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2005-08-02 City Council minutesPage No. 1 August 2, 2005 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, August 2, 2005 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, Minnesota was held at 7:30 o'clock p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Huber called the meeting to order at 7:30 p.m. The following members were present: Mayor Huber, Councilmembers Duggan, Krebsbach and Vitelli. Councilmember Schneeman had notified Council that she would be absent. PLEDGE OF ALLEGIANCE 01TO [9321 Ayes: 4 1 __) Nays: 0 Ayes: 4 Nays: 0 Council, the audience and staff recited the Pledge of Allegiance. Councilmember Vitelli moved adoption of the revised agenda for the meeting. Councilmember Duggan seconded the motion. Councilmember Vitelli moved approval of the minutes of the regular meeting held on July 5, 2005. Councilmember Duggan seconded the motion. CONSENT CALENDAR Councilmember Duggan moved approval of the consent calendar for the meeting, revised to move items 6c, INET, and 6d, NURT, to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgement of the unapproved minutes from the July 26 Planning Commission meeting. b. Acknowledgement of the July 2005 Building Activity Report. c. Approval of Ryan Ruzek's permanent appointment as Civil Engineer. d. Approval of List of Claims dated August 2, 2005 and totaling $227,841.39. Councilmember Krebsbach seconded the motion. Ayes:4 Nays: 0 Page No. 2 August 2, 2005 INET Council acknowledged a memo from the City Clerk regarding INET. Clerk Swanson reviewed the benefits of INET for Council. Councilmember Vitelli stated that he completely supports INET. In 2002 he did not, but now the city is going to link up with Dakota County on dispatching and the other services and INET has been proven to be an effective system. Now that the city is going with Dakota County for several services it is the right time to go to INET. Councilmember Vitelli moved to authorize staff to pursue an agreement for INET and return to Council on August 16 with a resolution authorizing and agreement with Comcast for INET. Councilmember Duggan seconded the motion. Ayes: 4 Nays: 0 HURT Council acknowledged a memo from Operations and Projects Coordinator Kullander regarding the NURT. Mayor Huber stated that he asked that the item be removed from consent because he will vote against the motion. Councilmember Krebsbach moved adoption or Resolution No. 05- 54, "A RESOLUTION OF INTENT TO SUPPORT A DESIGN STUDY FOR THE NORTH URBAN REGIONAL TRAIL." Councilmember Vitelli seconded the motion. Ayes: 3 Nays: 1 Huber Councilmember Duggan stated that the residents would like a copy of the resolution and asked that a copy be sent to each of the affected property owners. PUBLIC COMMENTS Mr. Cliff Timm informed Council that he has talked to representatives of Visitation School, St. Thomas Academy and School District 197 about using Honkers Away to control geese. He stated that he hopes to prove that using dogs to chase geese away will work and that if it is successful, he will contact the DNR to ask for an open season on geese. He stated that he would like Council to contact the city's legislators to get something done. Mr. Frank Herman, 1848 Twin Circle Drive, stated that his driveway is worn out and he would like to replace it and had an asphalt company come to get a permit from the city. There was some confusion on how to proceed. His driveway is close to the property line. His house was built in the 1970's and the builder created a side entrance to the garage. The driveway has a bend so that drivers Page No. 3 August 2, 2005 can swerve into the driveway. In applying for the permit there was confusion as to whether he can replace the driveway or whether he has to cut it down or get a variance. Mayor Huber responded that the driveway is an existing non- conforming use. Mr. Herman responded that he feels that the driveway is a grandfathered structure or use under the city's ordinance. Mayor Huber stated that the issue is whether Mr. Herman can replace an existing non - conforming use with a non - conforming use. Administrator Danielson stated that the first step for Mr. Herman is to meet with the City Planner. There is some question on exactly where this fits within the ordinance, and the first step is, to clarify that and either amend the ordinance or, if the planner feels this is a grandfather situation, the city would just issue a permit. Attorney Schleck stated that the first step is for Mr. Herman to make a formal application and then the city can process it. Mr. Herman responded that he did apply for a permit and the permit was rejected and it was suggested that he come to the Council meeting. Attorney Schleck responded that the driveway is a prior non- conforming use. The question is