Loading...
2004-03-01 City Council minutesPage No. 1 March 1, 2004 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Monday, March 1, 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 and Vitelli. Councilmember Schneeman had notified Council that she would be absent. 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 Vitelli seconded the motion. _ Ayes:4 Nays:0 APPROVAL OF MINUTES Councilmember Vitelli moved approval of the amended minutes of the regular meeting held on February 17, 2004. Councilmember Duggan seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 Huber CONSENT CALENDAR Councilmember Duggan moved approval of the consent calendar for the meeting, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the February 24, 2004 Planning Commission meeting. b. Acknowledgment of the Fire Department monthly report for January. c. Acknowledgment of the Building Activity Report for February. 1 Page No. 2 March 1, 2004 d. Authorization for issuance of a purchase order to Flexible Pipe Tool Company for a sewer line inspection camera for the Utility (! Department for its low bid of $6,591.29. e. Authorization for the issuance of a one day temporary on -sale liquor license to Beth Jacob Congregation for Saturday, May 2, 2004 from 6:30 p.m. to 10:00 p.m. in conjunction with its annual fund raising event, subject to approval by the Commissioner of Public Safety, along with waiver of the $50 temporary license fee. f. Authorization for the issuance of a one day temporary on -sale liquor license to St. Thomas Academy for Saturday, April 17, 2004 from 6:00 p.m. to 11:30 p.m. in conjunction with its annual fund raising auction, subject to approval by the Commissioner of Public Safety, along with waiver of the $50 temporary license fee. g. Approval to reschedule the joint Council/Parks and Recreation Commission workshop to April 13 from 6:00 to 7:00 p.m. and acknowledgment of the cancellation of the March 9 Parks and Recreation Commission meeting. h. Adoption of Resolution No. 04 -16 "A RESOLUTION RENEWING A CONDITIONAL USE PERMIT TO LINDER'S lop a M0121011MV.11y •i • • i. Approval of the list of contractor licenses dated March 1, 2004. j. Approval of the List of Claims dated March 1, 2004 and totaling $77,821.71. Councilmember Vitelli seconded the motion. Ayes: 4 Nays: 0 PUBLIC COMMENTS Mayor Huber informed Council that he received a letter from the City of Eagan requesting adoption of a joint resolution to support for full funding for construction projects on Highways 3, 13 and 149. He stated that he will refer the letter to staff for a recommendation. Page No. 3 March 1, 2004 Councilmember Vitelli asked that staff look carefully at whether to support the resolution and, in particular, let Council know what the implications would be, especially with respect to T.H. 149. Councilmember Krebsbach agreed, stating that she has similar concerns. Councilmember Duggan stated that the letter also talked about a meeting on the issue, and he would be glad to attend. Mayor Huber also informed Council that he received an anonymous letter from a resident concerned about a matter in the Avenues area that Council has discussed, and the concerned resident is asking if something has been done. The letter references a specific residence on Fourth Avenue, and staff is taking a look at it. He stated that Council has discussed how to deal with situations at residences that have the potential to be very irritating to people who live around them. He would like to see the discussion be a little more energized and would like to see some action taken. PRESENTATION Mayor Huber introduced Metropolitan Council District 13 Representative Rick Aguilar to the audience. Mr. Aguilar stated that it is his pleasure to represent District 13, and that when he was first appointed over a year ago, he was appointed to District 16, which was northern Dakota County. Because of redistricting, he now represents District 13. He serves on the transportation committee and the community development committee (formerly livable communities committee). There is a great deal of competition for the livable communities grants, and he congratulated Mendota Heights for receiving its grants. There were 34 applications for the 2003 grants, requesting $30 million in funding, and only $7 million is available. In 1999, Mendota Heights received a $150,000 grant and in 2002, an $873,000 grant. He stated that it is his pleasure this evening to present the city with an award certificate for a $300,000 Livable Communities Demonstration Account grant to assist in building structured parking in Town Center. He stated that the city can continue to apply for Livable Communities grants. He further stated that he plans on being very active and looks forward to working with Mendota Heights and the other cities he represents. Mayor Huber stated that Council is pleased to accept the grant and very pleased and grateful for the continuing support of the Metropolitan Council for the Town Center project. Council is very Page No. 4 March 1, 2004 excited about the project, and has been working on it for several years. Councilmember Krebsbach stated that the grants have been very important to the project. Councilmember Vitelli stated that he has always been very upbeat about this project and that Council should invite the Metropolitan Council to look at the site in two to three years because it is an exciting and unique mix of housing and commercial uses. Councilmember Duggan commended Mr. Aguilar for his interest in the community and his continued support. POLICE ANNUAL REPORT Police Chief Aschenbrener presented and reviewed the Police Department annual report for 2003. Councilmember Krebsbach asked the Chief if he has a breakdown on calls to Lilydale and Mendota and if the officers are more in jeopardy there, particularly late at night, because of the drinking establishments. She stated that she would like to see a breakdown between the communities, including the breakdown of the calls in comparison to Mendota Heights. Chief Aschenbrener responded he does have statistics but did not include them in the report because he does not have anything to