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2004-12-07 City Council minutesPage No. I December 7, 2004 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, December 7 2004 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, Schneeman and Vitelli. PLEDGE OF ALLEGIANCE Council, the audience and staff recited the Pledge of Allegiance. AGENDA ADOPTION Councilmember Duggan moved adoption of the revised agenda for the meeting. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 APPROVAL OF MINUTES Councilmember Duggan moved approval of the amended minutes of the regular meeting held on November 16, 2004. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CONSENT CALENDAR Councilmember Duggan moved approval of the consent calendar for the meeting, revised to move items 6f, additional Boltz driveway, 6k, Verizon antennas, 6n, Fink final plat, and 6r, Claims List, to the regular agenda, along with authorization for execution of any necessary documents contained therein. On item 6i, NOC appointments, Councilmember Schneeman indicated that she is interested in being appointed as the second alternate. a. Acknowledgement of the November 23, 2004 Planning Commission Minutes. b. Acknowledgement of the NDC4 Meeting Minutes and Agenda. c. Acknowledgement of the October 2004 Building Activity Report. d. Acknowledgement of completion of the 2004 Street Striping and Markings and authorization for payment of $11,837.50 to AAA Striping Service. Page No. 2 December 7, 2004 e. Authorization for Computer Network Upgrades. f. Authorization for the purchase of a 2002 Chevrolet Impala from Ryan Chevrolet for the police department for $10,250 plus the trade-in of a 2000 Crown Victoria along with authorization for issuance of a purchase order to Emergency Automotive Technologies to install emergency equipment at a cost not to exceed $3,850. g. Acceptance of the donation of an AED from the American Heart Association Edwards Memorial Trust. h. Approval of the Cancellation of December 14, 20004 Parks and Recreation Commission Meeting. i. Approval of the appointment of Councilmember Duggan to a two-year term as the City's NOC Representative and Councilmember Krebsbach's reappointment as the NOC alternate. j. Approval of Final Payment for the Mendota Heights Road Lift Station Rehabilitation. k. Approval of a Sign Permit for 1315 Mendota Heights Road — Le Cordon Bleu and Logo Signage. 1. Approval of a Revised Roof Line for McDonald's Restaurant, 2020 Dodd Road. m. Adoption of Resolution No. 04- 92, "A RESOLUTION APPROVING THE APPLICATION OF THE CITY OF MENDOTA HEIGHTS FOR FISCAL YEAR 2005 DAKOTA COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT FUNDING." n. Adoption of Resolution No. 04-93 " RESOLUTION CERTIFYING DELINQUENT UTILITY CHARGES TO THE DAKOTA COUNTY AUDITORS FOR COLLECTION WITH REAL ESTATE TAXES" and Resolution No. 04-94, "RESOLUTION CERTIFYING UNPAID WEED CUTTING CHARGES". o. Approval of 2005/2006 Tobacco Licenses. p. Approval of the list of contractor licenses dated December 7, 2004. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 BOLTZ TAE KWAN DO Council acknowledged a memo from Engineer McDermott relative to a request from Mr. Greg Bolton for an additional driveway at the east end of his parking lot to improve traffic flow in and out of the parking lot. Page No. 3 December 7, 2004 Councilmember Schneeman felt that if the new driveway comes out between the trees, the view of those coming out of the driveway would be impaired unless ten feet of the bottom branches are cut off. Mr. Bolton responded that he will remove the lower branches to provide better visibility. Councilmember Schneeman moved to authorize an additional Driveway at 780 South Plaza Drive. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 VERIZON ANTENNAS Council acknowledged a memo from Administrator Danielson regarding a request from Verizon to install six new technology type antennas and reconfiguration of some of their existing antennas on the water tower. Councilmember Schneeman asked if the city will receive more money under the agreement. Mayor Huber responded that the agreement that was made a number of years ago allowed fifteen antennas and Verizon has been paying for fifteen even though they did not install them. If this request is approved, Verizon will have fifteen antennas but they will be smaller antennas. Councilmember Duggan stated that the original agreement was for 8 foot tall antennas and the new antennas are four feet tall. Councilmember Duggan moved to authorize the Mayor and City Clerk to execute the second amendment to the agreement between the city and Verizon Wireless for antennas on the water tower. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04-16, FINK Council acknowledged a memo from Assistant Hollister regarding the final plat, subdivision and variance at 1850 Arvin Drive. Councilmember Krebsbach pointed out that everything that Council had requested is in the resolution. Page No. 4 December 7, 2004 Councilmember Krebsbach moved adoption of Resolution No. 04- 95, "A RESOLUTION APPROVING A FINAL PLAT TO CREATE ONE ADDITIONAL LOT AT 1850 ARVIN DRIVE" Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 CLAIMS LIST Councilmember Duggan asked if the Bonestroo payment included in the claims list was below the budgeted amount for the study. Engineer McDermott responded that the total contract for the study is $29,000 and the amount on the claims list is a partial payment. Councilmember Duggan moved approval of the list of claims dated December 7, 2004 and totaling $163,026.95. