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2010-08-03 City Council minutesPursuant to due call Heights, Minnesota Heights, Minnesota. CALL TO ORDER August 3, 2010 Page 1 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, August 3, 2010 and notice thereof, the regular meeting of the City Council, City of Mendota was held at 7:00 p.m. at City Hall, 1101 Victoria Curve, Mendota PLEDGE OF ALLEGIANCE AGENDA ADOPTION Ayes: 4 Nays: 0 APPROVAL OF MINUTES Ayes: 4 Nays: 0 CONSENT CALENDAR Mayor Huber called the meeting to order at 7:00 p.m. The following members were present: Councilmembers Duggan, Krebsbach, and Schneeman. Absent and excused was Councilmember Vitelli. Council, the audience and staff recited the Pledge of Allegiance. Councilmember Duggan moved adoption of the agenda as presented. Councilmernber Schneeman seconded the motion. Councilmember Duggan moved approval of the minutes of the regular meeting held on July 20, 2010 as presented. Councilmember Krebsbach seconded the motion. Councilmember Duggan moved approval of the consent calendar as presented, pulling item 6g, for further discussion, and authorization for execution of any necessary documents contained therein. a. b. c. d. e. f. Acknowledgement of the Minutes from the July 27, 2010, Planning Commission Meeting Acknowledgement of the Minutes from the June 3, 2010, Building Activity Report Acknowledgement of Clear Wireless Planning Application Withdrawal Authorization of Purchase Order for Mendakota Park Playground Equipment Authorization of Purchase Order for Computer Server Upgrade Purchase Approval of Regular Status for Mike Albers August 3, 2010 Page 2 g. Adoption of Resolution No. 10 -52: "A RESOLUTION ADOPTING A PURCHASING POLICY" h. Adoption of Resolution No. 10 -53: "A RESOLUTION ACCEPTING BIDS AND AWARDING CONTRACT FOR 2010 SANITARY SEWER TELEVISING AND CLEANING PROJECT (CITY PROJECT NO. 201003)" i. Adoption of Resolution No. 10 -54: "A RESOLUTION APPROVING FINAL PLANS AND SPECIFICATIONS AND AUTHORIZING ADVERTISEMENT FOR BIDS FOR TRUNK HIGHWAY 55 AND MENDOTA HEIGHTS ROAD INTERSECTION IMPROVEMENTS (SAP 140 -103- 017)" j. Approval of Contractors List, dated July 28, 2010 k. Approval of the List of Claims, dated July 6, 2010, totaling $405,070.34 Councilmember Schneeman seconded the motion. Mayor Huber asked if there is concern about raising the amount from $50,000 to $100,000 when competitive bids are necessary? Councilmember Schneeman stated that concerns her and she prefers to leave it at $50,000. Councilmember Krebsbach agreed. City Administrator McKnight stated the policy needed to be updated and the state statutes limit increased from $50,000 to $100,000 but if council is not comfortable, staff will revise the policy and leave it at the current level of $50,000. Council consensus was reached to table consideration of Resolution No. 10 -52 to the August 17, 2010, meeting and direct staff to revise the policy to the current level of $50,000. Steve Kampa, 2464 Westview Terrace, stated their appreciation for the work of staff, the planning commission, and council to protect the quality of the City's wetlands, which adds value to their properties. However, there are still water quality problems in the ponds and August 3, 2010 Page 3 wetlands such as algae bloom. Mr. Kampa commented on work done by Lakeville and Burnsville and asked the council to consider what help can be given to those who live adjacent to these waterways, such as an adopt a pond program. Mayor Huber explained that input received during public comments is referred to staff for research and a recommendation. He stated the council has discussed this matter with Rogers Lake due to concern of the residents who created an association and paid for the weed control treatment. Councilmember Krebsbach noted that sometimes algae bloom remains even after ponds are treated or dredged. She indicated an interest in learning more about the programs in Lakeville and Burnsville that Mr. Kampa mentioned. The council asked Mr. Kampa to provide that information to Mr. Ruzek. City Engineer Ruzek advised that in September, staff will present information to the council regarding pond dredging related to the city's MS4 permit that will include an inventory of all ponds and creation of a maintenance schedule. Councilmember Schneeman suggested they consider establishing a lake association. Mr. Kampa agreed and stated it will also be important to get information from the city on available programs. Mayor Huber introduced Acting City Attorney Michelle Witzany and welcomed Public Works Director Mazzitello who had returned from his six -month deployment. Public Works Director Mazzitello stated it is good to be back from his deployment in Afghanistan. He presented gifts to the coluicil and staff for their assistance to his family while he was in Afghanistan. Mayor Huber thanked Mr. Mazzitello and stated he accepts these gifts on behalf of the city with a lot of honor. Mayor Huber noted that Mr. Ruzek did a great job while Mr. Mazzitello was deployed but their thoughts and prayers August 3, 2010 Page 4 were with Mr. Mazzitello for his safe return and to all others who have served this country so honorably. APPOINTMENT OF AND Fire Chief Maczko stated they also wear the flag and serve INTRODUCTION OF NEW public with pride. He described the vigorous interview FIREFIGHTERS process used for the eight candidates and advised that four candidates were selected by the interview board as being the best candidates to fill the open positions. Ayes: 4 Nays: 0 WATER TOWER UPDATE Fire Chief Moczko introduced James Laird, Jason Stone, Mark Olson, and Jacob Husnik, and reviewed their background and work history. Jason Stone, Watersedge Terrace, introduced family members in