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2003-08-05 City Council minutesPage No. 1 August 5, 2003 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, August 5, 2003 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. • 1 • Ayes: 5 1 Nays:0 The City Council, audience and staff recited the Pledge of Allegiance. Councihnember Duggan moved adoption of the revised agenda for the meeting. Councilmember Vitelli seconded the motion. APPROVAL OF MINUTES Councilmember Vitelli moved approval of the amended minutes of the regular meeting held on July 15, 2003. Councilmember Schneeman seconded the motion. Ayes:4 Nays: 0 Abstain: Huber CONSENT CALENDAR Councilmember Duggan moved approval of the consent calendar for the meeting, revised to move items 6i, Bolger appointment, 6jk, Pilot Knob Distribution Center building permit, 61, Victoria Road turnback, 6m, Dakota County CIP, and 6n, Domestic Preparedness Agreement, to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the June 11, 2003 Airport Relations Commission meeting. b. Acknowledgment of the minutes of the July 22, 2003 Planning Commission meeting. c. Acknowledgment of the Building Activity Report for July. Page No. 2 August 5, 2003 d. Authorization for payment of $2,399.40 from the Utility Fund to Pine Bend Paving for asphalt patch repairs on Mendota Heights Road in conjunction with repairs done to the Mendota Heights Road force main. e. Acknowledgment of a progress report on the Wagon Wheel Trail/Rogers Lake improvement project. f. Approval of an agreement for professional services from Bonestroo, Rosene and Anderlik & Associates for the Rogers Lake improvements, along with authorization for its execution. g. Authorization for execution of a proposal for ProTec Environmental to perform additional subsurface investigation at the Mendota Heights Town Center Project. h. Authorization for staff to solicit requests for proposals for police prosecutorial services from law firms in the metro area. i. Approval of a modified critical area site plan to allow construction of a cupola at 645 Sibley Memorial Highway (Haggerty), along with authorization for the refund of the $100 application fee. j. Approval of the list of contractor licenses dated August 5, 2003. k. Approval of the List of Claims dated August 5, 2003 and totaling $1,511,588.03. Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 PERSONNEL Council acknowledged a memo from the City Clerk recommending the official appointment of Janet Bolger as Receptionist/Clerk- Typist. Councilmember Schneeman stated that if people call City Hall, Ms. Bolger will answer the phone. Ms. Bolger is also the first person people see when they visit City Hall. She is so pleasant that people love dealing with her. Councilmember Vitelli agreed, stating that it is a pleasure to have such a pleasant person in the receptionist position. Councilmember Krebsbach stated that Ms. Bolger does a great job and the city is fortunate to have her. Page No. 3 August 5, 2003 Councilmember Duggan moved approval of the official appointment of Janet Bolger as Receptionist/Clerk effective August 7, 2003. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 BUILDING PERMIT Council acknowledged a memo from Assistant Hollister regarding the issuance of permits for building remodeling at 2360 Pilot Knob Road. Councilmember Krebsbach asked whether the monument sign is a departure from ordinance requirements. Public Works Director Danielson responded that the proposed monument sign will require a variance and will be addressed through an application for variance. One pylon sign is allowed, and there is one on Pilot Knob. The owner is developing access to the east side of the building from Waters Drive, and they are going to ask for a variance for a sign on that side of the building. Ms. Amy Meltier, from C.D. Richards Management Company, representing the building owner, stated that there are two elements to the request. The owner is trying to create an orientation to the east side of the building. About four years ago they created an access to that side of the building and are now retenanting the area, and people are telling them that there needs to be identification on the east side of the building. She will be seeking a variance for a sign next . month. The request tonight is for building permit authorization to take an industrial bank of dock doors and turn them into an office facade with a tenant sign over the door. Councilmember Krebsbach stated that the owners must understand that if approval is granted for the building permits, that does not imply that a sign variance will be granted. Ms. Meltier responded that she understands that and that she is looking for approval this evening to turn the industrial side of the building into an office look. Councilmember Vitelli moved to authorize the issuance of permits for building remodeling at 2360 Pilot Knob Road (Pilot Knob Distribution Center). Councilmember Schneeman seconded the motion. Ayes: 5 (� Nays:0 Page No. 4 August 5, 2003 VICTORIA ROAD Council acknowledged a memo from Public Works Director TURN BACK Danielson along with a proposed agreement with the City of Lilydale for maintenance of Victoria Road after its turn -back from the county. Mayor Huber stated that Council has discussed directing the police department to study making the Victoria/Marie intersection a four - way stop intersection after the turn back occurs. He stated that if the agreement is approved by Council, he would like the police chief to make a study and recommendation on a four -way stop intersection. Councilmember Vitelli moved authorization for execution of an agreement with the City of Lilydale with respect to maintenance of Victoria Road after its turn back from the county. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 DAKOTA COUNTY CIP Council acknowledged a memo from Public Works Director Danielson regarding Mendota Heights projects that have been included in the Dakota County 2004 -2008 CIP. Councilmember Schneeman stated that she would like people who are interested in the Lexington Avenue Trail to know that the city engineer is working on the project design, and construction will be done in 2004. The project is to be supported by a combination of city MSA and county funding, and the county has been carrying over funding for the project over for the past several years. Mayor Huber stated that the traffic signal upgrade at T.H. 110 and Delaware is also included in the CIP. Councilmember Vitelli moved adoption of Resolution No. 03 -56, "A RESOLUTION REQUESTING PROJECTS FOR INCLUSION IN DAKOTA COUNTY'S 2004 -2008 CIP PROGRAMS." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 DOMESTIC PREPAREDNESS Council acknowledged a memo from Police Chief Aschenbrenner AGREEMENT regarding a proposed Dakota County Domestic Preparedness Joint Powers Agreement. Councilmember Duggan stated that he would like to revise the language the approving resolution to state that to the extent that grant funds are not sufficient to support the activities of the Committee ` Page No. 5 August 5, 2003 and the Special Operations Team, parties to the agreement agree to 1 appropriate funds in proportion to their population sufficient to maintain the operation. Councilmember Schneeman moved adoption of Resolution No. 03- 57, "A RESOLUTION AUTHORIZING MENDOTA HEIGHTS TO ENTER INTO AN AGREEMENT WITH THE PARTICIPATING AGENCIES IN DAKOTA COUNTY FOR DOMESTIC PREPAREDNESS JOINT POWERS AGREEMENT," as amended. Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 PUBLIC COMMENTS Mr. David Hiner, 1295 Kendon Lane, stated that on July 3 his dog was attacked and killed by a neighbor's dog with two eye - witnesses present, and the police department has deemed it did not happen. Mrs. Hiner stated that the decision is unacceptable. City Administrator Lindberg informed Council that a hearing was held last week and the ruling was made yesterday. She was the hearing officer on the matter, and based on the evidence presented at the hearing, she overturned the designation of dangerous dog to potentially dangerous dog. She did not feel there was adequate evidence to uphold the dangerous dog ruling. She stated that the Hiners can appeal the decision to district court and that the city staff followed the steps that are outlined in the city's ordinance. Mrs. Hiner stated that she feels like she is being called a liar because she said it was a big red dog — she used the wrong wording. Administrator Lindberg responded that the entire hearing is on tape and she will provide a transcript to both parties involved. Mr. Hiner stated that another of his dogs got bitten by one of the same neighbor's dogs in the past and had 18 stitches and in this case it is legal. Mrs. Hiner asked whether it would take someone getting killed. Many of the neighbors are upset. Administrator Lindberg responded that if anyone sees the dog running at large, they should call the police immediately. Responding to a question from Councilmember Duggan, she stated that the main issue at the hearing was whether or not this is the dog that bit the Hiner dog in the first place. She stated that she will be Page No. 6 August 5, 2003 happy to provide Council with a copy of the letter and ruling that was sent to the Hiners. Mayor Huber stated that the city has not had much experience with cases like this. Many cities deal with them regularly. The legal process that is set up is that a city hearing is held by the hearing officer, the City Administrator in this case, and one party or the other can appeal the ruling to district court. He stated that he understands why the Hinders want to bring the matter to Council, but it is not a process Council has control over or can take action on based on the rules. Councilmember Krebsbach asked if there are any repercussions in the ruling should the neighbor's dog run loose. Administrator Lindberg responded that it is a violation of city ordinances to allow a dog to run off their property and any violation would be a misdemeanor. She stated that the dog was cited by the police as being dangerous based on the comments form the Hiners. Staff held an administrative hearing and she heard from all the officers who were involved and the Hiners and Woolseys and also received letters. Based on the comments and the correspondence, she found that there was not enough evidence to say the dog is dangerous. Mr. Hiner stated that there is a huge discrepancy in what was said and what was stated in the ruling. Mayor Huber responded that as far as being able to take action, that is not in Council's purview. Even if Council had a different opinion, there is nothing they can do about it. Councilmember Schneeman stated that if the Hiners see the dog running loose they should immediately call the police and also get someone else to witness it. Councilmember Vitelli stated that he also sympathizes with the Hiners but would add that Council has a lot of confidence with the City Administrator. She has a law degree, and he has a lot of respect for her ability to sort things out. She did not see what the Hiners saw but based her decision on the evidence presented. 