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04-43, GALLIGAN Council acknowledged an application from Mr. and Mrs. Dennis Galligan for a critical area permit for retaining walls and fill greater than 100 cubic yards at 1845 Hunter Lane. Council also acknowledged associated staff reports, a letter from Mr. Paul Katz and a letter from Mr. Gary Gandrud of Faegre and Benson. Assistant Hollister informed Council that the Galligan's previous critical area permit did not include building retaining walls and it came to staff's attention that for the past two months the Galligans have been building retaining walls and bringing in fill. Staff met with them and instructed them to apply for a critical area permit. The Planning Commission has recommended approval. Councilmember Krebsbach stated that the Planning Commission recommended approval but there was considerable discussion and several points raised about complying with the critical area ordinance. She asked if there were any findings in the discussion apart from the approval recommendation of the city planner. Assistant Hollister responded that the unanswered question had to do with the removal of vegetation and Mr. Galligan has submitted a letter in that regard. The city's engineering staff estimates that about 147 cubic yards of fill were brought in, but there has been a claim made by Mr. Katz' attorney that they brought in 400 cubic yards of fill. Page No. 5 December 7, 2004 Councilmember Duggan stated that the company that brought in the fill should have a record of how much was brought in. Assistant Hollister responded that the Planning Commission asked Mr. Galligan that question and he responded that they did not appear to have those records. Responding to a question from Councilmember Krebsbach regarding the commission's discussion on the need for a permit for filling, Assistant Hollister stated that any filling within the critical area requires a permit. A permit for under 100 cubic yards can go directly to Council, but anything over that must go to the Planning Commission. Councilmember Schneeman stated that she did not think the Galligan's did the work without a permit maliciously but rather that they did not know they needed an additional critical area permit. Councilmember Krebsbach stated that her interest is an interpretation of what went on at the Planning Commission and that she wants to be sure that all of the questions have been answered. The work was done before the Galligans applied for a permit, and the fill is in. Commissioner M. McManus commented in the commission's minutes that there must have been some discussion about the fill when Council approved the original critical area permit for reconstructing the house, but she does not recall any Council discussion about filling or retaining walls. Assistant Hollister responded that there was no discussion of filling in 2003 when the permit was issued because staff did not know there would be any filling. The Galligans indicated they would not be changing the grades and would not need retaining walls. Councilmember Duggan asked if there was an alteration of the grade. If a foundation is raised several feet, the grade is raised. Councilmember Vitelli stated that the way he reads the commission minutes, the commission has recommended approval of the request for the permit and the planning consultant has also recommended it. Mr. Galligan stated that there was nothing malicious. When he originally brought his plan to Council he did not have a landscaping plan and did not know he needed one. No one asked him to submit one. He knew he would not be doing the landscaping for a year or more. Page No. 6 December 7, 2004 Councilmember Krebsbach responded that nothing was stated about a landscaping plan because there was not going to be a lot of change in the site. Mr. Galligan stated that he always thought it was the back side of the bluff, within 40 feet of the bluff that required a critical area permit. He was very careful not to do anything within that 40 feet except the driveway that was approved by Council. In order to put the driveway in, he needed fill and no one said a word about a permit until the city stopped the work the day the trucks were bringing the fill and putting in the driveway. Councilmember Duggan commented that raises the question of changing the grade — if fill was brought in, the grade was changed. Responding to a question from Councilmember Schneeman, Mr. Galligan stated that he cannot tell Council how many cubic yards of fill were brought in. It was very confusing because the contractor took out a lot of material and brought a lot back in. Councilmember Krebsbach asked who is responsible for making decisions at the building site. She stated that there was a stop order on this project before the critical area permit was issued and Mr. Galligan should have let the city know what he was doing this time. She stated that all of Hunter Lane was full of trucks waiting to go onto the site. Mrs. Galligan responded that those trucks were also bringing asphalt. They were ready to start laying the asphalt for the driveway that morning and the work was