whether replacing the driveway is just maintenance. That is something the city should look at and make a decision. Mayor Huber stated that there is another applicant on the agenda tonight with a similar situation and it would be unfair to him to say that Mr. Herman's driveway is grandfathered after the other applicant went through the entire process. He felt that Mr. Herman should submit a planning application. BID AWARD Council acknowledged a tabulation of bids from City Engineer McDermott for the 2005 street improvement project. After discussion, Councilmember Vitelli moved adoption of Resolution No. 05 -55, "RESOLUTION ACCEPTING BIDS AND AWARDING CONTRACT FOR 2005 STREET IMPROVEMENTS AND APPURTENANT WORK (IMPROVEMENT NO. 2005, Page No. 4 August 2, 2005 PROJECT NO. 1)," awarding the contract to Arndt Construction for its low bid of $650,023.70. Councilmember Duggan seconded the motion. Ayes: 4 Nays: 0 CASE NO. 05 -29, PLUM Council acknowledged an application from Mr. & Mrs. Paul Plum, for a conditional use permit for an accessory structure at 1933 Dodd Road. Council also acknowledged associated staff reports. City Engineer McDermott informed Council that the applicants would like to build a shed because they do not have enough room for storage in their small garage. The structure meets all setback requirements and the Planning Commission and city planner have recommended approval. Councilmember Duggan noted that the Planning Commission minutes indicate that the Plums plan to eventually redo their home. The commission recommendation that the shed be painted the same color as the existing home and that it be repainted to match the new color of the home when it is resided is included in the proposed resolution. Councilmember Vitelli moved adoption of Resolution No. 05 -56, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT FOR AN ACCESSORY STRUCTURE AT 1933 DODD ROAD." Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 CASE NO. 05 -30, OLSEN Council acknowledged an application from Mr. David Olsen for a wetlands permit to allow construction of a new home at 2550 Arbor Court. Council also acknowledged associated staff reports. Engineer McDermott stated that the home and driveway are within the 100 foot wetland setback. The Planning Commission recommended approval with the conditions that the driveway be paved and that there be no driveway grade greater than 8 %, that the culvert be eliminated, that a silt fence be installed during construction and that the home be properly insulated for aircraft noise as is required by the Aircraft Noise Attenuation Ordinance. Councilmember Duggan suggested that Mr. Olsen get a copy of the city's noise attenuation ordinance from staff. He also recommended that Mr. Olsen hire an acoustical engineer to review his house plans. Page No. 5 August 2, 2005 Mr. Olsen responded that it will be a concrete home and that he is aware of the noise attenuation requirements. Councilmember Vitelli moved adoption of Resolution No. 05-57, "A RESOLUTION APPROVING A WETLANDS PERMIT FOR A NEW HOME AT 2540 ARBOR COURT." Councilmember Duggan seconded the motion. Ayes: 4 Nays: 0 CASE NO. 05 -31, McMONIGAL Council acknowledged an application from Ms. Alicia McMonigal, for a variance to the driveway setback requirement at 1003 Chippewa Avenue. Council also acknowledged associated staff reports. Assistant Hollister briefly reviewed the application. He stated that this case is different from the situation that Mr. Herman discussed earlier in the meeting. In this case, it is not simply replacing a driveway in its existing location and nature. The location of the driveway will be changed slightly and a variance is required. Ms. McMonigal wants to straighten out the driveway for safety reasons and that would require a two foot sideyard setback variance. The Planning Commission and city planner reconnnended approval. Councilmember Vitelli moved adoption of Resolution No. 05-58, "A RESOLUTION APPROVING A SETBACK VARIANCE FOR A DRIVEWAY AT 1003 CHIPPEWA AVENUE." Councilmember Duggan seconded the motion. Ayes: 4 Nays: 0 CASE NO. 05-32, COONAN Council acknowledged an application from Mr. Michael Coonan for variances for camper parking at 2237 Apache Street. Council also acknowledged associated staff reports. Assistant Hollister stated that Mr. Coonan has applied for variances to three provisions of the ordinance on parking of RV's. The code enforcement staff received a complaint about the parking of the RV. The Coonans met with staff and the city planner, and the planner determined that where the camper is being parked does not meet the requirements of the ordinance. The planner recommended denial of the variances for lack of a hardship. The Coonans made the case for a hardship and most of the Planning Commission agreed and recommended approval of