make comparisons with. The department is working with the management of the Moose to reduce problems. A month ago he met with the owners of the liquor establishments to make sure they take care of the problems in house as much as possible. Councilmember Duggan suggested that Officer Hurst bring a presentation to cable television on child safety seats. Chief Aschenbrener responded that he is sure Officer Hurst would be happy to do that. Councilmember Vitelli stated that Chief Aschenbrener's overview was excellent. He stated that the department consists of 13 officers, three sergeants and the Chief, which is not a lot of people, particularly considering that they protect the city's residents 24 hours a day, seven days a week plus all the other activities they do and all of the training they take on new technologies and mandatory training. He expressed his compliments to a team that gets a great deal of work done with so few people. Page No. 5 March 1, 2004 Chief Aschenbrener complimented the three sergeants for their assistance in preparing the report. Responding to a question about the detox unit, Chief Aschenbrener stated that he spoke to Dakota County about detox several times and the goal is to remain in Dakota County. The Chief's Association is working with them in the hope to keep detox in Dakota County. The police department transports people with a .20 or above to detox, and the service would be sorely missed. Responding to a question from Mayor Huber regarding prosecution services, Chief Aschenbrener stated that the transition to the new prosecutor's office is going extremely well. Councilmember Krebsbach stated that she has received a comment from Mr. Bill Owens, a Mendota Heights resident, commending the police Department for the assistance the officers have given to his ailing uncle, who lives in Lilydale, on the occasions when he has needed their service. MEETING RESCHEDULED Council acknowledged a memo from the City Clerk informing Council that the April 6 meeting date conflicts with Passover observance and recommending that the meeting be rescheduled to _ April 7. Ayes: 4 Nays: 0 Councilmember Krebsbach moved to reschedule the April 6 regular meeting to Wednesday, April 7. Councilmember Duggan seconded the motion. Council suggested that the Parks and Recreation Commission consider rescheduling its April 14 meeting because of Passover observance. GOAL SETTING SESSION Councilmember Duggan moved to reschedule the Council goal setting workshop to 5:00 a.m. to Noon on Friday, March 19. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 JOINT AIRPORT ZONING Council acknowledged a memo from Administrator Danielson BOARD regarding Joint Airport Zoning Board indemnification. Councilmember Vitelli stated that at the Joint Zoning Board Meeting last week it was brought to his attention that Mendota Heights and Page No. 6 March 1, 2004 three other communities represented on the board have not filed an indemnification agreement with the MAC. His first reaction was that the city should file the agreement, but it is not as clear as that after talking with the city attorney. If the city does not file an agreement, there is a risk to the city and to him and Councilmember Krebsbach as members of the board who could become personally liable. He suggested that Council pass a motion that the city indemnifies him and Councilmember Krebsbach as they undertake activities as members of the Joint Zoning Board and also that Council ask the city planner to look at the new airport zoning ordinance to be certain there is no affect on Mendota Heights zoning. Mayor Huber stated that it is not reasonable to expect the two Councilmembers not to be indemnified, but at the same time Council needs to be sure that if their actions do not unknowingly make the city liable. He asked how Council can be sure issues that are coming up do not give staff a concern. Attorney Schleck suggested that Council adopt a resolution tonight and that he and staff work on it and put together a formal written resolution for next meeting that addresses the details. Councilmember Vitelli stated that the hearing on the airport zoning ordinance is next week. \ . Attorney Schleck responded that his understanding is that the next meeting of the Board is to address a draft ordinance, not necessarily a final ordinance. He thought that if Council adopts a motion using the language recommended in Administrator Danielson's memo to indemnify the two Councilmembers personally for any actions taken in their duties representing the city on the JAZB, they are personally covered until a final resolution is adopted by the city. Councilmember Krebsbach stated that Eagan has abstained from voting in the past. Attorney Schleck stated that the issue originally came up two years ago and some of the communities decided to abstain from voting because they were concerned about the indemnification and what it provides. If it turns out that the ordinance has no impact on Mendota Heights, that may change Council's decision on the need for indemnification. It is important that the city planner tell Council exactly what impact the ordinance will have on the city. Page No. 7 March 1, 2004 Councilmember Duggan moved to agree to indemnify Councilmembers Krebsbach and Vitelli, personally, for any official actions taken in their duties as representatives of the City to the Joint Airport Zoning Board and to direct the City Planner to analyze the Airport Zoning Ordinance to determine whether adopting it will involve any changes to Mendota Heights' Comprehensive Plan or Zoning Ordinance. Mayor Huber seconded the motion. Ayes: Nays: 0 CASE NO. 04 -05, Council acknowledged a memo from Assistant Hollister regarding KLINGELHUTZ an application from Klingelhutz Development for a conditional use permit for a planned unit development, preliminary plat, wetlands permit and variance for individually owned town office buildings. Council also acknowledged associated staff reports and information provided by the applicant. Mr. Tom Dunsmore and Mr. Terry Schneider were present on behalf of the applicant. Assistant Hollister informed Council that the Planning Commission