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2020-12-15 Council MinutesCITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, December 15, 2020 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, Minnesota was held at 6:00 p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 6:00 p.m. Councilors Duggan, Paper, Mazzitello (joined the Council at 6:10 p.m.) and Miller were also present. PLEDGE OF ALLEGIANCE Council, the audience, and staff recited the Pledge of Allegiance. AGENDA ADOPTION Mayor Garlock presented the agenda for adoption. Mayor Garlock moved adoption of the agenda. Councilor Duggan seconded the motion. A roll call vote was performed: Councilor Paper aye Councilor Duggan aye Councilor Miller aye Mayor Garlock aye RESOLUTION 2020-89 APPOINTMENT TO FILL COUNCIL VACANCY City Administrator Mark McNeill stated that the City Council is asked to take action to appoint a candidate to fill the unexpired term of Elizabeth Petschel. Councilmember Petschel announced her resignation on November 4, 2020. The City Council declared that a vacancy existed on November 12, 2020. He reviewed the preferences expressed by the Council following the interviews the previous night. Councilor Miller commented that after having additional time to reflect, he would change his preference from Mr. Corbett to Ms. Lorberbaum. Mayor Garlock stated with that change, there are two votes for Mazzitello and two for Lorberbaum. Councilor Duggan stated that he was concerned that Mr. Mazzitello indicated that he was needed in order to make a decision on the Culligan application tonight. He stated that Mr. Mazzitello stated that as a Ramsey County employee, he could not run for office in Mendota Heights in the 2022 election. He stated that some members of the Council were around when Mr. Mazzitello took the Planning Commission (of which he is currently a member), the City, and the Council to task in an inappropriate way. He also questioned the ability of the Mayor Elect to be a part of the process. Mayor Garlock stated that this process was run by the City Attorney and the Mayor Elect was allowed to participate in the interview process and provide a preference but noted that her preference does not count as a vote. He stated that only the current four members of the Council will be voting on the vacant seat. Mayor Garlock asked staff to poll the Council for their choice to fill the vacant seat. Councilor Duggan voted for Ms. Lorberbaum. Councilor Miller voted for Ms. Lorberbaum, Mayor Garlock voted for Mr. Mazzitello. Councilor Paper voted for Mr. Mazzitello, City Attorney Knetsch commented that if the vote ends in a tie, state law provides that the Mayor shall make the appointment. Mayor Garlock read aloud a portion of State Statute 412.02, Subd. 2A, which states that in a tie vote for appointment, the Mayor makes the appointment. He stated that after careful deliberation, he has decided to appoint John Mazzitello to the vacant Council seat. Mr. Mazzitello will serve the remainder of the unexpired term of Councilor Liz Petschel. SWEARING IN OF NEW COUNCIL MEMBER City Clerk Lorri Smith administered the Oath of Office to newly appointed Councilor John Mazzitello, Councilor Mazzitello then joined the Council. CONSENT CALENDAR Mayor Garlock presented the consent calendar and explained the procedure for discussion and approval. Councilor Duggan moved approval of the consent calendar as presented, pulling item 1. a. Approval of December 1, 2020 City Council Minutes b. Approval of December 8, 2020 Council Work Session Minutes c. Acknowledge November 10, 2020 Parks and Rec Minutes d. Approve Tobacco License Renewals e. Approve Resolution 2020-74 Designating Polling Locations for 2021 f. Acknowledge October 2020 Par 3 Financial Report g. Approval of the 2021 Seasonal Pay Matrix h. Approve Resolution 2020-84 Adopt 2021 Pay Classification Plan for Non -Union Employees i. Approve Purchase Order for Demolition of Property at 2085 Valencour Circle j. Approve Resolution 2020-87 Adopt a Federal Grants and Awards Compliance Policy k. Approve Banking Authorization Signatory Change 1. Approve Resolution 2020 95 Final Payment Aeoeptanee of Fire Station AdditionRemodel, in, Approve Building Activity Report n. Approve Fire Synopsis Report o. Approval of Claims List December 1$ 2020 NLendota Heights City Council Page 2 of 15 Mayor Garlock seconded the motion. Further discussion: Councilor Mazzitello noted that he would abstain from voting on items a and b, as he was not a member of the Council at that time. A roll call vote was performed: Councilor Miller aye Councilor Mazzitello aye (abstained from a. and b.) Mayor Garlock aye Councilor Paper aye Councilor Duggan aye PULLBD CONSENT AGENDA ITEMS L) APPROVE RESOLUTION 2020-85 FINAL PAYMENT -ACCEPTANCE OF FIRE STATION ADDITION/REMODEL Councilor Duggan referenced the language "final payment" and asked how final that payment is. City Administrator Mark McNeill replied that these are for four contracts for the Fire Department. He noted that there was a total of 20 contracts for the project, and some items are still being resolved, but this action will close out these four contracts. Councilor Duggan moved to approve RESOLUTION 2020-85 FINAL PAYMENT -ACCEPTANCE OF FIRE STATION ADDITION/REMODEL. Mayor Garlock seconded the motion. A roll call vote was performed: Councilor Duggan aye Councilor Miller aye Councilor Mazzitello aye Mayor Garlock aye Councilor Paper aye PUBLIC COMMENTS No one from the public wished to be heard. RECOGNITION OF RETIRING ELECTED OFFICIALS 1) ELIZBETH PETSCHEL City Administrator Mark McNeill recognized the contributions of Liz Petschel to the City and as a member of the Council. He thanked Liz Petschel for her contributions. 