake Augusta be included as it needs to be cleaned up. He asked that this important resource not be forgotten. Staff stated that this list of priority project will be emailed out to all of the Councilors and Commission members. They will be asked to rank their top five projects that they see as a priority. Staff will tally the results and use the information for preparing the 2020 budget and the Parks Capital Improvements Plan. UPDATE ON WENTWORTH WARMING HOUSE Mr. Ruzek gave an update on the Wentworth Warming House. He reported that a block building is not feasible. A cap has been set for this building at $150,000. The City has been awarded a $180,000 grant for extending water and sewer to this building. Staff will be discussing the cost of the building with the designer and the building may be complete by the coming winter. ADJOURN The meeting was adjourned at 8:10 pm. ___________________________ Neil Garlock, Mayor ____________________________ Lorri Smith, City Clerk page 20 Request for City Council Action DATE: July 16, 2019 TO: Mayor, City Council, and City Administrator FROM: Lorri Smith, City Clerk SUBJECT: Temporary On-Sale Liquor License-Holy Family Maronite Catholic Church COMMENT: Introduction The City Council is asked to approve a temporary on-sale liquor license for Holy Family Maronite Catholic Church and approve the use of the City Hall parking lot for overflow parking during the event. Background Pursuant to State Statutes and our City Code, no person shall sell or give away liquor without first having received a license. Temporary On-Sale Liquor licenses shall be granted only to clubs and charitable, religious or nonprofit organizations for the sale of intoxicating liquor. The licenses are subject to final approval by the Director of Alcohol and Gambling Enforcement. Holy Family Maronite Catholic Church, located at 1960 Lexington Avenue South, is planning to hold a fall festival on their property September 6 – 8, 2019. They have submitted an application for a Temporary On-Sale Liquor license to allow for the sale of wine and beer at this event. Liquor liability insurance has also been obtained. It should be noted that Temporary On-Sale Liquor licenses have been issued in the past to charitable, nonprofit and religious organizations within the city with no incidents or negative reports. The church has also requested use of the City Hall parking lot for the overflow parking during the event. This has been approved in the past with no problems or issues reported. Recommended Action Staff recommends the City Council approve the Temporary On-Sale Liquor license for Holy Family Maronite Catholic Church for September 6-8, 2019, and approve the use of the City Hall parking lot for overflow parking during the event. page 21 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Solar Farm Document Approval Date: July 16, 2019 Comment: Introduction: The Council is asked to approve a Consent and Agreement relating to an earlier contract to participate in a solar garden. This adds a financial partner (Seminole Funding Resources, LLC) for the original operator. Background: At its February 19, 2019 meeting, the City Council approved entering into an agreement with ReneSola, to be a subscriber to a multi-acre solar garden. The facility is currently being constructed in Rice County. In this arrangement, ReneSola and its partners are purchasing the solar panels, and will operate and maintain the solar garden for 25 years. In the original agreement, the City became a “subscriber” and thereby agreed to allow ReneSola to build and operate a share of the garden on the City’s behalf. The City receives bill credits from Xcel Energy, and pays the solar garden operators for their proportionate part of the solar garden. This arrangement results in an overall savings in electrical costs. Under the “flat rate” option chosen by the City in February, the City is expected to save just over $1 million in electrical costs over the 25 year term of the agreement. The City entered into the agreement with ReneSola, which operates as Northfield Solar LLC. Since then, however, ReneSola has entered into a financing arrangement with Seminole Funding Resources, LLC. Seminole now seeks to become part of the original agreement with the City, in the event that it needs to take over the obligations and responsibilities of the garden operator, Northfield Solar LLC. This assignment is a requirement of the commercial loan agreement between Northfield Solar and Seminole Resources. The City Attorney has reviewed the Consent and Agreement. He notes that a couple of the requirements in this proposed estoppel agreement state that the City must notify Seminole Resources in the event that Northfield Solar defaults on any of its obligations. These reporting requirements are in Section 1(c) and Section 1(g). page 22 Section 3 contains general representations by the City. Section 3(b) states that that the execution of the Consent has been duly authorized by all necessary corporate or other action on the part of the City. Technically, the City entered into the agreement with ReneSola (Norhtfield Solar LLC), and not Seminole Funding Resources. For this reason, the City Attorney recommends that the City Council authorize the execution of this estoppel agreement, so that the provisions in the ReneSola agreement will then be extended to Seminole. Budget Impact: There is no financial impact to the City by agreeing to this document. Recommendation: I recommend that the Council agree to sign the estoppel agreement. Action Required If the Council concurs, it should, by motion, authorize the appropriate City officials to enter into a Consent and Agreement with Seminole Funding Resources, LLC, and Northfield Solar LLC, relating to a subscription to a solar garden in Rice County, Minnesota. page 23 CONSENT AND AGREEMENT This CONSENT AND AGREEMENT, dated as of __________, 2019 (this “Consent”), is entered into by and among the CITY OF MENDOTA HEIGHTS, a Minnesota municipal corporation (“Contracting Party”), SEMINOLE FUNDING RESOURCES, LLC, a Delaware limited liability company (“Lender”), and NORTHFIELD SOLAR LLC, a Minnesota limited liability company (“Borrower”). RECITALS A. Concurrently with the execution hereof, Lender and Borrower have entered into a construction loan agreement (together with all supplements, exhibits and amendments thereto, referred to as the “Loan Agreement”), pursuant to which Lender has agreed to extend to Borrower a loan (the “Loan”) for the purpose of financing certain costs of constructing and developing a solar energy project located in Northfield, Rice County, Minnesota (the “Project”). B. Contracting Party and Borrower have entered into that certain (i) Subscription Agreement – SRC 040813 dated March 5, 2019, (ii) Subscription Agreement – SRC 040316 dated March 5, 2019, (iii) Subscription Agreement – SRC 040353 dated March 5, 2019, (iv) Subscription Agreement – SRC 040814 dated March 5, 2019, and (v) Subscription Agreement – SRC 041087 dated March 5, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, collectively, the “Assigned Agreement”). C. Pursuant to an Assignment of Agreements executed by Borrower to and for the benefit of Lender (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Assignment”), Borrower has agreed, among other things, to assign, as collateral security for its obligations under the Loan Agreement and related documents, all of its right, title and interest in, to and under the Assigned Agreement to Lender. D. It is a requirement under the Loan Agreement that Contracting Party and Borrower execute and deliver this Consent. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree, notwithstanding anything in the Assigned Agreement to the contrary, as follows: 1. Assignment and Agreement (a) Consent to Assignment page 24 Contracting Party (a) is hereby notified that Lender has made the extensions of credit contemplated by the Loan Agreement, (b) consents to the collateral assignment under the Assignment of all of Borrower’s right, title and interest in, to and under the Assigned Agreement, the rights, powers, and obligations associated therewith and the profits, distributions, and all other rights to payment, whether in cash, in kind, or in any other form, during their continuance and upon their termination, and the proceeds thereof, including without limitation, all rights of Borrower to receive moneys due and to become due under or pursuant to the Assigned Agreement, all rights of Borrower to receive proceeds of any insurance, indemnity, warranty, or guaranty with respect to or for breach of or default under the Assigned Agreement, claims of the Borrower for damages arising out of or for breach of or default under the Assigned Agreement, and the right of the Borrower to terminate the Assigned Agreement, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder (collectively, the “Assigned Interests”) and (c) acknowledges the right of Lender, in the exercise of Lender’s rights and remedies pursuant to the Assignment, upon written notice to Contracting Party, to make all demands, give all notices, take all actions and exercise all rights of Borrower under the Assigned Agreement. (b) Subsequent Owner Contracting Party agrees that, if Lender notifies Contracting Party in writing that, pursuant to and in accordance with the Assignment, it has assigned, foreclosed or sold the Assigned Interest, then (A) Lender or its successor, assignee and/or designee, or any purchaser of the Assigned Interests (a “Subsequent Owner”) shall be substituted for Borrower under the Assigned Agreement and (B) Contracting Party shall (1) recognize Lender or the Subsequent Owner, as the case may be, as its counterparty under the Assigned Agreement and (2) continue to perform its obligations under the Assigned Agreement in favor of Lender or the Subsequent Owner, as the case may be; provided that Lender or such Subsequent Owner, as the case may be, has assumed in writing all of Borrower’s rights and obligations (including, without limitation, the obligation to cure any then existing payment and performance defaults, but excluding any obligation to cure any then existing performance defaults which by their nature are incapable of being cured) under the Assigned Agreement. Without limiting anything herein, the warranties provided by Contracting Party under the Assigned Agreement shall continue in full force and effect (until the expiration of the applicable warranty periods set forth in the Assigned Agreement) in the event that Lender or a Subsequent Owner succeeds to Borrower’s right, title and interest in the Assigned Agreement. (c) Right to Cure If Borrower defaults in the performance of any of its obligations under the Assigned Agreement, or upon the occurrence or non-occurrence of any event or condition under the Assigned Agreement which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable Contracting Party to terminate or suspend its page 25 performance under the Assigned Agreement (each hereinafter a “default”), Contracting Party shall not terminate or suspend its performance under the Assigned Agreement until it first gives written notice of such default to Lender and affords Lender a period of at least 30 days (or if such default is a nonmonetary default, such longer period as may be required so long as Lender has commenced and is diligently pursuing appropriate action to cure such default within such longer period but, subject to clauses (a) and (b) below, in no event more than one hundred eighty (180) days from receipt of such notice to cure such default) from receipt of such notice to cure such default; provided, however, that (a) if possession of the Project is necessary to cure such nonmonetary default and Lender has commenced foreclosure proceedings, whether judicial or non-judicial through exercise of a power of sale or otherwise, Lender shall be allowed a reasonable time to complete such proceedings within such longer period, and (b) if Lender is prohibited from curing any such nonmonetary default by any process, stay or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving Borrower, then the time periods specified herein for curing a nonmonetary default shall be extended for the period of such prohibition. In the event the Lender does not cure any such default within such applicable extended cure period, Contracting Party shall continue to have all rights and remedies afforded to it under the Assigned Agreement. (d) No Amendments (i) Contracting Party agrees that it shall not, without the prior written consent of Lender, cancel or terminate the Assigned Agreement, consent to or accept any cancellation or termination thereof, or enter into any novation, material amendment or other material modification of the Assigned Agreement. (ii) Contracting Party agrees that it shall not, without the prior written consent of Lender, (A) sell, assign or otherwise transfer any of its rights under the Assigned Agreement (other than (1) its right to receive payments under the Assigned Agreement and (2) its right to subcontract under the Assigned Agreement), (B) terminate, cancel or suspend its performance under the Assigned Agreement (unless it has given Lender any notice and opportunity to cure that are required by Section 1(c)), (C) consent to any assignment or other transfer by Borrower of its rights under the Assigned Agreement or (D) consent to any voluntary termination, cancellation or suspension of performance by Borrower under the Assigned Agreement. (e) Replacement Agreements In the event the Assigned Agreement is rejected or terminated as a result of any bankruptcy, insolvency, reorganization or similar proceeding affecting Borrower, Contracting Party shall, at the option of Lender exercised within 45 days after such rejection or termination, enter into a new agreement with Lender having identical terms, conditions, agreements, provisions and limitations as the Assigned Agreement (subject to any conforming changes necessitated by the substitution of parties and other changes as the page 26 parties may mutually agree), provided that (i) the term under such new agreement shall be no longer than the remaining balance of the term specified in the Assigned Agreement, and (ii) upon execution of such new agreement, Lender cures any outstanding payment and performance defaults under the Assigned Agreement, excluding any performance defaults which by their nature are incapable of being cured. (f) Limitations on Liability Contracting Party acknowledges and agrees that Lender shall not have any liability or obligation under the Assigned Agreement as a result of this Consent, the Assignment or otherwise, nor shall Lender be obligated or required to (a) perform any of Borrower’s obligations under the Assigned Agreement, except during any period in which Lender has assumed Borrower’s rights and obligations under the Assigned Agreement pursuant to Section 1(b) above, or (b) take any action to collect or enforce any claim for payment assigned under the Assignment. If Lender has assumed Borrower’s rights and obligations under the Assigned Agreement pursuant to Section 1(b) above or has entered into a new agreement pursuant to Section 1(e) above, Lender’s liability to Contracting Party under the Assigned Agreement or such new agreement, and the sole recourse of Contracting Party in seeking enforcement of the obligations under such agreements, shall be limited to the interest of Lender in the Project. (g) Delivery of Notices Contracting Party shall deliver to Lender, concurrently with the delivery thereof to Borrower, a copy of each notice, request or demand given by Contracting Party to Borrower pursuant to the Assigned Agreement relating to (i) a default by Borrower under the Assigned Agreement and (ii) any matter that would require the consent of Lender pursuant to Section 1(d) of this Consent. Failure of Contracting Party to provide a copy of any such notice, request or demand or any other notice specified in Section 1(c) hereof to Lender shall not constitute a breach of this Consent and Lender agrees that Contracting Party shall have no liability to Lender for such failure; provided, however, that no cancellation, suspension or termination of the Assigned Agreement by Contracting Party, or any other actions taken by Contracting Party under the Assigned Agreement, shall be binding upon Lender or Borrower without such notice, request or demand (as applicable), if applicable under Section 1(c), the opportunity to cure during the applicable extended cure period specified in Section 1(c) and, if applicable under Section 1(d), consent of Lender. (h) Transfer (i) In the event that Lender or a Subsequent Owner is substituted for Borrower under the Assigned Agreement pursuant to Section 1(b) or a new agreement entered into pursuant to Section 1(e), then, subsequent to such substitution, Lender shall have the right to assign all of its interest in this Consent and in the Assigned Agreement or such new agreement to any entity; provided, that such assignee assumes in writing the obligations page 27 of Lender under this Consent or the Assigned Agreement or such new agreement, as applicable. Upon such assignment, transfer or sale of the Project, Lender shall be released from any further liability under the Assigned Agreement or such new agreement. (ii) Contracting Party further acknowledges and agrees that Lender shall have the right, during the term of this Consent, to assign, transfer, and/or participate the Loan, the Loan Agreement, and all related Loan Documents, including this Consent, to an affiliate of Lender or to unrelated financing parties; provided, that such assignee assumes in writing the obligations of Lender under this Consent. Upon such assignment, Lender shall be released from any further liability under such Assigned Agreement or such new agreement. 2. Payments under the Assigned Agreement (a) Payments Contracting Party shall pay all amounts (if any) payable by it under the Assigned Agreement in the manner and as and when required by the Assigned Agreement directly into the account or to such other person, entity or account as shall be specified from time to time by Lender to Contracting Party in writing. Notwithstanding the foregoing, if any entity or person has become a Subsequent Owner pursuant to the terms hereof, then Contracting Party shall pay all such amounts directly to such Subsequent Owner or an account designated by Subsequent Owner. Contracting Party, Borrower and Lender each acknowledge and agree that each payment made by Contracting Party in accordance with this section shall, to the extent of the amount paid, constitute payment of the relevant amount owing by Contracting Party to Borrower under the Assigned Agreement and that such payment shall discharge the obligation of Contracting Party under the Assigned Agreement to make such payment to Borrower. (b) No Offset, Etc. All payments required to be made by Contracting Party under the Assigned Agreement shall be made without any offset, recoupment, abatement, withholding, reduction or defense whatsoever, other than those allowed by the terms of the Assigned Agreement. 3. Representations and Warranties of Contracting Party Contracting Party hereby represents and warrants, in favor of Lender, as of the date hereof, that: (a) Contracting Party (i) is a municipal corporation duly formed and validly existing under the laws of the State of Minnesota, (ii) is duly qualified, authorized to do business and in good standing in the State of Minnesota, and (iii) has all requisite power and authority to enter into and to perform its obligations hereunder and under the Assigned page 28 Agreement, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby; (b) the execution, delivery and performance by Contracting Party of this Consent and the Assigned Agreement have been duly authorized by all necessary corporate or other action on the part of Contracting Party and do not require any approvals, filings with, or consents of any entity or person which have not previously been obtained or made; (c) each of this Consent and the Assigned Agreement is in full force and effect, has been duly executed and delivered on behalf of Contracting Party by the appropriate officers of Contracting Party, and constitutes the legal, valid and binding obligation of Contracting Party, enforceable against Contracting Party in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law); (d) there is no litigation, action, suit, proceeding or investigation pending or (to the best of Contracting Party’s knowledge) threatened against Contracting Party before or by any court, administrative agency, arbitrator or governmental authority, body or agency which, if adversely determined, individually or in the aggregate, could have a material adverse effect on the performance by Contracting Party of its obligations hereunder or under the Assigned Agreement; (e) the execution, delivery and performance by Contracting Party of this Consent and the Assigned Agreement, and the consummation of the transactions contemplated hereby and thereby, do or will not result in any violation of, breach of or default under any term of its formation or governance documents, or of any contract or agreement to which it is a party or by which it or its property is bound, or of any license, permit, franchise, judgment, injunction, order, law, rule or regulation applicable to it, other than any such violation, breach or default which could not reasonably be expected to have a material adverse effect on Contracting Party’s ability to perform its obligations under the Assigned Agreement or this Consent; (f) neither Contracting Party nor, to the best of Contracting Party’s knowledge, any other party to the Assigned Agreement, is in default of any of its obligations thereunder; (g) to the best of Contracting Party’s knowledge, (i) no event of force majeure exists under, and as defined in, the Assigned Agreement and (ii) no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either Contracting Party or Borrower to terminate or suspend its obligations under the Assigned Agreement; and (h) the Assigned Agreement and this Consent are the only agreements between Borrower and Contracting Party with respect to the Project, and all of the conditions precedent to effectiveness under the Assigned Agreement have been satisfied or waived. page 29 (i) Each of the representations and warranties set forth in this section shall survive the execution and delivery of this Consent and the Assigned Agreement and the consummation of the transactions contemplated hereby and thereby. 4. Miscellaneous (a) Addresses Any notices, communications and waivers under this Agreement shall be in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid, either by registered or certified mail, return receipt requested, or (iii) sent by overnight express carrier, addressed in each case as follows: To Lender: Seminole Funding Resources, LLC c/o Seminole Financial Services 455 North Indian Rocks Road Belleair Bluffs, Florida 33770 Attn: Tim Fetter With copy to: Dykema Gossett PLLC 400 Renaissance Center Detroit, Michigan 48243 Attn: Laura A. Weingartner To Borrower: Northfield Solar LLC c/o Nautilus Solar Energy, LLC 396 Springfield Avenue, Suite 200 Summit, New Jersey 07901 Attn: General Counsel With copies to: Virgo Investment Group LLC 1201 Howard Avenue, 3rd Floor Burlingame, California 94010 Attn: Eli Aheto To Contracting Party: City of Mendota Heights, MN 1101 Victoria Curve Mendota Heights, MN 55118 Attn: Mark McNeill or to any other address as to any of the parties hereto, as such party shall designate in a written notice to the other party hereto. All notices sent pursuant to the terms of this section shall be deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by overnight, express carrier, then on the next business day immediately following the day page 30 sent, or (iii) if sent by registered or certified mail, then on the earlier of the third business day following the day sent or when actually received. (b) Governing Law This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without reference to the choice of law or conflicts of law principles of the State of Minnesota. (c) Counterparts This Consent may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. (d) Headings Descriptive The headings of the several sections and subsections of this Consent are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Consent. (e) Severability In case any provision in or obligation under this Consent shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. (f) Amendment, Waiver Neither this Consent nor any of the terms hereof may be terminated, amended, supplemented, waived or modified except by an instrument in writing signed by Contracting Party, Borrower and Lender. (g) Successors and Assigns This Consent shall bind and benefit Contracting Party, Lender, and their respective successors and permitted assigns. (h) WAIVER OF TRIAL BY JURY TO THE EXTENT PERMITTED BY APPLICABLE LAW, CONTRACTING PARTY, BORROWER AND LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING page 31 OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY MATTER ARISING HEREUNDER. (i) Entire Agreement This Consent and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings between the parties hereto in respect of the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Consent and any such agreement, document or instrument (including, without limitation, the Assigned Agreement), the terms, conditions and provisions of this Consent shall prevail. [SIGNATURE PAGE FOLLOWS] page 32 IN WITNESS WHEREOF, the parties hereto hereby execute this Consent and Agreement as of the day and year first above written. BORROWER: NORTHFIELD SOLAR LLC, a Minnesota limited liability company By: _____________________________ Name: _____________________________ Its: _____________________________ CONTRACTING PARTY: CITY OF MENDOTA HEIGHTS, a Minnesota municipal corporation By: _____________________________ Name: _____________________________ Its: _____________________________ Accepted and Agreed to: SEMINOLE FUNDING RESOURCES, LLC, a Delaware limited liability company By: __________________________ Name: __________________________ Title: __________________________ page 33 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Presentation--Solar Garden Participation Date: February 19, 2019 Comment: Introduction: At its meeting of February 19, the City Council will hear a presentation regarding having the City subscribe to the solar energy which is produced in a community solar garden. It will be asked to provide direction as to entering into an agreement to participate. Background: ReneSola is company which produces solar energy on a world-wide basis. The company is nearing completion of a multiple acre solar garden in Rice County, and has approached the City of Mendota Heights about being a customer (subscriber) for the electricity which will be generated from that project. Subscribers must be in the host county, or in an adjacent county. Cities, school districts, and other governmental agencies are attractive as participants, as they do not generally move, or go out of business during the 25 year time that the solar garden is in prime operation. ReneSola and its partners provide the upfront cost of buying the solar panels, and building and maintaining the solar garden over 25 years. The subscribers receive bill credits from Xcel Energy, and pay the solar garden operators for their proportionate subscription size of the solar garden. Xcel pays the subscriber in bill credits for their portion of the solar garden’s energy that is produced on a monthly basis. Budget Impact: The business model provides that the subscribers to commit to leasing the solar panels for a set amount of time, and, in exchange, have the opportunity to purchase electricity at a discounted rate. The amount of the savings from the electricity purchases will exceed the cost of the solar panel leases and operation management costs. ReneSola has estimated the savings to the City over a 25 year agreement to be either $1,014,747 for what is called the “flat rate” option, or $953,515 for the option that assumes a conservative increase in future electrical market rates. See the attached estimates. In general, flat rate options can provide more potential savings over the lifetime of the subscription, where the escalator option enables greater savings opportunities early on in the agreement. For example, the first year savings under the flat rate is projected to be $3,006, while the escalator option savings are $12,387 in the first year. In general, ReneSola advises that the escalator option provides less risk and can tolerate near-term ups and downs of the Xcel rebate rates, whereas the flat rate has some risk of being page 34 slightly more than the Xcel credits. Factoring in the time-value of money, there is also some attractiveness in maximizing the higher up-front savings from the escalator option, even if it generates less in the long-run. A further breakdown of the program mechanics, using Year 1 as an example (with the escalator rate) is as follows: • City - Receives monthly credits on Xcel Bill estimated to total $106,869 (12 Months) • City - Pays solar garden operator estimated to total $94,482 (12 Months) • City - Captures savings through the credit amount 106,869 - $94,482 solar payments = $12,387 Savings • Solar payments will escalate at 1%, Xcel Bill credit estimated to escalate at 2.6% • Total Estimated Savings over 25 years: $953,515 Note that both of those estimates have factored in the “on site” production of the solar arrays currently in place at the various City locations, including the electricity which is anticipated from the two 20 kw expansions which are also on the February 19th agenda. The City Attorney has advised that this is not a contract for which competitive proposals must be sought. Recommendation: Information about the solar garden concept, and what the savings are estimated to be under both scenarios, will be presented at the City Council meeting by a representative of ReneSola. Following the presentation, if the Council is comfortable with moving ahead with a subscription, direction from Council as to which rate--the flat or escalator alternative--is asked. That preference would be incorporated into a 25 year agreement which would be brought back to the March 5th City Council meeting for formal approval. Action Required: Review the presentation materials, and provide direction. page 35 page 36 page 37 REQUEST FOR COUNCIL ACTION DATE: July 16, 2019 TO: Mayor, City Council, and City Administrator FROM: Ryan Ruzek, P.E., Public Works Director Krista Spreiter, Natural Resources Technician SUBJECT: Authorize Purchase Orders for the Control of Invasive Plant Species within Valley Park, Rogers Lake Park, Copperfield Ponds Park, and the Oȟéyawahe/Pilot Knob Historic Site. COMMENT: INTRODUCTION The Council is asked to authorize two purchase orders to Great River Greening for their 2019 work plan for the management of invasive species and prairie management within Valley Park, Rogers Lake Park, Copperfield Ponds Park, and the Oȟéyawahe/Pilot Knob Historic Site. BACKGROUND Mendota Heights has been working with Great River Greening on invasive species management and native species restoration in Valley Park and the Oȟéyawahe/Pilot Knob Historic Site for several years. Great River Greening has also been working on invasive species management around Rogers Lake starting in 2017, and given authorization, will begin management of Copperfield Ponds Park in 2019. DISCUSSION Valley Park Great River Greening began invasive species removal in 2009 in Valley Park, with a focus on garlic mustard, as well as common and glossy buckthorn. Mature plants have been cut and cleared from infested park areas and follow-up treatment is required to keep the species under control. Spraying of newly emerging one or two year old plants has proven to be very effective. The treated areas are then also revegetated using native plant species. In 2019 the proposed work in Valley Park will include a Day of Service volunteer event by Xcel Energy employees. Hauling of cut buckthorn will also be done by Xcel Energy during this event. For all other work, Mendota Heights Parks Staff will load and haul away the cut buckthorn. The City’s contribution for this work is $5,500. Rogers Lake This is the third year that Rogers Lake Park has been included in the work plan with Great River Greening. Staff received many compliments for the work that has been done since 2017. page 38 The 2019 work plan in Rogers Lake will continue to focus and follow-up on the previous control of buckthorn and garlic mustard within the park. The proposed work plan also includes the clearing of an additional two acres of buckthorn, and seeding and restoring three acres with native woodland plant species. Mendota Heights Public Works staff is to load and haul away cut buckthorn. The City contribution