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2004-04-07 City Council minutesPage No. 1 April 7, 2004 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held. Wednesday, April 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 Vitelli moved adoption of the revised agenda for the meeting. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 APPROVAL OF MINUTES Councilmember Vitelli moved approval of the amended minutes of the regular meeting held on March 1, 2004. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 Councilmember Vitelli moved approval of the amended minutes of the regular meeting held on March 16, 2004. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 Abstain: 1 Duggan CONSENT CALENDAR Councilmember Duggan moved approval of the consent calendar for the meeting, revised to move items 6a, Building Activity Report, 6b, Celebrate Mendota Heights Parks, 6e, hoist replacement, and 6h, employment agreement, to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Authorization for Ziggy's Deli and Ice Cream to conduct a special outdoor event at the Mendota Plaza on Saturday, May 8, j subject to conditions set forth in a letter prepared by Page No. 2 April 7, 2004 Administrative Assistant Hollister, along with authorization for a temporary sign ten days prior to the event. b. Authorization for Issuance of Four Day Temporary Liquor License to St. Peter's Church, to allow the sale of beer in conjunction with its summer festival to be held from June 17 through June 20, along with waiver of the $50 temporary liquor license fee. c. Authorization for the issuance of a sign permit to Nordquist Sign Company for the installation of a 24 square foot sign on the Lennox Building at 1400 Commerce Drive. d. Authorization for the issuance of a sign permit to Nordquist Sign Company for the installation of a 13.03 square foot sign above the entry door for Creative Financial Group, LLC at 1150 Northland Drive. e. Approval of the list of contractor licenses dated April 7, 2004. f. Approval of the List of Claims dated April 7, 2004 and totaling $74,589.26. Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 BUILDING ACTIVITY REPORT Councilmember Duggan noted that the Building Activity Report indicates a 22% increase in building activity over last year at this time. He stated that is a good sign for a nearly fully developed community and shows the interest and pride residents have in maintaining and updating their properties. Councilmember Duggan moved to acknowledge the Building Activity Report for March. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CELEBRATE MENDOTA Mayor Huber informed the audience that "Celebrate Mendota HEIGHTS PARKS Heights Parks" will be held on Saturday, June 5 at Mendakota Park. He stated that the Recreation Programmer is requesting that Council authorize $1,500 towards the celebration budget and that she is also interested in getting volunteers to help at the celebration. He asked residents to please call Teresa Ganglehoff if they are interested in volunteering. �' Page No. 3 April 7, 2004 Councilmember Duggan moved to authorize $1,500 from the Council budget for contingency purposes for the Thirteenth Annual Celebrate Mendota Heights Parks event to be held on June 5. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 HOIST PURCHASE Council acknowledged a memo from Public Works Superintendent Tom Olund regarding the need to replace a hoist. Responding to a question from Councilmember Krebsbach, Administrator Danielson stated that the equipment to be replaced is an in-ground floor hoist with a hydraulic lift. Councilmember Krebsbach moved to authorize the purchase of a light weight hoist from Westside Equipment for its low bid of $9,175.00, the cost to be distributed between the street, park, utility and police departments. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 EMPLOYMENT AGREEMENT Council acknowledged a proposed employment agreement between the city and Administrator Danielson. Responding to a question from Councilmember Duggan regarding the termination clause as it relates to accrued benefits, City Attorney stated that under employment law, accrued versus earned time is treated differently. No one can be penalized for something that is earned. The determination on earned versus accrued would be based on the city's personnel policy. Councilmember Duggan moved adoption of Resolution No. 04-20, "A RESOLUTION APPROVING EMPLOYMENT AGREEMENT." Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 PUBLIC COMMENTS Mayor Huber informed the audience that Council does not take official action on any items raised under the public comments section of the agenda. Mr. Guy Heide, 881 Bluebill Drive, stated that he sent a letter to the city administrator informing him about two items he would like to Page No. 4 April 7, 2004 discuss with Council. He asked if he can speak for about ten minutes. Administrator Danielson stated that he has spoken with Mr. Heide and suggested that he go to the Airport Relations Commission first and that he would not be placed on this evening's regular Council agenda. Mayor Huber stated informed Mr. Heide that he can ask how he can approach having the matters carried forward. He understands that Mr. Heide wishes to discuss two items regarding airport matters. Council sends all airport related issues to the Airport Relations Commission, and the commission is where Mr. Heide needs to start. He was reluctant to discuss the issues with Mr. Heide this evening because there are at least two items on the agenda that many people are present to listen to and comment on. He informed Mr. Heide that he can go before the Airport Relations Commission for their recommendation and that. recommendation will be forwarded to Council. The public comment section of the Council agendas is intended for brief and specific comments. Council refers those comments to staff for research. He stated that he believes Council knows what Mr. Heide wants to discuss and that will take more than ten minutes. Councilmember Krebsbach suggested that Mr. Heide be allowed to speak for five minutes. Councilmember Duggan stated that he does not know these items and recommends that Council entertain one item of five minutes duration this evening (now) and one item also of five minutes duration at the next meeting. This compromise was accepted by Council. Mr. Heide stated that he spoke at the December 6, 2003 Council meeting about a questionable map that is used by MAC to determine eligibility for sound insulation. The FAA disapproved the map. He stated that he appeared before the Noise Oversight Committee (NOC) and posed to the NOC that MAC failed to revise the 1996 map that made many Mendota Heights homes ineligible for sound abatement. He asked them to investigate what happened and he wrote a letter to the Chair of MAC asking why the NOC did not investigate his claims. He listened to a tape of the meeting and downloaded the minutes and discovered that Mr. Leveque had rewritten his comments. The minutes said that his comments were for