2) MAYOR NEIL GARLOCK City Administrator Mark McNeill recognized the contributions of Mayor Garlock. He noted that this will be the final meeting of Mayor Garlock and thanked him for his service. He presented him with a plaque of recognition. He commented that Mayor Garlock also had perfect attendance for all regular, special and workshop meetings and presented an additional plaque for that. December 15, 2020 Mendota Heights City Council Page 3 of 15 Mayor Garlock thanked the City. He stated that he was hired in 1990 as a Police Officer and then was promoted to Sergeant. He commended City staff, the Fire Department, the Public Works Department, and the Police Department. He thanked the residents of Mendota Heights for allowing him to serve. PUBLIC HEARING A) ORDINANCE NO. 560 AMENDMENTS TO THE FEE SCHEDULE FOR 2021 AND APPROVE THE SUMMARY PUBLICATION OF THE ORDINANCE Councilor Mazzitello moved to open the public hearing. Mayor Garlock seconded the motion. A roll call vote was performed: Councilor Mazzitello aye Mayor Garlock aye Councilor Paper aye Councilor Duggan aye Councilor Miller aye City Clerk Lorri Smith explained that the Council was being asked to hold a public hearing and adopt a fee schedule for 2021, She noted five items are proposed to be deleted from the schedule because the city no longer provides that service, or the fee is paid directly to the vendor. Items recommended for deletion from the schedule include fees for car seat rental, dog impoundment, vehicle impound, vehicle storage, and basic property storage. There being no one coming forward to speak, Mayor Garlock moved to close the public hearing. Councilor Mazzitello seconded the motion. A roll call vote was performed: Mayor Garlock aye Councilor Paper aye Councilor Duggan aye Councilor Miller aye Councilor Mazzitello aye Councilor Paper referenced the field reservation and prep fees for tournaments. He commented that those may not be reasonable and would like the Council to review those further. He stated that if the fees are comparable to other communities, then he could support them. Recreation Program Coordinator Meredith Lawrence commented that staff will be meeting individually with the different recreation user groups in order to gain their input on the fees. City staff would come back to the Council to amend the fee schedule if needed. Councilor Paper commented that he is comfortable with that direction. Councilor Duggan stated his concern with the cost of on -sale liquor licensing fees in a time when they are not fully operational. He asked if a reduction could be provided. City Administrator Mark McNeill stated that the City Council did approve a 2-month reduction in on -sale liquor fees earlier this year and will be reducing the fees for at least one more month with the most recent shutdown. December 15, 2020 Mendota Heights City Ccemcil Page 4 ojl5 Mayor Garlock moved to adopt ORDINANCE NO. 560 ESTABLISH FEES AND CHARGES FOR 2021. Councilor Mazzitello seconded the motion. A roll call vote was performed: Councilor Paper aye Councilor Duggan aye Councilor Miller aye Councilor Mazzitello aye Mayor Garlock aye Mayor Garlock moved to approve THE SUMMARY PUBLICATION OF ORDINANCE NO. 560. Councilor Mazzitello seconded the motion. A roll call vote was performed: Councilor Duggan aye aye aye aye NEW AND UNFINISHED BUSINESS A)RESOLUTION 2020-82 DENYING/APPROVING PRELIMINARY PLAT OF VALLEY VIEW OAK 3RD ADDITION WITH A CRITICAL AREA PERMIT AND CONDITIONAL USE PERMIT - NW QUADRANT OF VICTORIA CURVE/GLENHILL ROAD Community Development Director Tim Benetti explained that the Council was being asked to give final consideration of a resolution either approving or denying the proposed Preliminary Plat of "Valley View Oak Yd Addition", which includes a Critical Area Permit and a Conditional Use Permit. The subject property is generally located at the NW quadrant of Victoria Curve and Glenhill Road, Councilor Duggan moved to TAKE THIS ITEM FROM THE TABLE TO CONTINUE DISCUSSION. Mayor Garlock seconded the motion. A roll call vote was performed: Councilor Paper aye Councilor Duggan aye Councilor Miller aye Councilor Mazzitello aye Mayor Garlock aye Michelle Culligan, applicant, stated that since the last meeting they have gathered additional information. She stated that their request meets all of the City requirements and hopes that a vote of approval could be obtained with conditions that address any additional concerns. She stated that they have addressed feedback from neighbors and have reduced the scope of the original proposed development. She referenced the letter from the Department of Interior and other agencies that provided comments, noting that they have addressed those concerns. They feel that they have more than met the requirements and more than addressed the feedback with the reduced scope of the proposed development. She stated that this proposal does not suggest anything different than the City has approved in other Conditional Use Permit and Critical Area Permit applications. She stated that they are being asked to do extensive due diligence beforehand that other applicants have not been asked to do. She commented that the homes on Culligan Lane have existed for over 30 years with no issues. She December 15, 2020 Mendota Heights City Council Page 5 of 15 noted that this proposal would not propose to be as close to the bluff as some of the other homes in the area. She recognized that people are interested in the project, but they would simply ask that the same requirements be applied