recommended approval subject to numerous conditions recommended by the city planner plus two conditions related to parking. He reviewed the developer's agreement outline for Council, listing the issues to be addressed in the agreement. He discussed the need for vacating a portion of Waters Drive and the need for the applicant to acquire the state excess right -of -way for Phase 2 of the development. At this time, the developer is only applying for Phase 1, which is under five acres. If the applicant is successful in getting the Waters Drive right -of -way turned back and vacated, that puts the area over five acres. The applicant does not know exactly how long that will take and is requesting approval of Phase 1 at this time and pursuing Phase 2 after that. The Planning Commission asked him what guarantee there is that he will pursue the acquisition of the right -of -way and complete Phase 2. The applicant responded that Phase 1 is being designed in anticipation of Phase 2. The Planning Commission wanted a clause that says that the developer shall make best efforts com complete Phase 2. The second issue was parking. The city planner had recommended 172 spaces and Klingelhutz said that was more than he needed. The commission recommended approving the plan with 172 spaces and a proof of parking requirement can be written into the developer's agreement. There was also discussion over handicapped parking provisions and the prohibition of parking on streets less than 24 feet wide. The applicant has not submitted a signage plan yet but Page No. 8 March 1, 2004 informed the commission that his concept on signage is that on completion of phase one he anticipates having a sign somewhere in C the southeast corner of phase one and on completion of the second phase he would move the sign to a better location. Fire Chief Maczko has reviewed the proposal and submitted a memo regarding his concerns. With respect the issue of the developer guaranteeing completion of the second phase, Attorney Schleck stated that it is important for Council to understand that the city cannot necessarily force a developer to develop his property. It is also important to understand with respect to the issue of the purchase of the property from Mn DOT, that MnDOT will typically send out an appraiser to determine the price and that is how the value of the property is determined. Councilmember Duggan stated that, with respect to the requirement for 5 acres for a PUD, it is unknown at this time whether the developer will be able to acquire the MnDOT land, and Council would have to grant a variance in order to approve something less than 5 acres. The applicant is coming in with a development and telling Council he will go ahead — what can the city do to be sure there will be a development greater than phase one. Attorney Schleck responded that the methodology of control the city . has is to attach an approval to the property that dictates that if any development occurs in the future on that land, it must follow the criteria in the developer's agreement. That agreement will be recorded against the property, so if any development occurs in the phase two area, it must develop as required by the PUD plan. Councilmember Duggan asked if Council has authorization to grant a variance for property that is smaller than five acres for a PUD. Attorney Schleck responded that if one looks at the development as a whole, it is greater than five acres. If the owner comes in and applies for a PUD for the development as a whole, he would be complying with the code. If an applicant came in and applied for a PUD for an area smaller than that, he would have to show the hardship for a variance. Councilmember Duggan stated that he thinks the overall plan is great. The other concerns he has are the concerns expressed by the fire chief about the width of the streets, etc. Page No. 9 March 1, 2004 Councilmember Krebsbach asked whether the total parcel is 5.7 acres, including the Waters Drive cul -de -sac. Assistant Hollister responded that it is. The applicant feels the MnDOT piece is ready to go but is hesitant to say the Waters Drive portion is imminent. Apparently, an improved street must first be transferred by MnDOT to the city and then from the city to the developer. The applicant would like to have approval for the PUD before he fords out if the transfer will occur. Council can make approval contingent on the applicant securing adequate control over both the excess right -of -way and Waters Drive. Councilmember Krebsbach stated that she would rather see that happen before the developer begins the project. Mayor Huber stated that there has been some discussion tonight about how the Waters Drive piece could ultimately develop. He asked if MnDOT is willing to sell that land, does the city get first chance at it. Attorney Schleck responded that MnDOT has to offer the property to the city first. Mayor Huber stated that if the city has the first chance at the property, the city would not be obligated to sell it to Klingelhutz or anyone unless they agreed to develop it in a manner the city wanted. He felt the city can control how the development of phase two looks because the city does not have to sell the property to anyone unless they agree with how the city wants it to develop. If Council has a level of confidence that the developer wants to continue the development into phase two consistent with the plan, the city could by the right -of -way from MnDOT. There is the issue that if MnDOT does not want to sell it or the city does not get it, the developer cannot go forward with phase one either, at least as it has been presented. Attorney Schleck responded that MnDOT has already offered to sell the right -of -way to the city once. Mayor Huber stated that if Council had a level of confidence that the developer wants to continue the development into phase two consistent with the plan, the city could buy the property from MnDOT. There is an issue such that if MnDOT decides not to sell it or the city does not get it, the developer cannot go forward with phase one either, at least as presented. Page No. 10 March 1, 2004 Councilmember