information only and no action was required. He stated that it Page No. 5 April 7, 2004 was untrue that the NOC refused to investigate his claim, and he believes that was a corrupt endeavor to frustrate an investigation. Mr. Ben Kosel, 889 Bluebill, stated that he thinks Mr. Heide has done a tremendous job in the work he has done. He stated that the reason he is speaking tonight is because he f6els that Council's decision to have all air noise issues go to the Airport Relations Commission is unfair. The ARC made recommendations last fall to have certain individuals provide representation on NOC and if the Council had taken that recommendation seriously, Council's recommendation to channel air noise issues through the commission would carry more weight with him. Mayor Huber responded that what he is trying to convey is that the city has a commission that Council has tremendous faith in, that is very dedicated and does an excellent job. Council wants the Airport Relations Commission to give Council its input on any actions that Council takes regarding the airport. That is why Council wants all matters relating to the airport to go to the commission first. Mr. Kosel asked why the commission's recommendations regarding representation on the NOC have not been taken seriously. Councilmember Krebsbach responded that she does not recall the position the commission took on the appointments. Councilmember Vitelli is the Council's representative on NOC and she is the alternate. Mr. Mike Kosel, 889 Bluebill, agreed with Council that the city does have very qualified people on the Airport Relations Commission. He recommended that Council seriously consider appointing one of the ARC members to the NOC. There are serious issues on the NOC table now and he is uncomfortable with the city's representation on the committee. PUBLIC COMMENTS Ms. Joan Olin, 1136 Orchard Place, suggested that the city should license businesses. Councilmember Duggan stated, based on calls he has received, it appears that Waste Management is forcing its Mendota Heights customers to accept bi-weekly recycling, and that is not right. He informed the audience that people can return to the single green recycling container and weekly recycling if they wish. He also stated that garbage containers can be left out for no more than 24 hours, and asked that people take their containers inside after trash/recycling pickup. Page No. 6 April 7, 2004 Councilmember Schneeman stated that people have called her and said they were told by Waste Management that they had to accept twice a month recycling. She told those residents to call Waste Management and tell them that was not the agreement the city had with them. The residents were told by Waste Management that they had to use the big containers for three months and then Waste Management would replace them. Council directed staff to send a letter to Waste Management informing them that Council's agreement to approve the ordinance amendment was that biweekly recycling would not be mandatory. CASE NO. 04-02, FINK Council acknowledged an application from Mr. Robert Fink for a preliminary plat to create one additional lot at 1850 Arvin Drive. Council also acknowledged associated staff reports, a letter from Mr. & Mrs. Leslie, 829 Hilltop Road, and a narrative and letter of intent from Loucks McLagan on behalf of the applicant. Mr. Fink was present for the discussion, along with his legal counsel, Mr. Rollin Crawford, and Mr. Paul McGinley from Loucks McLagan. Assistant Hollister stated that Mr. Fink owns two lots at 1850 Arvin Drive and is proposing to carve out a piece of the north parcel and combine it with the lot to the south. The proposal includes the dedication of additional right-of-way along Arvin Drive. The cul-de- sac is now a 50 foot radius, and the dedication would increase it to 75 feet. The other affect of dedicating the right-of-way is that the new lot would have 100 feet of frontage on a public street at the setback line. There were a number of comments made by residents at the Planning Commission hearing in January. Mi. Fink asked that the matter be delayed for Council consideration until a fall Council would be present. Councilmember Krebsbach stated that Mr. Fink is offering more right-of-way for the cul-de-sac so that he can have a driveway to the cul-de-sac. She asked what comments were made by the other people on the cul-de-sac. Mayor Huber stated that the increased right-of-way would not result in a change to the cul-de-sac. Mr. Fink would only be the only one dedicating right-of-way. Assistant Hollister responded that he is not talking about any increase in the size of the cul-de-sac. There are no proposals to do that, just to increase the right-of-way. The other residents are not dedicating any right-of-way. Page No. 7 April 7, 2004 Responding to a question from Councilmember Dugan, Assistant Hollister stated that the proposed new driveway will be east of the existing one. Councilmember Vitelli stated that the house location shown on the plan is just hypothetical. He asked if the house would meet all setback requirements in the location shown on the drawings. Assistant Hollister responded that it would. The drawing represents where a house could be placed, but there are no specific plans for a house at this time. Mr. McGinley stated that Mr. Fink owns two lots, one containing 75,586 square feet and the other 15,384 square feet. He wishes to move the line between them to create two new parcels. When a prior proposal was considered last year, Council directed Mr. Fink to look at new plans. He and Mr. Fink had two meetings with the city staff and the city planner and discussed many options to find a solution. As the result, he thinks the proposed solution benefits the owners, the neighborhood and the city. It would allow Mr. Fink to take one non-conforming lot and combine it with the other and create two lots that would comply with all zoning requirements. Mr. McGinley reviewed the grading and drainage plan for the site. The zoning ordinance says that cul-de-sacs must be at least 60 feet in radius. Mr. Fink is proposing to dedicate additional right-of-way for the cul-de- sac. There would be no physical change to what exists now. The right-of-way would be enlarged, but the owner of the lot it abuts would be required to maintain it. The proposed plan meets all code requirements and results in two lots that are in excess of city standards and that fit the character of the neighborhood. One of the lots will be 24,000 square feet and the other 64,000s square feet. The average density would be 2.9 times the city requirement for density. There is no request for variance. The new house would be placed in the central area of the lot, closer to the existing home and buffered by the woods. The applicant is offering to plant six pine trees to enhance the concealment of the houses. Since Mendota Heights has no tree preservation ordinance, the applicant is offering to protect all of the perimeter trees by putting them under conservation easement to the city. The city