attendance. Jacob Husnik, Pontiac Place, introduced family members in attendance. James Laird, Ottawa in West St. Paul, introduced family members in attendance and stated it is an honor to be a Mendota Heights Fire Fighter. Mark Olson, Wagon Wheel Trail, introduced himself and stated he is now self - employed and able to give the commitment required. Fire Chief Maczko advised of upcoming training and the high level of commitment required of not only the fire fighters but also their family members. Mayor Huber thanked the fire fighters for their dedication and commented on the importance of safety while on duty. Councilmember Krebsbach moved to appoint James Laird, Jason Stone, Mark Olson, and Jacob Husnik to one -year probationary periods, effective August 4, 2010. Councilmember Schneeman seconded the motion. Mr. Ruzek advised that great progress is being made on the water tower after delays due to inclement weather and wind damage to the containment system. It is anticipated the project will be completed by the end of September. Mr. COMPLETE BEVERAGE SERVICE LIQUOR LICENSES August 3, 2010 Page 5 Ruzek displayed photos and described the work that has been completed and work that remained. Mayor Huber asked about the inspection process during rehabilitation? Mr. Ruzek explained a consultant of the city is doing full time inspections on this project. Councilmember Schneeman stated the water tower is very pretty but she was astounded with how much it cost to paint. Mr. Ruzek stated it will cost just over $1.1 million in addition to $100,000 for consultant oversight. He advised the project is within the budget and this is the last time the city is required to paint the tower per its lease with St. Paul Water. The life expectancy is 25 years and the city has budgeted for these costs since the last painting in 1995. Mr. McKnight reviewed that staff had been directed to prepare a resolution approving the tier -two on -sale and Sunday on -sale liquor license application for Complete Beverage Service for use at Fischerville Grill, located at 2156 Dodd Road. As part of the direction given to staff, the council made it clear that although the liquor license application was being approved, there were still a number of zoning ordinance, city code, and planning issues to be resolved. Mr. McKnight advised the draft resolution does not list every specific concern but summarizes those concerns and makes it clear the applicant has to meet all the city zoning ordinance, city code, and planning related requirements. He noted the only concern is the third condition indicating the applicant must obtain a certificate of occupancy no later than December 31, 2010, since the applicant still has concerns with the building. Mr. McKnight suggested the resolution be approved and the timeframe considered for extension, if needed at a later date. Councilmember Krebsbach noted this property is zoned B -2 and on Page 93 it indicates B -2 permits a restaurant but there is no mention of a bar. Assistant to the City Administrator Sedlacek stated a restaurant is an allowed use and the licensing ordinance allows a liquor license for restaurants. Councilmember Krebsbach stated a restaurant cafe is a permitted use but this is an application for a full- service Ayes: 3 Nays: 1 ( Krebsbach) MN SUPREME COURT RULING August 3, 2010 Page 6 liquor license to have a full - service bar in the restaurant. She felt the application was for not only a restaurant but also a bar and grill. Councilmember Duggan asked how Theresa's is allowed to operate, since it is a restaurant with a bar area inside? He agreed the applicant has always played up the grill use and downplayed the bar use. Councilmember Krebsbach stated the City's liquor licenses have been granted within the shopping center area with multiple stores. Councilmember Duggan stated support for a deadline at the end of the year with the option of considering an extension, if needed, since there is no idea how long it will take to clean the land contamination. Mayor Huber and Councilmember Schneeman concurred with the December 31, 2010 deadline. Suzanne Perkins, applicant, agreed that the MPCA determinations are beyond her control. Councilmember Duggan noted this property was contaminated prior to the Perkins' ownership and if they are willing to move forward to get it done, he hopes the council, in December, will consider an extension. Councilmember Duggan moved adoption of Resolution No. 10 -55, "A RESOLUTION GRANTING A TIER -TWO ON -SALE AND SUNDAY ON -SALE LIQUOR LICENSE TO COMPLETE BEVERAGE SERVICE FOR USE AT THE FISCHERVILLE GRILL." Councilmember Schneeman seconded the motion. Acting City Attorney Witzany addressed the recent Minnesota Supreme Court case that changed the standard of rulings for granting variances. She explained the current requirement to show undue hardship included a three part process: there is no reasonable use for the property within the official controls; the hardship is not caused by the land owner; and, granting the variance would not change the character of the neighborhood. In the past, the cities have CASE NO. 10 -12 TROY TROJE — CUP 754 HIAWATHA AVENUE August 3, 2010 Page 7 been operating under reasonable use for that test but the Minnesota Supreme Court rejected that standard and adopted a more stringent standard that cities can only grant variances if the applicant can prove there is truly no reasonable use of the property without the variance. She indicated this is a significant case for the council's consideration of variance applications. Councilmember Duggan asked about a case where the property is in use as a home and the owner wants to expand the garage but is not able to meet setback requirements? Ms. Witzany stated it would be difficult