Krebsbach stated that there are two parcels that are not under the developer's control, and she would like them to have control of those parcels before granting approval. Councilmember Vitelli stated that the development as proposed consists of 4.7 acres, but the triangular piece is not yet owned by the applicant. He would support the development as proposed because one of the things Council has authority for is to determine whether or not a request for variance makes sense. Council grants variances for a variety of reasons. When he looks at the 4.7 acres as compared to five acres, as required by ordinance for a PUD, the property is within 97% of what is required. He does not see the rationale in putting roadblocks on a development that is excellent and would be good for the city. He would support approval of the PUD contingent on acquisition of the triangular parcel by the applicant. He would also like the Chief Maczko's comments added to the resolution. Councilmember Duggan asked staff how the fire chief's comments would work within the plan as proposed, in relation to street widths, etc. Mayor Huber responded that doubts he will be in a position tonight to say yes or no to the proposal. There is a great deal of information to go through. Councilmember Krebsbach asked Mr. Schneider why he cannot do the whole project. Mr. Schneider responded that the one acre triangular parcel that is owned by the state went through the transfer process about a year ago. MnDOT determined it to be excess property and placed a value on it. That needs to be redone for the transfer to Klingelhutz and would be relatively easy to accomplish at this time. The Waters Drive right -of -way is more difficult. It is a frontage road that was constructed as part of the T.H. 55 reconstruction. MnDOT has determined it will be turned back to the city as a public street when the T.H. 55 project is closed out, and that is beyond the control of the developer. MnDOT has determined that outside of the turnback area they have plenty of room for a turn lane. They do not need the right - of -way. He stated that the developer has sacrificed significant value in phase one so that they could configure phase two. He stated that Klingelhutz has an option on the property and has closing timeframes to get the property developed. If Council says they cannot develop the property until the developer has Waters Drive, he - believes the developer will have to move on and look for another Page No. 11 March 1, 2004 site. He will do everything possible to get phase two developed as quickly as possible, and has no doubt he will be able to get the triangular excess right -of -way from MnDOT. A couple of weeks delay in making a decision would possibly be all right. Councilmember Vitelli asked if Mr. Schneider has any problem with the conditions the Planning Commission set forth. Mr. Schneider responded that he hopes that the no parking in the traffic lanes has been corrected because the new street plan has a 24 foot width. The rest of the conditions are fine. He stated that he would just as soon put in the trees along the frontage now, even though they will have to be moved in the future. Councilmember Krebsbach stated that she would like to delay a decision for two weeks and have a letter showing the intent to transfer the triangular parcel to the developer. Councilmember Vitelli stated that he does not support the approach of putting the decision off for two weeks. He does not see the difference in waiting for two weeks and simply putting a condition in the approval tonight. If the developer does not meet the conditions, he has no approval. It would be unproductive to leave the developer in limbo and spend time at another meeting. He recommended accepting the Planning Commission's 20 conditions, dropping the condition on the trees, and make approval conditioned upon the acquisition of the triangular parcel, make sure that the developer recognize the needs of the fire department to protect the property, and put those conditions in the approval tonight. Councilmember Krebsbach recommended that the developer come before Council in two weeks when he has had a chance to review the fire chief's recommendations and the Planning Commission's recommendations and gives Council evidence of the MnDOT transfer letter. Councilmember Vitelli stated that he sees no difference between approving the conditions he set forth tonight and bringing the application back in two weeks. Mayor Huber stated that he does not think Council has talked much about bringing utilities to the property. Staff needs time to see how that will work. Page No. 12 March 1, 2004 Administrator Danielson stated that the applicant will need to apprise the feasibility for public improvements to the site. Mr. Schneider stated that his engineer has met with city staff and he understands that sewer is at the far corner of the site and water is quite a distance away. It would be his desire to install the utilities and turn them over the city and not have the city do the feasibility study. He will submit full plans and specifications for city approval. Administrator Danielson stated that is not typical of the city's past practices and he would want to look at the request very carefully. Mayor Huber responded that he would not support the request. His concern is there are a number of things that need to be resolved. If Council gave approval to the PUD tonight with all of the things that need to be resolved, including utilities, he does not think the developer would have as much approval as he thinks he has. There is an awfully long list of things that need to be done, and he feels the development proposal needs more staff review. Mr. Schneider stated that he concurs. In his discussions with staff, he had been talking about how to serve the site with the intent that they would be installed privately. He has no objection to the city (' doing the feasibility, etc., and will file a petition for improvements. \ . He would prefer that the matter be tabled for two weeks to allow him to file the petition and talk with city staff. Mayor Huber stated that he would like to see where Mr. Schneider