for this work is $8,500. Great River Greening along with the City will also pursue an Outdoor Heritage Fund grant through the MN Department of Natural Resources to aid in funding of the work. Copperfield Ponds Park The Great River Greening proposed work plan for 2019 also includes the management of Copperfield Ponds Park. The work plan includes the removal and treatment of invasive tree and shrub species such as buckthorn, amur maple, and invasive, non-native honeysuckle species. Again, Mendota Heights Public Works employees will load and haul away cut material. The City contribution for the work proposed at Copperfield Ponds Park is $12,000. Oȟéyawahe/Pilot Knob Historic Site Great River Greening has been instrumental in establishing and managing this native prairie community since the City acquired the site in 2006. Great River Greening is currently implementing Phase IV of the restoration plan for the site (2018-2022 work plan). The 2019 work plan for the Oȟéyawahe/Pilot Knob Historic Site will include soil amendments in an effort to control the invasive species Canada goldenrod, as well as conservation haying. The north unit of the site will be managed by a combination of prescribed burn and herbicide treatment. This area will then be drill seeded with native grasses species, supplemented with pollinator forb species. The City contribution for this work is $5,000 while also receiving $15,000 from the Minnesota Environment and Natural Resources Trust Fund. BUDGET IMPACT City Council has annually included funding in city budgets for ‘Control of Invasive Plants’ in City Parks as well as a separate line item for management of the Oȟéyawahe/Pilot Knob Historic Site. The available amount in the 2019 City Budget in the Parks Maintenance Budget for this effort is $30,000 for Invasive Species work and $11,000 for the Oȟéyawahe/Pilot Knob Historic Site. Great River Greening’s proposal is $26,000 for Invasive Species Control and Restoration of the City Parks discussed above, and $5,000 for the work at the Oȟéyawahe/Pilot Knob Historic Site. RECOMMENDATION Staff recommends that City Council approve the two purchase orders for invasive species control and site restoration to Great River Greening for their 2019 work plan for the management of invasive species and prairie management within Valley Park, Rogers Lake Park, Copperfield Ponds Park, and the Oȟéyawahe/Pilot Knob Historic Site. ACTION REQUIRED Approve a motion authorizing the Public Works Director to issue a ‘not-to-exceed’ Purchase Order in the amount of $26,000 and a ‘not-to-exceed’ Purchase Order in the amount of $5,000 to Great River Greening. page 39 Pilot Knob Hill 2019 Work Plan 1. Canada Goldenrod control a. Late winter/spring ag lime soil amendments two infestations, each with a control; trial basis b. Monitor Canada goldenrod in conservation haying and soil amendment units; general site survey c. Summer/fall CGR control: mowing and/or soil amendment and/or conservation haying 2. Phase II N Unit: a. Complete site prep: i. Spray/Burn/Spray b. Drill seeding, grass heavy, with pollinator forb patches 3. General a. Revised management plan b. General woody encroachment control c. General invasive species control City of Mendota Heights: $5,000 Minnesota Environment and Natural Resources Trust Fund contribution: $15,000 Total Budget: $20,000 page 40 Rogers Park 2019 Work Plan 1. Woodland Understory Layer a. 3 ac Woodland graminoid seeding b. Follow up buckthorn control on re/sprouts in previously cleared areas 2. General a. Garlic mustard spraying 3. Expand Management Area a. Assist City with CPL Application b. Initial buckthorn clearing on 2 additional acres @$2,500/ac City of Mendota Heights: $8,500 DNR CPL (Outdoor Heritage Fund) contribution (August/Sept proposal due): $ tbd Total Budget: $8,500 page 41 Valley Park 2019 Work Plan 1. Woodland Understory Layer: Central and South Oak Knobs a. Woodland graminoid seeding; modest splitting of existing understory graminoids and forbs b. Follow up buckthorn control on re/sprouts in previously cleared areas 2. General a. Garlic mustard containment spraying 3. North Oak Knob a. Re-clearing of buckthorn with hauling by Xcel Energy Day of Service volunteers City of Mendota Heights: $5,500 Volunteer Food and Bvg: $ Xcel Total Budget: $5,500 Pollinator ROW Corridor restoration handled under separate agreement page 42 Copperfield Ponds 2019 Work Plan General overview (7.9.19 site visit): The Copperfield Pond site is a heavily wooded and largely unmanaged site with a mosaic of forest and wetland communities. The woody species include: • desirable native trees including white/bur oaks and red oaks; • undesirable native trees including box elder; • non-native invasive trees including Siberian elm; • desirable native shrubs including gray dogwood; and • non-native invasive shrubs including common buckthorn, and especially amur maple, with scattered honeysuckle and glossy buckthorn. Non-native invasive garlic mustard is present on portions of the woodland understory. Opportunities exist to open up vistas to the wetlands as part of the ecological restoration. 1. Release 3 Oak Groves/Vistas Along Central Trail a. Shrub removal with herbicide application to non-native and undesirable species 2. Reduce Shrub Layer along Huber Drive a. Shrub removal under the trees, with herbicide application to non-native and undesirable species 3. 3 acres of Amur Maple Containment @$2k/acre a. Cut/treat/haul amur maple, buckthorn, and honeysuckle in shaded understory areas. Public Works hauls material from trail side. b. Amur maple in sunny areas can be a citizen favorite during fall colors, as evidenced by the mowed north trail spur leading to an Amur Maple grove along Huber Dr. For the time being, removal of amur maple and other non-native shrubs from sunny areas is delayed for a later phase. 4. Reduction of Gray Dogwood a. Gray Dogwood is a valuable native wildlife shrub. At Copperfield, it is in need of top removal, mimicking a natural disturbance from grazing and fire, resulting in desirable re- sprouts, and lower stature for a year or two opening up views. For 2019, we recommend a ½ acre total top removal, half of which is flush cut with brush cutters, the other half is mowed with a shrub mower. This will allow side by side monitoring of the response, and aesthetics, over the two approaches. City of Mendota Heights: $12,000 page 43 Request for City Council Action DATE: July 16, 2019 TO: Mayor and City Council, City Administrator FROM: Dave Dreelan, Fire Chief SUBJECT: Out of State Travel--Fire COMMENT: Introduction The Council is asked to approve attendance by the Assistant Fire Chief at a conference, to be held in Atlanta, Georgia in August. Background The International Association of Fire Chiefs Conference & Expo is being held in Atlanta, GA this year. The dates are August 7th-10th, 2019. This items has been placed on the agenda for Council consideration, as the Travel Authorization and Expense Reimbursement Policy requires that all out-of-state conferences, seminars, workshops, training or other education related expenses must be approved in advance by the City Council at an open meeting and must include an estimate of the cost of the travel. Discussion This conference was budgeted for in 2019, and authorization is being requested for Scott Goldenstein, Assistant Fire Chief to attend. This conference stresses leadership in the fire service in the classes and discussion topics it hosts. In addition, it allows for chief officer networking opportunities while at the conference. Budget Impact The cost of the conference (registration, hotel, airfare and meals) is estimated to be $1964. There is money in the fire budget for this conference. Recommendation The City Administrator and I recommend that the City Council approve the out-of-state travel for the conference in Atlanta, GA. Action Required If Council concurs, it should approve the Assistant Fire Chief’s attendance at the International Association of Fire Chiefs Conference & Expo in Atlanta, GA, August 7th to 10th, 2019. page 44 Request for City Council Action MEETING DATE: July 16, 2019 TO: Mayor, City Council, and City Administrator FROM: Scott Goldenstein, Assistant Fire Chief SUBJECT: May 2019 Fire Synopsis COMMENT: Fire Calls: In the month of May, the Mendota Heights Fire Department was paged to 30 incidents of which 23 were located in Mendota Heights, three were in Lilydale, one in Mendota, two in Sunfish Lake, and one in South Saint Paul (South Metro Fire) as a mutual aid request. The calls themselves broke down as follows: Under the classification of Actual Fires: The department was paged to a “smoke in a building” call which automatically pages the next closest station (in this case South Metro) as well as the Mendota Heights Fire Department. South Metro did send an engine. The smoke appeared to have been caused by a faulty blower switch in the firebox of a residential fireplace, causing rags to ignite. The fire was extinguished via a water/foam extinguisher. We were also paged to a grill fire that was coded as a structure fire. The grease tray to a homeowner’s grill had started on fire and the fire was not going out by shutting the grill off. The grill was directly adjacent to the townhome and the homeowner had stated that the flames were two to three feet in the air. Upon arrival, the fire was out and the homeowner was reminded of the importance of keeping the grill away from any structures. Two calls were for a large construction dumpster fire at a residence that was in the process of a major renovation. We had a call out for a grass fire in the median of Highway 55. We were called out also, to assist South Metro Fire with a number of grass fires that had begun along the train tracks near Hardman Ave. In Lilydale, the department was paged to what they thought was a bonfire in the woods, but was actually found to be a fire that was being used to melt the insulation off of copper cable, and fire crews extinguished the fire. Under the classification of Medical/Rescue calls: The Fire Department was requested to respond to three different medical calls in the month. In addition, we responded for a water rescue in Sunfish Lake, which we also requested aid from South Metro Fire. Upon arrival, police officers from Mendota Heights and West Saint Paul had reached two individuals. Their wind surfboard capsized on them in the lake. Our Zodiac boat was deployed as well. Under the category of Hazardous Situation calls: for the month of May we had one powerline down call, and one carbon monoxide alarm call. page 45 Under the classification of False Alarms: We responded to nine false alarms. Of those nine calls, six were deemed to be unintentional activations, one was coded as a malfunction, and two were listed as “other” Finally, we had six calls that were cancelled before our arrival. May 2019 Department Training Opportunities: May 8 18:30 Auto Extrication This drill was held at the public works facility. Training vehicles were provided allowing firefighters to stabilize vehicles as well as practice their skills on extricating victims and scene management. May 9 07:00 Auto Extrication This drill was held at the public works facility. Training vehicles were provided allowing firefighters to stabilize vehicles as well as practice their skills on extricating victims and scene management. May 15 18:30 Firefighter Safety & Survival This was a mandatory drill. There were multiple stations set up allowing firefighters to practice procedures on the fire ground to improve their safety. It included SCBA (air pack) training, RIT (Rapid Intervention Team) training (in case of a firefighter down on scene), and a hose maze. May 20 18:30 Ladders This drill was held at Eagan’s station 2 training area. Firefighters used their ladder skills on both ground ladders as well as the aerial on the ladder truck. Multiple scenarios included fire attack from a ladder, victim removal, correct ladder placement, and ladder operations were stressed. May 21 07:00 Company Operations This was a mandatory drill. The drill had crews doing two separate stations. One station was going over fire attack in a structure stressing hose deployment in the structure, correct command procedures, and best practices to both attack a fire scenario and perform a primary search looking for possible victims. The second station worked on proper aerial placement, operation, and deployment including correct hand signals. May 29 18:30 EMS “B” This drill allows firefighters to get ¼ of their ongoing education hours to maintain their EMR (emergency medical responder) certification that covered section B topics. May 30 07:00 EMS “A” This drill allows firefighters to get ¼ of their ongoing education hours to maintain their EMR (emergency medical responder) certification that covered section A topics. page 46 Number of Calls 30 Total Calls for Yea 146 FIRE ALARMS DISPATCHED:NUMBER STRUCTURE CONTENTS MISC.TOTALS TO DATE ACTUAL FIRES Structure - MH Commercial $1,200 Structure - MH Residential 1 $1,000 $2,000 Structure - Contract Areas $0 Cooking Fire - confined 1 $5,000 Vehicle - MH $13,000 Vehicle - Contract Areas $0 Grass/Brush/No Value MH 3 Grass/Brush/No Value Contract 1 TOTAL MONTHLY FIRE LOSSES Other Fire OVERPRESSURE RUPTURE $1,000 $0 $0 Excessive heat, scorch burns MEDICAL Emergency Medical/Assist 1 Vehicle accident w/injuries Extrication ALL FIRES, ALL AREAS (MONTH)$1,000 Medical, other 2 HAZARDOUS SITUATION MEND. HTS. ONLY STRUCT/CONTENTS $1,000 Spills/Leaks Carbon Monoxide Incident 1 MEND. HTS. ONLY MISCELLANEOUS $13,000 Power line down 1 Arcing, shorting MEND. HTS. TOTAL LOSS TO DATE $21,200 Hazardous, Other SERVICE CALL Smoke or odor removal 1 CONTRACT AREAS LOSS TO DATE $0 Assist Police or other agency Service Call, other 1 GOOD INTENT Good Intent Dispatched & Cancelled 6 Current To Date Last Year Smoke Scare 1 23 117 73 HazMat release investigation 3 11 7 Good Intent, Other 1 3 2 FALSE ALARMS 2 4 7 False Alarm 1 11 5 Malfunction 1 Total:30 146 94 Unintentional 6 False Alarm, other 2 FIRE MARSHAL'S TIME FOR MONTH MUTUAL AID 1 INSPECTIONS 40 Total Calls 30 INVESTIGATIONS 0 RE-INSPECTION 0 WORK PERFORMED Hours To Date Last Year MEETINGS 3 FIRE CALLS 469 2431 1335.5 MEETINGS 103.5 357.5 213.75 ADMINISTRATION 13 TRAINING 419.5 1725.5 1619.5 SPECIAL ACTIVITY 19.5 193.5 45.5 PLAN REVIEW/TRAINING 3 FIRE MARSHAL 48.5 49.5 TOTAL:59 TOTALS 1011.5 4756 3263.75 REMARKS: Lilydale Mendota Sunfish Lake Other MENDOTA HEIGHTS FIRE DEPARTMENT May 2019 MONTHLY REPORT FIRE LOSS TOTALS LOCATION OF FIRE ALARMS Mendota Heights page 47 Request for City Council Action DATE: July 16, 2019 TO: Mayor and City Council, City Administrator FROM: Meredith Lawrence, Recreation Program Coordinator SUBJECT: Acknowledge April and May Par 3 Financial Report INTRODUCTION The City Council is asked to acknowledge the April and May Par 3 Financial Report. BACKGROUND The Par 3 officially opened for the 2019 season on April 9th. During the month of April the course had a total of 576 rounds of golf played. The course was open for 14 days and had an additional 120 rounds by local schools. May had a total of 1,521 rounds of golf played. The course was open for 26 days and had an additional 132 rounds played by local schools. The April 2019 precipitation numbers were higher than the monthly average. The course received 3.91 inches of rain compared to the monthly average of 2.66 inches. The April 2019 snow amount was also higher than the monthly average. The course received 9.8 inches of snow compared to the monthly average of 2.4 inches. May continued to be a wet month with 6.68 inches of rain compared to a monthly average of 3.36 inches. April Par 3 revenue was $12,027 and expenditures were $8,708. May course revenue was $22,982 and expenditures were $28,612. Year-to-date revenue is at 33.83% of budget or a total of $52,852. Year-to-date expenditures are at 29.43% of budget or a total of $50,900. The course currently has a profit of $1,952.00 for the 2019 season. RECOMMENDATION Staff recommends that the Mendota Heights City Council acknowledge the April and May 2019 Par 3 Financial Reports. ACTION REQUIRED If the council concurs, it should, by motion acknowledge the April and May 2019 Par 3 Financial Reports. page 48 page 49 MONTHLY EXPENDITURE REPORT MAY 2019 MENDOTA HEIGHTS PAR 3 BUDGET TO ACTUAL REPORT May 2019 (41.67% OF YEAR) May REVENUES May YTD YTD YTD BUDGET 2019 2019 %2018 GREENS, LEAGUE & TOURN FEES $100,000 $16,103 $22,488 22.49%$17,848 RECREATION PROGRAMS $38,000 $4,269 $26,873 70.72%$26,406 CONCESSIONS $18,000 $2,580 $3,462 19.23%$2,861 SUNDRY REVENUE $0 $30 $30 0.00%$0 INTEREST $250 $0 $0 0.00%$0 CAPITAL CONTRIBUTIONS $0 $0 $0 0.00%$0 PAR 3 FUND REVENUE TOTAL $156,250 $22,982 $52,852 33.83%$47,115 EXPENDITURES May YTD YTD YTD BUDGET 2019 2019 %2018 CLUBHOUSE SALARIES $34,300 $4,609 $4,933 14.38%$1,876 ADMINISTRATIVE SALARIES $22,608 $2,046 $7,032 31.10%$5,350 FICA/PERA $10,282 $934 $1,914 18.61%$1,350 MEDICAL INSURANCE $6,653 $554 $2,772 41.67%$2,640 U/E & W/C INSURANCE $2,080 $2,036 $2,823 135.71%$2,286 RENTALS $4,500 $1,500 $1,500 33.33%$600 UTILITIES $12,660 $1,052 $3,860 30.49%$3,944 PROFESSIONAL FEES - AUDIT $2,650 $1,577 $1,577 59.52%$0 PROF FEES - CONSULTING FEES $0 $406 $406 0.00%$3,455 PROF FEES - GROUNDS MGMT $5,000 $0 $0 0.00%$0 PROF FEES - GROUNDS WAGES $22,000 $2,387 $4,052 18.42%$3,018 PROF FEES - TREE MAINTENANCE $1,500 $0 $0 0.00%$0 ADVERTISING/NEWSLETTER $400 $0 $136 34.07%$149 LIABILITY/AUTO INSURANCE $4,200 $0 $3,807 90.64%$3,290 OPERATING COSTS/SUPPLIES $6,350 $219 $1,157 18.23%$2,152 FUEL $1,350 $145 $352 26.06%$581 REPAIRS & MAINTENANCE $28,250 $10,051 $12,148 43.00%$16,079 SUNDRY/DUES/MILEAGE/CLOTHING $4,000 $710 $1,271 31.78%$608 CONTINGENCY $0 $0 $0 0.00%$0 ONLINE REG & CREDIT CARD FEES $4,175 $385 $1,160 27.79%$1,006 PAR 3 EXPENDITURES TOTAL $172,958 $28,612 $50,900 29.43%$48,383 7/11/2019 page 50 7/8/2019 Mendota Heights Building Activity Report Mike Andrejka, Building Official June 1, 2019 thru June 30, 2019 January 1, 2019 thru June 30, 2019 January 1, 2018 thru June 30, 2018 January 1, 2017 thru June 30, 2017 Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected SFD 1 1,420,000.00$ $12,600.64 SFD 3 2,449,742.00$ $24,090.42 SFD 7 3,738,348.00$ $41,844.43 SFD 5 2,520,000.00$ 27,866.45$ Apartment 0 -$ $0.00 Apartment 1 9,135,000.00$ $63,519.64 Apartment 0 -$ $0.00 Apartment 2 23,022,000.00$ 158,402.65$ Townhouse 0 -$ $0.00 Townhouse 0 -$ $0.00 Townhouse 12 2,568,365.00$ $27,537.75 Townhouse 6 1,340,000.00$ 13,475.51$ Condo 0 -$ $0.00 Condo 0 -$ $0.00 Condo 0 -$ $0.00 Condo 0 -$ -$ Misc 79 1,291,268.21$ 49,014.71$ Misc 343 4,229,270.98$ 92,055.26$ Misc 270 3,679,384.73$ 54,684.96$ Misc 303 3,626,702.53$ 53,717.36$ Commercial 2 339,000.00$ $2,943.00 Commercial 14 11,036,914.00$ $41,205.89 Commercial 9 6,412,959.00$ $47,562.64 Commercial 15 3,998,800.00$ 40,109.09$ Sub Total 82 3,050,268.21$ 64,558.35$ Sub Total 361 26,850,926.98$ 220,871.21$ Sub Total 298 16,399,056.73$ 171,629.78$ Sub Total 331 34,507,502.53$ 293,571.06$ Trade Permit No.Valuation Fee Collected Trade Permit No.Valuation Fee Collected Trade Permit No.Valuation Fee Collected Trade Permit No.Valuation Fee Collected Plumbing 24 $5,272.01 Plumbing 131 $15,803.75 Plumbing 125 $17,059.55 Plumbing 86 7,579.40$ Water 0 $0.00 Water 0 $0.00 Water 0 $0.00 Water 0 -$ Sewer 4 $300.00 Sewer 5 $375.00 Sewer 28 $2,100.00 Sewer 20 1,513.00$ Mechanical 29 $2,815.76 Mechanical 148 397.00$ $17,326.20 Mechanical 270 $27,335.07 Mechanical 177 26,739.80$ Sub Total 57 8,387.77$ Sub Total 284 33,504.95$ Sub Total 423 $46,494.62 Sub Total 283 35,832.20$ License No.Valuation Fee Collected Licenses No.Valuation Fee Collected Licenses No.Valuation Fee Collected Licenses No.Valuation Fee Collected Contractor 0 $0.00 Contractor 232 $11,600.00 Contractor 245 $12,250.00 Contractor 246 12,300.00$ Total 139 3,050,268.21$ 72,946.12$ Total 877 26,850,926.98$ 265,976.16$ Total 966 16,399,056.73$ 230,374.40$ Total 860 34,507,502.53$ 341,703.26$ NOTE: All fee amounts exclude SAC, WAC and State Surcharge. Amounts shown will reflect only permit, plan review fee and valuation totals page 51 page 52 page 53 page 54 page 55 page 56 page 57 page 58 page 59 page 60 page 61 page 62 page 63 page 64 page 65 REQUEST FOR COUNCIL ACTION DATE: July 16, 2019 TO: Mayor, City Council, and City Administrator FROM: Ryan Ruzek, P.E., Public Works Director SUBJECT: Resolution 2019-50 Order Plans for the Town Center/Village of Mendota Heights Boulder Wall Improvements COMMENT: INTRODUCTION The purpose of this memo is to request that the Council preside over a public hearing for the Town Center/Village Retaining Wall Replacement Project. BACKGROUND The preparation of a feasibility report for the Town Center/Village of Mendota Heights Boulder Wall Improvements, which is required to follow the Minnesota Statutes Chapter 429 process, was authorized by the Mendota Heights City Council by issuing a professional services contract to Stonebrooke Engineering on February 5, 2019. The Statute 429 process is required because the city intends to specially assess a portion of the project. The feasibility report for the Town Center/Village of Mendota Heights Boulder Wall Improvements was accepted by the Mendota Heights City Council and called for a Public Hearing on July 16, 2019 by adopting Resolution 2019-37 at the June 18, 2019, City Council meeting. The recommendation of the feasibility report was to proceed with this project. The proposed project includes replacement of failing boulder retaining walls on Outlot E of the Town Center/Village of Mendota Heights development. DISCUSSION The feasibility report indicates the estimated costs for the project, along with preliminary assessment estimates. At the end of the feasibility report, a project financing summary is included to show project cost splits and funding sources to be utilized. The total estimated cost of the boulder type project is $470,215 including indirect costs. The feasibility report looked at several wall options including, boulder, small block, large block, and sheet piling. Staff met with affected properties and the boulder wall options was preferred. City Council also confirmed a recommendation for the boulder walls at their June 18, 2019 meeting. BUDGET IMPACT Improvement projects are proposed to be assessed to the benefiting property owners. Pursuant to the City’s Street Rehabilitation and Reconstruction Policy, the benefiting properties should be assessed page 66 50% of the reconstruction costs. The following tables show the estimated unit assessments based on the City policy. PROJECT COSTS ITEM CONSTRUCTION INDIRECT TOTAL Outlot E Retaining Wall Reconstruction $329,361 $82,340 $411,701 Victoria - Walsh Street Modular Block Wall Reconstruction $46,811 $11,703 $58,514 TOTALS $376,172 $94,043 $470,215 FUNDING SOURCES ITEM COST ESTIMATE ASSESSMENT MUNICIPAL BONDS Outlot E Retaining Wall Reconstruction $411,701 $205,850 $205,851 Victoria - Walsh Street Modular Block Wall Reconstruction $58,514 $58,514 Totals $470,215 $205,850 $264,365 ASSESSMENT CALCULATIONS - OUTLOT E RETAINING WALL RECONSTRUCTION Assessable Costs $411,701 Assessment $205,850 Assessable Units 55 Estimated Unit Assessments per City Policy The Village of Mendota Heights Town Center Properties *** $116,975 Dakota County CDA $20,565 Mendota Heights Town Center LLC $68,310 Proposed Assessment Total $205,850 ASSESSMENT CALCULATIONS ***The Village of Mendota Heights Town Center Assessable Costs $116,975 Assessable Units 53 Proposed Unit Assessment per City Policy $2,207 RECOMMENDATION Staff recommends that the Council conduct the Public Hearing and order the improvements, authorizing staff to prepare the plans and specifications for the Town Center/Village of Mendota Heights Boulder Wall Improvements. ACTION REQUIRED Conduct the public hearing, and then if City Council wishes to implement the staff recommendation, pass a motion adopting A RESOLUTION ORDERING OF IMPROVEMENT PROJECT AND PREPARATION OF PLANS AND SPECIFICATIONS FOR THE TOWN CENTER/VILLAGE OF MENDOTA HEIGHTS BOULDER WALL IMPROVEMENTS. This action requires a super majority vote. page 67 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2019-50 A RESOLUTION ORDERING OF IMPROVEMENT PROJECT AND PREPARATION OF PLANS AND SPECIFICATIONS FOR THE TOWN CENTER/VILLAGE OF MENDOTA HEIGHTS BOULDER RETAINING WALL IMPROVEMENTS (PROJECT #201810) WHEREAS, the City Council adopted Resolution 2019-37 on June 18, 2019 setting the date for a public hearing on the proposed improvements regarding the Town Center/Village of Mendota Heights Boulder Retaining Wall Improvements; and WHEREAS, ten (10) days mailed notice and two weeks published notice of the hearing were given and the hearing was held on the 16th day of July, 2019, at which time all persons desiring to be heard were given an opportunity to be heard thereon on the question of the proposed construction of the following described improvements: Replacement of the existing retaining walls, and appurtenant work on Outlot E, Town Center Plat as recorded in Dakota County, Minnesota. WHEREAS, the proposed assessable area for said improvements is situated within the City of Mendota Heights in Dakota County, Minnesota and includes parcels identified as Lot 1 & 2, Block 4; Lot 1, 2 & 3, Block 5; and Lot 2 & 3, Block 6, Mendota Heights Town Center, Dakota County, Minnesota. NOW THEREFORE BE IT RESOLVED, by the Mendota Heights City Council as follows: 1. Such improvements are necessary, cost-effective and feasible as detailed in the feasibility report. 2. That the Public Works Director be and is hereby authorized and directed to prepare plans and specifications for said improvement. Adopted by the City Council of the City of Mendota Heights this sixteenth day of July, 2019. CITY COUNCIL CITY OF MENDOTA HEIGHTS Neil Garlock, Mayor ATTEST _________________________ Lorri Smith, City Clerk page 68 Request for City Council Action MEETING DATE: July 16, 2019 TO: Mayor Garlock and City Council, City Administrator McNeill FROM: Tim Benetti, Community Development Director SUBJECT: Resolution No. 2019-51 Approving [or Denying] a Variance for Henry Sibley High School located at 1897 Delaware Avenue (Planning Case No. 2019-18) Introduction City Council is asked to consider adopting one of two draft resolutions accompanying this memo. One affirms the Planning Commission’s recommendation to approve a height variance for Henry Sibley High School’s new aquatic center, while the other provides an alternative for denying said variance with amended findings. Background Independent School District No. 197, acting on behalf of Henry Sibley High School, applied for a variance to increase the structure heights of a proposed aquatics center, gymnasium addition and a front entryway addition to the high school facility, located at 1897 Delaware Avenue. On June 25, 2019, the Mendota Heights Planning Commission held a public hearing on this item, whereby a planning report was presented and received by the commission, comments from the Applicant and public were received and noted for the record. Upon closing the hearing, the Planning Commission elected to table/postpone any recommendation on the variance associated with the proposed aquatics center, in order to give the Applicant additional time to work with neighboring residents to address landscaping, screening, lighting and sound mitigation measures; but elected to go forward with a recommendation on the gymnasium addition and front entryway additions. At the July 2, 2019 meeting, the City Council adopted Resolution No. 2019-48, which approved the two [separate] variances for the gymnasium and entryway additions. On July 11, 2019, the Planning Commission conducted a special meeting and reconsidered the variance on the aquatic center only. The public hearing was re-opened, additional comments were received, and upon closing of the hearing, the commission unanimously recommended the height variance requested by ISD- 197 for the new aquatics center be approved. It added conditions for window treatments, and signage restrictions on the Delaware Avenue side of the addition. A copy of the 07/11/2019 Planning Staff Report (Supplemental) is appended to this council memo report. Unfortunately, due to short turn-around time, the minutes of this special meeting were not available to be included in this packet, but will be available for review after the August 7th council meeting. page 69 Discussion The City can use its quasi-judicial authority when considering action on certain land use or zoning decisions, such as this variance, and has broad discretion. A determination regarding whether or not the request meets the applicable code standards is required. Recommendation The Planning Commission recommended unanimously (by 7-0 vote) to approve the Variance on the new aquatic center not to exceed 31’-8” in height; based on findings of facts noted in the draft resolution included in this memo packet. Action Required If the City Council wishes to affirm this recommendation, make a motion to adopt RESOLUTION NO. 2019-51 APPROVING THE VARIANCE FOR A NEW AQUATIC CENTER AT HENRY SIBLEY HIGH SCHOOL - LOCATED AT 1897 DELAWARE AVENUE; or The Council can reverse this recommendation and adopt alternative RESOLUTION NO. 2019- 51 DENYING THE VARIANCE FOR A NEW AQUATIC CENTER AT HENRY SIBLEY HIGH SCHOOL - LOCATED AT 1897 DELAWARE AVENUE Either action to approve one of the two resolutions requires a simple majority vote. page 70 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2019-51 RESOLUTION APPROVING A VARIANCE FOR A NEW AQUATIC CENTER AT HENRY SIBLEY HIGH SCHOOL LOCATED AT 1897 DELAWARE AVENUE (PLANNING CASE NO. 2019-18) WHEREAS, under Planning Case No. 2019-18, Independent School District No. 197 (as “Applicant”) and acting on behalf of Henry Sibley High School, applied for a variance to increase the structure height for a proposed new aquatics center to the high school facility, located at 1897 Delaware Avenue (the “Subject Property”), and legally described on attached Exhibit A; and WHEREAS, the Subject Property is guided S-School [Institutional] in the 2030 Comprehensive Plan and is located in the R-1 and R-1A One Family Residential Districts; and WHEREAS, City Code Section 12-1E-3.D states no structures or building shall exceed twenty-five feet (25’) in height in the single-family residential zones; and WHEREAS, Title 12-1L-5 of the City Code (Variances) allows for the Council to grant variances or certain modifications from the strict application of the provisions of the City Code, and impose conditions and safeguards with variances if so needed or granted; and WHEREAS, the Applicant is seeking permission to construct the new aquatics center addition with a height not exceed 31’-8”, as proposed in the amended plan set submitted as part of Planning Case No. 2019-18; and WHEREAS, on June 25, 2019, the Mendota Heights Planning Commission held a public hearing on this item, whereby a planning staff report was presented and received by the commission, comments from the Applicant and public were received and noted for the record, and upon closing the hearing, the Planning Commission elected to table/postpone any recommendation on the variance associated with the proposed aquatics center (in order to give the Applicant additional time to work with neighboring residents to address landscaping, screening, lighting and sound mitigation measures), and page 71 WHEREAS, on July 11, 2019, the Mendota Heights Planning Commission re-opened the public hearing on the variance related to the aquatic center; a supplemental planning staff report was presented and received by the commission; comments from the Applicant and public were received and noted for the record; and upon closing the hearing, the Planning Commission elected to recommend approval of the Variance (on 7-0 vote), with certain findings of fact to support such approval and with certain conditions. NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the recommendation from the Planning Commission is hereby affirmed, and the Variances for the new aquatics center at Henry Sibley High School, as proposed under Planning Case No. 2019-18, can be approved based on the following findings of fact: A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three-part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the proposed aquatics building to exceed the 25-ft. height limits in the R-1/R-1A One Family Residential District to 31-ft.