to their proposal as they were to other proposals. Mike St. Martin, Loucks, recognized that there are concerns related to the storm water pond, erosion, and stability. He reviewed the proposed stormwater management and drainage plan which provides a 36 percent reduction in runoff. He provided an updated grading plan for the pond and reviewed the details. He stated that they have also changed the emergency overflow proposed for the pond and it is now proposed to go towards Victoria Curve and into the MnDOT storm system. Brian Ripp, Braun Intertec, identified the locations of the first soil borings that were done, noting that two of those locations were then drilled deeper to provide additional information that could lead to preliminary conclusions. He noted that was simply the preliminary phase and identified the locations that would have additional borings as the process moves forward. He stated that thus far they have arrived at a factor of safety of 1.7, noting that 1.5 is the industry standard for critical structures. Councilor Duggan asked what might cause the applicant to drill deeper than 61 feet. Mr. Ripp stated that depth was chosen for preliminary information. He stated that in the next phase they will bring those depths deeper in order to gain additional information. Councilor Duggan asked if there will be soil removal and replacement. Mr. Ripp replied that the analysis is based upon no placement of additional fill and would primarily be related to cut. He stated that the deeper borings would determine what is in the deeper levels. He noted that the areas would be cut for the homes, but there would not be additional fill. Councilor Miller stated that during the previous presentations he did not hear a mention of phase two. Mr. Kipp stated that the preliminary report indicated that additional borings would be drilled, noting that the specifics were not provided. Councilor Paper asked about the similarities and the differences between this site and the site of the Mendota slope failure. Mr. Ripp stated that the bedrock was not as shallow as they anticipated for this site, but the plans were then modified to adapt to this site. He stated that this analysis is site specific and stated it is not unusual to modify the plans based on what is found in the borings. Councilor Paper asked which boring location is proposed to go to 130 feet. Mr. Ripp identified the proposed boring location, noting that it would be the middle of the three homes to the east. Councilor Paper referenced the proposed boring locations five, six and seven noting that they appear to be in the middle of building pads. He asked why the borings are not done at the backside of the area to be disturbed by construction. Mr. Ripp confirmed that the proposed borings would be in the middle of building pads in order to gain information for foundations and slope stability. He stated that they feel comfortable with the spacings. The locations are based on professional experience in order to gather as much information as possible. He stated that the soils would not change that much from the middle or back of the construction area. Councilor Paper asked for explanation on failure plane. Mr. Ripp stated that it is a circular plane that they have seen from actual slope failures and provided additional explanation, noting that it is the industry standard. December I5, 2020 Mendota Heights City Council Page 6 of IS Ms. Culligan stated that they take this process seriously and finds it critical that all the questions be answered. She stated that the President of Braun Intertec is also present to address questions. Bob Janssen, Braun Intertec, stated that he is a geotechnical engineer and has over 35 years of experience. He commented that the term failure plane can be misleading. He stated that stability analysis runs through different scenarios and finds the lowest factor of safety, drawing the line in that place. He stated that they do not anticipate any failures. He explained the purpose of taking borings to different depths, noting that it alleviates the concern that there is a soft condition below. Councilor Paper stated that it seems to make sense that the soil removed and the home to be constructed would have the same load but stated that it is not in the same place. He stated that he appreciates that the pond has been moved, and asked how he can be assured that the back wall of the pond would not blow out. Mr. Ripp stated that the loads of the water on the embankment will be taken into account. He stated that the pond will be lined, therefore the pond will not impact the soils below. Mr. Janseen stated that they would work with Loucks to design the pond. He explained that in any pond construction they ensure that the pond embankment would be stable enough to withstand the pressures from the water. He stated that they have a boring in the most critical point of the pond location. Councilor Miller asked for clarification on the intent for the impact of the load on the embankment of the pond. Mr. Ripp stated that the load from the water would still be there. Because the pond is lined, it would not allow the water to percolate into the embankment or soils below. He stated that there would still be a physical load on the bottom and embankment of the pond. Mr. St. Marin provided details on how the pond would be dug and the berm/embankment that would be at the top. He stated that Braun would complete an analysis to ensure stability and would be completing tests along the way to ensure it is constructed properly. Councilor Miller asked for an approximate number of gallons of water the pond would