plans to put the interim signage and would also like the concerns about trash addressed. He felt that the parking proposal is acceptable and would find nine stalls as proof of parking acceptable. He asked Mr. Schneider if he is familiar with the park contribution requirement. Mr. Schneider stated that if a park contribution is standard procedure, the developer is prepared to pay it. Mayor Huber responded that staff will make a determination on the amount of the park contribution and will inform Mr. Schneider on the amount and how it was arrived at. Councilmember Krebsbach stated that she would like verification on the developer's ability to purchase the triangular parcel from MnDOT and verification from MnDOT that it does not need the right -of -way for right turns. Page No. 13 March 1, 2004 Councilmember Duggan asked how the recommendations of the fire 1 chief work in relation to the plan and stated that he would like to see a drawing implementing the recommendations. Mayor Huber stated that he is comfortable with going forward without the Waters Drive right -of -way is acquired as long the developer has the triangular parcel. Mr. Schneider asked for feedback on the monument sign. He would like to do a substantial sign and would like to integrate it with phase two. The most logical location for the monument sign after phase two is built is at the corner of T.H. 55. He did not know if he can get approval to put there now, because MnDOT still owns the property. The alternate is to put it at the entrance to the site. He would like to request the ability to put a sign at T.H. 55 subject to MnDOT approval and an alternate to locate it temporarily at the entrance drive to the development. Administrator Danielson responded that since this is a PUD, the city has some flexibility. Councilmember Duggan supported the concept of a temporary sign now and perhaps a triangular sign at T.H. 55 in the future so that traffic on T.H. 55 and T.H. 13 can both see it. Mr. Schneider responded that if Council approves a temporary sign, it would give him more time to consider a design for the sign at T.H. 55. With respect to the fire chief s recommendations, he stated that there is one minor area that needs about a one foot adjustment to make the radiuses work for the fire department. Responding to a question from Mayor Huber, Attorney Schleck stated that the developers agreement draft prepared by Assistant Hollister is an excellent start and a copy of that draft should be given to the developer. RECESS Mayor Huber called a recess at 9:35. The meeting reconvened at 9:40 pm. 1845 HUNTER LANE Council acknowledged a memo from Administrator Danielson regarding the critical area permit for 1845 Hunter Lane (Dennis Galligan). Council also acknowledged letters from Attorney Virginia Bell on behalf of Paul and Vicki Katz, 1855 Hunter Lane, and a letter from City Attorney Schleck in response to the Bell letter, Page No. 14 March 1, 2004 a letter from Attorney Eric Galatz on behalf of Dennis and Lori Galligan, and a letter from Pauline Chaput, 1835 Hunter Lane. City Attorney Schleck stated that the matter before Council is the discussion about the home at 1845 Hunter Lane and the project that is taking place on that site. He then reviewed the background, stating that the Galligan family, through their architect, made application to the city on May 12, 2003 for a project at their home which required the issuance of a critical area permit. After testimony at the May 20, 2003 meeting, Council approved the critical area permit. On February 18, 2004, the attorneys for Mr. & Mrs. Katz, the next door neighbors, submitted a letter saying that by way of the meeting minutes, the applicants had potentially misrepresented some of the facts given at the meeting. He read an excerpt from the minutes which stated that Mr. Galligan stated that his neighbors were well aware of his plan and support it. Through the letter from the Katz's attorney, that was proposed that statement was wrong and potentially misrepresented some of the feelings of the Katz family with respect to the project. At that time, staff instituted an investigation to determine what had taken place, and staff felt it was appropriate to place a red tag on the project pending the outcome of the investigation. The minutes indicated that Mr. Galligan had stated that his neighbors knew of the project and approved it. As part of the staff review, he and Administrator Danielson instituted in investigation that included review of various things and as the result there are some potential changes to the meeting minutes. Administrator Danielson stated that during his investigation, he remembered that at the May 20 meeting, when the Galligans indicated their neighbors knew about the project, Administrator Danielson said that he knew the Katz's knew about the project because they had called him and asked about it, and he thinks that should be added to the May 20, 2003 minutes Attorney Schleck reviewed a proposed amendment to the May 20, 2003 minutes to strike "and support it" and add "Acting City Administrator Danielson knew for sure that the Katz's knew about it because they called him and asked about it." He recommended that the changes be made to the minutes. "Roberts Rules of Order," Section 32, specifically provides for the amendment to minutes of meetings of bodies that are controlled by "Roberts Rules of Order." Under "Roberts Rules" Council can amend minutes and in fact should amend the minutes if evidence comes forth that the minutes are wrong. Generally speaking, there Page No. 15 March 1, 2004 were some questions that had arisen with respect to the process taken 1 at the meeting. There were questions asked at the meeting and responses by Mr. Galligan and his contractor. The motion to approve the project was appropriately made and seconded and voted on unanimously by Council. The only reason staff went forward with investigating the matter was that there was an allegation there were some misrepresentations or wrongful conduct by the applicant at the hearing. Through the investigation he has found that was absolutely not true. The applicant made no