would have permanent control over the protection of those trees. Also, the applicant had him do a detailed inventory of all trees over eight inches in diameter on the perimeter of the property. There are 70 trees over 8 inches, and 15 of them will be removed. The ten tree loss is 14% of the inventoried trees on the area where the house would go. Page No. 8 April 7, 2004 Mr. McGinley stated that he believes it is a good plan. It moves the house away from the cul-de-sac and requires no variance and will only disturb about 7% of the trees on the applicant's property. Administrator Danielson stated that it was brought to his attention today that the subdivision ordinance does not allow cuts or grading greater than 25%. Mr. McGinley responded that he looked at the grades and they are 15 to 21 % in the vicinity of the home. The grades where the driveway will be built are 22 to 23%. Some areas in the vicinity of the driveway looked like they would exceed 25%, but he looked at the actual elevation and conformed that the grades in that area are between 22 and 23%. Councilmember Krebsbach stated that she does not think it is a wise idea for the city to accept right-of-way where it does not have a full cul-de-sac. She would not support the plan if in fact the other neighbors want to grant the same amount of right-of-way so that the cul-de-sac could be enlarged. Councilmember Duggan stated that it seems that the proposed elevations for the house and the driveway seem very steep. He asked if there are any mitigating factors that may be necessary to make the grades work. Administrator Danielson responded that he likes the fact the driveway starts out flat and ends up flat. The section in between is the part that is steeper. Responding to a question from Councibnember Duggan, Mr. McGinley stated that the grade on the driveway is about 10%. That is the allowed grade in the city. Councih-nember Duggan stated that in theory, the grade may be fine, but not in fact. He asked Mr. McGinley what mitigation he could do if he needs to solve a problem with the steepness in the center of the driveway. Mr. McGinley responded that one possibility would be to lower the house and put some two to three foot retaining walls in. Councilmember Duggan stated that there are several driveways off Mendota Heights Road that appear steep. If Mr. McGinley believes from an engineering standpoint that the driveway will work, he does not have a problem with it. Page No. 9 April 7, 2004 Mayor Huber stated that the proposed house is at 841 feet, at 851 feet directly through, and the length of the house is 34 feet. Mr. McGinley stated that the ordinance talks about 25% grades on existing land before construction. The existing grade at one side of the house is at 841 feet. To get to the 851 feet, there would be some fill during construction, and that is typical. Most walk-outs are built with a ten foot drop from front to back, and 851 to 841 is the final elevation. He stated that the plan shows some fill in front of the house. The ordinance relates to existing conditions before cuts are made. Mayor Huber stated that the application is being presented as not requiring a variance. The question is whether they need a variance for building at a grade greater than 25%. City Attorney Schleck asked Mr. McGinley if he has prepared any drawings that show the slopes and percentages of grade. Mr. McGinley responded that he has not. Councilmember Vitelli asked over what distance in feet must the grade be calculated. Attorney Schleck responded that the ordinance does not say. A 25 foot height difference over 100 feet is 25%. The ordinance gives no guides over what distance the slope is to be calculated. Councilmember Duggan stated that the people who will live there must be able to drive up their driveway in Minnesota winters. Attorney Schleck stated that there is no provision regarding Minnesota winters in the ordinance, but conditions about the actual usability of a driveway are within the discretion of Council. Mr. McGinley suggested that is why a 10% maximum grade is allowed. Councilmember Vitelli asked if there is an ordinance that regulates the grade of the driveway. The house is at 851 and the cul-de-sac is at 828. Is the length of the driveway, including its curves, used in the calculations. Mr. McGinley responded that it is. He did not remember the length of the driveway, but the design standard requirement is that the driveway be fairly flat at the bottom. In the middle of the driveway a 10% maximum grade is allowed. He stated that he laid the grade in Page No. 10 April 7, 2004 and knows that is what it is. It is possible that a home owner may decide to build a house lower so the driveway does not have to be 10% and mitigate that by putting in retaining walls. Councilmember Krebsbach stated that she still believes Council would be creating a problem by accepting right-of-way without having right-of-way from all of the owners on the cul-de-sac. Mr. McGinley stated that there is one driveway at the south end of the cul-de-sac and the Fink driveway. He would be adding one more on the bulb of the cul-de-sac. Typically, four to five driveways can fit on a cul-de-sac. Of the two houses to the north of the bulb, he cannot recall if one or both of them come out on the cul-de-sac. He believes one of them enters to the north of the cul-de-sac. Councilmember Duggan stated that based on usage, the current size of the cul-de-sac is fine and one new home will not overwhelm it. One concern that had been raised was over the impact of the additional house on drainage. Mr. McGinley responded that the question he is addressing is that some of the neighbors are concerned about flooding in the cul-de- sac. There is a small area in the cul-de-sac that collects water to a depth of about four inches. He took topos and determined it can only go to a maximum of four inches. The new driveway will not impact that. All of the drainage will continue to the east side of the cul-de- sac, to the northeast comer. Mr. Les Kapaun, 829 Hilltop, stated that the lots do have some special considerations, but two non-conforming lots would become conforming if the right-of-way is dedicated. It is not truly a cul-de- sac now: it is barely 50 feet at the turn - around, and if another driveway is installed on it, there would only be about 150 feet of green space. The new lot would not meet the requirement for 100 feet at the street. He stated that he understood there would be an easement change and a setback change. The setback from the street has gone from 30 feet to 75 feet. He asked if it would be a flag lot. He stated that there have been some changes to the plan, but questioned if they really benefit the city and the neighborhood. He did not understand why there is a problem that needs a solution. It is a piece of property that has been lived on for many years. The building setback line of the city is that the building has to be 100 feet at the setback. The proposal does not meet that requirement. The intent was to benefit all parties involved. He stated