hold. Mr. St. Martin replied that the pond would flow into the trunk storm sewer and in an overflow situation would flow to Victoria Curve. He provided the cubic feet of water storage that would be provided in ordinary water levels and at maximum capacity and also provided those figures in gallons. Councilor Duggan asked how much of the impervious surface water would be captured. Mr. St. Martin replied that most of the water would be captured with the exception of the water from the back of the homes or areas with elevations lower than the driveway. Councilor Duggan asked if engineering has stated that it is okay for the overflow to go to Victoria. Mr. St. Martin confirmed that the pond location and connection was recommended by City staff. Councilor Duggan asked the slope for the pond. Mr. Ripp replied that it would be a three to one slope, which is the industry standard. Councilor Mazzitello acknowledged that this is preliminary information to use clay to line the pond. He noted that the boring for the pond location has not yet been completed and asked if a fabric liner would be entertained, should the boring results support that option rather than a clay liner. He provided an example he encountered with problems with a clay liner in his line of work. Mr. Janssen confirmed that the pond would need to be sealed to prevent an introduction of more water into the area. He provided details on the different methods used to create a clay liner. He provided additional explanation on why December 15, 2020 Mendota Heights City Council Page 7 of 15 the example Councilor Mazzitello provided failed. He confirmed that they would entertain a fabric liner if the soils dictated that method. Councilor Paper asked the type of guarantee that could be given that the backside of the pond would not fail. Mr. Ripp stated that they would analyze this as a dam, which are designed to handle multiple events. He stated that Loucks will determine the elevations of those events and a separate slope stability analysis will be completed for the pond. Mr. Janssen stated that they make assumptions based on soil borings that are spaced out and during construction they are confirming that the conditions they predicted actually exist in those locations. He stated that they not only do geotechnical analysis but also do onsite inspections and testing to ensure those assumptions are correct. Councilor Paper asked if there is concern that there would be a fracture on the hillside during construction from the equipment and compaction. Mr. Janssen replied that these soils are not susceptible to those types of activities. Mr. Ripp stated that there will be specifications within the report related to the size of equipment and locations where the equipment would be allowed. Councilor Paper referenced the proposed boring locations for phase two and asked if that would complete the narrative. He asked why those results could not be provided before a decision is made. Mr. Janssen confirmed that the second round of borings would complete that narrative. He stated that it would not make sense to bring in that equipment, clear trees and take borings at this point. He stated that the house pad locations have to be known and it needs to be known whether the project would be feasible in order to bring that equipment out and take those additional steps. Councilor Paper asked if the statement could be made that there would not be a failure without those additional borings. Mr. Janssen stated that a stability analysis would be done for each individual lot and if the factor of safety cannot be reached, they would need to decide whether to redesign or eliminate the lot. He noted that information would all be known prior to the Final Plat approval by the City Council, Mr. Ripp stated that the answers Councilor Paper is looking for would be provided in the next step and would be known before the Final Plat approval. He stated that they are being pragmatic in this approach, noting their high level of experience in this area. He stated that they would not be making wild guesses and would continue to follow the typical process. Councilor Paper commented that he understands that they do not want to disturb additional areas in order to conduct additional borings but is challenged with not having that information. He stated that his concern remains for the safety of those living at the bottom of the hill and he would want the developer to say that there will not be a slope failure. He stated that he likes the location of the pond and overflow into the MnDOT system rather than having that overflow going down the hill. Ms. Culligan stated that everything they have been doing is part of the process and for the past 18 months they have worked with the City and would continue to do so. She stated that they share the same concern, although they do not expect a failure to happen, but the continued geotechnical analysis would provide those answers. She stated that the issue is with timing, noting that any other CUP or CAP did not require all of that work to be done in advance of a Preliminary Plat being awarded. She stated that typically those things are added as conditions in the Preliminary Plat and would be completed prior to Final Plat. She stated that there needed to be consideration of what is reasonable, fair, and consistent with any other application considered by the Council. She stated that the level and depth of December 15, 2020 Mendota Heights City Council Page 8 of 15 what they will be doing does not suggest failure. She stated that the other homes were constructed without this amount of analysis and did not cause failure. Councilor