statement with regard to the acceptance or rejection of his neighbors to the project. He stated that the staff investigation has shown that there was no misrepresentation, and Council had relied on the information it received at the meeting and that was presented staff reports, and staff is only looking to change the minutes and the statement that was made and who made it. At this point, it would be inappropriate to reopen the issue given the facts that staff has found as part of the investigation. He recommended that Council move forward with the proposed amendment to the minutes and remove the red tag to the project and move forward as if this had not taken place based on the change to the minutes. Councilmember Krebsbach stated that she is not in support of changing the minutes. She did not think Council should start that practice. She made the motion on May 20, 2003 and would not have made the motion if in the discussion there had not been some assurance that the Katz's had been informed. Even if she had not specifically referred to the Katz's by name, she was well aware of the issues in the past when she was on the Planning Commission and the concern about the site lines and would not have made the motion without having had some indication from Mr. Galligan or Administrator Danielson that the Katz's had been informed. Attorney Schleck asked if Councilmember Krebsbach does not support changing the minutes to say what Administrator Danielson actually said at the meeting. Councilmember Krebsbach responded that she would not want to get into the practice of changing minutes months later. Attorney Schleck stated that so everyone is clear, there was a discussion that the Katz's were informed. Administrator Danielson's testimony is that he knew they were informed because they called and talked to him about it. Page No. 16 March 1, 2004 Mayor Huber stated that what he hears Councilmember Krebsbach saying is that the minutes reflect it one way but that she is confident she would not have made the motion without there having been some indication that the neighbors were aware of the project. Councilmember Duggan stated that other than Administrator Danielson coming up with a new statement at this time, there must be some other support for that other than jogging a memory. He stated that he is comfortable with the statement in the minutes but is not challenging the Administrator. If there is some other support for it, he would go along with the change. He stated that when minutes are taken they are not intended to be taken verbatim. Some areas are shortened up that are appropriate and leaves out comments that are not germane to the discussion. Referring to the excerpt from the minutes, he stated that Mr. Galligan did not state how they were made aware or who made them aware of the plan or in what way the information in support of the plan was presented back. When he ( Councilmember Duggan) asked the question at the May 20 meeting about whether the neighbors were aware of the plan, and got the response, he took it at face value and was very comfortable with it, as was Councilmember Krebsbach. He stated that Council had at least three issues with the critical area last year, including reconciling the critical area ordinance with the comprehensive plan, and Council is very cognizant of the critical area issues. He is comfortable with the minutes as written but could also supporting the amendment if the city attorney recommends it. Attorney Scheck read an excerpt from "Roberts Rules" regarding correcting minutes, and pointed out that a two- thirds vote is required for the amendment. Responding to a question from Mayor Huber, Attorney Schleck stated that he and Administrator Danielson checked various sources in their investigation but that Mr. Galligan had made a videotape of the May 20, 2003 from cable television and supplied the city with a copy of the section that dealt with this approval. It is not an official copy of the city minutes, because the city does not keep video copies of the meetings, but it can be used to refresh people's memories. After viewing it with Administrator Danielson, they feel confident that the amendment they are proposing is what actually happened at the meeting. Councilmember Krebsbach stated that she does not support going back nine months to amend the minutes and pointed out that Council does not use video tapes as the official record of meetings. C Page No. 17 March 1, 2004 Councilmember Vitelli stated that as he sees the proposed change to the minutes, the words being stricken are "and supported" and the city attorney is proposing that Mr. Galligan's statement is that his neighbors are well aware of the plan. The minutes reflect incorrectly that they supported it. They do not reflect that then Acting Administrator Danielson made the statement that he knew for sure the Katz's were aware of it because he had talked to Mr. Katz. He supported the change because Council would be making the minutes more accurate. Mayor Huber asked Attorney Schleck if he is saying there were actually two statements made, both the statement that Mr. Galligan made that the neighbors knew about the plan and that Acting Administrator Danielson indicated he knew for sure Katz's knew about it because they had called him. There were actually two statements that neighbors in general knew about the plan. Attorney Schleck stated that he is proposing the change to the minutes based on Administrator Danielson's testimony tonight, not on the basis of the recording of the meeting. It is being proposed based on Administrator Danielson's refreshed recollection of the meeting. Councilmember Duggan stated that he is comfortable with supporting the proposed changes and asked what the ramifications will be. Councilmember Duggan moved to amend the minutes of the May 20, 2003 meeting, page 4, paragraph 5 to strike "and support it," and add "Acting City Administrator Danielson knew for sure that the Katz's knew about it because they called him and asked about it." Ayes: 3 Councilmember Vitelli seconded the motion. Nays: 1 Krebsbach Attorney Schleck stated that if Council chooses to address this