that he appreciates there will be some changes to the property and some Page No. 11 April 7, 2004 trees will be added, but they would be five inch coniferous trees versus the eight inch girth of some of the existing trees. Mr. Kapaun stated that Section 11-3-8 of the City Code states that the slope cannot be changed and no grading can be done on any grade exceeding 25%. The existing driveway doesn't have half that grade, and he has seen a garbage track stuck on it. There will e a large curve and a steep slope on the new lot. He asked what an acceptable timeframe would be for water to drain off a site. He stated that the neighbors oppose the lot division. They do not feel it will be a benefit to the neighbors and will have a negative impact on their property values. Councilmember Krebsbach responded that the other property owners are not giving the right-of-way, so the cul-de-sac will not get any bigger. Anyone in the future could say they want to dedicate ten feet of their property to right-of-way so that they do not have a flag lot. Councilmember Duggan asked Mr. Kapaun if there has ever been a time when he has seen the cul-de-sac overburdened with traffic. Mr. Kapaun responded that is not the case. Responding to Council questions, Administrator Danielson stated that the cul-de-sac has a 50 foot radius, that the standard radius is 60 feet, and the proposal is to make it 75 feet. Councilmember Krebsbach stated that the proposal is to leave it at 50 feet and just increase the right-of-way. She stated that if this plan has any validity, the other property owners on the cul-de-sac would have to dedicate right-of-way too. Mr. Kapaun stated that the ordinance says that no grading shall be done on any lot that has slopes greater than 25%. Someone cannot grade first and try to attain the 25%. Mayor Huber stated that Mr. McGinley indicated that he had taken shots and everything is below 25% where the footprint of the house will be. He is stating that his sightings do not show any grades of 25% on the proposed footprint of the house or the driveway, or any grading that would need to be done to put the house in. Attorney Schleck clarified that Mr. Kapaun stated that no grading can take place any place on a lot if th3re is a 25% grade anywhere on the lot, but no grading can take place on any slopes greater than 25%. Page No. 12 April 7, 2004 Mr. Kapaun stated that the proposal does not meet the ordinance requirement to have to have 100 feet of street frontage 30 feet from the street. In this case it would be 75 feet from the street. Attorney Schleck clarified that the subdivision ordinance says that every lot must have the minimum frontage as required by the zoning ordinance. He then read the definition of lot width from the ordinance. He stated that this lot has seven sides because of the way it is shaped, but it only has one front lot line and one rear lot line. Mr. McGinley's drawing shows the measurement of 100 feet at the setback line. Attorney Schleck stated that as he reads the ordinance, that measurement was taken between two side lot lines as is required by the ordinance. The requirement is that the measurement be taken 30 feet from the edge of the public right -of -way, not from the pavement. With the additional dedication, the lot width requirement is met. The dedication would be excess right -of -way dedicated to the city with no foreseeable use in the future, but with city maintenance. Councilmember Krebsbach stated that is why she wants to deny the application. None of the other property owners is making a dedication. Mr. Scott Miller, a relative of the applicants, stated that he is a licensed building official and real estate agent. He stated that a new home tends to increase the values in neighborhoods, and a 24,000 square foot lot in Mendota Heights is premium. Mr. Fink has made accommodations by working through the neighbors' concerns and working with the city staff. The idea of dedicating land to the city to bring a non - conforming cul -de -sac into conformance is admirable. Regarding precedent, he stated that it is a substandard condition now and this would make it conforming Councilmember Krebsbach moved to reject the proposal on the basis that the city rejects the additional right -of -way dedication because the adjoining property owners are not making similar dedications and it is unlikely that the city would use eminent domain to increase the cul -de -sac. Motion died for lack of a second. Councilmember Duggan stated that Mr. McGinley and city staff and the planner would not make a recommendation to Council if they had any doubts about it meeting the city code requirements. Page No. 13 April 7, 2004 Councilmember Duggan moved to approve the preliminary plat with - the addition of the tree preservation agreement and that it meet the city's grading and drainage standards. Councilmember Vitelli seconded the motion. Councilmember Vitelli moved to amend the motion to put the future owner of Lot 2 on notice that Council will not be warm to any variance requests. Attorney Schleck stated that given the dynamic nature of City Councils in the future, that any conditions regarding future development should not be a part of the motion. Councilmember Vitelli withdrew the amendment. Councilmember Krebsbach stated that dedicating the right -of -way just avoids the variance. Since none of the owners are dedicating land, the cul -de -sac will never be bigger than it is now. Mayor Huber stated that he was told that the issues had been resolved by a plat that does not need a variance because the size of the cul -de -sac would be increased. He thought the entire cul -de -sac was being increased. He stated that he has a real question about that and does not know that he can support the proposal. Secondly, he would like to see more proof about the slopes. Councihmember Schneeman stated that she likes the narrative and letter of intent that was submitted with the plan. She did not see the letter from Mr. Kapaun until late last evening and would like to get answers from city staff and the city attorney. She was not prepared to make a decision this evening. She felt that it is a good plan but wants to make sure Council would be doing the right thing legally. Councilmember Vitelli stated that he was one of the first to be concerned about precedent and asked that there be an inventory of the lots in Bunker Hills. He stated that he believes the proposal is a reasonable one. The lot is very large (1.7 acres) for that area. He stated that he is certain Council could seek out a multitude of technicalities to reject the proposal, but he does not think it is reasonable to reject it. The lot was dealt a blow when the city vacated Wachtler, because the city did not provide proper access to a lot of 1.7 acres. He felt that it is a good proposal and he did not know what grounds Council would have to deny it. Councilmember Duggan stated that the primary concerns in establishing ordinances is how they would work best for the Page No. 14 April 7, 2004 community, including getting public