2002 AUDIT REPORT Mr. Chris Ohmdahl of KPMG presented the 2002 financial statement to the City Council. He reviewed the audit report and stated that there are no financial concerns or problems that they have identified. Page No. 7 August 5, 2003 Mr. Ohmdahl stated that his staff applied generally accepted auditing standards and their professional judgment. He read the opinion letter for Council and the audience and stated that it is a clear and unqualified option with no exceptions. The financial statement is also historically consistent with the city's history and also what one would find for a city that exercise sound financial practices. Mayor Huber asked whether KPMG reviews internal control practices. Mr. Omdabl responded that KPMG does not render an opinion on internal control but does obtain an understanding of the design and operation of internal controls for purposes of determining the nature, timing, and extent of the remaining audit procedures they need to perform so they can formulate an opinion on the financial statements. If he were to have found any inconsistencies, he would have brought them to Council's attention. Nothing came to his attention with respect to any weaknesses in the design or operation of internal controls. Mayor Huber asked if KPMG gives staff a questionnaire to question how they handle internal control of blank checks and signatures, and if the level of testing on internal controls is consistent with those it applies to other cities. Mr. Omdahl responded that they use a process document that documents the processes used, and the action steps taken by the city to accomplish its significant business transactions and reconcile its accounting records on a regular basis. KPMG does not perform any check reconciliation. KPMG uses the same controls for all the cities it audits. Responding to a question from Councilmember Vitelli, Mr. Omdahl stated that KPMG currently audits five Minnesota cities in addition to several counties and school districts. The city has a very strong financial position and has the ability to withstand peaks and valleys in economic cycles. Councilmember Krebsbach stated that one thing that has been an issue is the turn over of the water system to St. Paul Water. She asked how the statement would differ under the new accounting rules, where the city would list its assets. Page No. 8 August 5, 2003 Mr. Omdabl responded that beginning next year there will be a new financial reporting model that will be in effect. That statement will require the city to report all capital assets including infrastructure. Prior to the transaction, that will be recorded as an asset. The city will need to both inventory and value its assets on a net book value. That process will be undertaken for the 2003 audit. In the event the city had the asset on the books and disposed of the asset by transferring it to St. Paul, that asset will go away. He did not have information on whether the city will get any money for the system. If that occurs subsequent to December 31, 2003, the city would have a reduction in its asset base for that transaction. He stated that he believes some of the system has already been capitalized in the enterprise funds. Mayor Huber stated that he would like to review the audit further and asked Council to wait until the next meeting to accept the audit. CASE NO. 03 -26, FINK Council acknowledged an application from Mr. Robert Fink for preliminary plat and variance to create one additional lot at 1850 Arvin Drive. Council also acknowledged associated staff reports, a letter from Leslie & Vicki Kapaun in opposition to the application, and a petition from residents in the neighborhood in opposition to the variance and lot division. Mr. Fink and his consultant, Mr. Paul McGinley, from Loucks- McLagan, were present for the discussion. Mr. McGinley stated that Mr. Fink owns two parcels of record. The south parcel is 15,384 square feet and is vacant. Mr. Fink's house is located on the north parcel that consists of 75,586 square feet. The total area of 90,970 square feet is that same as six lots in Mendota Heights. The owner desires to rearrange the division line to make a 29,500 square foot lot on the north and 61,470 square feet on the southern lot. About 80,000 square feet of the property is wooded. Grading for the new house and driveway would disturb about 7,500 square feet of that 80,000 square feet. Regarding drainage, the general drainage pattern in the area is that the surrounding properties generally drain to the cul -de -sac. Drainage was discussed at the Planning commission meeting on June 24. That night about four to five inches of rain fell and it continually rained through the night. He inspected the site at 7:00 a.m. the next morning and the only ponding outside the cul -de -sac was in the southwest area of the cul- de -sac. The ponding was about 30 to 40 feet long, five feet wide and two inches deep. He did a topo of the area around the cul -de -sac and the adjoining houses and determined that area is a small high point in the drainage pattern. Drainage generally flows around the cul -de -sac on both sides to two storm sewer inlets. For the drainage to drain C Page No. 9 August 5, 2003 around the west side of the cul -de -sac it would have to go over that 1 high point. Water would have to pond to a depth of four inches before it would overtop that saddle and run to the inlet. The inlet on the northwest side of the cul -de -sac is about 4.4 feet lower than the opening of the house to the northwest, and the inlet pipe on the northeast side is about 4.9 feet lower than the opening to the house to the northeast so there is a significant buffer for the water. Approximately six to seven acres of land drain to this cul -de -sac areas. The new house and driveway would add about 4,000 square feet of impervious surface, which is about 1% of the total area that drains to the cul -de -sac. He stated that he would like to review the lot configuration being proposed and the subsequent resulting request for the variance. This property, along with the properties in Ridgewood Park, were created in 1955. The split of the Fink/ZaiKainer property took place in 1965. Also the Wachtler Avenue right -of -way adjoining the property was vacated by action of the Council in August, 1974. New Lot 1 meets all zoning requirements. It has 29,500 square feet of area and 100 feet of frontage at the setback line. The south lot requires a variance for width at the setback because of the original long, narrow shape of the property and the fact that the only frontage left for that parcel after the vacation of Wachtler is the small frontage at the cul -de -sac at the northwest corner. He is asking for a 59.6 foot frontage at the setback, or a 40.4 foot variance. The existing house sits back 225 feet from the cul -de -sac at a location where the lot width is actually 125 feet wide, so the