-8-inches, by the following: i.) the proposed structure height increase is considered a reasonable request, based on the overall scope, scale and use of the subject property as a high school campus facility, and fits with the current design and layout of the existing school building on the property; and is considered consistent with the spirit and intent of the City Code and Comprehensive Plan; ii.) The plight of the landowner is due to circumstances unique to the property, as this proposed aquatics center building [and the related school facility buildings] are not a typical single-family use in the underlying R-1 One Family Residential District; and therefore warrants the approval or granting of such variances in this particular case; iii.) the excess heights of the new aquatics center is less than what exists today on the school campus site, so there impacts will not be noticeable when compared to other (pre-existing) structures on the campus site; and iv.) The variances, if granted, will not alter the essential character of the neighborhoods; since the school is and has been in place and operation for a number of years in the community, and there is a general accepted expectation page 72 that school facility improvements, such as this aquatics center can be considered a reasonable improvement for the overall benefit and enjoyment of the school, its students, faculty, and the community. Furthermore, the applicant has demonstrated an effort to reducing the impacts to the neighborhoods by reducing the height of the proposed aquatics building, moving the building away from the adjacent roadway, and installing a new earthen berm as an added area and elevation for trees and plantings that will provide an effective, natural screening to the neighborhoods. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variances upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variances will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of these Variances are for ISD-#197 (Henry Sibley High School) only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019-18, dated and presented June 25, 2019 and July 11, 2019 (both on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-51. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1) The Applicant shall obtain a building permit for the proposed aquatics center building and related improvements and structures identified herein. 2) The Applicant shall not deviate or increase the height of the new aquatic structure as approved or presented under this application. Any changes must be reconsidered under a new application before the planning commission and approved by the city council. 3) All grading and construction activity will be in compliance with applicable federal, state, and local regulations and codes, as well as in compliance with the City’s Land Disturbance Guidance Document. page 73 4) The Applicant shall not schedule or conduct a swim meet or any other spectator event inside the aquatic center at the same time as a varsity football home game. 5) The Applicant shall have the final landscape plan reviewed by the city’s Master Gardeners for compliance with city pollinator friendly policy. 6) The future comprehensive sign plan for the school shall include a provision that no signage be allowed on the easterly elevation of the building facing Delaware Avenue; and the aquatic center will have interior window treatments to diffuse and prevent any light spill from inside the aquatic center during night time hours. BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Variance for the new aquatic center at Henry Sibley High School, as proposed under Planning Case No. 2019-18, is hereby approved. Adopted by the City Council of the City of Mendota Heights this 16th day of July, 2019. CITY COUNCIL CITY OF MENDOTA HEIGHTS ________________________________ Neil Garlock, Mayor ATTEST: ________________________________ Lorri Smith, City Clerk Drafted by: City of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 page 74 EXHIBIT A Property Address: 1897 Delaware Avenue, Mendota Heights MN 55118 Henry Sibley High School Dakota County Parcel ID Nos. 270250002010,270250001030, 270250001020, 270250001040, 270250001050, 270250001060, and 270250003010 DESCRIPTION OF PROPERTY SURVEYED The South 7 acres of the North 12 acres of the East one-half of the Northeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight, Range Twenty-three. AND The West 426 feet of the North one-half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section twenty-five, Township twenty-eight North, Range twenty-three West, except the North 40 feet thereof. AND The West One-Half of the Northeast Quarter of the Northeast Quarter Section Twenty-five, Township Twenty-eight, Range Twenty-three, Dakota County. AND The Southeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight, Range Twenty-three. AND The Southerly One Hundred feet of the Easterly Two Hundred Twenty feet of the North One half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section Twenty- five, Township Twenty-eight, Range Twenty-three, subject to the rights of the Public over the Easterly Thirty feet thereof for Roadway purposes. Commonly known as "Delaware Avenue". AND The South One Hundred feet of the North One Half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight, Range Twenty- three, except the West Four Hundred Twenty-Six feet, and also except the East Two Hundred Twenty feet thereof, Dakota County, Minnesota. AND The South Eight Acres of the Southeast Quarter of the Northeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight North, Range Twenty- three West. page 75 EXCEPT The West 40 feet of the W 1/2 of the NE 1/4 of the NE 1/4 of Sec. 25, T28N, R23W, excepting the North 40 feet for street. ALSO EXCEPT That portion of the SE 1/4 of the NE 1/4 of Sec. 25, T28N, R23W. Commencing at the NW comer of said SE 1/4 NE 1/4 thence east 40 feet, thence South 262.50 feet, thence Southeasterly 221.97 feet along an arc of 1,106.28 feet radius concave Northeasterly, thence Sl1° 30'E, 95.16 ft., thence Southerly 238.03 feet along an arc of 1,186.28 feet radius concave Southwesterly, thence South 384 feet more or less to the North right of way line of T.H. 110, thence Westerly 105.0 feet to the West line of said SE 114 NE 114, thence North 1,197.00 feet more or less, to the point of beginning. ALSO EXCEPT All that part of the following described tract: The southeast quarter of the northeast quarter of Section 25, township 28 north, range 23 west, except highways; which lies southerly of a line run parallel with and distant 75 feet northerly of the following described line: Beginning at a point on the east line of said section 25, distant 364.03 feet north of the east quarter comer thereof; thence run westerly at an angle of 90°17'45" with said east section line (when measured from north to west) for 41.28 feet; thence deflect to the left on a 16°00' curve (delta angle 40°00') for 250 feet; thence on tangent to said curve for 101.75 feet; thence deflect to the right on an 8°00' curve (delta angle 40°00') for 500 feet thence on tangent to said curve for 600 feet and there terminating. ALSO EXCEPT The east 30.00 feet of the North 112 of Section 25, Township 28, Range 23, dedicated on the Plat of Delaware. Property is located in Dakota County, Minnesota. page 76 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2019-51 RESOLUTION DENYING A VARIANCE FOR A NEW AQUATIC CENTER AT HENRY SIBLEY HIGH SCHOOL LOCATED AT 1897 DELAWARE AVENUE (PLANNING CASE NO. 2019-18) WHEREAS, under Planning Case No. 2019-18, Independent School District No. 197 (as “Applicant”) and acting on behalf of Henry Sibley High School, applied for a variance to increase the structure height for a proposed new aquatics center to the high school facility, located at 1897 Delaware Avenue (the “Subject Property”), and legally described on attached Exhibit A; and WHEREAS, the Subject Property is guided S-School [Institutional] in the 2030 Comprehensive Plan and is located in the R-1 and R-1A One Family Residential Districts; and WHEREAS, City Code Section 12-1E-3.D states no structures or building shall exceed twenty-five feet (25’) in height in the single-family residential zones; and WHEREAS, Title 12-1L-5 of the City Code (Variances) allows for the Council to grant variances or certain modifications from the strict application of the provisions of the City Code, and impose conditions and safeguards with variances if so needed or granted; and WHEREAS, the Applicant is seeking permission to construct the new aquatics center addition with a height not exceed 31’-8”, as proposed in the amended plan set submitted as part of Planning Case No. 2019-18; and WHEREAS, on June 25, 2019, the Mendota Heights Planning Commission held a public hearing on this item, whereby a planning staff report was presented and received by the commission, comments from the Applicant and public were received and noted for the record, and upon closing the hearing, the Planning Commission elected to table/postpone any recommendation on the variance associated with the proposed aquatics center (in order to give the Applicant additional time to work with neighboring residents to address landscaping, screening, lighting and sound mitigation measures), and WHEREAS, on July 11, 2019, the Mendota Heights Planning Commission re-opened the public hearing on the variance related to the aquatic center; a supplemental planning staff report page 77 was presented and received by the commission; comments from the Applicant and public were received and noted for the record; and upon closing the hearing, the Planning Commission elected to recommend approval of the Variance (on 7-0 vote), with certain findings of fact to support such approval and with certain conditions. NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the recommendation from the Planning Commission is hereby reversed, and the Variances for the new aquatic center for Henry Sibley High School, as proposed under Planning Case No. 2019-18, should be denied based on the following findings of fact: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three-part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not fully met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a variance for increased height of this aquatic center structure in the R-1/R-1A District. The City finds the proposed aquatic center is not essential to the overall enjoyment and continued use of the property; and there are other alternatives on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Variances for the new aquatic center for Henry Sibley High School, as proposed under Planning Case No. 2019-18, is hereby denied. Adopted by the City Council of the City of Mendota Heights this 16th day of July, 2019. CITY COUNCIL CITY OF MENDOTA HEIGHTS ________________________________ Neil Garlock, Mayor page 78 ATTEST: ________________________________ Lorri Smith, City Clerk Drafted by: City of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 page 79 EXHIBIT A Property Address: 1897 Delaware Avenue, Mendota Heights MN 55118 Henry Sibley High School Dakota County Parcel ID Nos. 270250002010,270250001030, 270250001020, 270250001040, 270250001050, 270250001060, and 270250003010 DESCRIPTION OF PROPERTY SURVEYED The South 7 acres of the North 12 acres of the East one-half of the Northeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight, Range Twenty-three. AND The West 426 feet of the North one-half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section twenty-five, Township twenty-eight North, Range twenty-three West, except the North 40 feet thereof. AND The West One-Half of the Northeast Quarter of the Northeast Quarter Section Twenty-five, Township Twenty-eight, Range Twenty-three, Dakota County. AND The Southeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight, Range Twenty-three. AND The Southerly One Hundred feet of the Easterly Two Hundred Twenty feet of the North One half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section Twenty- five, Township Twenty-eight, Range Twenty-three, subject to the rights of the Public over the Easterly Thirty feet thereof for Roadway purposes. Commonly known as "Delaware Avenue". AND The South One Hundred feet of the North One Half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight, Range Twenty- three, except the West Four Hundred Twenty-Six feet, and also except the East Two Hundred Twenty feet thereof, Dakota County, Minnesota. AND The South Eight Acres of the Southeast Quarter of the Northeast Quarter of the Northeast Quarter of Section Twenty-five, Township Twenty-eight North, Range Twenty- three West. page 80 EXCEPT The West 40 feet of the W 1/2 of the NE 1/4 of the NE 1/4 of Sec. 25, T28N, R23W, excepting the North 40 feet for street. ALSO EXCEPT That portion of the SE 1/4 of the NE 1/4 of Sec. 25, T28N, R23W. Commencing at the NW comer of said SE 1/4 NE 1/4 thence east 40 feet, thence South 262.50 feet, thence Southeasterly 221.97 feet along an arc of 1,106.28 feet radius concave Northeasterly, thence Sl1° 30'E, 95.16 ft., thence Southerly 238.03 feet along an arc of 1,186.28 feet radius concave Southwesterly, thence South 384 feet more or less to the North right of way line of T.H. 110, thence Westerly 105.0 feet to the West line of said SE 114 NE 114, thence North 1,197.00 feet more or less, to the point of beginning. ALSO EXCEPT All that part of the following described tract: The southeast quarter of the northeast quarter of Section 25, township 28 north, range 23 west, except highways; which lies southerly of a line run parallel with and distant 75 feet northerly of the following described line: Beginning at a point on the east line of said section 25, distant 364.03 feet north of the east quarter comer thereof; thence run westerly at an angle of 90°17'45" with said east section line (when measured from north to west) for 41.28 feet; thence deflect to the left on a 16°00' curve (delta angle 40°00') for 250 feet; thence on tangent to said curve for 101.75 feet; thence deflect to the right on an 8°00' curve (delta angle 40°00') for 500 feet thence on tangent to said curve for 600 feet and there terminating. ALSO EXCEPT The east 30.00 feet of the North 112 of Section 25, Township 28, Range 23, dedicated on the Plat of Delaware. Property is located in Dakota County, Minnesota. page 81 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 1 Planning Staff Report (Supplemental) DATE: July 11, 2019 TO: Planning Commission FROM: Tim Benetti, Community Development Director SUBJECT: Planning Case No. 2019-18 Variances to Exceed Maximum Height of Structures in the R-1 One Family Residence District APPLICANT: ISD #197 – Henry Sibley High School PROPERTY ADDRESS: 1897 Delaware Avenue ZONING/GUIDED: R-1 One Family Residential & R-1A One Family Residential / S-School (Institutional) ACTION DEADLINE: July 28, 2019 DISCUSSION Independent School District No. 197, acting on behalf of Henry Sibley High School, applied for a variance to increase the structure heights for a proposed new aquatics center, a gymnasium addition and a main (front) entryway addition to the high school facility, located at 1897 Delaware Avenue. On June 25, 2019, the Mendota Heights Planning Commission held a public hearing on this item, whereby a planning staff report was presented and received by the commission, comments from the Applicant and public were received and noted for the record. Upon closing the hearing, the Planning Commission elected to table/postpone any recommendation on the variance associated with the proposed aquatics center (in order to give the Applicant additional time to work with neighboring residents to address landscaping, screening, lighting and sound mitigation measures), but elected to go forward with a recommendation on the gymnasium addition and front entryway additions, since no one from the public spoke out or against these improvements. The following day on June 26th, school representatives and neighboring residents met on the high school property, and the results (or re-cap) of that meeting were prepared and sent to the city by Ms. Adrienne Mayer, which were in turn were forwarded to the planning commission (via email 06/27/2019). A copy of said email is again appended to this memo. For the record, City Council took action on the two variances related to the gym and entryway addition at the July 2nd regular meeting, in which both were given unanimous recommendation of approval by the planning commission. The Council adopted Resolution No. 2019-48 (by 3-1 vote) approving the variances on these improvements. page 82 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 2 SITE PLAN UPDATES The Applicants have submitted revised and updated plans for the proposed aquatics center. The aquatics building was originally shown with a height of 35’-8” along its highest point on the southerly elevation. The school is now showing this height to be 31’-8”, or 4 feet lower than the original plan submittal presented at the June 25th meeting. This building is also being moved 5-feet farther away from Delaware Avenue, so the setback will be 35- feet (instead of original 30-ft. setback). As part of this shift, the school has agreed to install a small earthen berm along the westerly edge of Delaware Avenue, which will serve as an area for new plantings and trees, in order to provide natural screening of the aquatics building from the residents to the east. It does not appear that any part of the central parking lot space between the main school building and new aquatics center is affected, with 42 spaces to remain. The south (new) parking remains with 97 spaces planned for this area. A full copy of the previous 06/25/19 Planning Report, along with the PC meeting minutes excerpts on the discussion and action taken on the variances related to the gym and front entryway additions, are also included in this memo packet. This memo also contains new visual architectural illustrations provided by the applicant’s design team on the gym and front entryway additions. Although the variances for the gym and front entry were approved, staff is providing these images for follow-up information only to the commission. No official action is needed or required [on these images]. ALTERNATIVES for ACTION 1. Recommend approval of the variance requests, based on the following findings of fact that support the granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the proposed aquatics building to exceed the 25-ft. height limits in the R-1/R-1A One Family Residential District to 31-ft.-8-inches, by the following: i.) the proposed structure height increase is considered a reasonable request, based on the overall scope, scale and use of the subject property as a high school campus facility, and fits with the current design and layout of the existing school building on the property; and is considered consistent with the spirit and intent of the City Code and Comprehensive Plan; ii.) The plight of the landowner is due to circumstances unique to the property, as this proposed aquatics center building [and the related school facility buildings] are not a typical single- family use in the underlying R-1 One Family Residential District; and therefore warrants the approval or granting of such variances in this particular case; page 83 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 3 iii.) the excess heights of the new aquatics center is less than what exists today on the school campus site, so there impacts will not be noticeable when compared to other (pre-existing) structures on the campus site; and iv.) The variances, if granted, will not alter the essential character of the neighborhoods; since the school is and has been in place and operation for a number of years in the community, and there is a general accepted expectation that school facility improvements, such as this aquatics center can be considered a reasonable improvement for the overall benefit and enjoyment of the school, its students, faculty, and the community. Furthermore, the applicant has demonstrated an effort to reducing the impacts to the neighborhoods by reducing the height of the proposed aquatics building, moving the building away from the adjacent roadway, and installing a new earthen berm as an added area and elevation for trees and plantings that will provide an effective, natural screening to the neighborhoods. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variances upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variances will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of these Variances are for ISD-#197 (Henry Sibley High School) only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019- 18, dated and presented June 25, 2019 (and on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-____. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1) The Applicant shall obtain a building permit for the proposed aquatics center building and related improvements and structures identified herein. 2) The Applicant shall not deviate or increase the height of the new aquatic structure as approved or presented under this application. Any changes must be reconsidered under a new application before the planning commission and approved by the city council. 3) All grading and construction activity will be in compliance with applicable federal, state, and local regulations and codes, as well as in compliance with the City’s Land Disturbance Guidance Document. 4) “The Applicant shall not schedule or conduct a swim meet or any other spectator event inside the aquatic center at the same time as a varsity football home game.” page 84 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 4 2. Recommend denial of the Variance request, based on the findings of fact that confirm the Applicant failed to meet the burden(s) of proof or standards in granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three-part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not fully met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of this variance for increased height related to the aquatics center in the R-1/R-1A District. The City finds the proposed aquatics center building is not essential to the overall enjoyment and continued use of the property; and there are other alternatives on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). 3. Table the request and direct staff to extend the application review period an additional 60 days, in compliance with MN STAT. 15.99. RECOMMENDATION Staff recommends the Planning Commission give careful consideration of the Variances to be considered for this new aquatics center as requested by the Applicant, and if the Commission wishes to approve the Variance as presented herein and add or modify the conditions as noted herein you may choose Alternative No. 1 noted above. If the Commission wishes to deny the variance as presented, or request more information, you may choose to select either Alternative No. 2 or 3 - noted above as well. MATERIALS INCLUDED FOR REVIEW 1. Updated Elevation Plans (Aquatics Center only) 2. 06/25/2019 Planning Staff Report 3. 06/25/2019 Planning Commission meeting minutes (excerpts) page 85 page 86 page 87 page 88 page 89 page 90 page 91 page 92 page 93 page 94 page 95 page 96 page 97 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 1 Planning Staff Report DATE: June 25, 2019 TO: Planning Commission FROM: Tim Benetti, Community Development Director SUBJECT: Planning Case No. 2019-18 Variances to Exceed Maximum Height of Structures in the R-1 One Family Residence District APPLICANT: ISD #197 – Henry Sibley High School PROPERTY ADDRESS: 1897 Delaware Avenue ZONING/GUIDED: R-1 One Family Residential & R-1A One Family Residential / S-School (Institutional) ACTION DEADLINE: July 28, 2019 INTRODUCTION ISD #197 is requesting variances in order to construct a new aquatics (pool) center, gymnasium addition, and entry addition to the Henry Sibley High School (HSHS) facilities, located at 1897 Delaware Avenue. In May of 2018, the voters in ISD #197 approved (with a 62% favorable vote) a $117 million building bond for structural and mechanical maintenance upgrades at all the district’s school buildings, which included modernizing outdated classroom and education spaces, improving fine arts and athletics spaces and addressing school parking lot safety and handicapped accessibility. This public hearing was duly noticed by a legal publication in the Pioneer Press, the city’s official newspaper, and notice letters of this request and public hearing were mailed to all properties within 700 feet (twice the standard 350-ft. distance), including property owners in nearby West St. Paul and Sunfish Lake. The city received one letter of objection on this project, which is appended to this report. BACKGROUND The school campus property consists of eight separate parcels, totaling 73.61 acres (according to Dakota County/GIS records). The applicant’s survey however, indicates the gross area of 67.6 acres and net area of 66.2 acres. The high school contains up 60 classrooms, with enrollment of approx. 1,450 students. Records show the original 3-story high school building was approved and constructed in 1970-1971. The main school facility is centrally located on the campus, with three main access points off Delaware Avenue to the east, and a secondary access off Warrior Drive to the west. The campus contains 573 parking spaces most of which are located on the north side of the school building, with added parking along the east and far southeast corner of the campus. page 98 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 2 The campus contains a number of different outdoor athletic fields, including 12 asphalt tennis courts; and a variety of baseball, softball and soccer fields (4) on the north side, which included an older 8-lane running track and football field with limited seating stands. On October 4, 2018, ISD 197 presented plans to reconstruct the football/track field area, along with other athletic fields in this north campus area, which was requested under a similar variances to certain height standards, including the lights, stadium booth, and number of accessory structures. These variances were eventually reviewed, accepted and approved on October 16, 2018 when the City Council adopted Resolution No. 2018-78. This work is now in progress and will continue throughout the summer. During these earlier variance presentations, it was mentioned publicly that HSHS was intending to return next year to request similar approvals of a proposed aquatics center and gymnasium addition, but those plans were not ready yet – and are now being considered under this separate variance application request. page 99 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 3 DESCRIPTION OF THE REQUEST The school is seeking to build a 110’ x 190’ aquatics center along the east side of the main school building (see Google Street image-below). The facility will house a new Olympic sized swimming pool with locker/changing rooms and visitor viewing stands to watch swimming events. The new 135’ x 180’ gymnasium addition will take place on the south side of where the existing gymnasium is located (see Google Street image-below). The overall projected height of this new gym is 50-ft. -5” measured at the east and south elevations. A space for loading/storage is still planned underneath the gym addition, with the loading doors facing out towards Delaware Avenue (east). The project also includes a small extension and addition to the front (main) school entryway, which will have an overall height of 31-ft. – 2-inches. page 100 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 4 Finally, the project also includes a new Administration Addition to the west side of the school facility. This addition is only a one-story, 16-ft.-4-inches in height, and is not part of the structure height variances requested under this application. The plans for these improvements are illustrated and presented for review on the attached site and elevation plans, prepared by the school’s design team LSE Architects. ANALYSIS  Zoning / Land Use The high school property is currently zoned a combination of R-1 and R-1A One Family Residential District. Public and parochial schools are considered permitted uses under the R-1 zoning. The school site however, is guided “S-School” under the general Institutional land use category of the current 2030 Comprehensive Plan. The proposed Draft 2040 Comprehensive Plan includes a new P/S- Public/Semi-Public land used category, which will reflect a very similar “school” or “institutional” category for this and other school properties; with a desire by staff in creating a new and separate zoning district for such uses. For all intents and purposes, schools as a use– along with all associated facilities and improvements such as classroom buildings, gymnasium, auditorium, cafeteria, vehicle/bus parking areas, athletic fields, etc., tend to make them a very unique and specialized use within an established and dedicated “single-family” zoning district. Most schools do not resemble or function anywhere near to typical single-family dwellings or uses. However, the fact remains that if a use is located or situated inside a specific zoning district, then those district standards must be applied to all uses, unless the City Code provides for different standards or specific rules related to such special uses. At this time, the current R-1 and R-1A zoning remains the applicable standards to apply and review under this variance review process.  Structure Heights (Requested Variances) Aquatic Center Pursuant to Code Section 12-1E-3.D, any structure or building in the R-1 District must not exceed two (2) stories in height or twenty-five feet (25’) in height. Flat-roofed structures such as these are measured at the upper-most edge of the building. As noted previously, the new aquatics center addition is proposed with a maximum height of 35-ft.-8-inches (measured on the south elevation – see image below): page 101 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 5 On the north side of the facility. the height is shown with a 25’-4” height, due to part of the facility at the north end will be built into the existing berm- seen in the first Google Street image phots on page 3 (above). The aquatic center will be connected to the main school building by the “New Connection Link”, which will provide a covered/enclosed walkway for students and visitors walking to and from the main building. The upper panels on the roof are solar panels, and are not subject to the height limitations, as city code provides certain exemptions to certain roof-top structures, such as mechanicals, chimneys, or elevator penthouses. Gymnasium Addition The new gym addition will be built on the south side of the current gym facilities, and is intended to be built with a maximum height of 50-ft.-5-inches. The new gym will exceed the current gym building height by just over 5-feet. page 102 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 6 Entry Addition The school plans to provide a new and larger fully enclosed entryway, with full glass curtain wall along the north front main entry into the school. This addition will be 31-ft.-2-inches when completed.  Traffic & Parking As was noted in the previous October 2018 Planning Report, a “high school” use is required to provide at least 1 space for each student; plus 1 space for each 3 classrooms. According to ISD-197 officials, student enrollment is approximately 1,450 students, with 60 classroom. Parking calculates as follows: [Students: 1450 @ 7= 208 spaces] + [60 rooms @ 3 = 20 spaces] or 228 spaces needed. When the city reviewed the athletic field improvements last October, it was noted that the entire campus had approx. 573 spaces, and included a provision that “…97 new spaces will be added under the new aquatics center addition….”which bumped the total number to 670 parking spaces. City Code also requires “Athletic Fields” to have at least 1 space for each 3 seats of design capacity. The October report indicated the new football field would have a seating capacity of 2,000 seats, so 667 spaces were needed. City Code Section 12-1D-17 gives the city the ability to ask a developer/applicant to submit a traffic study “…for any proposed development or redevelopment project that results in the change or intensification of the existing or planned land use.” As part of the previous athletic field improvement requests last fall, ISD 197 submitted a traffic (and parking demand) report from Spack Consulting, which essentially found that the “proposed multi-use stadium, and associated football game traffic, does not represent a significant transportation impact to the surrounding roadway system and will not significantly alter traffic flow or parking operations in the surrounding community.” In order to avoid any possible over-parking the campus, school representatives indicated they would not double-book or schedule same day/night extra-curricular and athletic events, such as a football/basketball games, wrestling/volleyball matches, concerts-theater productions, student/teacher conferences – or swim meets, when the new aquatic center opened. One of the conditions made part of Res. 2018-78 was “The Applicant shall not hold another event on the site at the same time as a varsity football home game.” The Planning Commission and City Council eventually found the existing and projected (new) parking would be sufficiently handled and maintained on the school property; and that traffic would not be an issue as part of these overall athletic field improvements; and approved the variances accordingly. As part of this new aquatic /gym addition project, the school is still planning to install the 97 new stalls to the south of the aquatic center as originally noted last October 2018; and reconfigure/restripe the central page 103 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 7 parking area between school and aquatic center, from 50 spaces to 36 spaces. The combined parking for this area will be 133 spaces. According to the architects, the new aquatic center is scheduled to have a seating capacity for 416 spectators. Utilizing the same standards of 1 space per 3, the aquatic center alone would need to have 139 spaces. The 97 + 36 spaces equals 133 spaces around or near this pool facility. The Planning Commission should decide if these 133 spaces, plus the “regular school” parking spaces will be adequate and sufficient to handle the parking needs for this aquatic use if full capacity is ever reached.  