safety vehicles to a property. In this case, the cul -de -sac is 50 feet, although 60 is required. The fact is that although the cul -de -sac is substandard, it has not been detrimental. Staff reviewed the plans and they have been signed by registered architects and engineers. If Wachtler had gone through, there would probably be six to eight houses on the property legally. In this proposal, there will only be one new home, and no one will see it after the trees fill back in. He felt it is a very reasonable proposal and the right thing to do. The plan is designed to un- landlock a lot that the city was at fault in landlocking. There has not, been any challenge in getting city equipment in there, and there will only be nine more trips per day on the cul -de -sac. He felt that is negligible and that the proposed pan will be an improvement to the neighborhood. Councilmember Schneeman stated that she is most concerned about the slope issue. If the slope could be substantiated, she would be sympathetic to the proposal. Councilmember Duggan responded that the plan is subject to engineering approval. If engineering determines that it does not work, the applicant would have to come back to Council. Attorney Schleck stated that he believes that the question is not a question about subdivision and what is an appropriate subdivision. The question is whether or not, as a city, the city will allow monkeying around with lot lines and public right -of -way. He felt that approval would set a bad precedent. The city would be approving dedication of right -of -way to circumvent the zoning process. A variance would be required without the additional right- of -way. He asked what will stop other people from dedicating right- of -way to avoid property taxes or to reduce their lot sizes. When land is being given to the city, the city has the duty to make sure it is not getting a pig in a poke. There has not bee any information on environmental factors, such as what is under the right -of -way. It also raises issues of maintenance and liability for the city. Currently, maintenance is the responsibility of the property. It would set a bad precedent in allowing people to dedicate right -of -way and a precedent for how people can get around flag lots. In the case of a proposal for development or zoning that conforms to the ordinances without variances, the city is bound to approve it. Once the variance is taken out of the equation, the city's hands are tied. To dedicate right -of -way to get around the need for variances circumvents the variance process. He felt this is much more appropriately dealt with as a variance. It was pointed out that if Wachtler had gone through, there could be six lots on the property. The size of the lot could be Page No. 15 April 7, 2004 grounds for a variance, and the substandard cul -de -sac could be a hardship that justifies a variance. The slopes are unique and could be used to justify a variance. This is a significant decision in terms of precedent. He stated that if Council is in favor of the proposal, they should consider a variance and approach it in that manner. He stated that it is good to hear what the neighbors have to say, but neighborhood concerns about property values, etc., are not grounds for denying a variance. Councilmember Duggan stated that another grounds for variance is that it may not have been landlocked in the 1960's when the ordinance did not require 15,000 square feet. Councilmember Vitelli withdrew his second to the motion. Councilmember Duggan withdrew the motion. Mr. Crawford stated that a lot of new issues were raised this evening. During the process the last time, he thought a variance was appropriate, but the lot configuration was different. The applicant tried to figure out a way to meet the concerns of the city without a variance. It is unfortunate that the he and the city attorney did not participate in the meetings with the owner and the city staff. If they had, perhaps there would have been a different solution. He stated that he did not realize the city attorney would have such strong feelings about the proposal, and it may be appropriate to continue the matter. He stated that he would like the opportunity to see if he can look at the concerns and come back. Councilmember Vitelli supported that suggestion and stated that he would hate to see Council vote to deny the application. He would rather take two weeks and have the owner come back with a proposal that Council can vote on. Mayor Huber stated that he is uncomfortable turning down the proposal but cannot vote in favor of it in its current form. Councilmember Krebsbach felt that the application should be withdrawn and that the applicant should come back with a request for variance. She felt the application should go to the Planning Commission. Attorney Schleck responded that if the application is denied and Mr. Fink reapplies, it would be treated as a new application and the traditional approach would be for the application to go to the Planning Commission. Council has the power to waive the i requirement to go to the Planning Commission and the power to Ayes: 4 Nays: 1 Vitelli Page No. 16 April 7, 2004 waive the six month waiting period for reapplication and the fee. Grounds for waiving those requirements could be the miscommunication about what was needed, or the good faith efforts of the applicant. Council can modify the planning review process if it sees fit. Denial of the current application and submission of a new application may be the best way to deal with the matter because of the sixty day rule. Mayor Huber stated that he thinks the Planning Commission feels that the proposal before Council is better in terms of placement of the house, etc., than the last plan. He feels that the applicant should be allowed to come right back to Council with a new application. Attorney Schleck stated that although there may be some positive feeling this evening, there is no indication that Council will approve a new application in the future. It would be appropriate to consider a motion this evening to deny the current application and direct staff to prepare a formal resolution of denial at the next meeting. Councilmember Schneeman stated that she would like to include that the attorneys work with the applicant and city staff. Councilmember Krebsbach moved to deny the application on the basis that the city will not accept right -of -way as a means to subdivide the lot. Councilmember Duggan seconded the motion. Mayor Huber stated that he would rather see the plan come back with the same building footprint and a variance request and see whether Council feels it is appropriate to approve. He cannot see sending it back to the Planning Commission since they recommended approval and were generally in support of the lot configuration. Councilmember Krebsbach stated that she thinks it is always a good idea to send things to the Planning Commission. Attorney Schleck stated that Mr. McGinley should provide a drawing showing the existing slopes on the property, especially the steepest slope on the property, and showing that it is not more than 25 %. Councilmember Duggan moved to waive Planning Commission review of a new application, on the basis that the Planning Commission has reviewed the plan twice, to waive any required waiting period for reapplication, and to waive any additional Page No. 17 April 7, 2004 planning application fees for subdivision or variance, along with direction to the applicant to include a more detailed slope analysis with any new application. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 RECESS Mayor Huber called a recess at 9:55 p.m. The meeting was reconvened at 10:00 p.m. CASE NO. 04-07, DOHOHUE Council acknowledged an application from Mr. Patrick Donohue, for a front yard setback variance for a garage at 1924 Walsh Lane. Council also acknowledged associated staff reports. After a brief discussion, Councilmember Duggan moved adoption of Resolution No. 04 -21, "A RESOLUTION APPROVING A FRONT YARD SETBACK VARIANCE FOR A GARAGE ADDITION AT 1924 WALSH LANE." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 04-06, "1" ZONE Council acknowledged a memo and proposed ordinance to amend LANGUAGE AMENDMENT the zoning ordinance to add definitions for colleges, commercial offices and trade schools and to include colleges and universities without accessory housing as permitted uses in the Industrial District. Councilmember Duggan stated that he would like the word "diploma" added to the college definition. Councilmember Krebsbach questioned whether the city would want more land in the industrial park taken up by colleges. Councilmember Duggan moved adoption of Ordinance No. 391, "AN ORDINANCE AMENDING SECTION 12-113, SECTION 12- 1G, AND SECTION 12-1U OF THE MENDOTA HEIGHTS CITY CODE, KNOWN AS THE ZONING ORDINANCE, BY PROVIDING FOR DEFINITIONS AND REQUIREMENTS FOR TRADE SCHOOLS, COLLEGES, AND PROFESSIONAL TRAINING IN THE "I", INDUSTRIAL ZONING DISTRICT," as amended to include "diploma" in the college definition. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 Page No. 18 April 7, 2004 MENDOTA WATER Council acknowledged a memo from Engineering Technician COMNMCTION Guy Kullander relative to a request from the City of Mendota for a connection to the Mendota Heights water system along Sibley Memorial Highway/STH 13. Administrator Danielson stated that Mendota Heights has extended a watermain on T.H. 13 to the southeast comer of Mendota at the boundary between the two cities. Mendota has received a proposal to construct three townhouse units on a lot about 180 feet wide, the second lot in from the boundary line between the cities. Mendota is requesting that the watermain be extended 400 feet to serve that development. Mendota Heights entered into an agreement with Mendota in 1991 that provides sanitary sewer south to the Garron site and adjacent properties, and in return, Mendota Heights agreed to provide water to Mendota. That agreement was amended in 1995 to allow a watermain extension. Staff has taken that amendment as a model for a new amendment to allow for a watermain extension along T.H. 13 to address the current request. Councilmember Krebsbach felt this is a very significant issue and stated that she would like more time to consider it. Councilmember Schneeman asked whether this is the property being developed through CDBG. She also asked whether low/moderate income housing will be built on the property. Mendota City Clerk Joan Olin responded that it is not the CDBG site, and the townhouses will not be. It is next to that property, and the development is not for low to moderate income housing. Responding to a question from Councilmember Vitelli, Ms. Olin stated that the property is owned by Mr. Dave Griggs, and he will develop it. Council-member Vitelli asked about the status of the police service agreement between the cities for 2004. Ms. Olin responded that Mendota is stilling paying the bill and decided to stay with Mendota Heights for the entire year unless something changes drastically. There was brief discussion with Ms. Olin about Mendota's proposal to zone some of the Resurrection Cemetery property for strip joints. Ms. Olin informed Council that Mendota is no longer considering that proposal. Page No. 19 April 7, 2004 Councilmember Krebsbach moved to table discussion on the water extension for two weeks. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 Councilmember Duggan asked whether city staff has had the chance to work with St. Paul Water to review the engineering details. He was concerned about what impact the water connection might have on Mendota Heights. Administrator Danielson responded that there is an agreement between St. Paul Water and Mendota that would address the connections. It would be reasonable for Mendota Heights staff to review the engineering. Councilmember Vitelli stated that the property for which the watermain extension is proposed adjoins Mendota Heights properties. He felt that the Mendota Heights property owners should be notified to see if they have any concerns. Councilmember Krebsbach stated that she has some issues with the proposed extension. When the extensions were requested for the Strub property in Lilydale, the developer brought in extensive plans for Council to review. Mr. Griggs informed Council that St. Paul Water has already issued a permit and MnDOT has approved it. He did not think the watermain extension request would be an issue. Councilmember Krebsbach responded that Council looks at these things very closely and this request ties into some on-going litigation the city is involved in. Mayor Huber stated that there are concerns of the city different from what is stated in the agreement, and the city would like additional time to review those concerns. Mr. Griggs stated that the contractor doing the work is already lined UP. Attorney Schleck responded that the approvals by St. Paul and the state could have been parallel with the approval from the city rather than in series. EASEMENT VACATION Council acknowledged a memo from City Engineer McDermott relative to a request from Mr. & Mrs. Sherwin Sieden for vacation of a drainage easement over Lot 18, Block 1, Ivy Falls South (1423 Page No. 20 April 7, 2004 Knollwood Lane) so that they can construct a pool in their back yard. Council also acknowledged letters of support from Ms. Michelle Hanson, 1432 Cherry Hill Road, and Mr. Randall Geller, 1427 Knollwood Lane. Mr. Sieden informed Council that the two pieces of property that would be impacted are the Hanson and Geller properties. He stated that he has taken care of the drainage issue that the Hanson property had in the past and that Mr. Geller supports his request. He informed Council that he has promised Ms. Hanson that he will build retaining walls that will control runoff. Administrator Danielson stated that the site plan shows a concrete apron extending over the easement by a couple of feet, and perhaps the easement should be reduced by an additional two feet. He stated that staff is just bringing the matter before Council to see if they have an interest in calling a hearing on the proposed vacation. Councilmember Krebsbach moved to direct staff to schedule a public hearing on the requested easement vacation. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 SOMERSET AREA STREET Council acknowledged a memo from City Engineer McDermott RECONSTRUCTION regarding the proposed Somerset area street reconstruction project. City Engineer McDermott stated that several issues were raised by the eighteen residents who spoke at the public hearing. The majority of those at the hearing seemed to be in favor of the project. The issues they raised relating to traffic were about speed, traffic cutting through the neighborhood and stop sign violations. Several suggestions were made, but due to the right-of-way constraints, cul- de-sacs or turn-arounds cannot be constructed without additional right-of-way. Police and fire felt that closures would create a public safety issue. Since the hearing, staff has been contacted by several people who are opposed to closing any of the streets. Councilmember Krebsbach stated that one of the things Council discussed was looking at traffic management separate from street reconstruction. Engineer McDermott responded that is still one of her recommendations. She stated that staff had recommended constructing Coleshire as a street without curb and gutter, and closing the section between Dorset and Hingham. She asked for Page No. 21 April 7, 2004 Council direction, stating that some people at the meeting opposed closing Coleshire and she has received one letter, also in opposition. There has also been support ,for making Coleshire a trail. Councilmember Krebsbach stated that someone asked that Coleshire, adjacent to a triangular parcel of property, not have curb and gutter because the street is so narrow. She asked whether that had been addressed. Mayor Huber stated that his recollection of the discussion was that most of the support for not having curb and gutter was that part of Coleshire would be too narrow. Residents said that when they park on Coleshire, they park on the grass because it is so narrow. Most of the discussion was that people don't want curb and gutter on Coleshire west of Dorset. Councilmember Schneeman asked if the school buses use Coleshire. She asked if the recommendation is to make Coleshire an alley and pointed out that there are some houses that face Coleshire. Engineer McDermott responded that they do not. She has received information on the bus routes, and there are no routes on Coleshire. Mrs. Annabel Randolph, 541 Emerson Avenue, stated that there are five garages that face Coleshire on the portion that is proposed to become an alley. Mayor Huber stated that Coleshire may not be on the bus route but that the people who live there say it is being used by buses as a shortcut to the school. Councilmember Krebsbach stated that someone had stated that adding curb and gutter would mean that several trees would need to be taken out. Engineer McDermott responded that the trees will remain. Councilmember Vitelli felt that Coleshire should be left open, stating that none of the residents were pushing to have the section of Coleshire closed. It would probably be more upsetting to close it. He stated that he would prefer that Coleshire remain open all the way through and that it be treated Re an alley, without curb and gutter. Engineer McDermott stated that several residents at the hearing raised questions about replacing the gas mains. She has spoken to people at Xcel Energy and will continue working with them in the hope that they will change their minds about replacing the gas mains Page No. 22 April 7, 2004 and the services at the houses as well. The gas mains are only on one side of the street in this neighborhood, and in newer neighborhoods they are on both sides. Councilmember Schneeman asked if there had been many gas leaks, and whether Xcel will look at the history. Mayor Huber stated that if Council approves the project, only Emerson would be torn up this year and the rest of the project would be started next year. If Xcel does not agree to replace the mains, that does not mean the city is not going to reconstruct the streets. Xcel could decide to wait ten years to replace the mains, and the street reconstruction cannot be delayed. Councilmember Duggan stated that Xcel'has responded to concerns about power outages in the past. He asked if Xcel has a formula to say that the mains will be replaced if there are a certain number of breaks in an area. He asked that staff contact Xcel to fmd out how they determine what a reasonable number of breaks is. Mayor Huber stated that staff is working with Xcel and will continue to work with them. Council cannot make any promises. He stated that if staff needs him to be involved, he will contact Xcel. Engineer McDermott informed Council that the feasibility study had two options for storm sewer — connect to MnDOT's system or work with Somerset Country Club to expand one of its ponds. Barr Engineering has given the city a quote of $21,200 to do the storm water design work. Three residents at the hearing spoke about surface water issues on their properties. Staff will look into two of those issues during the storm sewer design. The third issue related to sump pumps running continuously. Staff proposes to include storm sewer stubs where possible to allow residents to connect their sump pump discharge lines to the storm sewer rather than discharging them into the sanitary sewer. Another issue was the interest rate on the assessments. She attended a meeting with other Dakota County cities recently and asked what they charge. They charge from 5.5% to 8%. Several charge 1.5% over the bond rate. Finance Officer Schabacker stated that a good time to determine the interest rate would be at the assessment hearing, when staff will have a better idea on the rate the city will have to pay on the bonds it sells to finance the project. The then current market rates will be a determinant. She stated that the city could borrow the money once bids are received for the project and can decide at that time whether to issue the bonds now or wait until next year. Page No. 23 April 7, 2004 Mayor Huber stated that another possibility is to bond part of the project now and part later and blend the rates. Engineer McDermott reviewed the proposed project financing for Council and the audience. She then reviewed the project schedule, stating that timing is contingent on getting the required state approvals. Staff would like to come back to Council on June 1 with plans and specifications and open bids on July 1. Staff is recommending that the project be staged — doing Emerson this year and the rest of the project next summer, with the assessment hearing in 2005. Mayor Huber informed the audience that he does not want the residents to think that Council has discarded their traffic concerns. That is separate from the project. Closing streets is not possible because of public safety issues. It has been discussed tonight that Coleshire will remain open as an