any further, he believes that there is no further action required by the Council at this time. There was an approval given on May 20, 2003 and the only reason the issue was reopened was because there was that there was an allegation of a misrepresentation by the applicant. After investigating, staff found that there was no misrepresentation or wrongdoing by the applicant. To reopen the issue at this time is troublesome for the city because the city has already granted approval. On May 20, 2003, there was enough evidence presented to Council that it was able to make a unanimous approval. To reopen the project at this time is troublesome because there has been some reliance by several parties on the decision Council that was made on Page No. 18 March 1, 2004 May 20 and there has been no factual basis presented by anyone for a reason to reopen the project other than allegations of misrepresentation and wrongdoing. He believes that if significant review of the issue takes place, the city as a whole may have some other issues with respect to reliance by future applicants to get a final decision by the city. His position is that this should not be reopened and staff should be directed to take whatever measures necessary because of the action taken on the minutes. Mayor Huber stated that during the past week or so there has been some focus on the minutes, but he does not think that is the limit of what staff has reviewed. He asked for a summary of some of what has been looked at. Attorney Scheck stated that staff looked at the apparent inconsistency in the meeting minutes. There has also been an ongoing investigation with respect to this project since its approval. The first issue that arose was an allegation made in a letter from the Katz's attorney about whether the Katz's had been notified that there was going to be a meeting on May 20 to discuss the issue. Staff research indicated they were notified at least three ways. Administrator Danielson found a note in his planner fifteen days before the meeting that he had a call from Mr. Katz to discuss the project. Secondly, in some testimony he received from Mr. Galligan, he indicated he had talked to Mr. Katz before the meeting and at least discussed there would be a meeting and when it would take place. Also, every Friday, the city sends out a Friday newsletter that includes an agenda for Council meetings. That is not normally sent out to residents unless they request and pay for them. The Katz's have requested and received them. They would have received the Friday News with the agenda for the May 20, 2003 meeting. Administrator Danielson and Assistant Hollister recollect Mr. Katz coming to City Hall around the time of the meeting and Mr. Danielson provided a set of plans for Mr. Katz to review. There have been several requests from the Katz's throughout 2003 for additional information. He stated that he has a listing of those requests and staff s attempts to address the Katz's concerns on this issue. He stated that he could talk about the legal issues associated with this but not necessarily at this time. Councihnember Krebsbach stated that she has a question over what the city definition of a remodel is. That is a larger issue for her regarding this project. The point made was there would be no exterior walls removed and what is a larger issue is that this came through as a remodel and it is far more than a remodel. Had it not Page No. 19 March 1, 2004 been for the one foundation wall that was not removed, it would have needed a new application. Attorney Schleck stated that he believes that is a false issue. The application from Knutson stated this would be a major reconstruction of the house. It said they would not be relocating the exterior walls but it did talk about removing the existing roof, garage, windows, all interior walls and all other walls found inadequate. The original application stated that it was a major reconstruction project. To say they somehow misrepresented the project would be unfair to them. The applicant clearly states they were going to do major reconstruction. Mayor Huber asked if anything has come to mind, in the staff review, where this structure as it has been built has been a violation of city ordinances. Attorney Schleck responded that based on review by the building officials and Administrator Danielson, nothing has been found to be in violation of the building code for Mendota Heights. There has been a question raised as to the classification of this project. It was classified as a minor development. The critical area ordinance provides that in the case of a minor development and/or a change involving a single family residence, the city administrator shall bring the request to Council. There has been a question as to what minor development means. In the case of the critical area ordinance, the ordinance says a minor development and/or change involving a single family dwelling. Since this is a single family dwelling, the City Administrator was required by the ordinance to bring it directly to the City Council. Substantial alteration means the moving of 100 cubic yards of soil or more. Anything else is not a substantial alteration under the ordinance. No significant amount of soil was moved during this project. There was also the issue of whether or not this plan was to be brought to the Planning Commission. The critical area ordinance requires the city administrator to bring it directly to Council. There was also an issue about landscaping on the site. The ordinance speaks to landscaping. As he understands it, the landscaping was all done to the front of the house, and that is outside the requirements of the critical area ordinance. Councilmember Krebsbach asked for confirmation that the city attorney knows for a fact that the foundation has not been changed. Attorney Schleck responded that is the information he received from the code enforcement officers and Administrator Danielson. Page No. 20 March 1, 2004 Mr. Galligan stated that they built the second floor and up on the original foundation. It is the same floor, walls, block, etc. Councilmember Duggan stated that the major area of