variance does not affect the placement of that house. If there had been no vacation of Wachtler in 1974, the property would have 486 feet of frontage on Wachtler and 160 feet of frontage at the setback on the cul -de -sac. That would qualify for four lots on Wachtler and a fifth on the cul -de -sac. The parcel had frontage for five lots. Now it has area for six lots because of the vacation of Wachtler. The applicants have been left with a very large parcel with limited frontage on the cul -de -sac at one corner. He stated that he has three questions with respect to the application: is the variance is necessary for the reasonable use of the property; with the variance, do the lots fit the character of the neighborhood in terms of spacing of houses and lot sizes; and, will the variance set a precedent not currently existing in the city. He stated that he would assert that it is not reasonable to limit a parcel of six lots in size to one home. Two homes on a 2.1 acre parcel is a very reasonable land use. Regarding fitting the character of the neighborhood, looking at the spacing of the houses, the minimum spacing in Mendota Heights is 20 feet between houses and 150 feet between the rear of houses. In Ridgewood Park, the houses are 30 to 40 feet apart. A couple of them are at 60 feet. Looking at the proposed new house location on Page No. 10 August 5, 2003 the north lot, in relation to the houses around it, the closest house in the neighborhood there are 174 feet, 180 feet, 210, 200 feet, 204 feet, 230 feet and 244 feet from those houses to the new house. With respect to lot sizes and the character of the neighborhood, he compared the smaller of the two lots at 29,500 square feet to all of the smaller lots in the Ridgewood Park neighborhood, stating that there are existing lots of 21,000, 27,000, 20,000, 24,000, 15,300, 17,600, 16,000, 15,000, 17,000 and 17,400 square feet. The proposed new lot is larger than all of the smaller lots in the neighborhood. The south lot, at 61,470 square feet, compared to all of the larger lots in the neighborhood (47,000, 79,000 and 57,000 square feet), is smaller than only one of those lots. The average of the three large lots in the neighborhood is 61,000 square feet. In his judgment, Council could not ask for a better fit in terms of lot size. With respect to precedent, he stated that one of the neighbors at a previous meeting said he did not want to set a precedent for the neighborhood. In his opinion, precedents are not set by neighborhoods, they are set citywide by similar circumstances. The precedent in this circumstance is lot width at the access point requires a variance to allow reasonable use of the property. The precedent has been set many times in the city when the parcel size is not in accord with the available access to the property. He presented and reviewed a handout of nineteen examples in the city where variances have been granted. He stated that in the examples of the �. lots, all of the lots are larger than the typical lots. He stated that all of the nineteen lots are narrower than the width being requested: 59.6 feet is about twice the average approved for those nineteen lots. The nineteen average about 28.5 feet. Mr. McGinley stated that he believes he has shown in regard to the variance request that it is clearly a reasonable use of the land to have two lots on a six lot sized parcel, that the lots and house placement fit the character of the neighborhood — spacing is excessive and the lots exceed or are comparable to neighboring lots - and the variance is much less than numerous precedent setting cases in the city where variances were granted to allow reasonable use of the property. He addressed the comments of the neighborhood in their petition. He stated that regarding drainage impact the pocketing of water is very small and the new home only adds about 1 %. They were concerned about driveway slope. In the city the minimum height of the garage from the street is 1.5 feet, which is about a 3.3% driveway slope. This driveway slope is at 4.4 %. It is very little above the minimum required in the city. They were concerned about retaining the beauty and property values in the neighborhood. He stated that the tree removal is very minimal, and less than most of the lots in Page No. 11 August 5, 2003 Ridgewood Park. He felt that a new home on a larger lot than the rest of the homes in Ridgewood Park would be an improvement in property values. Another concern was over traffic in the cul -de -sac. He stated that having two homes on the cul -de -sac instead of one is very insignificant. In most cases cul -de -sacs would have three to five homes on a cul -de -sac. He felt he has shown that the variance is necessary for reasonable use of the site which would result in very low density and reasonable use and that the variance request is considerably less than many that have been granted in similar circumstances. The neighbors were concerned about green space reduction and property values. He stated that a minimal removal of trees for a homesite and yard in a suburban area does not reduce property values plus the addition of a new home in an area would have an upward influence on property values. Councilmember Krebsbach thanked Mr. McGinley for an excellent presentation but stated that she does not plan to vote to support the variance. Mr. Les Capoun , 829 Hilltop, stated that he lives adjacent to the property. He stated that the neighbors that are adjacent to the property have concerns. He built his home four years ago and when he sees a change that would affect his property values he is concerned. He stated that the disagrees that adding a home would increase his property values. The neighborhood petition has not been addressed by the Council or Planning Commission. Twenty nine homeowners around the property are opposed to the plan. He stated that approving the variance would take one conforming lot and generating two non - conforming lots and a flag lot that has been in opposition by the city