Variance Process City Code Section 12-1L-5 governs variance requests. The Planning Commission must consider a number of variables when recommending or deciding on a variance, which generally fall into two categories: (i) practical difficulties; and (ii) impact to the community. The “practical difficulties” test contains three parts: (i) the property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance; (ii) the plight of the property owner is due to circumstances unique to the property, not created by the property owner; and (iii) the variance will not alter the essential character of the neighborhood. Also, economic considerations alone do not constitute practical difficulties. Section 12-1L-5(E)(1) further references other variables the City can consider when granting or denying a variance, noted as follows:  Effect of variance upon health, safety, and welfare of the community.  Existing and anticipated traffic conditions.  Effect on light and air, as well as the danger of fire and the risk to public safety.  Effect on the value of properties in the surrounding area, and upon the Comprehensive Plan.  Granting of the variance is not a convenience to the applicant, but necessary to alleviate a practical difficulty. When considering a variance request, the Planning Commission must determine if these standards have been met in granting a variance, either partially or whole, and provide findings of facts to support such a recommendation to the City Council. If the Planning Commission determines the Applicant has failed to meet these standards, or has not fully demonstrated a reasonableness in the granting of such variance, then findings of fact supporting a recommendation of denial must be determined. As part of any variance request, Applicants are required to prepare and submit their own responses and findings, which for this case are noted below (in italic text): 1. The property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance. Applicant’s Response: The height of the existing Henry Sibley High School is 65’-0” to the top of the existing penthouse. The height of the new gym addition is 50’-5”. The heights of the new front entry addition is 31’-2”. The heights of the new Admin. Addition is 16’-4”, and the Aquatics Addition is 34’-8” in height. (See attached building elevations for context). Staff’s response: The use of the property as a public school is a permitted use in the R-1 District, and its continued use as a high school, even with the additional aquatics center and gym addition remains consistent with the City Code of Ordinances and Comprehensive Plan. The district made it clear that the 2018 building bods would be used to fund and support the development of these new additions and improvements, and provide up-to-date and state of the art athletic facilities for their students, staff and the communities that support this school. These new building additions will be nice improvements to the existing high school facilities, and the fact these additions are still within height limits already established by the school facility today, makes the requested variance for heights justifiable and even reasonable in this case. page 104 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 8 2. The plight of the property owner is due to circumstances unique to the property, not created by the property owner. Applicant’s Response: The granting of this variance is consistent with the current circumstances unique to this existing property. Those current circumstances are that the new additions proposed either match the existing building heights at the entry addition, and the ISD Administration addition, are slightly tallest as is the case of the new gymnasium addition. . Staff’s response: One of the primary reasons for the recent school bond approval, was to provide upgrades and additional space for the students that utilize this high school, and provide an added level of athletic and extra-curricular space for students and visitors. The plight of the landowner and restrictions on building heights is due to circumstances unique to the property, as this school use is not a typical single-family use in the underlying R-1 One Family Residential District. Therefore, granting a variance is warranted. 3. The variance will not alter the essential character of the neighborhood; and economic considerations alone do not constitute practical difficulties. Applicant’s Response: The heights of the proposed HSHS additions area all less than the current height of the existing high school. New addition buildings finishes and colors are similar to those of the existing HSHS. . Staff’s response: The variances, if granted, should not alter the essential character of the neighborhoods, as this high school has been in place and operation for a number of years in the community, and there is a general expectation that any addition of this nature can be considered a reasonable improvement to the overall functionality, benefit and enjoyment of the school, including its students, faculty, and the community. ALTERNATIVES for ACTION 1. Recommend approval of the variance requests, based on the following findings of fact that support the granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the proposed aquatics building to exceed the 25-ft. height limits in the R-1/R-1A One Family Residential District to 35-ft.-8-in., the proposed gymnasium addition to 50-ft.-5-in., and the entryway addition to 31-ft.-2-in. by the following: i.) the proposed structure height increases are considered a reasonable request, based on the overall scope, scale and use of the subject property as a high school campus facility, and fits with the current design and layout of the existing school building on the property; and are considered consistent with the spirit and intent of the City Code and Comprehensive Plan; ii.) The plight of the landowner is due to circumstances unique to the property, as this school use is not a typical single-family use in the underlying R-1 One Family Residential District, and therefore warrants the approval or granting of such variances in this particular case; page 105 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 9 iii.) the excess heights of the new aquatics center, gymnasium addition and entryway addition are all under or equal to what exists today; so there impacts will not be noticeable when compared to other (pre-existing) structures on the campus site; and iv.) The variances, if granted, will not alter the essential character of the neighborhoods; since the school is and has been in place and operation for a number of years in the community, and there is a general accepted expectation that school facility improvements, such as this aquatics center, gym addition and entryway addition, can be considered a reasonable improvement for the overall benefit and enjoyment of the school, its students, faculty, and the community. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variances upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variances will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of these Variances are for ISD-#197 (Henry Sibley High School) only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019- 18, dated and presented June 25, 2019 (and on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-____. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1) The Applicant shall obtain a building permit for all proposed improvements and structures identified herein. 2) The Applicant shall not deviate or increase the heights of structures as approved or presented under this application. Any changes must be reconsidered under a new application before the planning commission and approved by the city council. 3) All grading and construction activity will be in compliance with applicable federal, state, and local regulations and codes, as well as in compliance with the City’s Land Disturbance Guidance Document. 4) “The Applicant shall not schedule or conduct a swim meet or any other spectator event inside the aquatic center at the same time as a varsity football home game.” page 106 Planning Report: Case #2019-18 – Henry Sibley HS-Aquatics-Adddns. Page 10 2. Recommend denial of the Variance request, based on the findings of fact that confirm the Applicant failed to meet the burden(s) of proof or standards in granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not fully met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of these variances for increased height of structures in the R-1/R-1A District. The City finds the proposed additions are not essential to the overall enjoyment and continued use of the property; and there are other alternatives on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). 3. Table the request and direct staff to extend the application review period an additional 60 days, in compliance with MN STAT. 15.99. RECOMMENDATION Staff recommends the Planning Commission give careful consideration of the Variances to be considered for this new aquatics center, gymnasium addition and entryway addition - as requested by the Applicant, and if the Commission wishes to approve the Variances as presented herein and add or modify the conditions as noted herein you may choose Alternative No. 1 noted above. If the Commission wishes to deny the variances as presented, or request more information, you may choose to select either Alternative No. 2 or 3 - noted above as well. MATERIALS INCLUDED FOR REVIEW 1. Aerial site map 2. Planning Application, including Narrative 3. Aquatics Center / Gym Addition Site Plan 4. Elevation Plans (Aquatics Center / Gym Addition / Entryway / Admin. Addition) 5. Floor Plans page 107 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 5 of 28 B) PLANNING CASE #2019-18 INDEPENDENT SCHOOL DISTRICT #197 – HENRY SIBLEY HIGH SCHOOL VARIANCE Community Development Director Tim Benetti explained that this request, from Independent School District #197, was for a number of variances for construction of a new aquatics (pool) center, gymnasium, and entry to the Henry Sibley High School located at 1897 Delaware Avenue. This item was presented under a public hearing and notices were published in the local paper and notices were mailed to everyone within 700 feet of the subject property. Staff received one letter of objection, a copy of which was provided to the commissioners. The Henry Sibley High School facility is located in the R-1/R-1A District and is guided as School/Institutional in the 2030 Comprehensive Plan. It will eventually become a Public-Semi- public site under the proposed 2040 Comprehensive Plan. Public schools are considered a permitted use in the R-1 zones. Background and New Requests In May 2018, the voters approved a $117M bonding bill for the school improvements, including some of the improvements under consideration at this meeting. In October 2018, the school district presented plans to reconstruct the football/track field area, along with other athletic fields in the north campus, which were requested under variances to certain height standards. The City Council approved this request under Resolution 2018-78 and that work is now in progress. The proposed new aquatic center would be 110 feet by 190 feet along the east side of the main school building and would house a new Olympic sized swimming pool with locker/changing rooms and visitor viewing stands. The aquatic center is proposed to be 35 feet 8 inches in height. The proposed new gymnasium addition would be 135 feet by 180 feet along the south side of where the existing gymnasium is located. The projected maximum height of this new gym is 50 feet 5 inches measured at the east and south elevations. They also plan to have a loading/storage area underneath the gym with loading doors facing out towards Delaware Avenue. This proposal included a small extension and addition to the front school entryway with an overall height of 31 feet 2 inches. City Code Section 12-1E-3.D says that any structure or building in the R-1 District must not exceed two stories, or twenty-five feet, in height; thus the need for these variance requests. Flat roof structures are measured at the edges; items such as solar panels or mechanicals are exempt. Lastly, this proposal included a new one-story administration addition to the west side of the school facility, but at 16 feet 4 inches in height it is not included in the structure height variances requested under this application. page 108 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 6 of 28 Parking As indicated in the October 2019 meeting, high schools require one parking space per seven students plus one for three classrooms. Based on the current student and room count, they only need approximately 228 spaces. They currently have 573 parking spaces and plan to install 97 new spaces under the aquatic center. They also plan to restripe the central parking area between the school and the aquatic center, from 50 spaces to 36 spaces. The combined parking would be 133 spaces. Utilizing the same space configuration required for Athletic Fields (1 space for each 3 seats), the aquatic center alone would require 139 spaces. The Planning Commission was tasked with determine if these 133 available spaces, plus the ‘regular school’ parking spaces, would be adequate and sufficient to handle the parking needs of the aquatic center if full capacity is ever reached. Considering this Athletic Field calculation requirement, the October report indicated the new football field would have a seating capacity of 2,000 seats, so 667 spaces were needed; the current number of 573 plus the new spaces under the aquatic center would equate to 670 spaces; meeting the zoning requirement. School representatives have indicated that they would not double-book or schedule same day/night extra-curricular and athletic events; thereby avoiding any possible over-parking of the campus. This was also made as a condition in Resolution 2018-78 “The Applicant shall not hold another event on the site at the same time as a varsity football home game.” Traffic As part of the October 2018 Athletic Field improvement request, the district provided a traffic report from Spack Consulting, which essentially found that the ‘proposed multi-use stadium, and associated football game traffic, does not represent a significant transportation impact to the surrounding roadway system and will not significantly alter traffic flow or parking operations in the surrounding community.’ Variance Considerations Mr. Benetti explained the practical difficulties tests that must be met in order to approve a Variance request:  The property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance.  The plight of the property owner is due to circumstances unique to the property, not created by the property owner.  The variance will not alter the essential character of the neighborhood. Also, economic considerations alone do not constitute practical difficulties. The staff report included responses from the applicant and staff to these tests. Other variables the city can consider when granting or denying a Variance are as follows:  Effect of variance upon health, safety, and welfare of the community page 109 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 7 of 28  Existing and anticipated traffic conditions  Effect on light and air, as well as the danger of fire and the risk to public safety  Effect on the value of properties in the surrounding area, and upon the Comprehensive Plan  Granting of the variance is not a convenience to the applicant, but necessary to alleviate a practical difficulty Staff recommended approval of this application. Chair Magnuson noted that the recommendations for approval or denial, as listed by staff, were in block; not variance by variance. However, they really are considering three difference variance requests; one for the aquatic center, one for the gymnasium, and one for the entryway. Mr. Benetti confirmed and noted that the Commission could either approve all three together under one motion or they could separate them out into three motions. Chair Magnuson stated that she did not understand why the traffic report was included in this application since it is not really dealt with in the recommendations. Mr. Benetti replied that this was provided to address the ‘effect of variance upon health, safety, and welfare of the community’ and ‘existing and anticipated traffic conditions’ as listed under Other Variables. It was m ore for assurance. Commissioner Mazzitello asked for confirmation or clarification on the following three points:  The traffic considerations and the parking requirements were for the site as a whole  The parking requirements for the aquatic center are not limited to what is being added  There is an access point off of the main parking lot into the school where people could use the pedestrian breezeway to get to the aquatic center Mr. Benetti confirmed all three points were true. Commissioner Mazzitello then noted signage on both the gymnasium addition and the aquatic addition. He asked if the approval/denial this evening would predicate the need to apply for a sign permit for the new signage on campus. After brief discussion, it was determined that the current building sign had been approved under a Variance. Commissioner Mazzitello, in an effort to ensure all bases were covered, asked that Condition #1 be amended to read “The Applicant shall obtain a building permit and/or sign permits for all proposed improvements and structures identified herein.” Mr. Benetti agreed. Commissioner Toth, referencing the Friendly Hills Middle School gymnasium addition, noted that at the time Mr. Benetti explained that the height of the new had to be equal with the existing. However, in this application is says that the new gymnasium would exceed the current gym building height by just over five feet. Mr. Benetti replied that this was the way Friendly Hills designed their new addition; however, if they had desired to go higher by 15-20 feet they could have. Commissioner Toth then asked if the solar panels, mechanical, and equipment for the building was included in that five foot additional height. Mr. Benetti was unable to answer as the building height page 110 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 8 of 28 included an upper parapet wall. There is not a parapet wall on the aquatic center so the solar panels will be seen and are not part of the building height variance. Commissioner Noonan noted a discrepancy in the height of the aquatic center; page 7 says 34 feet 8 inches and the drawing on page 5 says 35 feet 8 inches. Mr. Benetti confirmed that the height is 35 feet 8 inches. Commissioner Noonan, referencing the three changes being proposed, asked if a variance was not requested they would be able to do this as a right. Mr. Benetti replied that if they could build in the 25-foot height restriction, then yes they could. Ms. Jennifer Anderson-Tuttle with LSE Architects provided the following clarifications:  The height of the existing building is actually 65 feet  There are parapets within the elevation of the aquatics and those are shown in the walls themselves – the 35 feet 8 inch height includes the parapet  There was a question regarding the functionality and the heights and if it could be accommodated at a lower elevation – the heights that they have proposed have all been driven based on function. In order to achieve the 25 foot clear structural height within the gymnasium that is required for high school basketball, the depth of the structure required, the roof thickness and the parapet that is required – that is why the 35 feet 8 inches. Chair Magnuson asked the question that was included in the letter of opposition – if there was going to be an in-ground pool, why the building had to be 35 feet; why couldn’t it be lower and closer to the 25-foot level. Ms. Anderson-Tuttle replied by referencing the section drawings. The site changes in grade along that edge. On one side they are actually closer to being 20 feet in height; it is the other side that is at 35 feet. They are trying to balance the soils and the structure within that angle. The pool is in-ground and then some of the height is dictated by the functionality – spectator seating, one-meter boards, three-meter board – all having required NCAA clearances. Chair Magnuson opened the public hearing. Ms. Adrienne Meyers, 491 Deer Run Trail, West St. Paul, lives directly across Delaware Avenue from the proposed aquatic center. She was reluctant to comment as she supports an aquatic center for the school, she voted for it, and as a community member she hopes to be able to use it. She would much rather have engaged in the dialogue with the school district about the proposed height variance and the effects on their locality than to hear about it for the first time in a letter from the city a mere 10 days ago. They would have like to share with the district their concerns about the traffic noise bouncing off of a 35-foot wall that is 190 feet long, blocks sunlight to her property, light pollution from signage, and loss of privacy and reached a consensus on some mitigation efforts. That did not happen so here she is – reluctantly. The tests for approving a variance is the practical difficulties test. The district has the burden to establish there are practical difficulties in complying with the 25 foot height restriction. It has not met its burden. First and foremost, the variance would fundamentally alter the essential character of their locality. The proposed 35 foot height of the aquatic center must be considered in the context of its proposed length – more than 190 feet long; and setback – the minimum of 30 feet from the page 111 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 9 of 28 property line. Delaware is a residential street from Cherokee Park to Argenta Trail. Please picture in your mind the tree-lined avenue of established homes, a country club, and parks. By contrast, picture a massive 3.5 story concrete paneled wall looming over Delaware for almost 200 feet, two- thirds the length of a football field. There is no question that the scale of the wall is extensive and would be far out of scale with the other building along Delaware. The districts asks the Commission to only consider only the Sibley Campus as the relevant locality; not the adjacent neighborhood. The district says there are other buildings on the Sibley Campus that exceed the height restriction; however, those buildings are located on the interior of a 67-acre campus hundreds of feet from the property line. Thereby mitigating the effect of the height of those buildings on the locality. Those buildings are buffered by great expanses of hills, earthen berms, landscaping, and trees. There is presently no building on the Sibley Campus of any height near the setback line. On the plans submitted by the district, there is no room for earthen berms and little room for trees or landscaping, all of which surround Sibley on its western and northern borders. The height of the wall would also alter the essential character of their locality by causing a direct and substantial loss of sunlight and a reverberation of traffic noise into the neighborhood. She requested the Commission consider the precedence they would bet setting – to allow buildings built on a setback line to exceed the height restriction by 10 feet. The second factor of the practical difficulties test is reasonableness. The district has not established that its request for the height variance is reasonable. The district has not satisfactorily explained by a building for an underground pool and a 3-meter board needs to exceed 25 feet in height. Third, there are no circumstances unique to the property weighing in favor of the variance. To the contrary, the relatively high elevation of Delaware and the Delaware sites compared to the other elevations on this 67-acre campus, is a unique circumstance that weighs against the requested variance. For these reasons, the district has not met its burden to obtain the variances and she asked the Commission to recommend denial of the request. As she mentioned earlier, they have had little opportunity to talk to the district about the variances and their effects. They would welcome the opportunity to speak with them, whether the variance is approved or not. She spoke with Mr. Mark Fortman, Director of Operations last week in response to an email she sent to Superintendent Peter OlsonSkog. Mr. Fortman asked her to email him their concerns and ideas, which she did last Thursday [June 20]. She has not received a response. So while she believes the district has not met its burden to obtain the variance, if the Commission is inclined to approve it she asked that they table it to next month so they could have a meaningful dialogue with the district. She also asked that they impose conditions on the variance that relate directly to, and are directly proportional to the effects that would be created by a 35-foot high 190-foot long wall: page 112 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 10 of 28  Move the aquatic center further away from Delaware to mitigate the loss of sunlight, allow for earthen berms, trees, and landscaping and provide for sound buffering and visual screening.  Require building materials and design modifications to provide acoustic mitigation from traffic noise echoing off of the wall  Prohibit lights and signage on the wall facing Delaware to enhance the aesthetics of a wall that would be facing a residential neighborhood and prevent light pollution  Prohibit windows on the wall from which spectators or other users brought by the aquatic center to peer down into their yards and windows Mr. Pete McCall, 460 Nature View Court, lives directly across from Sibley High School. He supported what was said by Ms. Meyers. However, he had a few questions also. The traffic study referenced earlier only dealt with traffic from the football stadium and stated that it would not represent a significant transportation impact. He asked if they also included or should they have included, or should the Commission request an updated study to combine the aquatic center together with the multi-use. Commissioner Noonan replied that there is a condition that the stadium use would not be at the same time as the aquatic use. The multi-purpose stadium represents the worst case traffic condition. Mr. McCall asked about the creation of pedestrian crossings. Now there is significantly more traffic with three entry points to the campus off of Delaware. He understood that none of those were being changed. If one were to look at the two entry points to the north, there are no pedestrian crossings lines. This was brought up earlier by residents of his community and they were rejected. He asked the Commission to have a dialogue about this. He is concerned about pedestrian access from their neighborhood to the pathways in Mendota Heights. He asked what considerations have been given to help pedestrians. The third point he wished to make was the public use of the pool. It was represented by the school district that – and he wanted assurances that the availability of the pool would be open to the public at certain hours of the week. He would like to have a condition put on that would mandate public use at some reasonable hours and times. Chair Magnuson, with respect to the crosswalks, she has been informed that Delaware is a State Aid Highway; therefore, the city has no jurisdiction. They can ask the county to consider some pedestrian crosswalks but they cannot mandate it or impose it as a condition. If they request was in conjunction with the school district request it might have more impact. Mr. John Meyers, 491 Deer Run Trail, West St. Paul, is proud Henry Sibley High School graduate. He too voted for the bonding bill and supports a new pool. He was on the pool committee where they discussed this three times approximately eight months ago. The pool they discussed in those meetings sort of resembles this pool; however, many changes have been incorporated. Specifically, where the pool is located. He provided hand-outs for the Commission and shared them on the screen. He stated that the location for the pool addition, as it is called on the map created by the district, is what the page 113 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 11 of 28 stakeholders of ISD 197 voted for. An addition adjacent to the existing gym, with plenty of green space buffering the building from Delaware Avenue. An addition rising from the elevation of the existing building and grounds parking lot – not from the elevation of Delaware Avenue. Referring to Planning Report 2019-18 sent out by Mr. Benetti, specifically the applicant’s response to the third practical difficulties test that reads “The heights of the proposed HSHS additions are all less than the current height of the existing high school. New addition buildings finishes and colors are similar to those of the existing HSHS.” He believes this is comparing apples to oranges. There is a building in the center of practically 70 acres of land and now they are talking about a new building that is set 30 feet or 10 yards from Delaware Avenue. This does not make sense to him. Sibley does not have a single structure, not a dugout, not a shed, anywhere near this close to any roads surrounding the property. And now they are talking about putting this massive structure right there. Sibley proposes pushing a 36-foot high 190-foot long structure as close to Delaware as possible; and they equate that to the school which is 100 yards away from Delaware Avenue. He asked the Commissioners to consider if a 36-foot high 190-foot long structure directly across the street from their home would alter the essential character of their neighborhood. None of the residents living along Delaware Avenue have any structures – or even fences – as close to the road as the school is proposing. In fact, as you drive closer to Sibley the homes are sit so far back into the woods they cannot be seen. So this is really not in keeping with the character of any neighborhood on Delaware Avenue, let alone the one right across the street. He also asked the Commission to consider the traffic noise that would bounce off of that wall. The increase in noise and traffic, unlike the noise from the football stadium, would be constant and would clearly change the character of the neighborhood. He suggested that the pool be pushed back away from Delaware Avenue and towards the school another 10 yards it would allow for noise reducing berms and foliage. Having the aquatic center moved closer to the school and built into the berm that is already there – it would be a good thing because that is what the pool committee agreed to months ago and this is what people voted on. He requested the Commission also keep in mind the 2040 Comprehensive Plan, which states “protect the quiet secluded feel of the city’s neighborhoods,” and vote to deny this request. Commissioner Katz asked for clarification that Mr. Meyers was really requesting that the building be moved back 10 yards. Mr. Meyers replied that he was not asking that it be put way down on the far corner by Warrior Drive. He is just requesting that the district work with the community and help them out a little bit. Commissioner Katz asked if that was in the email sent to the district that has not been responded to yet; as mentioned by Ms. Adrienne Meyers earlier. Mr. Meyers replied in the affirmative. Mr. Pat O’Reilly, 467 Deer Run Trail, West St. Paul, asked if there was anything wrong with having the pool where it was originally planned at the height it was originally planned. If it was page 114 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 12 of 28 built as originally indicated, the people living on Deer Run Trail would probably not see it. If it is built where the plans now indicate, everyone will see it coming and going from Deer Run