concern he has about the views - the comprehensive plan talks about protecting views that are in existence. He asked to what degree the existing view has been changed with respect to the Katz's. Attorney Schleck restated his warning with respect to reopening this issue. If Council insists on reopening it, it is appropriate to state what the ordinance reads. It does not say "to maintain views." It says that the development should be consistent with reasonable preservation of views. It is important to note that the ordinance provides for preservation of views of the river corridor, which is specifically defined in Mendota Heights. The city only has the right to regulate what is in this city. It does not have the right to regulate the other side of the river. He showed a map showing the river corridor as it is defined by the DNR. The views to be maintained are not all views, it is only the reasonable preservation of views. The statute and ordinance are written to be flexible and it is up to the city to determine what a reasonable preservation of view is. Mayor Huber stated that staff is recommending that the red tag be lifted and that no further action be taken by Council. Councilmember Duggan stated that the Katz's and Galligans and their representatives are present. He asked if it would be appropriate to talk to them. Mayor Huber stated that, although Mr. Galligan made a brief statement, Council has stuck with having the city attorney give the review. He thinks Attorney Schleck and staff have given a good review of the actions they have taken this week, why they have taken them, and a basis for why they feel the red tag should be lifted at this point. Councilmember Krebsbach asked on what basis the red tag would be kept on. Attorney Schleck responded that he sees no basis for keeping the red tag on. The red tag was issued on the basis of allegations of misrepresentation that staff has found not to be true. Mayor Huber stated that the evidence indicates that the misrepresentation that was the result of the minutes that staff had Page No. 21 March 1, 2004 available to them two weeks and have now been amended clear the point on misrepresentations. Attorney Schleck has reviewed the documentation and all that has gone on. Responding to a Council question, Administrator Danielson stated that the building inspectors have reviewed the project, found it to be in compliance with codes, and issued the permit. The building height complies with the ordinances. Mr. Paul Katz stated that Administrator Danielson has stated that he talked to him and his wife before the meeting and that is not the case. Mayor Huber responded that there are a couple of things to think about. One is whether Council wishes to reopen the matter. Councilmember Krebsbach stated that one of her questions was what is the definition of remodel, and this structure meets the defmition of remodel. The second question was whether the height meets the ordinance requirements for the critical area, particularly for residential structures. In her mind, those are the two issues. Attorney Schleck responded that Administrator Danielson has stated that it meets the city's building code and ordinances Mayor Huber stated that if there were an identical project like this that came before Council in two weeks they would not be asking for any variances whatsoever. Councilmember Vitelli stated that this is before Council tonight because there was an accusation of misrepresentations and staff researched that and it has been proven that the applicant did not misrepresent, and he does not believe the issue should be reopened. Councilmember Vitelli moved to remove the red tag from the property at 1845 Hunter Lane. Councilmember Duggan seconded the motion. Councilmember Krebsbach stated that her support of the motion would be that the information from staff is that it meets the definition of a remodel and also it fits within the ordinances. Councilmember Duggan stated that the city sent a letter to both the Galligan family and the Katz family informing them about this evening's meeting and that they would be provided an opportunity for input, and he feels they should have the opportunity to speak to VOTE ON MOTION: Ayes: 4 Nays: 0 Page No. 1 March 1, 2004 Council. Perhaps that could be done after Council votes on the motion. Mayor Huber stated that this has been an extremely difficult matter for everyone, not the least of which is the Katz family, and he does not want to seem like he is brushing them aside. He thinks Council has the obligation act in a manner appropriate for the city and take into account the work staff has done in thoroughly reviewing the matter. He feels Council has come to the right decision. Council has done what they needed to do and it would be incorrect to proceed any further in the matter. Council has done what they feel they need to do and that was the extent of its role tonight. To go any further would possibly not be in the best interest of the city. He stated that he would like to end the discussion on it. COUNCIL, COMMENTS Councilmember Vitelli reminded Council that with regard to airport noise, the city will benefit by the opening of the north/south runway and two important meetings are going to be held on March 11 at MAC headquarters. The Noise Oversight Committee will meet at 1:30 to address the new Part 150, which is a document that defines a set of noise contours around the airport to the year 2007. The meeting will review the results of the study that has been done and will also address the sound abatement measures. There are no homes in Mendota Heights that would be affected. At 4:30 there is a Joint Airport Zoning Board meeting with respect to a change in airport zoning ordinances. Councilmember Duggan informed Council that he will miss the next Council meeting. Councilmember Krebsbach congratulated Lilydale's Mayor and City Council on their new City Hall. ADJOURN There being no further business to come before Council, Councilmember Vitelli moved that the meeting be adjourned. Ayes: 4 Councilmember Duggan seconded the motion. Nays: 0 TIME OF ADJOURNMENT: 10:38 p.m. °4� athleen M. Swanson, City Clerk l