Paper stated that he needed to be reassured that this will not fail. Mr. Kipp stated that he also needs to make decisions that allow him to sleep at night and his experience allows him to do so. He stated that as a professional engineer, the foremost concern is of health, safety, and welfare. Councilor Paper stated that he has no doubt that this would be a beautiful addition but is concerned with safety. Mayor Garlock stated that a 100 percent guarantee on anything is unrealistic. He stated that there is a certain amount of risk with everything. Chris Dolan, Fredrickson and Byron, spoke in representation of the applicant. He stated that Ms. Culligan has mentioned some of the legal concerns the family has. He stated that he has attended many of the previous meetings, although he has not spoken at those meetings. He stated that they are hopeful and optimistic that the issues can be resolved, but the family believes that the legal position should be stated tonight. He noted that he himself was a Mendota Heights Planning Commission member for six years and is aware how emotional these land decisions can be. He commented that the involvement of the neighbors is generally a good thing, as those residents care about the City and their neighborhood but the emotion and opposition of a few neighbors cannot be the basis of the decision. The decision must be based upon the application of the law and with respect to the rules. He stated that the City Attorney has mentioned in previous meetings that this is a quasi-judicial decision as the Council is interpreting the ordinance. He stated that while the Council can make that interpretation, it must also be in line with the ordinance and City regulations and the Council cannot legally deny a plat application that meets the minimum standards of the Ordinance. He stated that the information presented shows that the site can be developed reasonably and in accordance with the ordinance. He stated that information has been provided from experts and the opponents of the application would like the Council to believe there is conflicting information when there is not. He stated that neighbors in opposition have not walked the property or completed these inspections. He stated that the Council has an obligation to enforce the ordinance consistently and fairly, and this applicant has been held a different standard than have other applications within the Critical Area. He stated that they realize that development in this area requires additional precautions and sensitivity. He stated that they have gone to great lengths to comply with those regulations and protect the protected areas. He stated that this can be a complicated decision but from a legal perspective, the decision is simple as the evidence establishes that the application meets the requirements of the City, and therefore should be approved. Sandra Krebsbach, 1230 Culligan Lane, stated that they are simply trying to find clarity and information. She stated that as a neighborhood they chose to invest in experts as they preferred to add information. She asked that the experts retained by the neighborhood be allowed to speak. Consultant Kelton Barr provided an image of where springs have been encountered in the area, noting that the water moves through the materials that make up the bluff. He stated that they are seeing seeps outside of the property owned by the developer and along the western boundary. He stated that there could be more seeps in wetter times. He noted that water is one of the factors in the stability of the materials and the bluff. He provided an updated figure from his earlier report related to the four soil borings that were taken on the site. He noted that each boring has a unique character compared to the others, which means that the composition of the soils are very different, even in close proximity to each other. He stated that the deeper borings encountered water at different levels. He noted that all of the borings have been filled and therefore the final water level could not be determined. He stated that the deeper borings note sand seams and provided additional comments on the boring results. December 15, 2020 Mendota Heights City Council Page 9 of 15 Councilor Miller asked what sand seams or lenses are and why they are important. Mr. Barr replied that those are terms for a layer and provided additional explanation. He stated that there are thin layers of sand within the clay till that were encountered by the boring. Councilor Miller asked if the lenses or seams were found at consistent levels within the different borings. Mr. Barr replied that the information related to lenses were not called out and therefore that specific information is not known. Councilor Miller asked if that would be information that they would need to know. Mr. Barr replied that in hindsight it would have been better to have the information related to sand seams. Councilor Miller asked if these are indications that water has flowed through and left the sand as a deposit. Mr. Barr confirmed that these sands were laid down and sorted by flowing water so that just the sands were left. Otto Strack, University of Minnesota Professor, provided additional explanation related to soil mechanics. He explained how groundwater can impact slope stability. He stated that often natural factors, such as roots and vegetation help to provide stability. He stated that he was involved in the Lilydale slope failure, noting that that slope was stable for a long time before the failure. He referenced the model used by the applicant to calculate the factor of safety, noting that if there