stopped. Mayor Huber stated that there have been two stop orders issued, but this is the only one where there is a sense they were doing something that does not conform with city ordinances. When the first stop order was issued, there was no finding they were doing anything wrong. Councilmember Krebsbach stated that she thinks that there was a stop order issued in the past, the Galligans should have been more careful because there are other conditions that apply in the critical area. Responding to a question from Councilmember Schneeman, Mayor Huber stated that a critical area permit is required for any filling and Page No. 7 December 7, 2004 there is a public notification and Planning Commission requirement if there is more than 100 cubic yards of fill. Councilmember Schneeman asked if the Galligans could remove 50 cubic yards and be at less than 100 cubic yards. They would not want to level the area around the driveway that could change the drainage towards the neighbors. She stated that she could support a filling permit if they reduce the amount of fill that was brought in. Mr. Galligan responded that he does not know how he could do that at this point in time. Mayor Huber stated that Council could table the matter for two weeks and Mr. Galligan could have his engineer look at it. He stated that he had the same concern as Councilmember Schneeman. Council has relied on the representations made when the first application came in — when there was a representation made about fill. He felt the project is doable at under 100 cubic yards of fill and he would be much more comfortable with that. Mr. Galligan stated that he believes that 147 cubic yards is the correct calculation of fill brought in because city staff used certified surveys to make the calculation. Mr. Paul Katz, 1855 Hunter Lane, stated that if one looks at the original survey, the elevation was at 419, but that is not what was put on the drawing. They raised the level of the house six feet and then did a survey. The difference between that survey and now would not be much more than 100 cubic feet. They are taking the fill that has already been dumped in there and then adding two feet, so it is not a correct measurement. Mayor Huber stated that Council's preference is to see if this project is possible at a level less than 150 cubic feet. Councilmember Duggan moved to table discussion to the first meeting in January. Councilmember Krebsbach seconded the motion. Councilmember Duggan stated that he would like to see the original maps for the site before construction was done and the maps that were submitted since then. He would like to see some type of corroborating evidence on the amount of fill and some information from the landscaping people about removing 50 cubic feet. He compared this application to a recent application on T.H. 13 and Page No. 8 December 7, 2004 whether Council would allow him the same consideration. He stated that he does not think this is the only solution in light of the legal challenges that are presented. It is not okay just to get rid of 50 cubic yards of fill. Councilmember Vitelli asked Mr. Galligan for his interpretation of what Council is asking him to do before the next discussion. Mr. Galligan stated that it is his understanding is that Council is asking him to show that he can remove fill so that there is only 100 cubic yards of fill on the site. Councilmember Krebsbach pointed out that Councilmember Duggan is also asking for maps showing preconstruction and post construction conditions to see how the grades have changed. Ayes: 5 Nays: 0 CASE NO. 04 -44, ALVAREZ Council acknowledged a memo from Assistant Hollister relative to an application from Mr. Robert Alvarez for a lot width variance for a new home at 1167 Dodd Road. Mr. Alvarez and Mr. Paul McGinley were present for the discussion. Assistant Hollister stated that Mr. Alvarez would like to build a home on Lot 9, Kirchner Addition combined with the adjoining vacated right -of -way. It was Mr. Alvarez' intent to apply for a variance to build a larger house than the setbacks would permit. He appeared before the Planning Commission in November. There are two different applications he could conceivably make in order to get the house footprint he wants. He could either apply for a rear yard variance if the frontage is considered to be Ivy Hill Drive or a lot width variance if the frontage is considered to be Dodd Road. The City Planner was of the opinion that it would be better to apply for a rear yard setback variance and he did. The Planning Commission disagreed and recommended approval of a lot width variance. Mr. Alvarez would like to have the building ten feet from the lot line the lot shares with lot 10 rather than the 30 foot rear yard variance. The commission recommended a lot width variance to allow the footprint Mr. Alvarez is proposing. He showed a drawing of what Mr. Alvarez could build without a variance. It would be a long, narrow house but would meet the standards of the city's ordinances. There are many similar houses in the city and the house would be livable. A second drawing represents what Mr. Alvarez would like to build. The house would face Dodd but the driveway would be off of Ivy Hill Drive. Because Dodd is a state road, he is under the impression Page No. 9 December 7, 2004 getting a curb cut from the state is difficult. Even