Trail. He also supported the bonding bill and supports the school. He just wanted to know why it cannot be built the way it was originally supposed to be. Mr. Daniel Tkach, 492 Deer Run Trail, supported the comments made by Mr. and Mrs. Meyers as the points they brought out were very important. He added that the solar panels planned for the aquatic center would really stand out and look very commercial and he would agree with the aesthetic concerns of that. His other point, and what brought him to the area, was the really nice parcels of land and are set back from the road. Having this building so close would certainly detract from the community feel of the neighborhood. Chair Magnuson invited Ms. Jennifer Anderson-Tuttle with LSE Architects to return and address some of the concerns raised. She also asked Ms. Anderson-Tuttle to explain why the location of the aquatic center had changed. Ms. Anderson-Tuttle replied that the diagram shown earlier was done approximately two years ago and was prior to them having a survey or design of the space. It was really a graphic representation. It did not have the full build-out of square footage determined and they hadn’t yet run the models for how that existing loading dock would operate. One of the criteria that has been used to locate the addition was maintaining that existing loading dock access. She also stated that the current location is really not that much different than the original. Right now they are showing a 30-foot setback from the property line; in addition to that there is an approximate 20-foot distance from the property line to the curb edge – so it is approximately 50 feet to the curb, which they feel is more than an adequate amount of green space to include some additional berming and landscaping. The district has spoken with some of the residents who have spoken about willingness to work with them to develop a denser landscaping plan that would address some of the cosmetic, scale, and acoustic issues that they have suggested. Commissioner Noonan stated that this would have been a useful document to have because it is obviously a major concern of the neighbors. For the Commission to address their concerns they are not really seeing the full picture based upon what she said. It would have been nice to have the full package brought to them. Commissioner Corbett asked for more detail about how the loading dock is inoperable. He could not understand why the aquatic center could not abut the existing gymnasium and eliminate the walkway up the side and switch the parking lot. He could not see how that would prohibit any usage in the dock. Mr. Mark Fortman, Director of Operations replied that early on that was looked at in the design process but there are some utilities that come into the building there (fiber optics and allocation) and there is not quite enough space with where the bus drop off is to get to where the hill drops off – they would end up with a gigantic retaining wall. It was decided to re-site the page 115 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 13 of 28 aquatic center due to cost considerations. Also, that is the central district receiving for the entire district – food comes in and out of there – and they need that turn space for the semi-trucks. Mr. Fortman also stated that he had a real nice conversation with some of the people, one of them being here tonight and had some comments, the district has always intended to be good neighbors at all of their sites in all of the cities they are in. They would continue to work with residents to be good neighbors. Commissioner Noonan asked what the timing was for the undertaking of these projects. Ms. Anderson-Tuttle replied that right now they are working on finalizing a shell packet, which his intended to go out within the next week or so for the pre-cast panels. Construction would start in September 2019. Commissioner Noonan asked for confirmation that when they were considering the football stadium there were neighborhoods meetings. Mr. Fortman confirmed. Commissioner Noonan referenced the suggestion to table this application for one month to allow face-to-face discussions between the district and the neighbors and asked if that would be fatal to their schedule. Ms. Anderson-Tuttle replied that it would not be as fatal as a denial of the request. Commissioner Toth asked what the other options were for putting the aquatic center somewhere else. Ms. Anderson-Tuttle replied that they looked at a number of locations; some of the drivers of this particular location were existing parking being able to support to that space, secured access for entrance into the site, also trying to create some separation between community access and use and the security of the students within the building by not sharing access points, maintaining all existing athletic fields as they are in high demand, and utility locations. All of the other locations reviewed were in this same general area; it was a matter of where it landed within this side of the building. It was really because of the grade changes and a desire to have the access not conflict bus traffic and drop off and that service drive. Commissioner Petschel asked why it could not be part of the new addition to the gym. Mr. Fortman replied that area on the south side is used as hockey training and football training; accessibility from people’s parking – it’s a parking access thing. Commissioner Petschel, in reference to the loading dock, asked if there was another loading dock over by where the new level two additions are. Mr. Fortman replied that there is only one loading dock at Sibley. Commissioner Toth asked for clarification that the far east side of the aquatic center would be located approximately 50 feet off of the curb line; 30 feet from the property line. Looking at the distance between the aquatic center and the loading dock, there is approximately a distance of 140 feet – he asked if there was a way to squeeze additional footage to move the aquatic center closer to the loading dock. Mr. Fortman did not know the turning radius exactly. As far as the berm, which is not part of the design currently, that is what he offered to work with the residents, the civil engineer, and the architect. page 116 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 14 of 28 Commissioner Katz brought up the concern raised by a resident that the windows of the aquatic center would be allowing people in the aquatic center to looking down into residents’ yards or homes and asked if there were alternatives. Mr. Fortman replied that the bleacher seating is on the opposite side of the building and they would not be able to look down out of any of the windows; all of the windows are higher than what seating would be at. There is no possibility to look down. They are only to let in natural light. In talks with some residents they understood that they did not want a blank wall, they wanted some windows or something to break the line of the wall. Also, the wall will have some patterning to it so it would not be a plain wall; there would be some scale and relief and design into the wall itself. Discussions also included the fact that placing the aquatic center in this location would screen the view of the loading dock. Commissioner Toth asked for confirmation that the windows would be on the Delaware side of the building; so if he lived on Deer Run Trail and it is 10:00 p.m., how are they going to mitigate light and glare coming from those windows. Mr. Fortman replied that, as they are doing in all of their parking lots in the district, they are switching over to LED lighting. As they have talked about with the multi-purpose athletic field, they are required to have zero foot-candles at the property line. In their buildings they will have LED lighting that are hung. Currently, at night they run with dark lights inside and motion sensors that come on when coming through the entry points – only emergency lights. He did not foresee them having a lot of activities late at night unless they have something like a community swim night or something along those lines. Also, they would not light purposefully away from the pool, the pool wants to be lit down. Ms. Anderson-Tuttle also noted that landscaping and trees would be a great filter for any lighting from those windows as well. Chair Magnuson asked if they would be willing to work with the neighbors in developing their landscaping plan so that they have some input into the size of the berm and the types of plantings that would go in there. Mr. Fortman replied that they would welcome discussions and working with the neighbors. Commissioner Katz wondered if they had actually spoken with anyone from the Police Department about their suggestions or patterns that they have noticed. He has been to several Neighborhood Watch meetings and have talked to police officers who do patrol the city at night and they have brought up the activity that occurs at Sibley at night and what transpires in the parking lot. Mr. Fortman replied that they speak with Officer Mario Reyes, former detective of Mendota Heights, as their hired safety consultant. He is involved in their crisis planning during every step of the planning process. They also have Mr. Steve Meyers from the Mendota Heights Police Department as part of their district crisis team. Commissioner Noonan asked how available would the aquatic center be for the community. Mr. Fortman replied that their intent would be to have this as a community building; so much so that they are going to house the Community Ed Department in that building so they can operate their programming for the community during the day and be able to manage what is happening in there. Currently, with the Heritage School Facility, where they do not have any ability to control that during the daytime, the community uses are limited after-school or before-school. This way they could enhance that activity or enhance that access. page 117 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 15 of 28 Commissioner Corbett asked if there was any way to recess the building or the pool more by making the pool lower by 10 feet and then lowering the roof line by 10 feet; or if they have considered having a sloped roof. Mr. Fortman replied that the building is back into the hill to the high point is at the southwest corner of the building; so it is closer to 25 feet on the northeast corner of the building. Ms. Anderson-Tuttle noted that a few other things that has been challenging with setting that elevation has been accessibility and balancing soils. Trying to move dirt from the north end to the south end to try to keep it balanced so the district is not exporting a lot of additional soils. It would be cost prohibitive. Pointing to the elevation site plan. Ms. Anderson-Tuttle explained that on the one edge the height is closer to 20 feet because of the grades; it slopes. However, there is not any reason why, within that 50 foot setback, they couldn’t screen some additional building edge with both berms and landscaping. Mr. Fortman also pointed out the screening on the top of the building for the mechanical equipment. Commissioner Mazzitello pointed out that this has been a lot to digest and they have spoken a little bit about their schedule. He believed it to be critical that this Commission see a landscape plan for the area between the aquatic center and Delaware Avenue, after meeting with area residents and coming up with a proposed plan that they can live with. He would even be willing to hold a special meeting rather than waiting until next month. He asked if they would be willing to bring that back to the Commission as a way of communicating with the neighbors to address their concerns, including a description of the acoustic buffering on the outside of the building. This would enable them to speak with residents and still be on course with the start of construction in September 2019. Mr. Fortman replied that he would be willing. Ms. Anderson-Tuttle asked if the Commission would consider recommending approval pending the negotiations to take place on the landscaping design; just to keep this moving forward to the Council meeting next week and having a landscape plan for City Council. Commissioner Petschel noted that they Commission could recommend denial and they could still go to the City Council meeting next week with their landscape plan. The only difference is if the Council votes to deny, they would have to wait a year before they could apply again. Commissioner Corbett asked if both Ms. Anderson-Tuttle and Mr. Fortman were on the pool committee; which they replied that they both were and attended every meeting. They denied agreeing with the comments made that the plans had changed since that time. If they put the diagram up next to the plan they would see that it is located in the same spot. While they would be willing to send out an informational packet to all of the 200+ residents who have had input on the planning, although as they have seen the hardship for the district is some of the existing conditions, the height, that is required for the function of the space, which they inherit being an educational facility and height requirements for diving that are such as they are. So short of changing the design, which is not part of the variance application, they would like to work on things like the landscaping, the buffering, sharing some of those exterior materials and do that while they move forward, if possible. page 118 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 16 of 28 Commissioner Petschel noted that they would encounter significant additional costs if they did a re-site or redesign. Ms. Anderson-Tuttle absolutely agreed. Mr. Benetti interjected, looking at calendars, noted that if the Commissioner were to consider a special meeting the week of July 8 – the next Council meeting would be July 16. Theoretically, if they held a special meeting on July 8, 9, 10, or 11 they could probably easily turn that around and provide that recommendation back to the City Council on July 16. Commissioner Mazzitello asked if that would give them enough time to meet with the residents and decide on a landscaping plan for the outside of this structure. Ms. Joann Mansur, 1700 Lilac Lane, is the chair of the school board and stated that the district really has in good faith worked with the neighbors to the north with regards to the stadium. She wanted to assure the Commission that is absolutely something they would do and would have done it prior to this conversation anyway. She has had communication with residents on Delaware who have requested trees and buffering and believes that is something the district should do. She believes the building is going to be beautiful and not look like a huge industrial anything. They will do whatever they can from a landscaping plan to ensure that the residents and the Council feel comfortable. Commissioner Noonan stated that the direction is for Ms. Anderson-Tuttle and Mr. Fortman to continue to engage with the neighbors and bring a landscaping, screening, and buffering plan, along with exterior materials and texturing for sound abatement purposes for their examination at their meeting yet to be scheduled during the week of July 8, 2019. Ms. Anderson-Tuttle asked if they would be willing to approve the variance requests for the gymnasium and the entryway and only table the aquatic center portion of the application. The Commission was willing. COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER KATZ, TO CLOSE THE PUBLIC HEARING ON THE GYMNASIUM AND ENTRYWAY PORTIONS OF PLANNING CASE 2019-18. Ayes: 7 Nays: 0 COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER NOONAN, TO RECOMMEND APPROVAL OF THE REQUESTED VARIANCES FOR THE GYMNASIUM HEIGHT AND THE ENTRYWAY HEIGHT AT HENRY SIBLEY HIGH SCHOOL AS PART OF PLANNING CASE 2019-18 BASED ON THE FOLLOWING FINDINGS OF FACT, REMOVING ANY REFERENCE TO THE AQUATIC CENTER AND ADDING TO CONDITION F1: The Applicant shall obtain a building and sign permit for all proposed improvements and structures identified herein. A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical page 119 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 17 of 28 difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the proposed aquatics building to exceed the 25-ft. height limits in the R-1/R-1A One Family Residential District to 35-ft.-8-in., the proposed gymnasium addition to 50-ft.-5-in., and the entryway addition to 31-ft.-2-in. by the following: i. the proposed structure height increases are considered a reasonable request, based on the overall scope, scale and use of the subject property as a high school campus facility, and fits with the current design and layout of the existing school building on the property; and are considered consistent with the spirit and intent of the City Code and Comprehensive Plan; ii. The plight of the landowner is due to circumstances unique to the property, as this school use is not a typical single-family use in the underlying R-1 One Family Residential District, and therefore warrants the approval or granting of such variances in this particular case; iii. the excess heights of the new aquatics center, gymnasium addition and entryway addition are all under or equal to what exists today; so there impacts will not be noticeable when compared to other (pre-existing) structures on the campus site; and iv. The variances, if granted, will not alter the essential character of the neighborhoods; since the school is and has been in place and operation for a number of years in the community, and there is a general accepted expectation that school facility improvements, such as this aquatics center, gym addition and entryway addition, can be considered a reasonable improvement for the overall benefit and enjoyment of the school, its students, faculty, and the community. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variances upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variances will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of these Variances are for ISD-#197 (Henry Sibley High School) only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019-18, dated and presented June 25, 2019 (and on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-____. F. The City has the authority to place reasonable conditions upon the property subject to this Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. page 120 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 18 of 28 CONDITIONS RELATED TO THIS TRANSACTION ARE AS FOLLOWS: 1. The Applicant shall obtain a building and sign permit for all proposed improvements and structures identified herein. 2. The Applicant shall not deviate or increase the heights of structures as approved or presented under this application. Any changes must be reconsidered under a new application before the planning commission and approved by the city council. 3. All grading and construction activity will be in compliance with applicable federal, state, and local regulations and codes, as well as in compliance with the City’s Land Disturbance Guidance Document. 4. “The Applicant shall not schedule or conduct a swim meet or any other spectator event inside the aquatic center at the same time as a varsity football home game.” CHAIR MAGNUSON MADE A FRIENDLY AMENDMENT BY STRIKING THE AQUATIC CENTER PORTIONS OF THE FINDINGS OF FACT AND CONDITIONS (as stricken by the transcriber). THIS WAS APPROVED BY THE MOTION MAKER AND THE SECOND. AYES: 7 NAYS: 0 Chair Magnuson advised the City Council would consider this application at its July 2, 2019 meeting. The public hearing for the Aquatic Center has not been closed. COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER MAZZITELLO, TO TABLE THE AQUATIC CENTER PORTION OF PLANNING CASE 2019-18 VARIANCE TO EXCEED MAXIMUM HEIGHT OF A STRUCTURE IN THE R-1 ONE FAMILY RESIDENCE DISTRICT UNTIL THE MEETING YET TO BE SCHEDULED DURING THE WEEK OF JULY 8, 2019; THE PURPOSE OF WHICH IS FOR THE SCHOOL DISTRICT TO MEET WITH AREA RESIDENTS AND DEVELOP A LANDSCAPING AND SCREENING PLAN FOR THE EAST SIDE OF THE AQUATICS CENTER, AS WELL AS TO BRING BACK DETAILS ON THE EXTERIOR MATERIALS FOR MITIGATION OF NOISE Ayes: 7 Nays: 0 page 121 Request for City Council Action MEETING DATE: July 16, 2019 TO: Mayor Garlock and City Council, City Administrator McNeill FROM: Tim Benetti, Community Development Director SUBJECT: Resolution 2019-46 to either Deny [or Approve] a Variance for property located at 1562 Wachtler Avenue (Planning Case No. 2019-14) Introduction City Council is asked to consider adopting one of two draft resolutions contained in this packet. One affirms the Planning Commission’s recommendation to deny a variance request for the property located at 1562 Wachtler Avenue, while the other approves the variance with amended findings supporting said approval. Background The subject property is owned by Mr. Jim Carlson, and consists of 1.77 acres (total) of land area, with a 5,345 sq. ft. single-family residential dwelling. The owner is seeking to build a new 29’ x 34’ detached garage in the rear yard area, and needs a variance to required side-yard setbacks for a new driveway extension to the garage. City Code requires all driveways or parking areas in residential zones to be 5-feet from side lot lines. Mr. Carlson is proposing to install an 11’-3” wide driveway (near the closest corner of the current attached garage), leaving a setback of 2.5 feet. The variance would allow for this reduced setback on the driveway. At the May 28, 2019 Planning Commission meeting, the variance item was presented for consideration under a public hearing; and after public comments and discussion with staff, the commission elected to table the matter to the next meeting, and directed staff to work with the homeowner and determined if there are any alternatives to reducing or eliminating the variance. A copy of the 05/28/19 Planning Staff Report and meeting minutes are all appended to this council memo report. At the June 25th follow-up meeting, staff reported they inspected the site closer; explored and investigated other options, such as relocating the garage to the south; wrapping a driveway all around the back/rear yard; installing a pass-through door on the back-side of the attached 3rd stall; and other suggestions. Staff reported the most feasible option for providing a driveway to a new garage in this back-yard should come from the north side of the home/garage areas, as requested by Mr. Carlson on his plans. Staff further stated we will work with Mr. Carlson to ensure stormwater drainage is properly mitigated, and reduce any visual impacts to neighboring properties. Discussion The City can use its quasi-judicial authority when considering action on certain land use or zoning decisions, such as this variance, and has broad discretion. A determination regarding whether or not the request meets the applicable code standards is required. page 122 Recommendation After re-opening the public hearing, and upon considerable discussion with staff, the applicant, and taking additional public comments, the Planning Commission chose to recommend denial (by 6-1 vote) of the variance request from Mr. Carlson and the property located at 1562 Wachtler Avenue, based on the findings of facts as noted in the draft resolution of denial included in this memo packet. Action Required If the City Council wishes to affirm this recommendation of denial, make a motion to adopt RESOLUTION NO. 2019-46 DENYING A VARIANCE FOR THE PROPERTY LOCATED AT 1562 WACHTLER AVENUE; or If the Council wishes to reverse this recommendation, make a motion to adopt alternative RESOLUTION NO. 2019-46 APPROVING THE VARIANCE FOR THE PROPERTY LOCATED AT 1562 WACHTLER AVENUE, based on the amended findings of fact supporting such approval, as noted therein. Either action to approve one of the two resolutions requires a simple majority vote. page 123 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2019-46 RESOLUTION APPROVING A VARIANCE FOR REDUCED DRIVEWAY SETBACKS AT 1562 WACHTLER AVENUE (PLANNING CASE NO. 2019-14) WHEREAS, under Planning Case No. 2019-14, Mr. Jim Carlson (the “Owner/Applicant”) applied for a variance for reduced driveway setbacks on the property located at 1562 Wachtler Avenue, (the “Subject Property”), and legally described on attached Exhibit A; and WHEREAS, the Subject Property is guided LR-Low Density Residential in the 2030 Comprehensive Plan and is located in the R-1 One Family Residential District; and WHEREAS, the Applicant is seeking a variance to install a new driveway that would encroach 2.5 ft. into the required 5-ft. setback standard for driveways from side-yard property lines, and WHEREAS, Title 12-1L-5 of the City Code (Variances) allows for the Council to grant variances or certain modifications from the strict application of the provisions of the City Code, and impose conditions and safeguards with variances if so needed or granted: and WHEREAS, on May 28, 2019, the Mendota Heights Planning Commission held a public hearing on this matter, and whereupon comments from the public and discussion with the Applicant, the commission elected to table the item to the next meeting; and WHEREAS, on June 25, 2019, the Planning Commission re-opened the public hearing, allowed for additional comments from the public and applicant, closed the hearing, and whereupon concluding their discussion on this item, the planning commission elected to recommend denial of the Variance (on 6-1 vote), with certain findings of fact to support such denial. NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the recommendation from the Planning Commission is hereby reversed, and the Variance application as proposed under Planning Case No. 2019-14 is hereby approved, with the following findings of fact: page 124 A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three-part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the driveway to encroach up to 3.5 feet into the side yard, leaving a 2.5 foot setback from the side lot line, by the following: i.) the proposed driveway encroachment is a reasonable request on the subject property, due to the need to provide a suitable and less intrusive driveway for the proposed (and permitted) detached garage structure in the rear-yard; ii.) the location of the home as it sits today was developed and built by others, thus making a somewhat unique situation for the homeowner he did not create. This situation therefore provides a unique circumstance for supporting or allowing the granting of variance on the reduced driveway setbacks; and iii.) approving the proposed driveway, with a reduced setback under this variance request, does not change or alter the essential character of the neighborhood. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variance upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variance will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of this Variance is for 1562 Wachtler Avenue only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019-14, dated and presented May 28, 2019 (on file with the City of Mendota Heights), is hereby fully incorporated into this Resolution No. 2019-46. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly page 125 proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1. A driveway permit shall be obtained prior to any installation or construction of the new driveway or parking pad area. 2. The proposed encroachment for the driveway shall not extend closer than 2.5-feet from the side lot line. 3. The Applicant shall provide permeable pavers (or similar drainable features) for the driveway surface area located along the existing attached garage structure. 4. The Applicant shall provide additional vegetative screening along the reduced setback area to screen the driveway from neighboring properties. 5. Any new grading and construction activity will be in compliance with applicable federal, state, and local regulations; as well as in compliance with the City’s Land Disturbance Guidance Document. BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Variance application for the property located at 1562 Wachtler Avenue, as proposed under Planning Case No. 2019-14, is hereby approved. Adopted by the City Council of the City of Mendota Heights this 2nd day of July, 2019. CITY COUNCIL CITY OF MENDOTA HEIGHTS ________________________________ Neil Garlock, Mayor ATTEST: ________________________________ Lorri Smith, City Clerk Drafted by: City of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 page 126 Exhibit A PROPERTY ADDRESS: 1562 Wachtler Avenue Mendota Heights, Minnesota 55118 PID No. 27-03800-32-010 LEGAL DESCRIPTION: Lot 32, Auditor’s Subdivision No. 3, Mendota, Minnesota page 127 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2019-46 RESOLUTION DENYING A VARIANCE FOR REDUCED DRIVEWAY SETBACKS AT 1562 WACHTLER AVENUE (PLANNING CASE NO. 2019-14) WHEREAS, under Planning Case No. 2019-14, Mr. Jim Carlson (the “Owner/Applicant”) applied for a variance for reduced driveway setbacks on the property located at 1562 Wachtler Avenue, (the “Subject Property”), and legally described on attached Exhibit A; and WHEREAS, the Subject Property is guided LR-Low Density Residential in the 2030 Comprehensive Plan and is located in the R-1 One Family Residential District; and WHEREAS, the Applicant is seeking a variance to install a new driveway that would encroach 2.5 ft. into the required 5-ft. setback standard for driveways from side-yard property lines, and WHEREAS, Title 12-1L-5 of the City Code (Variances) allows for the Council to grant variances or certain modifications from the strict application of the provisions of the City Code, and impose conditions and safeguards with variances if so needed or granted: and WHEREAS, on May 28, 2019, the Mendota Heights Planning Commission held a public hearing on this matter, and whereupon comments from the public and discussion with the Applicant, the commission elected to table the item to the next meeting; and WHEREAS, on June 25, 2019, the Planning Commission re-opened the public hearing, allowed for additional comments from the public and applicant, closed the hearing, and whereupon concluding their discussion on this item, the planning commission elected to recommend denial of the Variance (on 6-1 vote), with certain findings of fact to support such denial. NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the recommendation from the Planning Commission is hereby affirmed, and the Variance application as proposed under Planning Case No. 2019-14 is hereby denied, with the following findings of fact: page 128 A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three-part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a variance for a reduced driveway setback. The proposed driveway is not essential to the overall enjoyment and continued use of the property; and there are other alternatives or locations for placing the driveway on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Variance application for the property located at 1562 Wachtler Avenue, as proposed under Planning Case No. 2019-14, is hereby denied. Adopted by the City Council of the City of Mendota Heights this 2nd day of July, 2019. CITY COUNCIL CITY OF MENDOTA HEIGHTS ________________________________ Neil Garlock, Mayor ATTEST: ________________________________ Lorri Smith, City Clerk Drafted by: City of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 page 129 Exhibit A PROPERTY ADDRESS: 1562 Wachtler Avenue Mendota Heights, Minnesota 55118 PID No. 27-03800-32-010 LEGAL DESCRIPTION: Lot 32, Auditor’s Subdivision No. 3, Mendota, Minnesota page 130 Planning Staff Report (Supplemental) MEETING DATE: June 25, 2019 TO: Planning Commission FROM: Tim Benetti, Community Development Director SUBJECT: Planning Case 2019-14 VARIANCE APPLICANT: Jim Carlson PROPERTY ADDRESS: 1562 Wachtler Avenue ZONING/GUIDED: R-1 One-Family Residential/LR Low Density Residential ACTION DEADLINE: June 29, 2019 (extended to August 29, 2019) INTRODUCTION This variance application item appeared before the Planning Commission at the May 28, 2019 regular meeting. The Applicant is seeking a variance to setbacks for a driveway along his side-yard, which would eventually lead back to a new 29’ x 34’ detached garage in the rear yard. The original May 28th Planning Staff Report is attached again for reference. This item was presented under a fully noticed public hearing at the May 28th meeting, and after comments from the Applicant and neighboring owners, the Commission tabled the matter to this June 25th meeting. The Commissioners stated the reasons for tabling included the following:  There have been questions asked and answers not given;  Discuss the possibility of building on the other side of the house;  There is anecdotal information provided without any materials to show what the elevation is, etc.;  There are questions with respect to what is the appearance of the garage going to be like; this is important given that one of the tests the Commission has to find is that it would not alter the essential character of the neighborhood: o An ugly building would fundamentally alter the character of the neighborhood; and o Vegetation could be stripped away and it would fundamentally alter the character of the neighborhood. INFORMATION City staff (public works director and community development director) visited the site after the last meeting, and later met with the applicant to discuss options. 