is no vegetation the slope would lose stability. He provided details on the FLAC program which is far more sophisticated and requires more data than the slip circle analysis. He stated that this is a high risk and if they want to make this safe, a lot more information would be needed on the soils and a more sophisticated model should be used, such as FLAC. Councilor Paper asked Mr. Strack if he would move into a home built on this property. Dr. Strack replied that he would not. He stated that he is very conservative and would use caution and be careful as conditions continue to change. He stated that anything can be engineered but it would be a matter of cost. He believed that more data and sophisticated analysis would be needed for this site. Alan Olstein, 1954 Glenhill Road, stated that Professor Strack is being exceedingly modest in the presentation of his resume, noting the number of books that he has written related to vector analysis and soil mechanics. He commented that his is a matter of safety for the community. Brian Mielke, Mayor of the City of Mendota, shared some of the concerns the residents of Mendota have with this project. He noted that the majority of Mendota is within the bowl below the subject parcel. He commented that one of the property owners below this site has lived here for 50 years and noted that property owner did not have water issues before the original Culligan development was built. He stated that the water comes through the soil 365 days per year and they are concerned that these additional homes would further intensify the problems. He stated that in the 1980s this land was deemed unbuildable by Dakota County and asked why this is proposed to occur now. He noted that a lot of tree clearing would be necessary to support this development, which raises concerns for Mendota residents. He stated that placing a holding pond above Mendota that could hold two million pounds of water was a concern. He asked if this request would be grandfathered into the 2004 DNR standards, if approved tonight, rather than being required to meet the 2017 standards. December I5, 2020 Mendota Heights City Cozanctl Page 10 of IS Community Development Director Tim Benetti replied that the City is currently operating under its current ordinance. He confirmed that if approved, this would be approved under the old rules and if the new ordinance is adopted prior to the submission of the Critical Area Permits for the individual lot construction, those lots would need to follow the new regulations. Mary Janish, 1935 Glenhill Road, stated that she was under the impression that the classification of non - buildable land meant non -buildable. She stated that it was not common knowledge to everyone that there would be development on this site. She stated that five days after moving into their home on Glenhill, there was a significant rain event that caused water issues. She stated that the homes in this area have their own issues with water. She referenced the comment that the applicant wants to be treated like everyone else and the other development sites. She stated that this site is unique because of those that could be injured if there is a failure. She stated that there are experts that say that a guarantee cannot be provided. Kae Jewell, 1948 Glenhill Road, commented that buildings and lives are at stake with this proposal. She referenced the 2040 Comprehensive Plan, noting that section nine, page 15 describes a slope, the bluff impact zone and the appropriate rules which prohibit the placement of structures, most construction activities, vegetation removal, etc. She stated that she is confused with this discussion and what would happen in the future because of the language in the Comprehensive Plan. Bob Brewstal, Mendota resident, referenced the comment that 36 percent of the water would be collected. He stated that the remainder of the water will go downhill and that could decimate portions of Mendota. He stated that prior to the first Culligan development he did not have problems with water on his property, but since that time has had significant issues with water. He commented that it would be a true detriment if any portion of runoff from this development flows downhill to Mendota. He stated that he has worked with engineers and developers and they are not always right. Mr. Janssen stated that these are engineering issues that are dealt with in certain ways. He stated that Mr. Barr worked for Braun Intertec for many years and did not understand the concern with sand seams that are 50 to 100 feet below where the home would be constructed and are often found in these types of glacial features. He commented that bringing up sand seams is not relevant to this project or the structures downhill. He stated that those sand seams would be there whether the home is there or not. He stated that they handle things in an objective manner with industry standards and adding a home will not affect the seams, layers, and streams that come out at the bottom of the slope. He stated that there is no engineering relevance to the sand seams. Mr. Ripp stated that they used conservative estimates assuming anything below the line is entirely saturated, when in reality it is not. He noted that the line on the model is higher than the measured groundwater levels and known springs. He stated that there is assumption that the slope would be clear cut but that will not happen, that vegetation will stay in place. He stated that there will be bare areas during construction but actions will be taken to prevent erosion during that time. He stated that FLAC is finite element analysis. He