though the garage faces Dodd, part of the reasoning for having the house face Ivy Hill Drive is because MnDOT may not grant a curb cut. A third drawing shows the front elevation of the home, facing Ivy Hill Drive. The Planning Commission raised the point that there is a limit of 1,200 square feet for a garage without a conditional use permit. The commission informed Mr. Alvarez that the garage must comply with the ordinance. Mr. McGinley stated that Mr. Alvarez has lived in his home for 25 years and all that time thought he had three buildable lots. When it was discovered that his house straddled the line between Lots 9 and 10, he asked for a subdivision. Since that time he has asked for and received permits to demolish a portion of his existing home and to replace the garage on the existing home and add the foyer and attached two car garage. After he completes that project, Lot 9 will be a separate parcel without the encumbrance of the existing home. If the house fronts on Ivy Hill, he could build without a variance, but it would be a long narrow home. That would not fit the standards of what is being built in the city today. If the reasonableness standard is applied, that long narrow house would not be reasonable. The shape of the lot is a hardship. It loses about 30% of its width from front to back. He reviewed the Planning Commission discussion and the house design and configuration as well as the grading of the lot. Councilmember Krebsbach stated that she would want to see landscaping along Dodd to buffer the site because there will be two garages facing Dodd. Councilmember Schneeman asked if there is some way Mr. Alvarez could move the proposed house westerly. She did not like how close the side yard would be to the existing house. She did not think that is attractive and did not think it looks good off of Dodd Road having the proposed garage so close to the other house and another garage in front of that house. Mr. McGinley responded that the house could possibly be turned a little and moved back (west). Councilmember Vitelli asked why Mr. Alvarez doesn't just take the two lots and replat them so that he has the line running north and south and have a normal lot with a normal looking house that has an entrance on Ivy Hill. If that is possible, he does not understand why there is a hardship. Page No. 10 December 7, 2004 Councilmember Duggan agreed, stating that he made that proposal twice. Mr. McGinley stated that looking at the lots, it is possible to do that but Mr. Alvarez has no access to Ivy Hill west of where the access is now shown. Councilmember Duggan asked if there was a representation made six months ago that Mr. Alvarez has approached the townhouse association and that they would look favorably on selling him some land. Mr. McGinley responded that Mr. Alvarez talked to them and there has been some indication they would be willing to give him an easement to cross their boulevard to get to the public road. Even if they were to grant the easement that does not give him street frontage. It is impossible to put a driveway west of where it is proposed without an easement across the association land. Councilmember Vitelli asked if the lot could be subdivided so the lot has a curve and meets the street at an appropriate place. Mayor Huber stated that his difficulty with this design is that Mr. Alvarez is asking Council for a 20 foot variance on a 30 foot setback to bring the setback down to ten feet. His feeing is that he thinks the reason for the setbacks is to create an uncluttered look in the city and Mr. Alvarez would be creating a cluttered look. The footprint of the house is in the same place on the lot whether the variance is or a front yard variance or a rear yard variance. Mr. Alvarez is asking for a large variance. He does not know why Mr. Alvarez does not approach Council for a four to six foot variance and still build in the envelope. Council said that he could build the long narrow house in the envelope, and this is too big a departure for him to be comfortable with it. He could consider some variance to allow a 60's style (long narrow house). Councilmember Krebsbach stated that, should this proposal be approved, she would want the condition that the lot could not be split again to create another lot and pursue the easement. Councilmember Duggan pointed out that the Council in the 1980's stated that there can be no further subdivision. People then and now have the right to rely on that condition. He felt that it is disingenuous to say in the resolution that a consideration that the house proposed would be comparable to those presently being built Page No. 11 December 7, 2004 in Mendota Heights is a reason to grant a variance. He also did not feel a variance is necessary in order to put the property to reasonable use. He feels a house can be built westerly so that reasonable use of the property can be made. He is also uncomfortable with item six in the resolution which states that a usable yard would exist on the west side of the home. The resolution also states that Mr. Alvarez owns the lot to the north, but Mr. Alvarez is not immortal and someday someone else will look onto the property. There are also nine other homes in the area that will look at it. He felt that a home could reasonably be built on the property without a variance and he will not