the variances. The Coonans are in violation of three provisions of the ordinance. If the camper is being Page No. 6 August 2, 2005 parked alongside the house, the RV must meet a ten foot setback and that is impossible in this yard. That only leaves them the option to park it in their back yard. The ordinance stipulates that if an RV is longer than 23 feet, it cannot be parked in a driveway. The RV is 25 feet long. Mrs. Coonan clarified that the complaint to the city was a complaint about parking the RV on the street. There was an issue with the hitch that caused the Coonans to not be able to park the RV at the side and they had to park it on the street. There are two ways to get into their back yard. One is from the south side, but there is a tree to the southeast. There are also water problems in the back yard. They had drain tiles placed on the south property line to move the water to the front, and that would make it impossible for them to move the RV across the south. On the north they built a playground and patio to provide a safe area for her daycare children. Those are the only two areas from which they could get the RV into the back yard. She stated that they have always parked the camper on the north side of the house and all of their neighbors thought it was a good location because it is fully screened. The neighbors to the north submitted a letter supporting their application. Those neighbors do not see the RV now because of the screening, but if it was in the back yard they would see it from their porch and back yard and it would significantly impact them. Responding to a question from Councili-nember Duggan, Mrs. Coonan stated that when the camper is parked in this location it sits back from the structure. They would be happy to do additional screening if the city requires it. No one in the neighborhood objects to the parking location. Mayor Huber stated that if Council is inclined to approve the variances, he would recommended that the motion be to approve it subject to staff preparing a resolution including additional findings as to hardship for adoption at the next meeting. He stated that Council has always discussed the lots in Friendly Hills being smaller. His concern is that approval of this application would open up campers parked all over Friendly Hills and he does not know how the city would stop that. The neighbors seem to accept this request and it seems to be in the best location, but he was concerned as to how the city can prevent Friendly Hills from being fall of campers on the small lots. Councilmember Krebsbach responded that campers can be parked in the back yards. Ayes: 4 Nays: 0 Page No. 7 August 2, 2005 Mayor Huber stated that he clear findings of fact are what Council would have to rely on in the next situation. Council has to review these requests on a case by case basis. Granting this variance does not mean Council needs to grant another, but clear findings are needed as to why Council is granting an exception in this case. Councilmernber Krebsbach stated that if the ordinance says campers must be parked in the back yard and they cannot get into their back yard, that is a hardship. That is the major finding. Attorney Schleck stated that depending on whether Council chooses to grant this variance, he would want to write the resolution language to make sure the variance for this lot is very narrowly tailored to this situation so there is less precedential value. Councilmember Vitelli stated that he would like the findings to be such that there are probably forty lots in Friendly Hills that would probably not meet the conditions of the RV ordinance. The drainage issue is probably unique to this situation as well as access. He would want to make sure Council does not open the door to all of Friendly Hills wanting parking variances. Councib-neinber Duggan moved to direct staff to prepare a resolution with expanded findings of fact for adoption at the next meeting. Councilmember K-rebsbach seconded the motion. Mrs. Coonan asked when they can park their RV in the location they are requesting. Attorney Schleck responded that Council technically approved the variance this evening. CASE NO. 03-04, PROPERTY Council acknowledged a memo from Assistant Hollister along with MAINTENANCE ORDINANCE a draft Zoning Ordinance amendment for property maintenance. Mayor Huber stated that the draft still includes split or cracked trees as a nuisance and the City Attorney has several reservations about including the language. Attorney Schleck stated that Section 12-5-4A5 lists a series of items that affect the public health and safety. The list of issues is a codification of things the city considers to be public nuisances or hazardous structures. Trees that are located between two private properties are private property, and it is hard to ay