in the past. The city has been trying to eliminate flag lots and is not creating one. Adding a lot would reduce the security in the neighborhood — every time a new home is put in a neighborhood, privacy and security are reduced. Mr. Fink purchased his property fourteen years ago and that land has been in its configuration for 30 years. He asked why there is suddenly a hardship. He stated that he fails to see how the situation meets the definition of a hardship. The other thing the neighborhood has a question about is whether Mr. Fink will actually build a house or if he will sell the lot. The precedent is self evident and will continue to happen unless changes are made. The city is in good financial condition and does not need to generate more taxes. The neighbors are concerned about their property values and know they will be reduced. Page No. 12 August 5, 2003 Mayor Huber responded that Council is aware of the petition and has received it. Councilmember Vitelli agreed with Councilmember Krebsbach that the presentation was very good. The problem he has with the application is precedent. Many examples were shown, but most of them were in new developments. There is a major difference in his view for granting a variance here. This neighborhood exists and people have purchased land in this neighborhood and if Council begins to grant variances now, they would be changing the neighborhood. He stated that he asked staff to prepare information on the lots in the neighborhood where owners might consider dividing their lots. Eight property owners could divide their lots without variances and he would support that. There are another seven lots that seem to have enough square footage to subdivide if variances are granted. He stated that he believes Council would be going down the wrong path. This neighborhood has been established and people have private lots, and approving this application would change what people expected and on what they based their property purchase on. That is different from other circumstances. He did not think granting the variance is the right thing to do. Council just denied a variance for a lot on Ridge Place within the last few months. That is what will come forth with seven or eight other properties in the neighborhood if Council approves variances. \. Councilmember Duggan stated that if Council votes to deny, Mr. Fink has two lots but can only use one of them because of circumstances that happened in the past and not under his control. He asked what avenue of recourse Mr. Fink has if the variance is denied. Public Works Director Danielson stated that there has been some debate among staff about whether the south lot is developable. It does not have frontage on a public street, so it is staff's opinion that a building permit cannot be issued. Councilmember Duggan stated that when Wachtler was vacated and the cul -de -sac was created, Mr. Fink lost the opportunity to develop the lot. The city created a landlocked situation and would be denying Mr. Fink the opportunity to develop his land. Attorney Schleck stated that denying one proposed plan does not deny all future proposals. It is important to focus on the one plan that is presented tonight. Simply because one reasonable plan is Ayes: 4 Nays: 1 Duggan Page No. 13 August 5, 2003 presented and might be approved or denied does not deny anyone from proposing other plans that might also be reasonable. Responding to a question from Councilmember Vitelli, Mr. Fink stated that he was not the property owner when Wachtler was vacated. Councilmember Duggan stated that if Mr. Fink believed he was buying two lots, it should be reasonable to expect to develop the lot at some time or another. The question is whether he meets the standards the city requires and if Council strictly adheres to the laws of the city, it does not look like the proposal meets the standards. Mr. Fink stated that the vacation occurred prior to his buying the lot, but it was not properly recorded, so there was no way for him to know that. Even city staff did not know that a couple of months ago. Councilmember Schneeman stated that she knew years ago that it was vacated to preserve the character of the neighborhood. Public Works Director Danielson stated that he understood it was vacated, but it was not properly recorded at the County. Mr. McGinley stated that the vacation was recorded against the property in Somerset Hills but not against this property. Mr. McGinley stated that the reason all the other variances were granted was because the lots were large pieces of property with no way to get access to them. There are many other examples in the superblock. He stated that whether the developments are new or old, it is still the reasonable use of the property with regard to access available to it. Councilmember Krebsbach moved to deny the variance and preliminary plat and to direct staff to prepare a resolution of denial. Councilmember Vitelli seconded the motion. Mayor Huber stated that he visited the site and reviewed the planner's comments. He stated that he is not comfortable with the preliminary plan. CASE NO. 03 -33, DELTA Council acknowledged an application from Delta Environmental ENVIRONMENTA for a conditional use permit amendment for an accessory structure (SUPER AMERICA) (new remediation building) at the SuperAmerica facility at 1080 Highway 110. Council also acknowledged associated staff reports. Page No. 14 August 5, 2003 Mr. Jared Otto, Delta's project manager, was present for the discussion. Assistant Hollister stated that the application involves many technical and environmental factors. At one time there was a gas station on the site and as part of the site redevelopment, the MPCA required removal of contaminants from the site. The MPCA allowed SuperAmerica to operate while they were pumping the contaminants from the ground. The equipment is not functioning well enough now and the MPCA mandates that SuperAmerica replace the equipment. Staff determined that a conditional use permit is required for an accessory structure, and the Planning Commission recommended approval of the conditional use permit. Councilmember Dugan stated that two questions were raised at the commission meeting regarding Fire Marshal review of the plan and variances that had been granted for the car wash and trash enclosure. Public Works Director Danielson responded that the Fire Marshal will review the plan prior to issuance of any permits. He stated that he did not research the existing variances for the accessory structures. Councihnember Vitelli stated that the SuperAmerica/Dakota Bank development went through many meetings before it was approved and the city probably spent as much as two years on the development proposal. Councilmember Vitelli moved adoption of Resolution No. 03 -58, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT AMENDMENT FOR AN ACCESSORY STRUCTURE AT 1080 HIGHWAY 110." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03-34, JEWELL Council acknowledged an application from Mr. Ralph Jewell for a lot line adjustment at 1948 Glenhill Road to allow the detachment of approximately 15,129 square feet of property at the rear of 1217 Victoria Curve (Mark Olson property) and combination of that property with the Jewell rear lot. Council also acknowledged associated staff reports. Mr. Jewell was present for the discussion. Assistant Hollister briefly reviewed the application for Council and the audience. The Jewells would like to break off a piece of the Page No. 15 August 5, 2003 property located at 1217 Victoria Curve and add it to their property. The owner of 1217 Victoria Curve (Mr. Olson) appeared before the city some time in the past with a request to split the property and create a flag lot to the rear of his property. The application was denied, and since that time the Jewells and Mr. Olson have reached an agreement whereby the Jewells would purchase a portion of the Olson property. Mr. Jewell has assured staff that it is not his intent to develop the property. The approving resolution has been revised to require the Jewells to add the property to their parcel immediately. Councilmember Vitelli moved adoption of Resolution No. 03 -59, "A RESOLUTION APPROVING A LOT LINE ADJUSTMENT AT 1948 GLENHILL ROAD." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03-35, KOPPEN Council acknowledged an application from Mr. Melvin Koppen for the division of 1316 Victory Avenue. Council also acknowledged associated staff reports. Mr. Koppen was present for the discussion. Assistant Hollister reviewed the application for Council. The proposed lot division does not require any variances because both lots would have frontage on right -of -way for Victory Avenue, but Victory has been platted but not constructed. As constructed, it only goes as far as Mr. Koppen's existing home. The second lot would have 100 feet of frontage along the platted right -of -way. Mr. Koppen is proposing a private drive from the house on the new lot through his lot to Victory. The Planning Commission felt that there should be an easement for the driveway to prevent future problems. Mayor Huber asked if a future Council were to vacate the unused right -of -way, whether the new lot would be non conforming lot, or if the easement would satisfy that. Mr. Hollister responded that if the property is subdivided, both lots would have frontage on a public street. If a future Council vacates a portion of the public street, the second lot would be non conforming by action of the city, and it would be grandfathered. There is no specific plan for a house on the new lot, but there is a buildable area outlined on the lot. Any new home would have to be 150 feet from the edge of the lake, and there appears to be sufficient area to build without a wetland permit. Page No. 16 August 5, 2003 Attorney Schleck stated that the way the city's zoning ordinance is structured, it would technically become a non conforming lot but would be grandfathered. As long as the owner can show that he has access to right -of -way and could do that without an easement, it would not be a landlocked property and would be a buildable lot. Councilmember Vitelli stated that the property approach would be to improve the road and assess the property. Mr. Hollister responded that the city could require that as a condition of the subdivision. There was some debate at the commission meeting as to whether the expense for improving the road would be justified just to access one lot. One thing that just came up before this meeting was that there is no specific proposal for a house or a driveway, but if they build the driveway the way they are planning, and it cuts the corner of the lot with the existing house, that driveway would require a variance. Council does not need to approve a variance tonight, but if Council approves the second lot, Council should make it clear that there is no pre - approval of a wetlands permit and that the action does not imply pre approval of a variance for the driveway. Those approvals would be required when an actual building proposal is made. Councilmember Krebsbach stated that if Council approves the \, application it seems that the city is creating a hardship. She stated that she will vote against approving the application. Councilmember Schneeman stated that she visited the property and cannot see where a road could be built. It is a beautiful piece of property and she would hate to see another house there. She stated that she would not vote to approve the application. Mr. Bob Marshall, from Realty Executive Results, stated that he has been working with Mr. Koppen for some time as well as with various members of the city staff. He stated that he has worked within the city guidelines. The private driveway would go behind the Koppen garage and continue east and then turn in to the new property. He showed where the easement would go and stated that all the pine trees would remain. Councilmember Vitelli stated that he visited the site this evening and has a question about whether