alley, without curb and gutter. He summarized this. evening's discussion as follows: staff will continue pushing Xcel to replace the mains and services; Barr Engineering will be engaged to prepare the storm sewer design; storm sewer stubs will be added where feasible; and, staff will continue to work on interest rates. Responding to a question from Mayor Huber, Engineer McDermott stated that the project will be phased, but the bids that will be let in July will be for the entire project. Councilmember Vitelli asked how an alley drains. Engineer McDermott responded that they are typically constructed with an inverted crown to bring water to the center of the street. Mrs. Randolph stated that she has lived in her home for 46 years and has waited for the day the city would install curb and gutter on Coleshire because the water comes over Coleshire like a waterfall towards her property. If the inverted crown takes the water away, that would be fine. She asked why closing part of Coleshire has been discussed. She stated that the school buses do use Coleshire. Mayor Huber responded that one of the residents thought closing Coleshire was a good way to save money. Councilmember Vitelli moved adoption of Resolution No. 04-22, "RESOLUTION ORDERING OF IMPROVEMENT FOR STREET RECONSTRUCTION RVIPROVMENTS TO SERVE PEROPERTIES IN THE AREA REFERRED TO AS THE SOMERSET NEIGHBORHOOD INCLUDING SOMERSET Ayes: 5 Nays: 0 Page No. 24 April 7, 2004 VIEW, SOMERSET HEIGHTS PLATS, AUDITORS SUBDIVISION 3 AND SURROUNDING AREAS (IMPROVEMENT NO. 2004, PROJECT NO. 1)," and Resolution No. 04-23, "RESOLUTION APPROVING THE PROFESSIONAL SERVICES CONTRACT WITH BARR ENGINEERING FOR COMPLETION OF THE STORM WATER DESIGN FOR THE SOMERSET AREA RECONSTRUCITON PROJECT." Councilmember Krebsbach seconded the motion. Mayor Huber asked if staff will come back with a recommendation on how to do a traffic study. Administrator Danielson stated that he will bring back a recommendation at the next meeting to recommend that Council consider retaining a traffic engineer to do a thorough study. Councilmember Duggan stated that Council should consider doing traffic calming similar to what was done on Decorah Lane. JOINT WORKSHOP Council acknowledged a memo regarding adjournment of the meeting to the City Council/Parks and Recreation Commission Workshop scheduled for April 13, 2004, from 6:00 to 7:00 p.m. COUNCIL COMMENTS Councilmember Duggan stated that he was not able to be present at the last meeting but had two issues that he wanted raised. There were two motions made on March 1 regarding the Galligan project, and he is concerned about the motion to remove the red tag. He believed that the Katz's would have a chance to speak at the meeting. They had' received a letter from the city saying that they would be allowed to speak, but that did not happen. He stated that he was out of the country at the last Council meeting and could not ask Council to reconsider. He stated that he is uncomfortable cutting off people who come before Council and would like Council to pass a motion to reconsider the action. On March 16, the city attorney stated that having Mr. Losleben raise the matter was not the appropriate method. He stated that it was not his intent to have someone else act as his proxy but that the city invited the Katz's to come to the meeting and speak. That is just as important to them as it was for the people in Somerset to speak about the proposed improvement. He proposed to make a motion to either have the motion reconsidered so as to give the Katz's a chance to speak. Mayor Huber responded that Councilmember Duggan has made a fair comment. He stated that he took the action he did on the issue for better or worse and has extended an offer in a couple of forms to Page No. 25 April 7, 2004 give the Katz's the opportunity to discuss the matter. He stated that he would prefer to have the party who is disappointed with the outcome to meet with staff and discuss those issues for which he feels a variance is required. They have several concerns about the site, and the city has sent them two letters since the March 1 meeting extending an offer for them to meet with staff and go over the points they have concern over. It was a difficult decision not to allow discussion on March 1, but that does not mean the city cannot have a discussion with them. Councilmember Duggan stated that he would like to extend the Katz's a welcome to come in and see if there is agreement or disagreement and to what extent. He stated that he hopes that they will accept an invitation to come in and talk with the city staff. Mayor Huber suggested that if Councilmember Duggan feels an invitation from him would be helpful, he should make that invitation. Councilmember Krebsbach cautioned that Councilmember Duggan should not make any promises. She stated that she does not know what the purpose of further discussion would be. Mayor Huber responded that the Katz's feel the process that Council used was wrong. COUNCIL COMMENTS Councilmember Vitelli gave Council an update on recent NOC meeting discussions. Councilmember Vitelli stated that there is a bush at the intersection of Emerson and Dodd that creates a dangerous sight obstruction problem for people making a left turn from Emerson onto Dodd.. He asked staff to contact Somerset Country Club to ask them to trim the bush. Councilmember Krebsbach stated that the "Highland Villager" newspaper recently did a very good job of reporting on the NOC meeting. SOMERSET IMPROVEMENTS Mr. Greg Kvaal stated that he understood at the last Council meeting that there was a good possibility that Coleshire would be closed. He had recommended that it be closed for safety and aesthetics. Right in back of his house at 551 Emerson, there is a rise at the top of Coleshire and there are children there all the time. Traffic is such that people coming over the rise cannot see what is there. His idea was that, since there are no driveways on Coleshire and all the Page No. 26 April 7, 2004 residents signed a petition to close it off, the walking trail would leave it open. Councilmember Krebsbach informed Mr. Kvaal that Council voted not to put curb and gutter on Coleshire but to treat it as an alley. There were not many people who wanted to close it. Mrs. Annabel Randolph, 541 Emerson, stated that she did not sign a petition to close Coleshire and wants it to be kept open. CLOSED SESSION Council acknowledged a memo from Administrator Danielson recommending Council adjourn to closed session for preliminary consideration of allegations of misconduct by an employee. ADJOURN There being no further business to come before Council, Councilmember Vitelli moved that the meeting be adjourned to closed session, pursuant to M.S. 13D.05, subd 2(b), for preliminary consideration of allegations of misconduct by an employee, along with subsequent adjournment to a Joint Council/Parks and Recreation Commission workshop at 6:00 p.m. on April 13. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 Kathleen M. Swanson City Clerk ATTEST: John J. Huber Mayor