they are creating a public nuisance. The League of Minnesota Cities recommends that Page No. 8 August 2, 2005 this is a private dispute between private land owners and to classify it as public takes things away from the judiciary into the legislative arena that should not be there. They recommend leaving these issues as private issues and take them out of maintenance ordinances. Councilmember Duggan stated that Section 4-1-40 of the City Code says that tree limbs over public ways is a public nuisance. He asked why the city would protect the public but not the citizens in relation to their property if a resident feels unsafe because a neighbor's tree is cracked or split. That is specifically stated in the ordinance and it states under the public nuisance section that it is a nuisance if it "shall render the public insecure in life or in use of property." If people tell Council this and Council sees pictures, he is conflicted that it can be acceptable for public but not for private. Attorney Schleck responded that the other ordinance that Councilmember Duggan quoted is overhanging a public way, which is different from being between two private properties. Technically, if a tree protrudes over another's property, that is a trespass and that owner has every right to cut the branches. That is a different issue. It may be a private nuisance, but it is not a public nuisance because the public is not supposed to be there. It may be a private nuisance and there is a private cause of action that a property owner may wish to take. The League does not think that should rise to the level of what is considered a public nuisance. If it is included in the ordinance, the city could be in the genre of being the judge and jury between two private land owners. If a land owner feels he is unsafe, does that really means he is unsafe or that he feels unsafe. Councilmember Duggan stated that common sense should be the rule, but common sense is not always used. Attorney Schleck responded that if one property owner thinks another is causing potential threat or hann, there is a right to go to court. He recommended deleting Section 12-5-4A5. Councilmember Vitelli stated that he understands Attorney Schleck's comments completely. He asked if Attorney Schleck is recommending deleting 12-5-4 completely. He stated that he was looking at the other items in Section 12-54A and they are safety issues. Attorney Schleck responded that 12-54A is different because it is specifically related to private land owners. Page No. 9 August 2, 2005 Councilmember Vitelli agreed that it is a private matter and should not be in the ordinance. Councilmember Duggan stated that 12-5-3AI says all exterior property must be maintained in a clean, safe manner. If a child cannot use an area of their yard because its parents are afraid that part of a cracked tree might fall on them, Attorney Schleck responded that section applies to a structure. If someone is in that much fear they should talk to their neighbor. If that does not work, they should file a private lawsuit against their neighbor. Councilmember Krebsbach stated that there should be something in Section 12-5-4D (weeds) that recognizes blufflines, etc. Back yards along the bluff are natural and there could certainly be vegetation over 12 inches tall that is part of the natural ground cover. Attorney Schleck responded that Councilmember Krebsbach's comment brings up one of the questions he has. Eventually it will come down to someone defining what is a weed. There is a definition from the DNR but there is a wide expanse of plant life that is not included in the definition. Many of the issues in this ordinance will come down to interpretation by the city's inspectors. Mayor Huber questioned why weeds are included in this ordinance if there is another city ordinance that addresses weeds. It was the consensus to delete the reference to weeds (12-5-4D). Councilmember Krebsbach stated that she has a concern about the car limit. She stated that many people have children who come home for a couple of months, and they would exceed the number of cars allowed. She asked how that can be managed. Administrator Danielson responded that cars can be parked on the street. They would only have to be moved every 24 hours. Councilmember Vitelli stated that he is ready to approve the ordinance. It is very close to a very good ordinance, and if a weakness is found in the future, Council can amend the ordinance. It was the consensus to remove 12-5-4A5 (trees) and 12-5-41) (weeds). Page No. 10 August 2, 2005 Councilmember Duggan stated that he is not sure that Council can reconcile removing 12 -5 -4A5 when Section 12 -5 -1E says that the city will assist in identification and correction of life threatening conditions that may be identified in the city. Councilmember Vitelli