to argue that expanding a garage would eliminate the reasonable use of the property. She noted this is a recent and broad ruling so reasonable alternatives are not yet defined. Councilmember Duggan stated he appreciates this infonnation and thinks there will be additional discussion. Ms. Witzany stated this is an interpretation of the statute that is in effect. Mayor Huber stated the Legislature may or may not choose to change the statute. The council agreed this ruling will be very limiting. Mr. Sedlacek presented the application of Troy Troje for a conditional use permit (CUP) to construct a detached garage at 754 Hiawatha Avenue. He noted this application started with a variance but the neighbors did not agree so the applicant revised the plan for a detached garage, which requires a CUP. He presented the site plan of the subject property and described the alignment of the existing and new driveway and garage building. He noted the amount of pervious surface is being decreased. The planning consultant felt the application met the character of the neighborhood and recommended approval. The planning commission put a number of conditions on their approval recommendation, which are listed in the council packet. Those conditions include: 1. Verification that the garage meet applicable 10 -foot side and rear yard setback requirements. Mr. Sedlacek pointed out the location of the vacated easement for Eugenia Avenue, which has been verified. Ayes: 4 Nays: 0 CASE NO. 10 -18 ELIZABETH TETZLAFF — CUP 995 DIEGO LANE August 3, 2010 Page 8 Councilmember Duggan asked about the referenced measurement and scale of the drawing? Mr. Sedlacek explained that was the scale of the map and had to be changed when a copy is made. He advised it does not impact the application. Councilmember Krebsbach stated she thinks this will be a nice improvement. Troy Troje, 754 Hiawatha Avenue, stated the 15 feet of Eugenia Avenue that was vacated to his lot last year has been surveyed and it is marked and staked. Councilmember Krebsbach moved adoption of Resolution No. 10 -56, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT TO CONSTRUCT A DETACHED GARAGE AT 574 HIAWATHA AVENUE." Councilmember Schneeman seconded the motion. Mr. Sedlacek stated this is a conditional use permit for an accessory structure over 144 square feet, and a five -foot variance to the rear yard setback at the corner of Winston Court and Diego Lane. The applicant wishes to construct a detached structure of 10 feet by 20 feet. If the structure is over 144 square feet, ten foot setbacks are required. If under 144 square feet, five foot setbacks are required. Mr. Sedlacek stated the applicant believes a five -foot rear setback is necessary to save two trees. Mr. Sedlacek advised that input was received during the planning commission public hearing that some felt the structure was larger than the neighborhood warranted and the five -foot setback unposed on view lines in the neighborhood. The consulting planner found all conditions of the CUP were satisfied as did the planning commission. However, they did not feel the variance request met the undue hardship requirements. Some debate was held about moving the structure to a compliant location or to construct a smaller structure not requiring a CUP or variance. Councilmember Krebsbach asked what option does not require a variance? Mr. Sedlacek stated if the building is under 144 square feet it could be located five feet from the lot line. Councilmember Duggan stated it would also August 3, 2010 Page 9 provide the needed distance between structures for fire access. Mr. Sedlacek stated they could construct a 10 -foot by 20- foot shed, as requested, and locate it ten feet from the rear property line and meet all setback requirements so a variance is not required. Elizabeth Tetzlaff and Dan Stoven, 955 Diego Lane, applicants, introduced themselves. Ms. Tetzlaff displayed a picture of the proposed location and noted the rear yards are wide open and this location would not impede views from the three yards. She stated they will include landscaping with arborvitaes, tall shrubbery, and flowers. There is no view from the front or back of this location and their back yard would be more open with a five foot setback. Mr. Stoven stated they are proposing a more narrow building to better fit this location but a ten foot setback will make the building appear to be in the middle of the yard. Mayor Huber referenced the Supreme Court ruling that the property can be put to no reasonable use without the variance. Ms. Tetzlaff asked about a 7.5 foot setback versus the requested five foot setback? Mr. Huber explained that does not ease the variance consideration for a hardship. Ms. Tetzlaff stated their neighbors signed the petition in support and if they build a 10 -foot by 14 -foot building in the same area and it would not require a variance or CUP but it would be smaller. Mr. Stover stated they want a larger sized building. Ms. Tetzlaff stated they do not propose a change in the application. Mayor Huber stated there is a certain presumption the city would grant a CUP because the council could place conditions on that structure to make it more acceptable. The concern is that the application includes a variance. Mayor Huber explained that if the applicant moved the structure to no longer require a variance, the council needs to understand the location so appropriate conditions can be placed. The council cannot determine those conditions without knowing the location of the building. In addition, August 3, 2010 Page 10 the neighbors need to think about the conditions they would like placed on the application. Mr. Stover stated the new location would be located ten feet from the rear lot line. Councilmember Duggan