support the variance request. If Mr. Alvarez had retained Lot 11, he could have easily built on the three lots but he chose not to do that. There is no hardship and he has a problem with the location of the house relative to where it could be on the property. He stated that he believes that engineering wise there is enough room to build a house on 15,000 square feet of land. The challenge in moving the house to the west is the driveway. There has been conversation with the homeowners' association and that should be pursued. Mayor Huber stated that in his mind, moving the house west would create a flag lot. Council is reluctant to have narrow frontages on deep lots. Mr. McGinley stated that Lot 9 stands separate from Lot 10 as a lot of record and no subdivision is being requested. That is why Mr. Alvarez is removing part of his house. Mr. Alvarez is trying to avoid that issue because the previous Council said there could be no future subdivision. Councilmember Vitelli stated that he would not support the request because he believes that a more appropriate way of building a second home would be to redraw the lines on the two lots so that there would be one home would be to the west. If the association would not grant ten or 20 feet, the line could be drawn at an angle so that the driveway could be curved to meet Ivy Hill Drive. He did not believe that would create a flag lot.. Mr. Brad Clarey, a neighbor in the townhouses, stated that he could speak a little bit to the townhouse association discussion. The association in its annual meeting in October approved in principle the grant of an easement to Mr. Alvarez to cross its property. That is contingent on the final design and one of the complaints the association has raised is that the original narrow design on the smaller wedge with a two car garage on the west side leaves a very short driveway which creates a driveway congestion problem. One Page No. 12 December 7, 2004 of the features of the current design that is desirable is that the driveway would run off Ivy Hill and curl in, taking cars off the street and in the driveway and garage. He has the impression that the association has no interest in selling the property. Mayor Huber asked Mr. Clarey what his sense is from the association's point of view on some of the designs that have been shown and if there is a preference. Mr. Clarey stated that his preference is for the design before Council tonight because he felt there would be several issues with trying to get into the back property. The driveway where it is proposed would avoid parking cars on the street and would avoid the need for an easement. If the house were placed further west, it would create a very long driveway off Ivy Hill. Councilmember Vitelli noted where the driveway could be placed and stated that it would not be a difficult curve. Mr. John Schwartz, who lives across Dodd, stated that he has been watching what is going on and has been interested in the various proposals. The lots along Dodd are very strangely platted. They are very long and very narrow. In looking at the houses that exist there and the proposal for this lot, it seems to him that this is very consistent with the row of houses along that part of Dodd. They all front or face Dodd Road and have large rear lots. He thinks the proposed design is a very good proposal because it is consistent with the row of houses that go down that portion of Dodd. Mr. McGinley stated that some of the other ideas that have been put forth in terms of splitting the lot, he did not think would be a good idea. It would result in a very odd lot shape and would put a house in the lowest part of the property. Contemporary walk out homes do not fit in that circumstance at all. Councilmember Krebsbach stated that the prior Council said no subdivision and confirmed that at this point, there is no subdivision. Mr. Alvarez decided to do the demolition at his own volition. That did not imply there would be approval of the proposed house. For her to approve this there would have to be landscaping along Dodd to buffer the garage from the road and that there be a condition that there be no further subdivision. Councilmember Krebsbach moved approval of the variance with the condition there be no further subdivision of Lots 9 and 10 and that Page No. 13 December 7, 2004 there be a hedge and tree buffer on Dodd Road and that the home conforms to the R -1 requirements for homes and the size of garage and number of garage doors. Motion failed for lack of a second. Councilmember Schneeman moved to deny the lot width variance for a new home and to direct staff to prepare a resolution for adoption at the next meeting. Councilmember Vitelli seconded the motion. Councilmember Schneeman stated that she does not like the fact that the house would be so close to the existing Alvarez house. She felt it could be moved to the west. She stated that Mr. Alvarez would be putting a new garage on his home and would have a three car next to it. She felt something better could be done. Mayor Huber stated that he hears the comments of the residents that the think the house design is nice. He has concerns about moving the house too far to the west because of circulation and driveway issues. He stated he could be open to a variance to build a house on this lot but this house would be too close to the Alvarez