stated that he has taken lessons from others in this field and a renowned slope stability expert that he has known for 30 years. He provided information on a geotechnical conference he attended earlier this year noting that the industry continues to debate which analysis is better and preferred. He commented that a considerable amount of data is collected for FLAC but the results of the two methods provide similar results in the end. He stated that while Dr. Strack would not want to live in those houses, which is not the opinion he has. December 1 S, 2020 AIendoaa Heights City Cauncid Page 11 of 15 Dr. Strack commented that he was not concerned with erosion, but the equilibrium of material pushed out from inside the slope. He stated that forced equilibrium under the slope, tells you that will come out. He stated that FLAC does not involve finite elements and provided additional explanation. He confirmed that FLAC is a more advanced analysis. Mark Hunt stated that if the review of the proposal had one diligence from Lou onset, there would be no need for the neighbors to step in. He stated that the neighbors have done the work of the City in bringing forward additional materials and information that should be considered. He noted that the City's Planning Commission unanimously recommended denial, and the Council denied the request. He stated that rules and regulations change over time. He stated that the DNR has stated that this is a bad proposal, and everyone is wiser for the events of the past few decades. He stated that this property was dedicated as an unbuildable outlot and has been taxed for years as such. He stated that this bluff is unique and has its own considerations. He appreciated the additional research done by the applicant's engineers but noted that there is opportunity for them to drill on a house pad without disturbing trees. He asked that the Council to listen to the experience of its Planning Commission, the DNR and the other experts that were brought forward tonight without vested interested in this project. He asked that the Council listen to the comments and protect its residents. Councilor Miller stated that under normal conditions nearly 450,000 pounds of water would be perched above Mendota in this pond and under maximum capacity that would increase to 2,500,000 pounds of water. He noted that it is a lot of weight and does not feel comfortable saying that this would be safe. He recognized that this is a unique site with many challenges and in light of those challenges, the proximity within the critical area, and the various findings, it has been a cacophonous discussion. He stated that the proposed plan has not met the burden of proof to show that this is safe for this community or the adjacent community. He stated that because of those reasons he could not support this project. Councilor Duggan referenced comments by Mr. Hunt asking how the Council is at this point when the application has been denied in the past. He asked for input from the City Attorney. City Attorney Knetsch explained that the Planning Commission makes a recommendation that is brought forward to the Council. He stated that at the last meeting the Council had a vote of 2-2 to approve, which means that action failed. He stated that if that would have been the last action taken by the Council it would have operated as a denial of the application. He stated that instead the Council chose to table the request to this date and directed staff to work with the applicant and Councilors that had concerns to determine if more information could be brought forth for the Council to make a decision tonight. Councilor Duggan referenced Mr. Dolan and asked if the City were to go forward with the implementation of the Critical Area ordinance, would it then be considered a taking of the land? Mr. Dolan stated that those sorts of actions can result in a taking action. He stated that he would need to review the law and apply it to the facts in order to make that determination. Councilor Duggan commented that the City has to rely on what is stated in the reports. He stated that he is not hearing clarity on whether or not this would be doable. He stated that the comment has been made that anything can be engineered with the right amount of money. He recognized the weight of the pond but believed that could be handled appropriately. He stated that there have been a lot of stories, but the engineers have said that all of the issues can be addressed. He referenced all of the challenges this review has had and asked the challenges that the City could face if this request is denied, other than getting sued. Decenvber 15, 2020 Nlendola Xeighls City Coamcll Page 12 of I5 City Attorney Knetsch stated that these are the ordinances of the City and this is a quasi-judicial decision, where the Council determines if the request has met those ordinance requirements. He stated that there has been evidence on both sides, and it is the decision of the Council as to which side is more persuasive. He commented that everything that has been said is the record and the decision of the Council needs to be based on the record. He noted that there are findings which have been drafted both in approval and denial and the Council will decide which option to adopt. He stated that the record would support either option. Councilor Duggan referenced the large building complexes right on the slope in Lilydale and is not aware of any incident where failures have occurred as a result. He asked if there is a difference in the soils, recognizing failures along Sylvandale. He stated that if there is not clear direction from