stated that is what the planning commission has recommended, approving the CUP and denying the variance. He noted the city cannot violate state statute but can consider the CUP for a larger size as long as it abides by the setback requirements. Mayor Huber noted the building could be constructed in other locations and he wondered if the planning commission understood that would be the case if the CUP is approved and the variance is denied. Ms. Tetzlaff stated she did not prepare a new site plan for a building location that did not require a variance. She described that the building will be located five feet closer to the two large trees. Mr. Sedlacek noted the resolution reflects the planning commission's conditions with a blanket statement that the building would meet all setbacks but did not specify this exact location. Councilmember Duggan noted the resolution indicates the structure shall be located in compliance with all setback requirements and an updated site plan is to be submitted prior to obtaining a building permit. Mr. Stover stated there is no change with the placement except the building will be five feet farther into the yard. Councilmember Duggan suggested they submit a site plan for consideration at the next council meeting John Murphy, 547 Winston Court, stated he opposes the variance and has a petition signed by neighbors who oppose this application. He displayed a picture of his back yard, noting the applicant's evergreen trees have been removed. He stated there is a ten -foot utility easement that is often utilized. August 3, 2010 Page 11 Mr. Huber stated the council and applicant understand that the setback variance will not be granted based on the Supreme Court ruling. He stated the applicant wants to build the same size structure but ten feet from the rear property line. Mr. Murphy stated he thought the planning commission said there was a city code and a 12 -foot by 12 -foot would be the maximum size. Mayor Huber explained that anything under 144 square feet only requires a building permit. If the structure is over 144 square feet, a CUP is required and larger still would require a variance. He stated what the applicant wants to build, can be built, but the council can place conditions to make the structure more palatable to the neighbors. In this case the applicant is requesting a CUP and maybe screening it will make the structure less obtrusive. Councilmember Duggan stated Mr. Murphy has a gorgeous yard and a condition could be imposed to require the new structure to be the same color as the house to make it less obtrusive. Mr. Murphy stated he was sorry to see the evergreen trees cut down since he had planted them with the applicant's father. He stated he made personal calls and spent a lot of time and mental anguish on this application because this is such a small lot that the building will impact the neighborhood. Mr. Murphy stated he does not object to someone having a shed but four to five houses will be able to see this structure from their front window. He stated his appreciation to the council and planning commission for the time they spend to keep neighborhoods nice and expressed concern that others will ask for the same consideration. He stated he does not support the variance or the CUP. Councilmember Krebsbach stated support to table consideration until a new site plan is submitted that identifies the location of the shed without the need for a setback variance. Mr. Stover stated they will submit the plan. Ayes: 4 Nays: 0 CASE NO. 10 -20 STEPHEN AND JANA PATRICK LOT SPLIT 2536 ARBOR COURT August 3, 2010 Page 12 Mr. McKnight stated if the applicant submits an updated site plan by noon on August 12, 2010, it can be scheduled for the August 17, 2010, council meeting. Councilmember Schneeman moved to table consideration of Resolution No. 10 -57, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT TO CONSTRUCT AN ACCESSORY STRUCTURE AT 995 DIEGO LANE" to allow time for the applicant to submit an updated site plan that does not require a variance. Councilmember Duggan seconded the motion. Mr. Sedlacek presented the lot split request of Stephen and Jana Patrick at 2536 Arbor Court for a lot split to adjust an interior line. Originally, this was to be an outlot for medium density residential townhome development but it is currently used as a single family home. Mr. Sedlacek presented a site plan depicting the subject site, old and proposed property lines, and explained the intent is to make the driveway conforming. The applicant was asked about their short-term and long -term plans and they said they use parcel Y for their recreational use but may sell it at some point in the future. Staff reviewed this and spoke with the surveyor to assure there are proper drainage and utility easements. The planning commission asked the applicant to address the easement issue prior to filing the plat and the applicant has agreed to do so. No comments were made at the public hearing and the planning commission supported the consulting planner's recommendation to approve the lot split to make the driveway conforming and assure easements. The planning commission put a number of conditions on their approval recommendation, which are listed in the council packet. Those conditions include: 1. A revised survey be submitted that illustrates the driveway is compliant with the ordinance setback requirement of five feet to the property lines. 