moved adoption of Ordinance No. 401, "AN ORDINANCE AMENDING SECTION 12 -5 OF THE MENDOTA HEIGHTS CITY CODE, KNOWN AS THE ZONING ORDINANCE, BY PROVIDING FOR THE REGULATION OF PROPERTY MAINTENANCE," amended to delete Sections 12-5 - 4A5 and 12 -5 -41). Councilmember Krebsbach seconded the motion. Mayor Huber stated that he has concerns about the garbage can rule. He thinks it will be difficult to enforce and that it will be a challenge for some people. Councilmember Vitelli suggested that Council picture every home in Mendota Heights with a garbage can out in front. He would like to see the provision enforced. Ayes: 4 Nays:0 CASE NO. 03 -33, MOHAGEN Council acknowledged resubmission of applications from Mr. Todd Mohagen for PUD Preliminary Development Plan, Preliminary Plat, and Variance for an Office Development at the Northeast Quadrant of 494 and 35E. Council also acknowledged associated staff reports. Mr. Michael Leuer was present on behalf of the applicant. Mayor Huber stated that this is exactly the salve application that was before Council in the past. There are no changes in design from what Council approved a few months ago. Councilmember Krebsbach stated that she would like to abstain because she voted against the original approval. Councilmember Duggan stated that one of the conditions in the resolution is in error and must be corrected. The resolution states that the development have an address on Mendota Heights Road and that the address must be displayed on a monument sign on Dodd Road. Councilmember Vitelli moved adoption of Resolution No. 05 -59, "A RESOLUTION APPROVING A PUD PRELIMINARY Page No. 11 August 2, 2005 DEVELOPMENT PLAN FOR AN OFFICE DEVELOPMENT AT NORTHEAST QUADRANT OF 494 AND 35E," as amended. Councilmember Duggan seconded the motion. Ayes: 3 Nays: I Krebsbach TH 149 RECONSTRUCTION Council acknowledged a memo from Engineer McDermott regarding a request from the City of Eagan for city support Eagan's proposed TH 149 Reconstruction Project. Engineer McDermott informed Council that staff received a letter from Eagan asking for Council support for the expansion of T.H. 149 from four lanes to six lanes between TH 55 and the 1-494 north ramp. They are applying for federal funding and support letters will help them. They have indicated that expanding 149 will help to reduce traffic on T.H. 110 because it will make it easier for Eagan residents to access 1-494. Eagan has received letters of support from Inver Grove Heights, Rosemount and Dakota County. They are saying that at times when Dodd is very congested, people may access 1-494 from T.H. 110 instead of Dodd. Councilmember Krebsbach stated that bringing six lanes into Mendota Heights will put pressure on Dodd Road and T.H. 110. Councilmember Vitelli stated the he does not support the reconstruction. Going from six lanes down to two lanes does not make sense and it would bring future arguments that Dodd should be four lanes wide. He would not send a letter of support. Councilmember Duggan stated that whether Eagan has Mendota Heights support or not they will build it. Engineer McDermott agreed, if federal funding is approved. Councilmember Duggan stated that Engineer McDermott has told him that there is no relationship between this and Eagan's proposal for an 1-35E connection at Argenta. He stated that he does not support Eagan's request. Engineer McDermott responded that Eagan is assuming that the interchange at Argenta will not be approved and this will help with the congestion at 1-494. It was the consensus not to send a letter of support. Page No. 12 August 2, 2005 Councilmember Vitelli stated that he does not understand why not expanding Dodd would put more traffic on T.H. 110. He asked how many places that one can think of in Minnesota or the United States where a six lane road narrows down to two lanes just like that. BUDGET WORKSHOP Council acknowledged a memo from Administrator Danielson regarding scheduling of the 2006 budget workshop. Councilmember Krebsbach moved to conduct a budget workshop at 6:00 p.m. on August 29. Councilmember Duggan seconded the motion. Ayes: 4 Nays: 0 COUNCIL COMMENTS Councilmember Duggan asked whether the stakes on the north side of T.H. 110 are for the NURT. Engineer McDermott responded that over a year ago staff met with MnDOT to request tumbacks of rights-of-way to the city and MnDOT is now surveying to mark the right-of-way with stakes. Turn back of the frontage road would make it a city street and the city could add it to its MSA system. ADJOURN Pursuant to Minnesota Statutes 13.44 Subd. 3, Councilmember Duggan moved that Council adjourn to closed session to discuss the terms of a potential purchase of the Garron property on Pilot Knob. Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 9:05 p.m. Z<� 177 Kafhleen M. Swanson City Clerk