staff and administration as to the fault or weakness in the application, he believes that this should move forward. Councilor Mazzitello stated that there has been a lot of information on this application. He stated that whenever he sees a case with conflicting information, he boils it down and when in doubt he goes to the Code. He referenced a portion of the zoning regulations which defines a lot as abutting a public street. He then referenced the definition of public street and the applicable regulations, noting that in that language, dead end streets are prohibited. He then referenced language in the current 2030 Comprehensive Plan, which stated that infill development shall not rely on private streets. He stated that he does not believe that this application can be approved based on the City Code. Councilor Duggan commented that in the many years of these regulations they have been bent, broken, or changed. He stated that he does not believe that this would be a dead-end road and would come back out. He stated that the City has not always applied the rules and regulations as deciduous as it is right now. He stated that the Culligans own the land and want to develop it. He recognized that some rules and regulations have changed but the Culligans have owned the land prior to that time. He believed that the Council would need to come up with reasons to support a denial and does not believe that has been done. He stated that the applicant is attempting to abide by the direction given with significant changes to the proposal related to the number of lots, pond location and overflow route. He stated that a 100 percent guarantee is not possible, and the question is whether the issues raised could be addressed. He stated that he gets the sense that this development is doable. Mayor Garlock stated that there has been much discussion on this topic and asked for a member of the Council to bring forward a motion. Councilor Paper moved to approve RESOLUTION 2020-82 DENYING THE PRELIMINARY PLAT OF VALLEY VIEW OAK 3RDADDITION WITH A CRITICAL AREA PERMIT AND CONDITIONAL USE PERMIT FOR THE PROPERTY GENERALLY LOCATED AT THE NORTHWEST QUADRANT OF GLENHILL ROAD AND VICTORIA CURVE, Councilor Miller seconded the motion. Further discussion: Councilor Duggan referenced the resolution of denial, noted the areas he believes would be difficult to substantiate or justify, and provided examples. Councilor Miller stated that he disagrees with the comments Councilor Duggan made. He stated that these findings are just that, findings of fact that have been drawn by the information and discussion. Decenebw1$ 2020 Mwxdota Heights Czty Council Page 13 of I5 A roll call vote was performed: Councilor Paper aye Councilor Duggan nay Councilor Miller aye Councilor Mazzitello aye Mayor Garlock nay B) RESOLUTION 2020-88 COUNCIL MEETINGS START TIME City Administrator Mark McNeill provided a brief background on this item. The Council was being asked to discuss and determine the starting time for its regular meetings. He stated that staff recommends keeping the 6:00 p.m, start time, rather than changing the start time to 5:00 p.m. in January. Mayor Garlock moved to adopt RESOLUTION 2020-88 ESTABLISHING THE STARTING TIME OF REGULAR MEETINGS OF THE CITY COUNCIL. Councilor Duggan seconded the motion. A roll call vote was performed: Mayor Garlock aye Councilor Paper aye Councilor Duggan aye Councilor Miller aye Councilor Mazzitello aye COMMUNITY ANNOUNCEMENTS City Administrator Mark McNeill announced that flooding of ice rinks began. He stated that an anticipated update from the Governor regarding pandemic restrictions will determine whether warming houses can be open. He provided an update on the Quarantine Challenge taking place again West St. Paul. He reviewed the upcoming closure of City Hall for the holidays and the special Council meeting scheduled for December 30th• COUNCIL COMMENTS Councilor Paper wished Mayor Garlock well and welcomed Councilor Mazzitello. He appreciated everyone that applied for the position. He also wished everyone happy holidays. Councilor Duggan also wished Mayor Garlock well and recognized the contributions Mayor Garlock has made and will continue to make in the community. He wished blessings to everyone in the holiday season. Councilor Miller expressed congratulations to Councilor Mazzitello and appreciated his comments tonight. He stated that he appreciated that Mayor Garlock allows everyone to speak and be heard, which is important in society. He wished everyone a happy Hanukkah, which is a festival of lights in this dark time. December I5, 2020 Mendota Heights Ciry Caunctl Page 1 A of I5 Mayor Garlock stated that every member of the Council has done a great job. He stated that whether the members agreed or not, they have always come back and continued to do what is best for the City. He commented that the City will be in good hands with the new members that have and will join the group. He expected the City to continue to march forward in its typical fashion and thanked everyone for allowing him to serve. Councilor Mazzitello stated that he is honored and humbled to be in the position to serve the City over the course of the next two years. He wished Mayor Garlock well. City Administrator Mark McNeill recognized that this was the $rst attempt at a hybrid meeting and commended staff and NDC4 for making this possible. ADJOURN Mayor Garlock moved to adjourn. Councilor Duggan seconded the motion. Ayes: 5 Nays: 0 Mayor Garlock adjourned the meeting at 9:34 p.m. Stephanie Levine Mayor ATTEST: Lorri Smith City Clerk December l5, 2�20 Mendota Heights City Council Page l5 of /5