2. A copy of the lot split shall be recorded. Councilmember Duggan asked if the zoning of this property is changed to residential single family in the comprehensive plan as opposed to R -3H PUD? He asked if that condition should be required to assure a single family August 3, 2010 Page 13 home is built? He also asked if the buildable lot should be identified since this is a steep lot with a shared driveway for the new platted lot? Mr. Sedlacek stated this property is guided for HR PUD that does not preclude the owner to develop that way or single family, as discussed. The zoning is Rl and the zoning map should reflect the comprehensive plan map. Councilmember Krebsbach stated this is a residual plan from the Kensington Development where the last section was not developed as multi family. She believed it was an oversight and it was never intended for this lot to have multi family. Mr. Sedlacek stated the city is not the landowner so the city may not be able to change the comprehensive plan for zoning, it may have to come from the property owner. Councilmember Krebsbach asked about the alignment of the driveway for the new lot. Mr. Sedlacek suggested the applicant provide that description. Stephen Patrick, 2536 Arbor Court, applicant, assured the council he has no intent to build a large townhouse development and the rezoning or comprehensive plan revision was not intended to be part of the application but he would support it. He noted that parcel Y is platted as a single family lot. Councilmember Krebsbach supported completing that process so the zoning and comprehensive plan are aligned with residential. Mr. Patrick stated they are not in a hurry and want the lot line between the two lots redrawn so their driveway is fully contained within their lot. He used the site plan to identify the location of the driveway for 2536 Arbor Court. He stated the garage is part of 2530 Arbor Court and the ravine is owned by Mr. Hudalla. Mr. Patrick stated the driveway easement serves both lots and will remain. They are not asking for an additional driveway. Councilmember Krebsbach moved adoption of Resolution No. 10 -57, "A RESOLUTION APPROVING A LOT SPLIT FOR AN INTERIOR LOT LINE ADJUSTMENT AT 2536 ARBOR COURT" as revised for the Ayes: 2 Nays: 2 (Schneeman and Huber) Ayes: 4 Nays: 0 Ayes: 4 Nays: 0 CASE NO. 10 -23 STEPHEN AND SHERRY KAMPA 2464 WESTVIEW TERRACE WETLANDS PERMIT August 3, 2010 Page 14 comprehensive plan to be amended to reflect the R -1 zoning which is supported by the applicant and City. Councilmember Duggan seconded the motion. Mr. Sedlacek stated this is appropriate to be reconciled but not typically tied into a zoning request. Ms. Witzany stated she is not familiar enough with this property but can review the matter and provide an opinion. Mayor Huber referenced the court ruling with the Par 3 and stated it would behoove the city to work with the land owner to bring it into conformance but not as part of this resolution. Councilmember Krebsbach asked what recommendation can be made to move that process forward? Councilmember Krebsbach moved adoption of Resolution No. 10 -57, "A RESOLUTION APPROVING A LOT SPLIT FOR AN INTERIOR LOT LINE ADJUSTMENT AT 2536 ARBOR COURT." Councilmember Duggan seconded the motion. Councilmember Krebsbach moved to direct staff to draft language to amend the comprehensive plan to align it with the zoning of R -1. Councilmember Duggan seconded the motion. Mr. McKnight noted this would be at the cost of the city since it is initiating the action. The council acknowledged that is the case. Mr. Sedlacek presented the wetlands permit application of Stephen and Sherry Kampa, 2464 Westview Terrace, to do landscaping in the wetland area and install an accessory structure less than 144 square feet. He presented the site plan and described proposed improvements for a retaining wall, soil stabilization, and the landscaping. It was noted that Mr. Ruzek had inspected the property and encouraged the approach proposed by the applicant. The consulting planner felt the work is within the 100 foot buffer but far enough away from the wetland and recommended approval. There was no input at the public hearing and the planning Ayes: 4 Nays: 0 CASE NO. 10 -24 ROB AND STACY HERMANN CUP - 1033 WILLIAM COURT August 3, 2010 Page 15 commission felt comfortable with recommending approval as long as the improvements are a benefit, not a detractor, to the wetland, and they work with staff. The planning commission put a number of conditions on their approval recommendation, which are listed in the council packet. Those conditions include: 1. A revised site plan indicating the setbacks from the boulder wall and storage shed to the wetland shall be submitted for review. 2. A detailed landscape plan shall be submitted and approved by staff. 3. All construction/excavation work must be located outside of the wetland. 4. All construction activities must follow the Land Disturbance Guidance Document. Councilmember Krebsbach asked if there is any impact to the views? No one in the audience responded. Mr. Sedlacek presented the notification map and identified the subject parcel. Councilmember Duggan asked about the size of the boulder wall? Mr. Sedlacek described the regulations. Councilmember Schneeman moved adoption of Resolution No. 10 -58, "A RESOLUTION APPROVING A WETLANDS PERMIT FOR A RETAINING WALL, PLANTINGS, AND ACCESSORY STRUCTURE AT 2464 WESTVIEW TERRACE." Councilmember Duggan seconded the motion. Mr. Sedlacek presented the application of Rob and Stacy Hermann, 1033 William Court, for a conditional use permit (CUP) to expand a current shed from 144 square feet that is five feet from the side and 12 feet from the angled rear line. The request is to reconstruct the accessory building to 18- feet by 20 -feet, larger than 144 square feet, so it triggers the need for a CUP and setback distances. The applicants are requesting a CUP and variance for a five -foot setback from the rear lot line and seven -foot setback from the side lot line. August 3, 2010 Page 16 Mr. Sedlacek advised there was extensive discussion at