house. Ayes: 5 Nay: 0 Councilmember Duggan stated that a house could be moved 18 to 20 feet and landscaping could be added to reduce the massiveness of the structure. Mr. Alvarez could probably build a house close to the same size. It is just a question of finding the right house for Mr. Alvarez to enjoy and for Council to approve. Mr. Alvarez stated that he is proposing a three car garage because he has three children and keeps getting complaints about cars being parked in the driveway. He stated that if he had never come to Council for a subdivision, the code enforcement officer would have approved his plan. He stated that he has come before Council several times and has spent considerable money and needs direction. Mayor Huber stated that the proposed new house just brings it too close to the existing house. There are different thoughts on Council about how to make that better. He stated that he is not willing to grant such a large variance. CASE NO. 04-45, MATTHEWS Council acknowledged an application from Mr. Frank Matthews for a sideyard setback variance for a home addition at 1003 Delaware Page No. 14 December 7, 2004 Avenue. Mr. Matthews and Mr. Michael Potts were present for the discussion. Assistant Hollister reviewed the application and the Planning Commission discussion and recommendation. Responding to a question from Councilmember Duggan, he stated that, based on current GIS information, the existing house is right on the lot line. The addition would also be right on the line, including the overhang. Mr. Matthews stated that he can have the soffit and facia end at the same line as it currently does, but if he is required to put on gutter, they will extend out four inches. Mr. Potts stated that he believes the gutter is represented on the picture that was submitted. The fence is actually a couple of feet away, and the home owner is of the impression the house is a foot from the property line. Mayor Huber asked if the city asks for a survey in situations like this. Attorney Schleck responded that would be in the best interest of the city to get a certified survey showing the existing house location, overhang and gutters and the property line. Councilmember Duggan moved adoption of Resolution No. 04 -96, "A RESOLUTION APPROVING A SIDE YARD SETBACK VARIANCE FOR A HOME ADDITION FOR FRANK MATTHEWS AT 1003 DELAWARE AVENUE," wit the condition that the survey information requested by Council be provided to the city and that approval is contingent upon approval of that information by city staff. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04 -46, GARRETT Council acknowledged an application from Mr. and Mrs. Tom Garrett for a 13 -foot rear yard setback variance for a three- season porch at 650 Wentworth Avenue. Mr. Garrett was present for the discussion. Council also acknowledged associated staff reports and a letter from Mr. Michael Bader. Assistant Hollister reviewed the application and the Planning Commission discussion and recommendation for Council. The Garretts would like to add a covered porch where they currently have a deck. Covering the deck in this manner requires a rear yard Page No. 15 December 7, 2004 setback variance because of the 20% rule. It does not represent any horizontal expansion of the house but the city planner felt that covering the deck triggered a variance. Mr. Garrett informed Council that he sent Mr. Bader a letter stating that he felt it was in both of their best interest to discuss any issues they have and informing Mr. Bader that he will pay for the trees on both his and the Bader property. After brief discussion, Councilmember Schneeman moved adoption of Resolution No. 04 -97, "A RESOLUTION APPROVING A 13- FOOT REAR YARD SETBACK VARIANCE FOR A THREE - SEASON PORCH FOR TOM GARRETT AT 540 WENTWORTH AVENUE." Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04 -47, JULIETTE, Council acknowledged an application from Mr. Joseph Juliette for a critical area permit for a fence at 1920 Glenhill Road. Councilmember Duggan moved adoption of Resolution No. 04 -98, "A RESOLUTION APPROVING A CRITICAL AREA PERMIT FOR A FENCE FOR JOSEPH JULIETTE AT 1920 GLENHILL ROAD ". Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04 -48, NEWCOMB Council acknowledged an application from Mr. David Newcomb, for subdivision and minor PUD amendment for a lot line adjustment at 1565 Dodd Road. Council also acknowledged associated staff reports. Mr. Newcomb was present for the discussion. Mr. Newcomb stated that he is the attorney for the homeowner immediately north of the Somerset 19 association. Part of his driveway is on Somerset 19 property. He tried to persuade the association to resolve the problem by an easement, but the association preferred that there be a subdivision and PUD amendment. Attorney Schleck informed Council that he has recommended some changes to the proposed resolution that would require a covenant for payment of taxes which provides that if any fixture owner does not pay the taxes on the lot, the city can levy the tax on the house. Page No. 16 December 7, 2004 Councilmember Duggan moved adoption of Resolution No. 04 -99, "A RESOLUTION APPROVING A SUBDIVISION AND MINOR PUD AMENDMENT FOR A LOT LINE ADJUSTMENT FOR DAVID NEWCOMB AT 1565 DODD ROAD." Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04 -49: TODD Council acknowledged an application for concept plan review from MOHAGEN Mr. Todd Mohagen for a proposed office development at the northeast corner of 494 and 35E. Assistant Hollister gave a brief introduction, stating that the property is on Mendota Heights Road, across from Patterson Dental. Mr. Mohagen stated that he is proposing a row of two -story commercial condominiums of 1,500 square feet on each floor. The maximum one owner would buy would be two units, and the occupants generally would be small professional businesses. He reviewed a site plan and elevations for the proposed buildings. Mayor Huber asked if there will be access for emergency vehicles at the rear of the structures. He also asked why there is only one driveway and how much impervious surface there is. Councilmember Duggan stated that the plan indicates that 61 % of the development is impervious surface. Mr. Mohagen responded that there will be access from the front and hydrants but no rear access. There is only one driveway because there is a larger berm on one side and there is also a bridge overpass. Typically engineers do not like curb cuts in those areas. Councilmember Duggan stated that the drop off from the building to the treatment pond is 18 to 20 feet. He would not want to see a retaining wall in this area that could be challenged in relation to effectiveness in the future. Councilmember Duggan stated that he would like Mr. Mohagen's engineer to take a serious look at the plan and also at reducing the impervious surface. Councilmember Schneeman felt that the buildings are very attractive but she concurred that Council must be very careful with how the grading is done and to make sure there is enough green space. Page No. 17 December 7, 2004 Councilmember Vitelli stated that he is okay with the concept but would like Mr. Mohagen to address the concerns that have been raised. Councilmember Krebsbach stated that she does not like the concept and does not think the development is substantial enough for the buildings around it, like the Ryan structure and Patterson Dental. Councilmember Duggan stated that he likes the United Properties development on Northland Drive and would like Mr. Mohagen to consider the concept. Mr. Mohagen may also be challenged in putting signage on Mendota Heights Road for people to find the businesses. He would also like staff to see how much impervious surface is allowed. Administrator Danielson responded that city ordinances allow 70% impervious surface. Councilmember Duggan stated that he would like to see one less building and would like to see it be a blend of the RJ Ryan building and the United Properties building. Mr. Mogahen stated that the exterior material will be cultured stone and there will be a hardy board lap siding and hardy board shake siding. It will have an asphalt shingle that has a cedar look. He thinks there will be a business park sign at the entrance, but there will not be individual signs on the building.. There would just be individual plaques at the entrance to each of the units. Councilmember Duggan stated that he is comfortable with acknowledging that it is less than the five acre minimum. It must also meet the parking for 120 cars and he would like to see Mr. Mohagen come back with one less building so that no more than 120 parking spaces is needed. He would also like to see landscaping and signage information. SLOPE REMEDIATION Council acknowledged a memo from Engineer McDermott regarding recommendations for design of slope remediation at the JES Enterprises Office Building, 2400 Pilot Knob Road. Engineer McDermott stated that the recommendations from American Engineering Testing and Bonestroo Rosene Anderlik & Associates have been submitted. She reviewed four alternatives that were analyzed by the consultants. A sheet pile wall at the toe of the Page No. 18 December 7, 2004 pond is recommended. She informed Council that right now there is about a Gen foot drop from the top of the slope to the failure point and the driveway and loading area are not useable. United Properties has installed some concrete barricades so that cars cannot cross it. She stated that staff proposes that the storm sewer rates that have been in effect since the early 1990's be increased to assist in funding the remediation. The year -end balance in the storm water utility will be $587,000, which is not enough to pay for the design and construction of the remediation project. She recommends that the commercial storm sewer rates be increased because the pond is entirely in the industrial area. There are some on -going projects in addition to the remediation project that must be funded in part by the storm sewer utility, including the Somerset View drainage improvements. Councilmember Duggan stated that he is concerned about a 150% increase in the rates for commercial properties and a large increase in rates for institutional properties. He is also concerned that the original cost of building the retaining wall was about $400,000, and then it was rebuilt and has now collapsed again. Engineer McDermott responded that she believes the first two walls cost about $100,000 combined. Councilmember Duggan stated that he is not comfortable with making a comparison of storm sewer rates with other communities. He feels the city has been gypped. The same people built the wall two times. The city is looking at a $1 million wall