1) Staff has determined that a small, block retaining wall – built up to or near the side property line along the length of the attached garage, is feasible and possible. By providing this new wall, the applicant has stated he will keep the concrete “walkway” surface intact, and provide permeable pavers with crushed rock layers between, in order to maintain or provide positive drainage between the properties. (see photo below): page 131 Planning Case 2019-14 (J. Carlson) Supplemental Report Page 2 of 4 Once the driveway clears the back side of the garage, the applicant will continue with permeable pavers or hard surfaced driveway to the new garage structure in the back corner. 2) Staff agreed the grades on the opposite side of the house (west and south side of home) are too severe and would require a lot of fill material to be brought in to provide a suitable, buildable structure, and would definitely alter the look and feel of the natural grades in these areas. Wrapping a driveway from the front of the home and all the way around the back of the home (traversing steep slopes along the way) would be excessive and would again likely alter the natural character and environment of the back yard space. 3) Mr. Carlson was also asked if he could make an opening in the rear of his 3rd stall garage (as indicated in the image-below), which would lead to a drive-through garage and access to the back detached garage. This idea was rejected by Mr. Carlson as he feels this would drastically alter the architecture and character of the existing home; and is too prohibitive (in costs and design) – as the driveway leading out from the back of the garage would destroy the stand of mature trees and gardens he has located directly behind the attached garage area. 4) There were a number of comments related to the design or aesthetics of the proposed detached garage. In fact, it was stated: “There are questions with respect to what is the appearance of the garage going to be like; this is important given that one of the tests the Commission has to find is that it would not alter the essential character of the neighborhood.” As was pointed out in the May 28th report, the new 928 sq. ft. detached garage proposed by Mr. Carlson is a permitted use by right, page 132 Planning Case 2019-14 (J. Carlson) Supplemental Report Page 3 of 4 since his property is more than 1.5 and less than 2.5 acres; and City Code allows owners an additional detached garage up to 1,000 sq. ft.in size. Per City Code Sect. 12-1D-3 C.1.(5): Detached private garages must be architecturally compatible with the principal structure, including exterior design, materials and colors. Most of Mr. Carlson’s home is constructed of very nice earth-tone bricks and a small rear addition with earth tone stucco. Mr. Carlson has stated he will construct the new garage with matching colors (and tones) as the existing home, but in materials more suited for a garage, such as double-lap vinyl siding and matching shingles. As long as the new garage meets the spirit and intent of this Ordinance provision, there should be no reason to believe this structure would “alter the essential character of the neighborhood.” STAFF RECOMMENDATION Staff concedes that if not for the new garage, the driveway would not be needed, and therefore no variance to consider. The fact remains however, the driveway and its reduced setbacks are the only issues that should be given attention in this variance review. The commission must determine if the reduced setback of the driveway is reasonable; the need for the variance is due to circumstances unique to the property; and if the driveway does or does not alter the essential character of the neighborhood. If the Commission feels that one or more of these variance test parameters have been met, including economic considerations alone do not constitute practical difficulty, then the Commission may elect to recommend approval of the variance as presented, based on the following findings of facts (with conditions of approval noted therein): A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the driveway to encroach up to 3.5 feet into the side yard, leaving a 2.5 foot setback from the side lot line, by the following: i.) the proposed driveway encroachment is a reasonable request on the subject property, due to the need to provide a suitable and less intrusive driveway for the proposed (and permitted) detached garage structure in the rear-yard; ii.) the location of the home as it sits today was developed and built by others, thus making a somewhat unique situation for the homeowner he did not create. This situation therefore provides a unique circumstance for supporting or allowing the granting of variance on the reduced driveway setbacks; and iii.) approving the proposed driveway, with a reduced setback under this variance request, does not change or alter the essential character of the neighborhood. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variance upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variance will not affect or pose any negative impacts upon the neighborhood or the community in general. page 133 Planning Case 2019-14 (J. Carlson) Supplemental Report Page 4 of 4 D. Approval of this Variance is for 1562 Wachtler Avenue only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019- 14, dated and presented May 28, 2019 (on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-____. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1. A driveway permit shall be obtained prior to any installation or construction of the new driveway or parking pad area. 2. The proposed encroachment for the driveway shall not extend closer than 2.5-feet from the side lot line. 3. The Applicant shall provide permeable pavers (or similar drainable features) for the driveway surface area located along the existing attached garage structure. 4. The Applicant shall provide additional vegetative screening along the reduced setback area to screen the driveway from neighboring properties. 5. Any new grading and construction activity will be in compliance with applicable federal, state, and local regulations; as well as in compliance with the City’s Land Disturbance Guidance Document. If the Commission feels this variance has not met the practical difficulties tests, then the commission may elect to recommend denial of the Variance request, based on the findings of fact that confirm the Applicant failed to meet the burden(s) of proof or standards in granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a variance for a reduced driveway setback. The proposed driveway is not essential to the overall enjoyment and continued use of the property; and there are other alternatives or locations for placing the driveway on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). page 134 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 19 of 28 C) PLANNING CASE #2019-14 JIM CARLSON, 1562 WACHTLER AVENUE VARIANCE Community Development Director Tim Benetti explained reminded the Commission that this item was tabled at the Commissions meeting on May 28, 2019. This involves a variance to allow a reduced setback for a proposed driveway for the property located at 1562 Wachtler Avenue. Mr. Benetti provided a brief background on the application as was heard at the May 28, 2019 regular meeting of the Planning Commission. This item was presented under a fully noticed public hearing at that time, and after hearing comments from the Applicant and neighboring owners, the Commission tabled the matter. The reasons for tabling included:  There were questions asked and answers not given  Discuss the possibility of building on the other side of the house  There is anecdotal information provided without any materials to show what the elevation is, etc.  There are questions with respect to what is the appearance of the garage was going to be like; this is important given that one of the tests the Commission has to find is that it would not alter the essential character of the neighborhood o An ugly building would fundamentally alter the character of the neighborhood o Vegetation could be stripped away and it would fundamentally alter the character of the neighborhood Public Works Director Ryan Ruzek and Community Development Director Tim Benetti visited the site since the last Commission meeting and later met with the applicant to discuss options. Staff determined that a small, block retaining wall – built up to or near the side property line along the length of the attached garage, is feasible and possible. This new wall would help retain and provide a suitable drive surface, also utilizing part of the concrete walkway and permeable pavers. Staff suggested and would like to see permeable pavers and crushed rock with a perforated drain tile system underneath so that any stormwater that would hit that driveway would not wash off but penetrate in and carried out. Staff also looked at the grades on the opposite side of the house and determined that they are too severe and would require a lot of fill material to be brought in to provide a suitable, buildable structure and would definitely alter the look and feel of the natural grades in these areas. As was suggested at the last Commission meeting, they looked at creating an opening in the rear of the third stall garage, which would lead to a drive-through garage and provide access to the back detached garage. The applicant rejected this idea as he felt it would drastically alter the architecture and character of the existing home. It would also be prohibitive in costs and design as the driveway leading out from the back of the garage would destroy the stand of mature trees and gardens located directly behind. page 135 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 20 of 28 As for the appearance of the new garage structure, the 928 square foot detached garage proposed is a permitted use by right since the property is more than 1.5 and less than 2.5 acres in size and the City Code allows an additional detached garage up to 1,000 square feet in size. Also, City Code stipulates that detached private garages must be architecturally compatible with the principal structure, including exterior design, materials and colors. The applicant has stated that he would construct the new garage with matching colors and tones as the existing home, but with materials more suited for a garage. Chair Magnuson asked what the approximately distance was from the back end of the current garage (the third stall) into where there would be any kind of dramatic impact of the tree and garden area. Mr. Benetti replied that it is approximately 10-12 feet off the back edge of the garage; possibly a little more. Commissioner Toth noted that he met with the homeowners at 792 and 786 and stated that off of the corner of the current garage, it drastically slopes down. There is a small block wall in that corner which would have to come down and then be rebuilt with some type of block grid or geo- grid because as they continue to drive that soil condition is going to change and would continue to slope. He then asked what type of plan would be implemented to provide a stable surface so it would not slough off. Mr. Benetti replied that the builder of the wall would know what they are doing and it should be done right and meet construction standards. Chair Magnuson noted that the Commission was considering a variance from the five foot setback requirement. Without suggesting that she is in favor of this necessarily; she stated that it seemed to her that there is a small area where there could be the need for the variance. But as they get back closer to the proposed garage she asked where it moved to five feet. Mr. Benetti was unable to provide a definitive answer but provided a guestimate. Mr. Benetti noted that staff received another letter of support from a neighbor and some valuation information from a real estate appraiser on behalf of a neighbor to the north. All of this information has been made a part of the public record. Chair Magnuson asked for a motion to reopen the public hearing. COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSION NOONAN, TO REOPEN THE PUBLIC HEARING Ayes: 7 Nays: 0 Mr. Jim Carlson had nothing to add to the staff report. Mr. Allen Weslander, 798 Upper Colonial Drive, stated that the back of his property runs along Mr. Carlson’s property. He has lived there for 25 years and has made a lot of improvements; however, they are pretty fussy. Mr. Carlson, in the years that he has lived there, everything that he has done that they have seen has been top notch. He does a quality job with whatever he does. It makes sense that Mr. Carlson needs to get back behind his house someway and it just makes sense page 136 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 21 of 28 to put that driveway where they want. It does butt up against his property and he does not have a problem with that because he knows Mr. Carlson will do a quality job. Mr. John Trojack, 786 Upper Colonial Drive, stated that his opposition to this request has not changed. He does not believe there is a practical difficulty since this driveway can be placed on the right of his house. Mr. Carlson was nice enough to allow him to come over and look at his property. Mr. Trojack shared an image of the drive next to the right side of the home with two automobiles. This is a relatively level area that the driveway could access for a garage. There is no reason why there would have to be a driveway all of the way around to the present location. The small shed that is currently on the right side would have to come down no matter which way the driveway went. There is access that goes right up there and could come around. He has walked that property and does not see why it could not be placed on the right side without the need for a variance of any kind. Mr. Trojack continued by explaining that the grade seems to be all right because he has already put a driveway there; it would have to be widened probably and then come around to the level piece of property. He did not see any reason why that could not be done; this would not require a variance and would not require running a driveway across the entire length of the back yard. Mr. Trojack spoke to Mr. Carlson about the stand of three very large trees on the way to the proposed garage and he indicated that they would all come down. Mr. Trojack believed that would change the nature of that entire area and diminish the rural atmosphere they have come to enjoy since moving to Mendota Heights. There is not circumstance unique to the property requiring the granting of a driveway variance. The need for a larger garage is created by the owner and is not unique to the property. The need for the driveway on the side proposed is unique to the owner; he wants it there. He wants it there because he believes that putting it on the right side of his property would not be aesthetically pleasing. That should not be a reason for granting the variance. The building and the driveway running across his own rear yard would not be aesthetically pleasing to him; and neither is the potential problems of long-term maintenance for that driveway along the back side of his property. The old building will be torn down in any event, the placement of the new building is strictly the owner’s choice and not a unique situation, and the removal of the trees would change the character of the neighborhood. There are no special conditions existing topographically; in fact, the fact that the driveway has already been put up the right side of the property indicates that there is the ability to go up that topography and maybe he would have to put in some fill, but it would almost be the same level of work required to install the retaining walls and adjustments on his side of the property. He believed the essential character of the neighborhood would be changed and they did not expect to have an alley put down the back of their property, something very common in urban cities. He did not believe there was any property in Cherry Hill with a driveway immediately adjacent to their rear property. page 137 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 22 of 28 He emphasized the fact that this would be a permanent change; not something that can be reversed later on when different neighbors move in. The applicant, Mr. Jim Carlson, 1562 Wachtler Avenue, came forward to address the concerns raised. He shared an image taken by Mr. Trojack from his back yard and indicated the shed, which could hardly been seen. Also, the new garage could not be put down by the house where Mr. Trojack suggested. The proposed location is a good spot and there is an existing shed there now – it just would take a bigger footprint. As for driving back there all of the time, no he would not be. This garage would be more of a storage shed for his boat, his riding lawn mower, his attachments, and probably his brother’s car over the winter. Since Mr. Trojack’s property is lower, he will not be able to see the driveway or the permeable pavers installed. Chair Magnuson pointed out a fence on the image and asked if the fence belonged to Mr. Carlson and if he intended to leave it up. Mr. Carlson replied that he is the owner of the fence and that he plans to leave it up. When asked how that would work with the retaining wall, Mr. Carlson replied that they would either have to put the fence on top of the retaining wall or put the landscaping blocks on the other side of the fence. It’s workable, it just needs to get planned out. Additional discussions occurred on the placement of the retaining wall relative to the fence, the height of the fence, the tight pinch in the driveway, and the tight pitch of the slope. Chair Magnuson asked for a motion to close the public hearing. COMMISSIONER CORBETT MOVED, SECONDED BY COMMISSIONER TOTH, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER CORBETT MOVED, SECONDED BY COMMISSIONER KATZ, TO RECOMMEND DENIAL OF PLANNING CASE 2019-14 VARIANCE BASED ON THE FOLLOWING FINDINGS OF FACT: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” page 138 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 23 of 28 B. The City hereby determines the Applicant has not met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a variance for a reduced driveway setback. The proposed driveway is not essential to the overall enjoyment and continued use of the property; and there are other alternatives or locations for placing the driveway on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). Commissioner Corbett explained that his reason for recommending denial was because he believes there are alternatives and after viewing the property he did not believe it to be a requirement. As little as he says he is going to use it, it would be no inconvenience to have to pull his car out and drive through the back to that garage. He also did not know if the cost would be any different than putting in the retaining wall and the other work that would need to be done to install the driveway where he is requesting. Commissioner Katz also raised concerns about the location of the driveway as proposed and the neighbors there. He understands and probably would agree with the comments about Mr. Carlson maintaining his property very well; however, he did have concerns for Mr. Trojack and what the effects would be on his property as well as what would happen when there other people who would move in or out of those homes around this area that would be affected by the variance request. He believed there were alternatives that could enable Mr. Carlson to erect a structure to store his things and not require a variance. Commissioner Toth stated that he had the opportunity to meet with the residents at 782 Upper Colonial Drive and 786 Upper Colonial Drive. When looking back at the practical difficulties tests, it says if the variance were granted it would not alter the essential character of the neighborhood. This would have an impact on the neighborhood. From 782 and 786, presently standing in their backyards and looking to where this garage would be situated it would be partially covered with the foliage that is there. However, in the fall and winter months when the trees lose their leaves, that garage structure would be more visible to the neighbors. Also, on the fence line that cuts the Carlson property and the other residents’ properties, there is a power line. Sooner or later, no matter who owns the power line, they are going to come in and clear cut that; they are going to top the trees, remove the shrubs, or remove other foliage because they do not want trees to grow into their power lines. Many times when they do that the foliage dies. He reiterated his opinion that this driveway and garage would alter the characteristics of the neighborhood. Chair Magnuson cautioned the Commission in that they are being asked to look at a variance from the setback requirements for a driveway. They are not in a position to necessarily offer any opinion or decision on the garage itself. He can build the garage whether he has a driveway to it or not. page 139 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 24 of 28 She continued to say that her issue was the lack of practical difficulties. She understands what Mr. Carlson wants to do and understands all of the reasons why he wants to do it and they are all good and reasonable. However, the granting of the variance is a convenience to the applicant. It is not necessary to alleviate a practical difficulty of the property. She did not want to get into the position of granting variances because people prefer to have a driveway in one location of they prefer to have a 10-foot dining room versus an 8-foot dining room and the 10-foot dining room is going to encroach but they do not want an 8-foot dining room. They get lost in the possibility of going down that slippery slope of granting variances because it becomes a matter of personal convenience to the homeowner rather than the actual practical difficulty of the property. Her concern here was that there has not been a necessary demonstration of that there is a practical difficulty due to circumstances unique to the property, not caused by the property owner himself. Commissioner Petschel took a contrary view since they are not considering the garage whatsoever. He cited other times the Commission has approved variance, although not necessarily unanimously, and he understood that there is no such thing as precedence per discussions had earlier and previously. To him this request was not that much different. Commissioner Noonan agreed with Chair Magnuson when she said that the Commission should not take their jurisdictional responsibilities lightly by simply granting variances because it is a matter of convenience. The Commission has to be challenged to find the practical difficulties and he is not seeing it in this case. They have heard that this is what the homeowner desires to do and there are other alternatives; just because the homeowner does not want to do those other alternatives does not rise the threshold of meeting the practical difficulties test. Commissioner Mazzitello asked if he had an approximate number for what the vertical drop is from the sidewalk to the base of the fence. Mr. Benetti replied that he would defer to the homeowner but assumed it was 2.5 to 3 feet. Commissioner Mazzitello noted that the staff report says they would leave a setback of 2.5 feet because the driveway would be 11.5 feet wide. One cannot drive on top of a retaining wall so the retaining wall would have to be on the outside of that 11.5 feet. Mr. Benetti agreed. Commissioner Mazzitello continued by saying that if they installed a small block retaining wall that are eight inches per block, set back inches per block, three feet in depth they would need at least six courses. So now you are talking 24 inches off of that 11.5 foot, the toll of that retaining wall is going to come within inches of that property line. So they are not leaving a setback of 2.5 feet; they are eliminating the entire setback because the retaining wall would have to be included as part of the driveway. Public Works Director Ryan Ruzek noted that the installation of the retaining wall could be right on the property line, and small retaining walls can be constructed vertically. They do not need to be stepped back. Commissioner Mazzitello’s point was that the retaining wall eats more into the setback than the 11.5 foot driveway as presented. page 140 June 25, 2019 Mendota Heights Planning Commission Meeting – DRAFT Page 25 of 28 There being no more discussion, Chair Magnuson called for the vote AYES: 6 NAYS: 1 (Petschel) Chair Magnuson advised the City Council would consider this application at its July 2, 2019 meeting. page 141 Planning Staff Report MEETING DATE: May 28, 2019 TO: Planning Commission FROM: Tim Benetti, Community Development Director SUBJECT: Planning Case 2019-14 VARIANCE APPLICANT: Jim Carlson PROPERTY ADDRESS: 1562 Wachtler Avenue ZONING/GUIDED: R-1 One-Family Residential/LR Low Density Residential ACTION DEADLINE: June 29, 2019 INTRODUCTION The applicant is building a new 29’ x 34’ detached garage in the rear yard area, and is seeking a variance to required setbacks for a new driveway extension to said garage. This item is being presented under a duly noticed public hearing process. A notice of hearing on this item was published in the Pioneer Press; and notice letters of this hearing were mailed to all owners within 350- feet of the subject property. This item was originally noticed (both published and mailed letters) as a variance with a conditional use permit (CUP) to allow for a larger detached garage structure. However, staff later determined this CUP was not necessary, because the lot is large enough to allow a new detached garage as a permitted use instead of with a CUP approval. Explanation will follow in this report. BACKGROUND The subject parcel is 1.77 acres in size, and contains 5,345 sq. ft. single-family residential dwelling. The parcel is zoned R-1 and is guided LR-Low Density Residential development. page 142 Planning Case 2019-14 (J. Carlson) Page 2 of 9 Mr. Carlson currently has a 1,153 sf. 3 car attached garage to the home, and is wishing to build a new 29’ x 34’ (928-sq. ft.) detached garage in the back rear corner . In order to provide durable access to this garage, Mr. Carlson intends to extend an additional hard-surfaced driveway out along the side yard area of the current attached garage to the new detached garage structure. The driveway extension is approximately 130-ft. in length. Per Section 12-1D-3, all single family residential dwellings are allowed an attached garage up to 1,200 sq. ft. Larger residential lots are allowed to have an additional (one) detached private garage by permitted use or conditional use permit, according to the following table: Lot Size Permitted Conditional Use Permit 0.75 acre or less Not allowed Not allowed >0.75 acre - 1.5 acres 750 sq. ft. 1,000 sq. ft. >1.5 acres - 2.5 acres 1,000 sq. ft. 1,200 sq. ft. >2.5 acres 1,500 sq. ft. 1,800 sq. ft. Mr. Carlson’s survey indicates the unplatted subject parcel is “1.99 acres, more or less, including road right of way”. ” Factoring out the road ROW leaves the parcel with a net area of 1.77 acres (same as Dakota County Assessor records). When this application and site plan for new garage was submitted to the city, staff may have misread or misinterpreted the lot size on the survey, and originally directed Mr. Carlson to submit a CUP application to allow for the larger detached garage. Because the subject lot is 1.77 acres, Mr. Carlson is permitted to have one detached garage not to exceed 1,000-sf. Therefore, the proposed 29’ x 34’ (928 sf.) garage on the plan meets this standard, and the CUP is no longer needed in this review. Mr. Carlson intends to slightly widen and extend a new driveway off to the side of the existing [concrete] driveway surface, wrap it around the side area of the attached garage, and extend it back to the new detached garage structure in the rear yard. The existing attached garage sits 13.9-ft. from the side-yard lot line (see survey image – below). . Mr. Carlson wishes to install an approximate 12-ft. wide driveway along this side-yard. The driveway tapers down to 11’-3” near this closest corner of the attached garage, leaving a setback of 2.5 feet. The variance would allow or grant this reduced setback for the driveway (see site plan image – below). page 143 Planning Case 2019-14 (J. Carlson) Page 3 of 9 In order to alleviate or prevent any drainage issues that may occur due to the added hard surfaced driveway between the existing garage and rear yard property of 792 Wachtler Avenue, Mr. Carlson has offered to look into installing permeable pavers or some other features along this area to help reduce or prevent any impacts. Mr. Carlson is also offering to provide vegetative screening, such as upright junipers, pampas grass plants, or similar along the 2.5-foot area for added screening if necessary or requested. ANALYSIS Variance Process: City Code Section 12-1L-5 governs variance requests. The Planning Commission must consider a number of variables when recommending or deciding on a variance, which generally fall into two categories: (i) practical difficulties; and (ii) impact to the community. The “practical difficulties” test contains three parts: (i) the property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance; (ii) the plight of the property owner is due to circumstances unique to the property, not created by the property owner; and (iii) the variance will not alter the essential character of the neighborhood. Also, economic considerations alone do not constitute practical difficulties. Section 12-1L-5(E)(1) further references other variables the City can consider when granting or denying a variance, noted as follows:  Effect of variance upon health, safety, and welfare of the community.  Existing and anticipated traffic conditions.  Effect on light and air, as well as the danger of fire and the risk to public safety.  Effect on the value of properties in the surrounding area, and upon the Comprehensive Plan.  Granting of the variance is not a convenience to the applicant, but necessary to alleviate a practical difficulty. When considering a variance request, the Planning Commission must determine if these standards have been met in granting a variance, either partially or whole, and provide findings of facts to support such a recommendation to the City Council. If the Planning Commission determines the Applicant has failed to meet these standards, or has not fully demonstrated a reasonableness in the granting of such variance, then findings of fact supporting a recommendation of denial must be determined. As part of any variance request, Applicants are required to prepare and submit their own responses and findings, which for this case, are noted below (in italic text): page 144 Planning Case 2019-14 (J. Carlson) Page 4 of 9 1. The property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance. Applicant’s Response: Without a variance for the driveway, access to the new garage would require putting a driveway in on the opposite side of the house which would run across the entire length of the backyard. Without a variance for the garage size, I would not have enough room to store my yard equipment (riding lawnmower and attachments) and fishing boat, it would have to be parked outside and would be an eye sore. Staff’s Response: Mr. Carlson noted to city staff that this location of a new driveway along this north side of his home is the only logical and reasonable place to put in the driveway. Wrapping the driveway around the south side and around the back area of the home would take up a lot of open/green space, (with 3-4 times more concrete/hard surface). A question that must be considered in this case is whether or not the proposed 3.5-ft. encroachment into the 5-foot setback for the driveway is reasonable. One important reason for keeping a 5-foot setback for driveways and parking spaces in residential zones is to provide or maintain adequate drainage between properties, and ensure access for certain utilities. When residential lot subdivisions are approved, drainage and utility easements are typically shown and platted along the lot lines. Since this lot is unplatted, there are no drainage/utility easements present. The adjacent residential lots to the north (798, 792 and 786 Upper Colonial Drive) have a 6-ft. D & U easement along their back lot lines. City Code Section 12-1D-4: C: Allowed Encroachments; Sub.1.c allows for “Uncovered and/or open terraces, steps, porches or decks, accessibility ramps, stoops or similar structures, which do not extend above the height of the ground floor level of the principal building and do not extend closer than two feet (2') from any lot line.” The new driveway could “technically” meet this rule, and the Commission may wish to determine if the owners can be afforded a reduced setback allowance up to 2.5 feet, similar to this “allowable encroachment” section provided in City Code. While it may seem “reasonable” to have this driveway along the side area of a home, the standards of the Zoning Code are clear for requiring a 5-foot setback, and the Planning Commission will need to determine if this requested variance is reasonable, and is in harmony with the general purpose and spirit of the Code. 2. The plight of the property owner is due to circumstances unique to the property, not created by the property owner. Applicant’s Response: I need a larger garage, my existing garage is not big enough. I park my work vehicle, car, and companion’s vehicle in the attached garage. That does not leave any room for my yard equipment and storage. I don't like clutter (eye sores) out in my yard. Staff’s Response: The city must determine if the requested variance to allow a reduced setback of a new driveway is “unique” enough to support such approval. It appears (once again) that had the house been originally built or located more centrally in the lot, or moved slightly down towards the center, this side-yard lot line issue would not exist. This is a large parcel, and there is plenty of room to maneuver and develop within the lot. Even though the homeowner/applicant could easily extend or wrap the driveway around on the south side of the home, the grades from the front to the rear yard areas are severe; and coupled with much more pavement, grading and design on this wrap-around driveway, it would appear to be too much just for this small garage project. 