the planning commission meeting and the applicant did a good job of identifying how a compliant location would impact their rear yard use. There was no feedback at the public hearing. The consulting planner found the use was within the character with the neighborhood but that a hardship did not exist for the variance request. The planning commission also discussed the type of door, noting an eight foot wide roll up door is being requested because the grade does not lend itself to a standard out -swing door and recommended approval of the CUP for a structure over 144 square feet with a rollup door since eight feet is not wide enough for a car. The planning commission also recommended approval of the variance, which is against the recommendation of the consulting planning, because they found a unique condition of not being able to make a reasonable use of the property without the variance. He noted the planning commission's finding are that the location of the home on the lot, slanted rear lot line, and topography constitute an undue hardship. Legal staff is recommending against the variance since it does not constitute unreasonable use since the property is being used as single family residence. Councilmeinber Krebsbach referenced the drawings and asked if they are to scale? Mr. Sedlacek answered in the affirmative and presented diagrams of the current shed and proposed shed. Rob Hermann, 1033 William Court, applicant, stated they support the recommendation of the planning commission. Mr. Hermann stated they already have a 144 square foot structure and could build it four square feet bigger. However, if a CUP is granted, there is no other location on their property to accommodate the building without the requirement of a variance. This is due to the property angle and location of the house. Mayor Huber noted they already have a storage shed and the Supreme Court requires the applicant to prove the property can be put to no reasonable use without a variance. Stacy Hermann, 1033 William Court, applicant, stated they do not have room to store their camper. Mayor Huber August 3, 2010 Page 17 stated the city cannot grant a variance that violates the State Statute. Mr. Hermann stated even if they receive a CUP for a building of the same color as the house, it cannot be used with the existing lot configuration. Mayor Huber stated the council does not design applications on the fly at this setting but responds to fully developed applications when presented. He stated time can be given to make revisions to the application but the variance will not be approved so the application has to be revised to meet setbacks. Ms. Hermann stated she does not understand how this is on the fly since they have provided a letter explaining why no other location will work. She stated there is no other place on their property that would not require a variance. Ms. Witzany advised that the Mayor's interpretation of the State Statute is correct. Discussion ensued regarding the application. Mr. Hermann asked if a CUP will be granted if the location meets the setback requirements? Mayor Huber stated the new structure cannot create a situation where there are two garages and he is concerned about the use of an overhead door. Ms. Witzany explained the applicant has to prove there is no reasonable use of the property. There would be no reasonable use of a property if it were zoned residential and the owner cannot erect a single family dwelling on that property without the granting of a variance. Mr. Hermann asked if the CUP is as restrictive? Ms. Witzany stated the council may consider a CUP but conditions would be placed to assure the building is in character with the neighborhood. Mr. Hermann asked if it does not meet the definition of a variance if a CUP is granted to build the structure they want but it cannot fit anywhere without a variance? Mayor Huber advised that the property owner cannot create the hardship and the council would not grant a CUP for a structure that August 3, 2010 Page 18 cannot be built. Mayor Huber noted the city's residents have elected the council to properly interpret and enforce the law and that is taken seriously. Councilmember Duggan suggested they consider approaching the neighbor at 1037 to sell a strip of land to bring the building location within the parameters established for setbacks. He agreed the city cannot violate the State Statute and advised that the cost of the project is also not a hardship consideration. Mayor Huber stated the applicants may want to wait and see if the Legislature does anything on this matter next year. He stated he is sympathetic to the situation and noted they could withdraw the application and wait to see what happens with the Legislature. Councilmember Krebsbach stated she thinks a change will have to be made to consider some of these cases. She asked if the applicants could work with staff on other options? Councilmember Duggan stated another option may be to add a second story to the current garage to gain storage space. He noted the applicant did not know about the need for a hardship but tried in good faith to meet that requirement so he felt it was not fair to look to them to pay for another CUP application. Mayor Huber stated they would have to request the council waive the fee. Ms. Hermann asked if there is an opportunity to get a CUP without a variance and they remove the stairs? Councilmember Duggan suggested they present an updated plan that meets the setback requirements. Mayor Huber noted there is time to table consideration for one meeting. Mr. and Ms. Hermann requested the application be tabled. Mr. McKnight stated staff will work with the applicant and extend consideration another 60 days, if needed. Councilmember Krebsbach moved to