and should be calling in the parties who have been involved and show them the pit and ask them what they are going to do about it. He sees this as four times Attorney Schleck responded that if what the if Bonestroo is saying is that in the first place a sheet pile wall should have been built, then one must look at what that would have cost in the first place. Realistically the maximum Council could look at is what it would have cost to do it right the first time and what is actually paid in total. The other thing Council must look at is that there is a multitude of parties involved — different engineering firms and construction companies, and because of that litigation tends to be expensive. Mayor Huber stated that had the wall been built right the first time, the city engineer has represented that the two walls were built for less than $200,000. Had it been done right, it would have cost Page No. 19 December 7, 2004 perhaps $600,000. The most the city could recover would be the out of pocket for the two walls that were built in today's dollars. The attorney's memo indicated that it could cost $100,000 in legal fees to take a shot at recovering the $200,000. Attorney Schleck agreed with Councilmember Duggan about bringing the engineers and contractors in and calling them to task for what happened and ask them if they are willing to chip in. Councilmember Duggan asked if the storm sewer rates would then be reduced if the city were to recover something from those involved in building the walls. Mayor Huber stated that this is an unusual event and needs to be fixed. He would put the rate increase in the category of a surcharge that has a sunset to it. It would apply for four to five years rather than being a permanent change in the rate. He supported the recommendation. Councilmember Krebsbach supported the recommendation for rate increases for commercial /industrial /institutional but not for residential. She also feels there should be an agreement with Bonestroo so that the city has some recourse if there is a problem with the wall in the future. Mayor Huber stated that he would like to take a second look at it to be sure that the residential rate is adequate to fund the residential needs. That would not be driven by the commercial failure. Councilmember Schneeman stated that she was at the site recently and it is getting worse. JES is very concerned about the integrity of their building, and something needs to be done immediately. Councilmember Duggan stated that he thinks the city should do a survey of the building right now so that can be contrasted with six months from now. He also feels Council should go ahead with the project as soon as possible. He also stated that he would not want the city to accept bids from the contractors who built the walls in the past. Attorney Schleck informed Council that staff has secured a commitment from the League of Minnesota Cities for damages to the building and the driveway. Page No. 20 December 7, 2004 Staff was directed to set up a format for approaching the parties in order to get some type of contribution from them, to go ahead with the project that is recommended, and to get more information on the proposed rate increases and who is being impacted. Councilmember Duggan stated that he would like to see the proposed increase for institutional properties removed. COMMISSION APPOINTMENTS Council acknowledged a memo from Administrator Danielson regarding commission appointments. Councilmember Duggan noted that Mike Sokol has indicated that he will not continue as the citizen representative on the cable commission. Council should express its appreciation to Mr. Sokol and also advertise for the vacancy. Mayor Huber stated that the city needs to advertise the vacancy on the ARC and NDC4 and should set a deadline such that it can be advertised in the city's newsletter. Councilmember Krebsbach stated that she would like to have some interview time with each of the candidates for appointment, even those who are being reappointed. Councilmember Schneeman stated that she has received interest from many people who want to be involved and she has encouraged them to apply. COUNCIL COMMENTS Councilmember Krebsbach stated that she received another call about the tax levy and informed the audience that Council has taken $135,000 out of the budget. Councilmember Duggan informed Council that he received a letter from Mr. Guy Heide saying 103 residents have submitted a petition to the FAA to investigation implementation of Part 150 in relation to the airport. He also stated that he has had many calls and emails from people about pool covers. He stated that he also received a call from an individual who asked if the city gets the fees for permits issued to the school district for reconstruction on its buildings in Mendota Heights. He asked staff to research if the city receives those permit fees. The City Clerk confirmed that the city should receive the fees. Page No. 21 December 7, 2004 ADJOURN There being no further business to come before Council, Councilmember Vitelli moved that the meeting be adjourned to closed session for discussion on labor negotiations, the Par 3 litigation and preliminary consideration of alleged employee misconduct. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 10:24 p.m. Kathleen M. Swanson City Clerk ATTEST: John J er May r