3. The variance will not alter the essential character of the neighborhood; and economic considerations alone do not constitute practical difficulties. Applicant’s Response: The variance would not alter the existing character of the neighborhood. The driveway will not be visible from the street. The garage will match the existing style of the house. page 145 Planning Case 2019-14 (J. Carlson) Page 5 of 9 Staff’s Response: The existing neighborhood is all residential in character. Even though this property, and the properties to the south and east are larger than most normal single family residential lots, the character should not change due to the addition of the garage or driveway. However, the city can determine if the encroaching driveway would alter the essential character of this neighborhood. ALTERNATIVES 1. Recommend approval of the variance request, based on the following findings of fact that support the granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the driveway to encroach up to 3.5 feet into the side yard, leaving a 2.5 foot setback from the side lot line, by the following: i.) the proposed driveway encroachment is a reasonable request on the subject property, due to the need to provide a suitable and less intrusive driveway for the proposed (and permitted) detached garage structure in the rear-yard; ii.) the location of the home as it sits today was developed and built by others, thus making a somewhat unique situation for the homeowner he did not create. This situation therefore provides a unique circumstance for supporting or allowing the granting of variance on the reduced driveway setbacks; and iii.) approving the proposed driveway, with a reduced setback under this variance request, does not change or alter the essential character of the neighborhood. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variance upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variance will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of this Variance is for 1562 Wachtler Avenue only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019- 14, dated and presented May 28, 2019 (on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-____. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1. A driveway permit shall be obtained prior to any installation or construction of the new driveway or parking pad area. page 146 Planning Case 2019-14 (J. Carlson) Page 6 of 9 2. The proposed encroachment for the driveway shall not extend closer than 2.5-feet from the side lot line. 3. The Applicant shall provide permeable pavers (or similar features) for the driveway surface area located along the existing attached garage structure. 4. The Applicant shall provide additional vegetative screening along the reduced setback area to screen the driveway from neighboring properties. 5. Any new grading and construction activity will be in compliance with applicable federal, state, and local regulations; as well as in compliance with the City’s Land Disturbance Guidance Document. 2. Recommend denial of the Variance request, based on the findings of fact that confirm the Applicant failed to meet the burden(s) of proof or standards in granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a variance for a reduced driveway setback. The proposed driveway is not essential to the overall enjoyment and continued use of the property; and there are other alternatives or locations for placing the driveway on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). 3. Table the request and direct staff to extend the application review period an additional 60 days, in compliance with MN STAT. 15.99. STAFF RECOMMENDATION Staff recommends the Planning Commission give careful consideration of this Variance request, and either make a motion to recommend Alternative No. 1, the approval of the Variance with findings of facts to support said approval with the conditions noted therein; or make a motion on Alternative No. 2, a recommendation of denial on the Variance with findings of facts supporting such decision. If the Planning Commission wishes to table or delay making a recommendation on this item for any plausible reason, then the commission should make a motion consistent with Alternative No. 3 noted above. Attachments 1. Planning Application – with Variance Response (Narrative) 2. Aerial/Site Location Map 3. Site Pictures page 147 Planning Case 2019-14 (J. Carlson) Page 7 of 9 SITE PHOTOS – 1562 WACHTLER AVENUE page 148 Planning Case 2019-14 (J. Carlson) Page 8 of 9 page 149 Planning Case 2019-14 (J. Carlson) Page 9 of 9 page 150 1562 WACHTLER LANE (J. CARLSON RES.) Property Information September 18, 2017 0 225 450112.5 ft 0 60 12030 m 1:2,400 Disclaimer: Map and parcel data are believed to be accurate, but accuracy is not guaranteed. This is not a legal document and should not be substituted for a title search,appraisal, survey, or for zoning verification. page 151 page 152 D Written consent and waiver of public hearing , in a form prescribed by the city , by the owners of property within one hundred feet (100') of the boundaries of the property for which the variance is requested , accompanied by a map -indicating the location of the property in question and the location of the property owners who have given consent; or, lacking such consent, a list of names and addresses of the owners of property within one hundred feet (100') of the boundaries of the property for which the variance is requested. D If topography or extreme grade is the basis on which the request is made, all topographic contours shall be submitted . D If the application involves a cutting of a curb for a driveway or grading a driveway, the applicant shall have his plan approved by the city public works director prior to construction . Please complete the attached questions regarding your request. Responses will be presented to the Planning Commission & City Council. Please answer the following three questions as they relate to the variance request. (Note : you may fill-in this form or create your own) 1. Are there any practical difficulties that help support the granting of this variance? (Note : "practical difficulties" as used in connection with the granting of a variance , means that the owner proposes to use the property in a reasonable manner not permitted by City Code. Economic considerations along do not constitute a practical difficulty). ~ YES 0 NO Please describe or identify any practical difficulties and/or how you plan to · use the property in a reasonable manner below: Without a variance for the driveway, access to the new garage would require putting a driveway in on the opposite side of the house which would run across the entire length of the backyard . Without a variance for the garage size , I would not have enough room to store my yard equ i pment (riding lawnmower and attachments) and fishing boat, it would have to be parked outs ide and would be an eye sore . Variance Application (2019) Page 2of4 page 153 2. Are there any circumstances unique to the property (not created by the owner) that support the granting of this variance? DYES D NO Please describe or identif 2) I need a larger garage, my existing garage is not big enough . I park my work vehicle, car, and companions vehicle in the attached garage . That does not leave any room for my yard equipment and storage . I don't like clutter (eye sores) out in my yard . 3. If the variance was granted, would it alter the essential character of the neighborhood? DYES ONO Not? Please ex lain how the re uest fits with the character of the nei hborhood. 3) The variance would not alter the existing character of the neighborhood. The driveway will not be visible from the street. The garage will match the existing style of the house . The City Council must make affirmative findings on all of the criteria listed above in order to grant a variance. The applicant for a variance has the burden of proof to show that all of the criteria listed above have been demonstrated or satisfied. Variance Application (2019) Page 3 of 4 page 154 page 155 page 156 Planning Staff Report MEETING DATE: May 28, 2019 TO: Planning Commission FROM: Tim Benetti, Community Development Director SUBJECT: Planning Case 2019-14 VARIANCE APPLICANT: Jim Carlson PROPERTY ADDRESS: 1562 Wachtler Avenue ZONING/GUIDED: R-1 One-Family Residential/LR Low Density Residential ACTION DEADLINE: June 29, 2019 INTRODUCTION The applicant is building a new 29’ x 34’ detached garage in the rear yard area, and is seeking a variance to required setbacks for a new driveway extension to said garage. This item is being presented under a duly noticed public hearing process. A notice of hearing on this item was published in the Pioneer Press; and notice letters of this hearing were mailed to all owners within 350- feet of the subject property. This item was originally noticed (both published and mailed letters) as a variance with a conditional use permit (CUP) to allow for a larger detached garage structure. However, staff later determined this CUP was not necessary, because the lot is large enough to allow a new detached garage as a permitted use instead of with a CUP approval. Explanation will follow in this report. BACKGROUND The subject parcel is 1.77 acres in size, and contains 5,345 sq. ft. single-family residential dwelling. The parcel is zoned R-1 and is guided LR-Low Density Residential development. page 157 Planning Case 2019-14 (J. Carlson) Page 2 of 9 Mr. Carlson currently has a 1,153 sf. 3 car attached garage to the home, and is wishing to build a new 29’ x 34’ (928-sq. ft.) detached garage in the back rear corner . In order to provide durable access to this garage, Mr. Carlson intends to extend an additional hard-surfaced driveway out along the side yard area of the current attached garage to the new detached garage structure. The driveway extension is approximately 130-ft. in length. Per Section 12-1D-3, all single family residential dwellings are allowed an attached garage up to 1,200 sq. ft. Larger residential lots are allowed to have an additional (one) detached private garage by permitted use or conditional use permit, according to the following table: Lot Size Permitted Conditional Use Permit 0.75 acre or less Not allowed Not allowed >0.75 acre - 1.5 acres 750 sq. ft. 1,000 sq. ft. >1.5 acres - 2.5 acres 1,000 sq. ft. 1,200 sq. ft. >2.5 acres 1,500 sq. ft. 1,800 sq. ft. Mr. Carlson’s survey indicates the unplatted subject parcel is “1.99 acres, more or less, including road right of way”. ” Factoring out the road ROW leaves the parcel with a net area of 1.77 acres (same as Dakota County Assessor records). When this application and site plan for new garage was submitted to the city, staff may have misread or misinterpreted the lot size on the survey, and originally directed Mr. Carlson to submit a CUP application to allow for the larger detached garage. Because the subject lot is 1.77 acres, Mr. Carlson is permitted to have one detached garage not to exceed 1,000-sf. Therefore, the proposed 29’ x 34’ (928 sf.) garage on the plan meets this standard, and the CUP is no longer needed in this review. Mr. Carlson intends to slightly widen and extend a new driveway off to the side of the existing [concrete] driveway surface, wrap it around the side area of the attached garage, and extend it back to the new detached garage structure in the rear yard. The existing attached garage sits 13.9-ft. from the side-yard lot line (see survey image – below). . Mr. Carlson wishes to install an approximate 12-ft. wide driveway along this side-yard. The driveway tapers down to 11’-3” near this closest corner of the attached garage, leaving a setback of 2.5 feet. The variance would allow or grant this reduced setback for the driveway (see site plan image – below). page 158 Planning Case 2019-14 (J. Carlson) Page 3 of 9 In order to alleviate or prevent any drainage issues that may occur due to the added hard surfaced driveway between the existing garage and rear yard property of 792 Wachtler Avenue, Mr. Carlson has offered to look into installing permeable pavers or some other features along this area to help reduce or prevent any impacts. Mr. Carlson is also offering to provide vegetative screening, such as upright junipers, pampas grass plants, or similar along the 2.5-foot area for added screening if necessary or requested. ANALYSIS Variance Process: City Code Section 12-1L-5 governs variance requests. The Planning Commission must consider a number of variables when recommending or deciding on a variance, which generally fall into two categories: (i) practical difficulties; and (ii) impact to the community. The “practical difficulties” test contains three parts: (i) the property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance; (ii) the plight of the property owner is due to circumstances unique to the property, not created by the property owner; and (iii) the variance will not alter the essential character of the neighborhood. Also, economic considerations alone do not constitute practical difficulties. Section 12-1L-5(E)(1) further references other variables the City can consider when granting or denying a variance, noted as follows:  Effect of variance upon health, safety, and welfare of the community.  Existing and anticipated traffic conditions.  Effect on light and air, as well as the danger of fire and the risk to public safety.  Effect on the value of properties in the surrounding area, and upon the Comprehensive Plan.  Granting of the variance is not a convenience to the applicant, but necessary to alleviate a practical difficulty. When considering a variance request, the Planning Commission must determine if these standards have been met in granting a variance, either partially or whole, and provide findings of facts to support such a recommendation to the City Council. If the Planning Commission determines the Applicant has failed to meet these standards, or has not fully demonstrated a reasonableness in the granting of such variance, then findings of fact supporting a recommendation of denial must be determined. As part of any variance request, Applicants are required to prepare and submit their own responses and findings, which for this case, are noted below (in italic text): page 159 Planning Case 2019-14 (J. Carlson) Page 4 of 9 1. The property owner proposes to use the property in a reasonable manner not otherwise permitted by the zoning ordinance. Applicant’s Response: Without a variance for the driveway, access to the new garage would require putting a driveway in on the opposite side of the house which would run across the entire length of the backyard. Without a variance for the garage size, I would not have enough room to store my yard equipment (riding lawnmower and attachments) and fishing boat, it would have to be parked outside and would be an eye sore. Staff’s Response: Mr. Carlson noted to city staff that this location of a new driveway along this north side of his home is the only logical and reasonable place to put in the driveway. Wrapping the driveway around the south side and around the back area of the home would take up a lot of open/green space, (with 3-4 times more concrete/hard surface). A question that must be considered in this case is whether or not the proposed 3.5-ft. encroachment into the 5-foot setback for the driveway is reasonable. One important reason for keeping a 5-foot setback for driveways and parking spaces in residential zones is to provide or maintain adequate drainage between properties, and ensure access for certain utilities. When residential lot subdivisions are approved, drainage and utility easements are typically shown and platted along the lot lines. Since this lot is unplatted, there are no drainage/utility easements present. The adjacent residential lots to the north (798, 792 and 786 Upper Colonial Drive) have a 6-ft. D & U easement along their back lot lines. City Code Section 12-1D-4: C: Allowed Encroachments; Sub.1.c allows for “Uncovered and/or open terraces, steps, porches or decks, accessibility ramps, stoops or similar structures, which do not extend above the height of the ground floor level of the principal building and do not extend closer than two feet (2') from any lot line.” The new driveway could “technically” meet this rule, and the Commission may wish to determine if the owners can be afforded a reduced setback allowance up to 2.5 feet, similar to this “allowable encroachment” section provided in City Code. While it may seem “reasonable” to have this driveway along the side area of a home, the standards of the Zoning Code are clear for requiring a 5-foot setback, and the Planning Commission will need to determine if this requested variance is reasonable, and is in harmony with the general purpose and spirit of the Code. 2. The plight of the property owner is due to circumstances unique to the property, not created by the property owner. Applicant’s Response: I need a larger garage, my existing garage is not big enough. I park my work vehicle, car, and companion’s vehicle in the attached garage. That does not leave any room for my yard equipment and storage. I don't like clutter (eye sores) out in my yard. Staff’s Response: The city must determine if the requested variance to allow a reduced setback of a new driveway is “unique” enough to support such approval. It appears (once again) that had the house been originally built or located more centrally in the lot, or moved slightly down towards the center, this side-yard lot line issue would not exist. This is a large parcel, and there is plenty of room to maneuver and develop within the lot. Even though the homeowner/applicant could easily extend or wrap the driveway around on the south side of the home, the grades from the front to the rear yard areas are severe; and coupled with much more pavement, grading and design on this wrap-around driveway, it would appear to be too much just for this small garage project. 3. The variance will not alter the essential character of the neighborhood; and economic considerations alone do not constitute practical difficulties. Applicant’s Response: The variance would not alter the existing character of the neighborhood. The driveway will not be visible from the street. The garage will match the existing style of the house. page 160 Planning Case 2019-14 (J. Carlson) Page 5 of 9 Staff’s Response: The existing neighborhood is all residential in character. Even though this property, and the properties to the south and east are larger than most normal single family residential lots, the character should not change due to the addition of the garage or driveway. However, the city can determine if the encroaching driveway would alter the essential character of this neighborhood. ALTERNATIVES 1. Recommend approval of the variance request, based on the following findings of fact that support the granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the Council may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The Applicant has met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a Variance to allow the driveway to encroach up to 3.5 feet into the side yard, leaving a 2.5 foot setback from the side lot line, by the following: i.) the proposed driveway encroachment is a reasonable request on the subject property, due to the need to provide a suitable and less intrusive driveway for the proposed (and permitted) detached garage structure in the rear-yard; ii.) the location of the home as it sits today was developed and built by others, thus making a somewhat unique situation for the homeowner he did not create. This situation therefore provides a unique circumstance for supporting or allowing the granting of variance on the reduced driveway setbacks; and iii.) approving the proposed driveway, with a reduced setback under this variance request, does not change or alter the essential character of the neighborhood. C. The City has considered the factors required by Title 12-1L-5E1 of the City Code, including but not limited to the effect of the Variance upon the health, safety, and welfare of the community, existing and anticipated traffic conditions, the effect of the Variance on the danger of fire and the risk to public safety, and upon the value of properties in the surrounding area, and upon the Comprehensive Plan, and has determined this Variance will not affect or pose any negative impacts upon the neighborhood or the community in general. D. Approval of this Variance is for 1562 Wachtler Avenue only, and does not apply or give precedential value to any other properties throughout the City. All variance applicants must apply for and provide a project narrative to the City to justify a variance. All variance requests must be reviewed independently by City staff and legal counsel under the requirements of the City Code. E. The factual findings and analysis found in the Planning Staff Report for Planning Case No. 2019- 14, dated and presented May 28, 2019 (on file with the City of Mendota Heights), is hereby fully incorporated into Resolution No. 2019-____. F. The City has the authority to place reasonable conditions upon the property subject to his Variance request. Conditions must be directly related to and roughly proportional to the impact created by the variance. Conditions related to this transaction are as follows: 1. A driveway permit shall be obtained prior to any installation or construction of the new driveway or parking pad area. page 161 Planning Case 2019-14 (J. Carlson) Page 6 of 9 2. The proposed encroachment for the driveway shall not extend closer than 2.5-feet from the side lot line. 3. The Applicant shall provide permeable pavers (or similar features) for the driveway surface area located along the existing attached garage structure. 4. The Applicant shall provide additional vegetative screening along the reduced setback area to screen the driveway from neighboring properties. 5. Any new grading and construction activity will be in compliance with applicable federal, state, and local regulations; as well as in compliance with the City’s Land Disturbance Guidance Document. 2. Recommend denial of the Variance request, based on the findings of fact that confirm the Applicant failed to meet the burden(s) of proof or standards in granting of the variance requested herein, noted as follows: A. Under Title 12-1L-5A of the City Code, the City may only grant variances from the strict application of the provisions of the Code in cases where there are “practical difficulties” in carrying out the strict letter of the regulations of the Code. “Practical difficulties” consists of a three -part test: (i) the Applicant proposes to use the property in a reasonable manner not otherwise permitted by the Code; (ii) the plight of the Applicant is due to circumstances unique to the property not created by the Applicant; and (iii) the variance, if granted, will not alter the essential character of the neighborhood. Economic considerations alone do not constitute “practical difficulties.” B. The City hereby determines the Applicant has not met the burden of demonstrating the requisite “practical difficulties” in order to justify the granting of a variance for a reduced driveway setback. The proposed driveway is not essential to the overall enjoyment and continued use of the property; and there are other alternatives or locations for placing the driveway on the property due to its large size; and is therefore not considered a reasonable use of the property. C. Because the City finds that the first prong of the three-part test (reasonable use of the property) is not met by the Applicant, the City need not consider the remaining two prongs of the test (unique circumstances of the property and essential character of the neighborhood). 3. Table the request and direct staff to extend the application review period an additional 60 days, in compliance with MN STAT. 15.99. STAFF RECOMMENDATION Staff recommends the Planning Commission give careful consideration of this Variance request, and either make a motion to recommend Alternative No. 1, the approval of the Variance with findings of facts to support said approval with the conditions noted therein; or make a motion on Alternative No. 2, a recommendation of denial on the Variance with findings of facts supporting such decision. If the Planning Commission wishes to table or delay making a recommendation on this item for any plausible reason, then the commission should make a motion consistent with Alternative No. 3 noted above. Attachments 1. Planning Application – with Variance Response (Narrative) 2. Aerial/Site Location Map 3. Site Pictures page 162 Planning Case 2019-14 (J. Carlson) Page 7 of 9 SITE PHOTOS – 1562 WACHTLER AVENUE page 163 Planning Case 2019-14 (J. Carlson) Page 8 of 9 page 164 Planning Case 2019-14 (J. Carlson) Page 9 of 9 page 165 1562 WACHTLER LANE (J. CARLSON RES.) Property Information September 18, 2017 0 225 450112.5 ft 0 60 12030 m 1:2,400 Disclaimer: Map and parcel data are believed to be accurate, but accuracy is not guaranteed. This is not a legal document and should not be substituted for a title search,appraisal, survey, or for zoning verification. page 166 page 167 D Written consent and waiver of public hearing , in a form prescribed by the city , by the owners of property within one hundred feet (100') of the boundaries of the property for which the variance is requested , accompanied by a map -indicating the location of the property in question and the location of the property owners who have given consent; or, lacking such consent, a list of names and addresses of the owners of property within one hundred feet (100') of the boundaries of the property for which the variance is requested. D If topography or extreme grade is the basis on which the request is made, all topographic contours shall be submitted . D If the application involves a cutting of a curb for a driveway or grading a driveway, the applicant shall have his plan approved by the city public works director prior to construction . Please complete the attached questions regarding your request. Responses will be presented to the Planning Commission & City Council. Please answer the following three questions as they relate to the variance request. (Note : you may fill-in this form or create your own) 1. Are there any practical difficulties that help support the granting of this variance? (Note : "practical difficulties" as used in connection with the granting of a variance , means that the owner proposes to use the property in a reasonable manner not permitted by City Code. Economic considerations along do not constitute a practical difficulty). ~ YES 0 NO Please describe or identify any practical difficulties and/or how you plan to · use the property in a reasonable manner below: Without a variance for the driveway, access to the new garage would require putting a driveway in on the opposite side of the house which would run across the entire length of the backyard . Without a variance for the garage size , I would not have enough room to store my yard equ i pment (riding lawnmower and attachments) and fishing boat, it would have to be parked outs ide and would be an eye sore . Variance Application (2019) Page 2of4 page 168 2. Are there any circumstances unique to the property (not created by the owner) that support the granting of this variance? DYES D NO Please describe or identif 2) I need a larger garage, my existing garage is not big enough . I park my work vehicle, car, and companions vehicle in the attached garage . That does not leave any room for my yard equipment and storage . I don't like clutter (eye sores) out in my yard . 3. If the variance was granted, would it alter the essential character of the neighborhood? DYES ONO Not? Please ex lain how the re uest fits with the character of the nei hborhood. 