table consideration of Resolution No. 10 -59, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT AND VARIANCE TO SETBACKS TO CONSTRUCT AN ACCESSORY Ayes: 4 Nays: 0 CASE NO. 10 -25 PAUL PLUM — LOT SPLIT 1925 DODD ROAD August 3, 2010 Page 19 STRUCTURE AT 1033 WILLIAM COURT" to allow time for the applicant to submit an updated site plan that meets setback requirements and eliminates the need for a variance. Councilmember Duggan seconded the motion. Mr. Sedlacek presented the lot split request of Paul Plum, 1933 Dodd Road. He displayed a site plan of the existing lot and noted the home exits to Dodd Road and the applicant lives in the house to the south. The applicant intends to rent out the house and use the back of the lot for recreation. The neighbor immediately to the west made comment at the public hearing indicating they use their front yard and were concerned where a house would be located on lot 2 in the future. He noted the application does not include that information and the conditions from the consulting planner indicated concern with the current string rule that would make it difficult to build on lot 2. However, that will be a moot point when the zoning ordinance is updated. The planning commission put a number of conditions on their approval recommendation, which are listed in the council packet. Those conditions include: A revised survey be submitted indicating the following: A. The proposed lot line adjusted to the west in order to meet the required rear yard setback for proposed parcel 1; B. There is adequate area for a single family home to be constructed on the new lot given the location of homes on either sides of the new lot and the revised string rule C. The existing accessory building location and size on proposed parcel 1 to verify that it meets required setback standards. 2. Park and trail dedication requirements shall be satisfied as a cash fee in lieu of land. Such fee shall be paid prior to filing the plat with Dakota County. 3. Connection charges for street, sanitary sewer, and water main shall be paid prior to issuance of a building permit. 4. The applicant shall submit grading /topography plans and utility plans, subject to review and approval of the city engineer. August 3, 2010 Page 20 5. The applicant shall dedicate 10 -foot wide drainage and utility easements along the front property lines and five foot wide drainage and utility easements along the rear property lines. 6. If it is deemed necessary, the applicant shall enter into a development agreement with the city and pay all applicable fees and securities. The development contract is subject to review and approval of the city attorney. Councilmember Krebsbach asked if there is any reason to deny? Mr. Sedlacek stated there are no findings to deny the request since both lots comply with code requirements. Councilmember Krebsbach stated she would like a process for permitting and inspection of rental housing. She asked about the intent of the property owner to build a house and rent it? Mr. Plum presented an updated plan identifying the additional five feet and stated he has no intention of building a house. Mr. Plum stated he has owned their existing home for eight years and just completed a remodel with a front porch. They purchased the home under consideration on June 1, 2010. Councilmember Krebsbach asked when the house would be rented? Mr. Plum stated it was occupied on August 1, 2010, and they plan to add landscaping and remove dead trees. Councilmember Krebsbach commented on the challenge for the council as more single family homes are purchased for rental. Councilmember Duggan noted the planning commission changed one condition of approval relating to the park and trail dedication fee to require payment upon filing with Dakota County. The council indicated support of that condition. Councilmember Duggan asked to see the building footprint of where a house could be constructed on the proposed lot and where the driveway would be located? Mr. Plum stated he can speculate the driveway would be from Hilltop Road and noted the rectangular area where a proposed home could be located with the required setbacks from property lines. Councilmember Duggan stated his support for approval. Ayes: 4 Nays: 0 CASE NO. 10 -26 PETER OPITZ WETLANDS PERMIT 620 WATERSEDGE TERRACE Ayes: 4 Nays: 0 ZONING CODE UPDATE ORDINANCE NO. 429 August 3, 2010 Page 21 Councilmember Krebsbach noted ordinances are in place to assure the house is constructed in the correct location. She stated this is a beautiful neighborhood with topography and large lots. Councilmember Krebsbach moved adoption of Resolution No. 10 -60, "A RESOLUTION APPROVING A SUBDIVISION REQUEST FOR A LOT SPLIT AT 1925 DODD ROAD." Councilmember Schneeman seconded the motion. Mr. Plum asked about the timing for payment of the park and trail dedication fee and if it was required at the time of filing so it was not forgotten? Mayor Huber clarified that the city always requires payment of park fees at the time the plat is filed. Mr. Sedlacek presented the application of Peter Opitz, 620 Watersedge Terrace, for a wetlands permit to construct a backyard fence and play structure. He presented a revised site plan that moved the play structure five feet to the west and added one more gate on the east side of the fence. The consulting planner recommended approval and the applicant said they would do some cleanup and add native vegetation to provide erosion control. Mr. Sedlacek noted that the work is out of the wetland area and an adequate buffer is being maintained so it meets conditions of the wetlands permit subject to submitting a fence plan prior to construction. No comments were made at the public hearing and the planning commission recommends approval as outlined by the planner. Councilmember Duggan moved adoption of Resolution No. 10 -61, "A RESOLUTION APPROVING A WETLANDS PERMIT FOR A FENCE AND PLAY STRUCTURE AT 620 WATERSEDGE TERRACE." Councilmember Schneeman seconded the motion. Mr. Sedlacek presented the past consideration of the Zoning Code that had been updated to include the straight forward revisions suggested by Councilmember Duggan. He noted Planner Grittman's memo outlining the bigger changes and the change Councilmember Duggan raised to August 3, 2010 Page 22 add more definition for drive through as opposed to a fast food or drive -in restaurant. Planner Grittman had indicated there were many existing descriptions for drive through and he had recommended this one because it was inclusive of the city's existing drive through locations and requests that could be made. Mr. Sedlacek reviewed the August 3, 2010, staff memo describing the changes made. Councilmember Krebsbach noted the suggestion to find a different term for trade school and advised that post secondary is all encompassing. Councilmember Duggan stated trade school would cover both secondary and post secondary and explained he did not want a "nonacademic tag" and preferred more descriptive language. Discussion ensued regarding the definition to use for trade school. Mr. Sedlacek stated he has not reviewed where trade school is specifically referenced in other locations in the code so staff would not recommend that change at this level due to further cross references that would also have to be changed. Mr. Sedlacek stated "nonacademic" was the term to be replaced and Councilmember Duggan had requested more descriptive language. Mr. Sedlacek read the recommended definition. Mayor Huber stated his support for the revised definition suggested by Councilmember Duggan. Mr. Sedlacek referenced page 54 and indicated Councilmember Duggan does not agree with two changes related to development agreements for wireless antenna mounted on city property. Staff suggests keeping the existing language as development agreement issues are addressed in required lease terms and the conditional use permit necessary for this type of installation. Staff believes the current language provides the council with the greatest amount of discretion in the matter. Councilmember Duggan stated that after this explanation he supports staff's recommended language with the deletion of the words shall be. Mr. Sedlacek referenced page 128 and read the proposed compromise language regarding development agreements required with a conditional use permit for planned unit August 3, 2010 Page 23 development to delete text requiring the city to prepare this document. The current practice is to have the developer provide a draft for city review. The council agreed the applicant is to pay for the preparation of the agreement. Mr. Sedlacek stated staff agrees with Councilmember Duggan's suggested revision to indicate: "terms mutually agreed to and entered into by both the applicant and staff." Councilmember Krebsbach referenced page 34, hockey rinks, and noted there is not a requirement to remove the hockey rink at the end of the season. Mr. Sedlacek explained this is new language and a requirement can be added that the rinks have to be removed March 31 of each year. The council agreed with this revision. Councilmember Krebsbach referenced page 12, sanitary water and sewer systems, and noted that currently everyone has to connect unless a developer wants to do their own system. Councilmember Duggan stated that is the current language. Mr. Mazzitello stated it will take a while to review this language but it is theoretically possible to construct a privately owned septic system to a building not serviced by the municipal system, possibly due to the distance away from the municipal system. Councilmember Krebsbach suggested it be defined as being temporary only. Mayor Huber noted the wording does not say the city will grant it or must approve it. Councilmember Krebsbach felt the language should be updated. Councilmember Duggan referenced page 116 and suggested a minor change to explosives to add: "which could explode by detonation or otherwise decompose." Mr. Sedlacek advised that "decompose by detonation" is common terminology when talking about explosives and the appropriate approach. Councilmember Duggan moved adoption of Ordinance No. 429, "A ORDINANCE REPEALING AND RESTATING THE ZONING REGULATIONS (TITLE 12, CHAPTER 1, Ayes: 4 Nays: 0 August 3, 2010 Page 24 OF THE CITY CODE) OF MENDOTA HEIGHTS," as revised above. Councilmember Schneeman seconded the motion. Mayor Huber thanked all who contributed to the drafting of this ordinance. COUNCIL COMMENTS Mr. McKnight distributed the draft 2011 budget. ADJOURN Ayes: 4 Nays: 0 Councilmember Duggan stated he attended the Concord Way national night out event and they had requested to slow the speed of traffic. He noted ash tree disease is occurring and some cities are spending a lot of money to preserve them. Councilmember Duggan commented that airplanes had set a record for noise over his house the last two weeks. He stated they had successfully helped to move their daughter and family from Boulder, Colorado to Minneapolis and announced the birth of a baby boy to his son's family. Councilmember Duggan extended congratulations to Katie and Niles Lynch for being awarded a Fulbright Scholarship to teach in France through an exchange program. He concluded his remarks by saying it is great to have John Mazzitello back. There being no further business to come before the Council, Councilmember Schneeman moved to adjourn the meeting. Councilmember Duggan seconded the motion. Time of Adjournment 9:58 p.m. Nancy Ba Acting City Clerk Prepared by Carla Wirth, Recording Secretary