3) The variance would not alter the existing character of the neighborhood. The driveway will not be visible from the street. The garage will match the existing style of the house . The City Council must make affirmative findings on all of the criteria listed above in order to grant a variance. The applicant for a variance has the burden of proof to show that all of the criteria listed above have been demonstrated or satisfied. Variance Application (2019) Page 3 of 4 page 169 May 28, 2019 Mendota Heights Planning Commission Meeting Page 15 of 26 D) PLANNING CASE #2019-14 JIM CARLSON, 1562 WACHTLER AVENUE VARIANCE Community Development Director Tim Benetti explained that Mr. Jim Carlson would like to build a new 29’ x 34’ detached garage in the rear yard of his property at 1562 Wachtler Avenue and needs a Variance to required setbacks for a new driveway extension to that garage. This item had originally been noticed as a Variance with a Conditional Use Permit to allow for a larger detached garage. However, it was determined that the Conditional Use Permit was not necessary because he meets all of the requirements for a larger detached garage structure under 1,000 square feet because the lot is large enough. This item was presented under public hearing and notice was published in the Pioneer Press and letters were mailed to all owners within 350 feet of the subject property. One letter was received from the property owner immediately to the north; a copy of which was provided to the Commissioners and is part of the public record. The property is zoned R-1 and is guided LR-Low Density Residential, is 1.77 acres in size, and has a 5,345 square foot single family residential home with a 1,153 square foot 3-car attached garage. All single family properties are allowed to have up to 1,200 sq. ft. attached garage; and for larger lots between 1.5 to 2.5 acres in size, one additional detached garage is allowed up 1,000 sq. ft. in size. The proposed garage by the applicant meets this size limit. Mr. Carlson provided a detailed survey showing the location of the existing driveway where it sits today at 12.5, 13.9, and 19 feet off the north property line. The proposed site plan showed the driveway extension coming off of the side of the garage, the new garage in the back corner meeting the 10-foot setbacks as required by code, and the location of the proposed driveway extension. At the closest point is an 11 foot 3 inch wide driveway, requiring the 2.5 foot variance from the side yard setback. Mr. Benetti shared images of the subject property, noting the possible need for a retaining wall along the side because of the grade differences. The shed shown in the rear yard would be removed as part of this project. He also pointed out the grade differences between the proposed location of the driveway and the other side of the property. In Mr. Carlson’s opinion, it fits better in the proposed location. Mr. Carlson indicated to staff that, as far as any alleviating any screening or potential visual impacts to the neighbor, he would provide for some type of screening measures such as some evergreens or some pampas grasses or something else of that nature. He is also looking at providing for some permeable pavers to ensure that this area will handle some of the stormwater drainage if requested or required. Mr. Benetti shared the standards that need to be met when considering a Variance request and explained how this request met those standards. page 170 May 28, 2019 Mendota Heights Planning Commission Meeting Page 16 of 26 Commissioner Corbett asked for confirmation that the land the proposed driveway would be on is graded towards the neighbor’s property. Mr. Benetti confirmed and stated that more than likely, he would have to provide for some type of grading and a retaining wall along that side to ensure that the driveway is nice and level. Chair Magnuson asked who owned the fence along that side. Mr. Benetti replied that he believed that Mr. Carlson did. He plans on retaining the fence. Commissioner Mazzitello asked if he was reading the new schematic correctly in that there would be 11’3” between the pavement edge and the property line; and 2.5 feet between the pavement and the property line. Mr. Benetti confirmed. Commissioner Mazzitello noted in the packet a survey that had been completed in April 2019; however, he was not seeing any drainage or utility easements around the property lines. He asked if they existed. Mr. Benetti replied that this is Lot 32 of the Auditors Subdivision No. 3 but he did not believe there were any utility easements; probably due to the time it was platted. Without any geographical reference, Commissioner Katz asked if it had been evaluated whether or not the driveway could be put down Wachtler, in the opposite corner. Mr. Benetti replied that he possibly could; however, this area has a creek and there is also a considerable grade difference. Mr. Jim Carlson, 1562 Wachtler Avenue, commented that he does not like leaving things outside. He believes in a garage as a way of keeping the neighborhood looking nice and preventing his neighbors from staring at his junk. He would like to store his fishing boat, riding lawn mower with attachments, snowplow, and other items if he decided to obtain them. He also stated that it would mostly be used for cold storage in the winter and that he would probably not even plow that part of the driveway. Commissioner Corbett stated that he was having a conflict in terms of the usage and the needing a concrete driveway for it if was not going to be used in the wintertime. His thinking was that in needing a concrete driveway to go to the shed, why wouldn’t the shed not be part of an expansion of the existing garage, which already has a driveway to it; or building out from that garage if its intended use was for garage storage and not as a traditional shed. Mr. Carlson replied this his existing garage has a stairway going down through the basement in the front of the garage. He would rather have a garage out in back dedicated where he could put his items in it and not have to deal with them being in the garage and the house. As for the concrete driveway, he really did not want to put in a concrete driveway; however, Mr. Benetti had brought it up to him that there were permeable pavers. He went to a supply company and there are nice pavers that are 2’ x 2’ sections with holes. He could put them down, put dirt back in them and plant grass and he believed it would blend into the yard pretty well. He is leaning more towards the permeable pavers now rather than concrete. Commissioner Petschel asked if there was any reason why he did not consider putting the new garage in the opposite corner of his lot. Mr. Carlson replied that the creek area is down there, it is wooded, and can be seen from the street. The proposed location already has a shed, it is screened and it would look good back there and not take away from the beauty of the property. page 171 May 28, 2019 Mendota Heights Planning Commission Meeting Page 17 of 26 Chair Magnuson asked if it would be possible to simply add a section on the back of the current garage. Mr. Carlson replied that there is a staircase in the garage that starts right in the middle of the garage and goes down to the basement; so they would not get much out of that. Chair Magnuson explained her confusion in that he already stores his work vehicle, his vehicle, and his companions vehicle in the garage; clearly the stairs are not in the way of those items and she wondered why it would cause a problem with expanding the garage. Mr. Carlson pointed out on the survey image the location of the staircase. He also stated that he has a nice tree garden on the rear that would be lost. Commissioner Toth noted that the dimension of the planned garage is 29’ x 34’; he then asked what the peak of the roof would be. Mr. Carlson replied that he did not know that yet. Mr. Benetti replied that detached garages could not be more than 15 feet in height. Commissioner Petschel asked if Mr. Carlson used the pavers, would they count as impervious surface. Mr. Benetti replied that the city does not have an impervious surface percentage calculation requirements. He asked for commentary on the transition between pavers and a concrete driveway – one that would necessitate a permit and one that would not. Would the move from a concrete driveway to 2’ x 2’ pavers negate the need for the variance. Mr. Benetti replied in the negative because a driveway is a driveway, whether it’s concrete or some other material. Mr. Carlson needs a driveway to access the garage, the city does not want people driving back and forth across their yards to access their detached garages. Commissioner Petschel then asked if it was part of their functional definition of a garage is that it has to have a driveway. Mr. Benetti replied in the affirmative. If it looks like a garage it needs to be permitted as a garage and it has to have a drivable surface to it. He had suggested the permeable pavers just because of the impact of that side yard and looking where the drainage would obviously go. He felt it would be a better solution to maintaining the drainage pond as much as possible. Commissioner Corbett asked how many of the trees along the fence line would be removed; it appears that every tree along that fence line that may be blanketing the garage from the neighbors view would have to be removed. Mr. Carlson replied that he did not believe that many would be removed. He estimated at least two or three of the ten located there. It is a beautiful site and he has no desire to remove very many trees at all. If he did have to remove any he hoped to plant some back in again afterwards. Commissioner Toth asked what materials the proposed garage would be made of. Mr. Carlson replied that he had no plans at the moment; but he had thought about vinyl siding that would match the house or maybe stucco. He would not want white but possibly a sand color to match the brick on the house. Steel shingles like on the house are pretty expensive and he probably could not do that; however, he would try to make it fit into the motif. When asked, Mr. Benetti replied that the garage has to match architecturally the principal building. The city does allow for color matching if the house is brick or stucco and they want to page 172 May 28, 2019 Mendota Heights Planning Commission Meeting Page 18 of 26 match it with vinyl, lapboard, or wood siding. The city would like for the roofing material to match as close as possible. When asked if he would consider building off of the front of the current garage, Mr. Carlson replied that it would not look good and would take away from the beauty of the neighborhood and the property. His neighbors would kick him out. Chair Magnuson asked if he had considered a smaller driveway. Mr. Carlson replied that his fishing boat is an 18’ Lund and it requires a truck to back it into the garage. He questioned if he could accomplish that with a narrower driveway. Chair Magnuson opened the public hearing. Mr. John Trojack, 786 Upper Colonial Drive, stated that he did realize until this evening that there was no need for a Conditional Use Permit for the garage building. He assumed the reason it was accepted is because of the size of the lot. The reason that would be the case was that it was not expected that the building would be built right on top or close to a neighbor’s property with that size of a lot. One would think that there could be a building a ways away. He and his wife have been living on his property since 1988; 30 or more years. They moved from Macalester-Groveland where they had alleys up and down behind the buildings. This driveway is as close to an alley as he has ever experienced. One of the reasons they moved to Mendota Heights was because they liked the open space. The property behind him had a great stand of trees and the previous owner, before he died, took very good care of the place. They would hate to see what they would consider an alley put in right behind their property and then have this large building, which has to be served by the driveway. They do not see why it could not be moved away from their property and the driveway put in a different direction. Mr. Carlson currently has a driveway apron on the other side of his home where two cars are normally parked. If the property was so problematic that he could not have a building on that same side, why would he consider it level enough for a nice concrete apron. Mr. Trojack did not believe it was reasonable, considering the size of the lot, to do what is proposed. He did not believe it serve the neighborhood to have this kind of a precedence set where they could put an alley driveway right behind someone else’s property. This plan is also detrimental to Mr. Trojack’s property values, as indicated in his letter. He spoke to his appraiser and was told that this would definitely decrease the value of his home. Also, there is a good stand of trees behind the fence on Mr. Carlson’s property and Mr. Trojack did believe that most of them would be standing afterwards. In summary, Mr. Trojack stated that this would be very damaging to the neighborhood, there is a good alternative on the other side of the property that should be considered, and he believed they should not have this place next to their property. Mr. Chris Shepard, 792 Upper Colonial Drive, said that initially when Mr. Carlson came by and proposed this his reaction was OK because it was his property. He did not know to what extent page 173 May 28, 2019 Mendota Heights Planning Commission Meeting Page 19 of 26 this would affect his own property. He was concerned about the drainage and asked that the Commission make recommendations to prevent snow buildup and then runoff and water runoff under any wet weather event. He understands that impervious pavers is probably better than concrete and he was happy to hear that was in play. The other concern were the sight lines; he pointed out the trees on the shared image. If they were to build a driveway there, they were hoping to have some sort of privacy fence be included or something that would account for the shrubs, etc. that are in place now. As to Mr. Trojack’s idea of placing the garage on the other side of the house, he would be in favor of that position. Mr. Carlson returned and stated that as of right now, there they are talking about water runoff. There is a grade right now that when it rains the water is running into Mr. Shepard’s yard. He wants to put a retaining wall in there to raise it up because it is hard to mow and dirt is washing away. Also, what Mr. Trojack pointed out on the south side of the house is not level. There is a steep bank going down into the driveway and then when you hit the yard there is a great big hill on the side. It would be hard to be tearing up all of the landscaping to put a garage in there. A person would have to haul in a lot of dirt and fill to get the grades. It would be pretty tough; it is not flat like he claimed. Chair Magnuson asked what the plans were for the chain link fence. Mr. Carlson replied that he did not want to take the chain link fence out because of the open sight lines and he likes seeing his neighbors. Chair Magnuson asked for a motion to close the public hearing. COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER CORBETT, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER TOTH, TO TABLE PLANNING CASE 2019-14 VARIANCE REQUEST AND DIRECT STAFF TO EXTEND THE APPLICATION REVIEW PERIOD. Commissioner Noonan provided his reasons as follows:  There have been questions asked and answers not given  There has been considerable discussion about the possibility of building on the other side of the house  There is anecdotal information provided without any materials to show what the elevation is, etc.  There are questions with respect to what is the appearance of the garage going to be like; this is important given that one of the tests the Commission has to find is that it would not alter the essential character of the neighborhood. page 174 May 28, 2019 Mendota Heights Planning Commission Meeting Page 20 of 26 o An ugly building can be erected and it would fundamentally alter the character of the neighborhood o Vegetation could be stripped away and it would fundamentally alter the character of the neighborhood  He did not feel comfortable with the information to be had to make an informed decision Commissioner Toth provided his reasons as well:  He felt he could not make a decision as this time as he wanted to look at the property  There are too many unanswered questions, the same as mentioned by Commissioner Noonan Councilmember Petschel asked under what circumstances the Commission would approve this. What is the pass/fail criteria with which to approve this? Commissioner Katz noted that they do not have enough information to approve this. The other points and the seconded of the motion is that the Commission wants more information before making a decision. Commissioner Noonan stated that one of the findings they need to make is does it fundamentally alter the essential character of the neighborhood. He did not have enough information to make that determination. AYES: 7 NAYS: 0 Chair Magnuson advised that this matter would be tabled until June 25, 2019. As a point of order, Commissioner Mazzitello reminded the Commission that they were considering a side-yard setback Variance for a driveway. The garage has nothing to do with the question they were being asked to consider. Commissioner Noonan replied that but for the garage, the driveway would not be necessary. Commissioner Mazzitello agreed and stated that the garage could be discussed; however, it could not be considered as part of the Commission’s decision on the driveway. Commissioner Noonan stated that if the garage was not proposed the driveway would not be either, so they are connected. Chair Magnuson agreed. Commissioner Corbett suggested to the owner, since the third bay in the current garage was not blocked by the stairwell to the basement, he could put in a second garage door on the backside and extend a drive through garage from the current garage. Mr. Carlson replied that he had thought about that but he would end up knocking down more trees, ruining the appearance of the nice tree garden out there right now. He pointed out on the photographs why it would not feasible. Further discussion occurred on alternatives and the Commission suggested that they be brought back for due consideration. page 175 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Park and Recreation Commission Appointment Date: July 16, 2019 Comment: Introduction: The Council is asked to make an appointment to fill the current vacancy on the City’s Parks and Recreation Commission, which was created by the recent resignation of Ira Kipp. Background: At its July 2nd meeting, the City Council accepted with regret the resignation of Ira Kipp from the Parks and Recreation Commission. His term was set to expire 1/31/2021. When asked how it wanted to fill the vacancy, the Council indicated its desire to contact the seven candidates who were not appointed when commission positions were filled in January, and find out if they are still interested. The Council could then review their notes from those interviews, and see if a consensus could be determined. Staff contacted each of the seven previous candidates, and found that five were still interested. They are: Patrick Cotter Adam Crepeau Thomas Keyes Jonathan Sewall Chris Shepard The Council should determine which of the five individuals listed above should be appointed. Recommendation: The Council should make their decision on which of the five candidates should be appointed Action Required If the Council can reach a decision, it should, by motion, make that appointment by approving the following resolution: A RESOLUTION APPOINTING A CANDIDATE TO FILL A VACANCY ON THE PARKS AND RECREATION COMMISSION Mark McNeill, City Administrator page 176 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2019 - 52 A RESOLUTION APPOINTING A CANDIDATE TO FILL A VACANCY ON THE PARKS AND RECREATION COMMISSION WHEREAS, the City Council of the City of Mendota Heights benefits from the active participation of citizens in representing the City on boards and commissions; and WHEREAS, the Parks and Recreation Commission serves as an advisory body to the City Council in addressing general matters of Parks and Recreation; and advises the City Council on matters pertaining to parks and recreation programs, make recommendations relating to the acquisition, development and improvement of the city's parks and recreational facilities and advise the Council on the establishment of written rules and regulations for the use and management of city parks; and WHEREAS, on July 2, 2019, Commissioner Ira Kipp’s resignation was accepted with regret by the City Council, creating a vacancy for the term which is to expire January 31, 2021; and WHEREAS, the Council directed staff to contact the seven individuals who were not selected from interviews when Commission positions were most recently advertised in early 2019; and WHEREAS, five of those individuals indicated that they were still available and interested in serving; and WHEREAS, from amongst those candidates, the City Council determined that ________ would be appointed to fill the currently vacant Parks and Recreation Commission term. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Mendota Heights, Minnesota, that it does hereby appoint ________ to the Parks and Recreation Commission, to fill the unexpired portion of the term which will expire on January 31, 2021. Adopted by the Mendota Heights City Council this 16th day of July, 2019. CITY COUNCIL CITY OF MENDOTA HEIGHTS ______________________________ ATTEST: Neil Garlock, Mayor _____________________________ Lorri Smith, City Clerk page 177 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: City Attorney Appointment Date: July 16, 2019 Comment: Introduction: The Council is asked to appoint the firm of Best and Flanagan to serve as City Attorney for Mendota Heights. Background: The City of Mendota Heights had been served by the firm of Eckberg-Lammers since 2013. In May, the individual who had been serving the City as its primary provider of legal services, Andrew Pratt, left Eckberg-Lammers to take a position with another law firm, Best and Flanagan. As the City had not sought proposals for legal services in six years, the City Council chose to use this occasion to send out Requests for Proposals for Legal services. Mr. Pratt agreed to stay on during the interim, A total of nine firms responded to the RFP request. On July 10th, the City Council interviewed four finalists. At the conclusion of the process, the consensus of the Council was to go with Best and Flanagan, with Mr. Pratt as the primary attorney to be assigned to Mendota Heights. If the arrangement is formally approved, Mr. Pratt will be assisted by David Schelzel, who will substitute for Mr. Pratt when Andy is unavailable. Discussion: The Council may choose to appoint the City Attorney by simple motion, or it may want to formalize the arrangement with a contract. The City didn’t have a contract with Eckberg-Lammers, and it is not unusual for a City to operate without one with its legal provider. However, in the event that the Council does want to formalize the relationship, Andy Pratt did draft the attached. The proposed contract spells out hourly rates for municipal and “pass-through” work, and flat rates for attending meetings. It also describes the type of work that will be provided, and billing procedures. page 178 The City currently has separate firms for legal counsel for labor and personnel issues; municipal bonds; and prosecutions. There is no intent to change from that now, but Best and Flanagan does offer the first two services (but not prosecutions), should the city have need in the future. Note that the term of the agreement is for a period of three years, meaning that it would expire at the end of July, 2022. However, there is an “out” clause, in which either side can be released from the agreement by providing ninety days’ written notice. Budget Impact: The per hour rates from Best and Flanagan is similar to what had been experienced with the previous law firm. The per-meeting rate is proposed to be $300 for 2019, which is $100 per hour more than what had been the rate with the previous firm. The other rates would remain largely the same through the end of 2021; there are more overall rate increases for 2022. Best and Flanagan does not charge for mileage, travel time, or Westlaw legal research. Recommendation: If the Council chooses to formalize the City Attorney appointment with a contract, I recommend that it approve the attached agreement. Alternatively, if the Council wants to retain Best and Flanagan without a formal contract, it would instead pass a motion designating Best and Flanagan to be City Attorney for Mendota Heights. Action Required If the Council concurs with using a contractual arrangement, it should, by motion, authorize the execution of a Contract for Legal Services with the law firm of Best and Flanagan. Mark McNeill City Administrator page 179 CONTRACT FOR CIVIL MUNICIPAL LEGAL SERVICES This CONTRACT FOR CIVIL MUNICIPAL LEGAL SERVICES (the “Agreement”) is entered into by and between the CITY OF MENDOTA HEIGHTS, MINNESOTA, a municipal corporation and political subdivision under the laws of the State of Minnesota (the “City”), and the law firm of BEST & FLANAGAN LLP, a limited liability partnership under the laws of the State of Minnesota (the “Firm”), for the purpose of utilizing the Firm to provide various comprehensive civil municipal legal services to the City. RECITALS 1. City Approval of Firm. On May 7, 2019, the City Council of the City authorized the release of a Legal Services Request for Proposals. The City Council received various proposals from legal firms, and interviewed four finalists on July 9, 2019. At its regular meeting on July 16, 2019, the City Council adopted a motion appointing the Firm as the civil municipal legal services provider for the City. This Agreement memorializes the intent of the City in this regard, and shall be effective from the date of approval to and including July 31, 2022. 2. Responsible Attorney. Attorney Andrew Pratt of the Firm shall be designated as the “City Attorney” and shall be responsible for assuring the performance of the Firm’s obligations under this Agreement, and shall be the initial point of contact for civil municipal legal matters for the City Council and City staff. Other attorneys and staff of the Firm will assist Mr. Pratt from time to time with the representation of the City. These attorneys and staff will be identified on the monthly invoice provided by the Firm to the City, and City staff will receive the same consistent and frequent communication from said attorneys and staff as from Mr. Pratt. 3. Compensation. Compensation due from the City to the Firm under this Agreement shall be as follows: a. Hourly Rate – Attorney: i. 2019: $155 ii. 2020: $155 iii. 2021-2022: $160 b. Hourly Rate – Paralegal: i. 2019: $120 ii. 2020: $120 iii. 2021-2022: $130 page 180 c. Hourly Rate – Law Clerk: i. 2019: $100 ii. 2020: $100 iii. 2021: $110 d. Third-Party Reimbursed Hourly Rate 1: i. 2019: $230 ii. 2020: $235 iii. 2021-2022: $240 e. Meeting Attendance Flat Fee 2: i. 2019: $300 ii. 2020: $300 iii. 2021-2022: $325 4. Expenses. The City will reimburse the Firm for actual, necessary and reasonable costs and expenses incurred by the Firm in the performance of services contained in this Agreement. These costs and expenses include but are not limited to courier or delivery charges, process server fees, court filing fees, and document recording fees. These fees and expenses will be prominently highlighted on the Firm’s monthly invoice to the City. The Firm does not charge for time to travel to City Hall, nor does it charge for mileage reimbursement purposes. The Firm additionally will not charge the City for expenses related to WestLaw research or other similar research services. 5. Scope and Nature of Legal Services Provided -- General. Under the hourly compensation rates provided above, the Firm will provide the following general legal services to the City: a. Attendance at regular or special City Council meetings, and City Council workshops. b. Attendance at City Planning Commission regular or special meetings, or Planning Commission workshops, upon request by the City. 1 Used when a project or transaction is ultimately paid for by a third party, such as a developer, through an escrow or some other reimbursement to the City. 2 Applies to regular and special City Council meetings, City Council workshops, and Planning Commission regular and special meetings and workshops. This fee will remain flat, no matter the duration of the meeting. page 181 c. Review of City Council and Planning Commission agenda items and minutes. d. Frequent consultation with the City Council and City staff. e. Drafting of and revisions to various legal documents, ordinances, resolutions, forms, notices, certificates, deeds, correspondence, policies, and other regulations. f. Drafting of and revisions to municipal contracts, joint powers agreements, bidding documents, equipment purchase and lease documentation, project plans and specifications, and the like. g. Review of contractor/vendor bond and insurance documents. h. City Code codifications and recodifications. i. Research and preparation of legal opinions on municipal or other legal matters as requested by the City Council or City staff. j. Provide regular updates on significant developments in laws affecting the City to the City Council and City staff. These updates may take the form of presentation to City staff and City officials on topics selected by the Firm and the City, with special emphasis on new developments in the law. k. Provide an annual legislative update in a City Council workshop setting. 6. Scope and Nature of Legal Services Provided -- Complex. Under the hourly compensation rates provided above, the Firm will provide the following complex legal services to the City: a. Condemnations. b. Enforcement of City building, housing and zoning codes, and environmental matters. c. Drafting of and revisions to Development Agreements. d. Sales of City-owned real or personal property. e. Provide economic development counsel, including advice on tax increment financing (TIF), tax abatement, business subsidy, and other development matters, and drafting of and revisions to development agreements, assessment agreements, TIF development agreements, and the like. f. Assistance with the purchase of private real or personal property by the City. g. Development of contracts or contract addenda, specifications and contract negotiations. page 182 h. Processing of claims not covered by the City’s municipal insurance policy. i. Special assessment-based issues and public improvement projects. j. Negotiation and drafting of easements and right-of-ways, including vacations of City-owned real property. 7. Scope and Nature of Legal Services Provided -- Additional. Under the hourly compensation rates provided above, the Firm will provide the following additional legal services to the City: a. Contested Case Matters. The Firm may provide, and the City shall utilize the Firm for representation in contested cases, such as general litigation matters and appellate work, for claims and defenses not otherwise covered by the City’s current municipal insurance policy. b. Bond Attorney Matters. The Firm is a “nationally recognized bond counsel” firm under the requirements of The Bond Buyer’s Municipal Marketplace (also known as the “Redbook”). The Firm is available to provide such bond counsel services to the City. If these services are provided, the Firm will do so under a separate flat-fee compensation structure, which structure will be timely communicated to the City. c. Labor and Employment Matters. The City may select the Firm to provide labor and employment law services, including representation for staff disciplinary matters, union negotiations, personnel policies, contested cases, employment contracts, and other similar services. d. Prosecuting Attorney Matters. The Firm does not propose to serve the City as its criminal prosecution attorney. e. Matters Covered by Insurance. The Firm may assist the City in submitting claims for insurance coverage to various insurance carriers, the most prominent of which is the League of Minnesota Cities Insurance Trust (LMCIT). Whenever a claim is made with an insurance carrier that arises out of a legal issue against the City, the Firm will coordinate services with the insurance provider’s legal counsel. When an insurance carrier admits coverage, and to the extent that it will provide retroactive payments for attorney fees, the Firm will receive its payments for services rendered from the insurance carrier and not the City. To the extent that an insurance carrier does not pay for legal services rendered by the Firm, including any deductibles, the City will pay the Firm for services rendered, subject to billing rates and payment provisions set forth in this Agreement. page 183 8. Miscellaneous. a. Conflict of Interest. The Firm will notify the City as soon as practicable if the Firm represents or has ever represented an opposing party to the City in a legal matter. b. Attorney/Client Privilege. The Firm is authorized to utilize email correspondence without encryption to transmit and receive confidential client information. The City specifically acknowledges that it understands the confidentiality risks associated with inadvertent interception of such information. c. Insurance. The Firm maintains professional liability (malpractice) insurance at a minimum insurance level of $8,000,000 per claim, with an $8,000,000 annual aggregate. The Firm shall provide a current Certificate of Insurance to the City upon request. 9. Billing Format, Cycle, Payment Expectations and Interests. a. Billing Format. The Firm will submit monthly billing statements to the City, which will include descriptions of work done on behalf of the City by the City Attorney as well as assistant attorneys and staff of the Firm. The invoice will also describe in detail any expenses incurred by the Firm and being billed to the City. Time shall be billed in tenths of an hour. The Firm will revise its billing statements to forms that are adequate for the City. b. Billing Cycle. The Firm will bill monthly for civil legal services rendered in the prior month. Firm staff will work with City staff to timely submit invoices for approval by the City Administrator or the City Council. c. Payment Expectations. The City will pay the invoice of the Firm routinely according to its internal payment procedures by forwarding a check or wire to the Firm. d. Term. As specified in this Agreement, the term of this Agreement will be for three years, from the date of the City Council approval of the Firm’s representation to July 31, 2022. During the term of this Agreement, either party may terminate this Agreement upon 90 days’ written notice to the other party. e. Contact Information. As of the date of this Agreement, the City contact person to this Agreement is: Mark McNeill City Administrator City of Mendota Heights 1101 Victoria Curve Mendota Heights, Minnesota 55118 page 184 651.452.1850 markm@mendota-heights.com The Firm contact person to this Agreement is: Andrew J. Pratt Best & Flanagan LLP 60 South Sixth Street Suite 2700 Minneapolis, Minnesota 55402 612.339.7121 apratt@bestlaw.com [The remainder of this page is intentionally left blank.] page 185 CITY OF MENDOTA HEIGHTS, MINNESOTA __________________________________ Neil Garlock, Mayor Date: ______________________, 2019 __________________________________ Mark McNeill, City Administrator Date: ______________________, 2019 BEST & FLANAGAN LLP _____________________________________ Andrew J. Pratt Date: ______________________, 2019 page 186