this would work. If he knew for sure where the new house would be and saw a plan showing the driveway location and house location, he might be willing to approve it. He was uncomfortable with approving the application tonight because Page No. 17 August 5, 2003 that might give an implicit signal that Council would be okay with whatever is done to access the new house. He would like to see something more specific on access and how the lot would be developed. Mayor Huber stated that if Council denies the application tonight, Mr. Koppen can come back with a new proposal. Councilmember Duggan asked suggested that Council could consider tabling the matter pending a plan showing where the house and driveway would go and what impact it would have in relation to sight lines, etc. Councilmember Krebsbach responded that the proposal has not been fully developed and if the application is approved, it would create a lot that may need future variances. Councilmember Vitelli stated that he will vote against the application. He would support it if there were some improvement to the roadway. The proposal as presented requires running a driveway across someone else's property. Perhaps there is a way to extend the road for a certain distance not to full city standards. Attorney Schleck stated that it is important from a legal standpoint to remember that it is not the duty of a municipal body to maximize the economic benefit that a person has in his property. The city has police powers with respect to public health and welfare and to use its best judgment. There are risks people take when they choose to pursue real estate development. It is not Council's duty to work out the issues associated with the development. Council's duty is to protect the health, safety and welfare of the community. Economics should not come into a land use discussion because that is not the basis on which to base a decision. Councilmember Krebsbach moved to deny the application for lot division and direct staff to prepare a resolution for Council adoption. Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03 -36, DONAHUE Council acknowledged an application from Mr. Patrick Donahue for a conditional use permit to allow construction of a 3 84 square foot shed at 1924 Walsh Lane. Council also acknowledged associated staff reports. Mr. Donahue was present for the discussion. Page No. 18 August 5, 2003 Assistant Hollister informed Council that there is a currently a shed on the property that is in rough condition and Mr. Donahue has agreed to remove it as a condition of the approval of the new shed. Councilmember Vitelli moved adoption of Resolution No. 03 -60, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT FOR A SHED AT 1924 WALSH LANE." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03-37, RODDY Council acknowledged an application from Mr. Michael Roddy for a sideyard setback variance to allow a 12 foot garage stall addition to within eight feet of the side property line at 850 Cheri Lane. Council also acknowledged associated staff reports. Assistant Hollister stated that Mr. Roddy has a two -car attached garage and would like to add to it to make it a 3 -car garage. The city planner did not recommend approval unless Council fords a three car garage is necessary for reasonable use of the property. Mr. Roddy stated that the addition was originally planned for a 10 foot addition, which does fit into the setback, but he would have to drive in at an angle and would only be able to get his car door open 15 inches. It would be very difficult for him to get in and out of the car because of his age. He showed photos of the front and rear views of the house and explained where the 12 foot addition would go. The separation between his house and his neighbor's house, even with the 12 foot addition, is 35 feet. On the south side of Cheri Lane, all the lots are 112 feet wide. Some of the houses are ramblers and some are split entry. During this process, he polled his neighbors because their comments and feelings are important to him. Of the 17 neighbors he talked to, both his neighbors on each side and everyone on Bluebill who can see his house agreed that the addition is a good idea. The two feet may not seem like a lot, but it allows him better access to his vehicle and he would really like the additional two feet. Responding to a Council comments, Attorney Schleck stated that the variance is necessary for reasonable use of the property. Councilmember Schneeman moved to approve the variance and direct staff to prepare a resolution for Council adoption. Councilmember Vitelli seconded the motion. Ayes: 5 C Page No. 19 August 5, 2003 Nays: 0 CASE NO. 03 -38, LYNCH Council acknowledged an application from Mr. Timothy Lynch for a conditional use permit for a detached garage at 840 Wagon Wheel Trail. Council also acknowledged associated staff reports. Assistant Hollister briefly reviewed the application, stating that the applicant does not have a garage and would like a conditional use permit for a detached garage. The application meets all of the requirements of the Zoning Ordinance. Councilmember Duggan moved adoption of Resolution No. 03 -61, "A RESOLUTION APPROVING A CONDTIONAL USE PERMIT FOR A DETACHED GARAGE AT 840 WAGON WHEEL TRAIL." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03 -39, MIHM Council acknowledged an application from Mr. Thomas Mihm for a height variance for a proposed new home at 680 Hidden Creek Trail. Council also acknowledged associated staff reports and a letter from City Attorney Schleck. Assistant Hollister stated that Hidden Creek Estates was approved a number of months ago for 19 lots. There has been long standing in that area, and continued through approval of the subdivision, a line north/south that divides RI on the west side and RlA on the east side. Lots of a minimum of 15,000 square feet are required on the west side and 40,000 square feet on the east side. Mr. Mihm, the architect for the property owners (Grojeans), applied for a building permit and was informed by the code enforcement officer that this is an R -1 lot and the house is too high for the zoning and a variance would be required for the height of the house. Mr. Mihm applied for the variance and appeared before the Planning Commission last month. The commission attempted three motions. Mayor Huber asked Assistant Hollister to define the term "more or less restrictive" as it relates to R -1 versus R -lA. Mr. Hollister responded that what it means is that, since this is an R- 1 lot, the house can be a maximum of 25 feet tall and two stories. In R -1A, a house can be three stories or 35 feet tall. The other difference is in terms of setbacks. R -1 has smaller setbacks. The commission decided that the R -IA zone is the more restrictive of the Page No. 20 August 5, 2003 two zones. They felt that the restrictions are tougher in the R -lA zone except the house of the house. They discussed whether to grant a variance for height of the house and noted that most of the lot is in the R -1 zone and only the eastern corner is in the other zone. Planner Grittman was of a mind that since almost all of the lot is in R -1 and all of the house is in R -1, that this should be held to the R -1 standards. The message from the Planning Commission in its motion was that a variance is not needed. Mayor Huber stated that when he read the minutes, the Planning Commission is just commenting that if there is a lot that has two different zones, they look to the zone that is more restrictive. Councilmember Vitelli stated that he would like to simplify the issue. The way he sees it, it is a split zone. The only issue is height. One zone allows the 35 foot height and the other only allows 25 feet. The proposal is for 28 feet, 6 inches, and he would like to approve it. Mayor Huber asked Assistant Hollister if the Planning Commission motion to deny the variance failed and asked for clarification of the Planning Commission action. Assistant Hollister responded that the motion failed. He stated that it is up to Council and the City Attorney to determine what zoning requirements apply when a lot is in two zones. There are four or five lots north of Hidden Creek where the zoning is split on the lot and there are a few other cases around the city. His memory of a similar situation in the past is the Schwinn Bike shop, which is located on a lot where there is one zoning (commercial) in the front of the lot and another (R -1) in the back and Council Attorney Schleck stated that he does not think it is as difficult as it may appear. The zoning ordinance was written very well to address this issue. When people talk about more restrictive and less restrictive, there is nothing said in the ordinance, nor does it speak to split zoning. It does talk about conflicting regulations. What the ordinance says is where there are conditions imposed by any provision of the ordinance that are more or less restrictive than comparable conditions imposed by other by ordinance that are more restrictive, the higher requirement or standard shall prevail. In this case, Council is looking at height restrictions, and the R -1 zone is more restrictive. Councilmember Krebsbach stated that the majority of the house sits in one zone and in her opinion that prevails. One of the things Page No. 21 August 5, 2003 Council must consider is that there must be a uniform height restriction. Otherwise, some houses will be ten feet taller than the others. Mayor Huber stated that to one side is R -lA and higher houses. The house being proposed is immediately west of R -1A and all the lots to the other side are R -1. He asked if Council is inclined to allow the height. He was concerned that Council go about it the right way. If the feeling of Council is that the applicant should be allowed to build the house as planned, how does Council get there. Councilmember Duggan stated that he watched the commission meeting. He felt that a minor oversight occurred when the city missed the zoning line. That could have been moved when the land was platted so that this lot was all R -1. The city advised the applicant to pursue the variance versus pursuing rezoning of the lot to R- 1. There was an explanation tonight by the City Attorney about what requirement to take, and he feels the other way — that this does not need a variance. The city inadvertently imposed a hardship, and the most sane solution would be to let the owner proceed and come back with an application to rezone. The only hardship for a variance is the city oversight on where the line should go. He recommended authorizing a building permit and that the applicant come back for rezoning. Councilmember Krebsbach felt that the split zoning is a hardship. Attorney Schleck stated that there are two ways to get to approval. For purposes of granting a variance, the split zoning of the lot is a perfectly valid hardship and a reason to grant the variance. He stated that he does not think the city likes to have lots with two different zoning designations, so rezoning is a good idea also. Councilmember Vitelli moved to find that the split zoning is a hardship, but even without it, the only issue is height and one part of the lot would allow a 35 foot height and the other would allow only 25 feet, and to approve the requested variance with the condition that the variance would only apply to the structure as designed. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 BUDGET WORKSHOP Council acknowledged a memo from Administrator Lindberg recommending that Council call for a workshop on the proposed 2004 budget. Page No. 22 August 5, 2003 It was the consensus to conduct a budget workshop at 6:00 p.m. on Tuesday, August 26. WAGON WHEEL TRAIL Council acknowledged a memo from Parks Project Manager RIGHT -OF -WAY Kullander regarding acquisition of right -of -way along Wagon Wheel Trail. Mr. Kullander stated that the city will need to purchase right -of -way for the Rogers Lake fishing improvements and for future MSA improvements. MSA will fund the cost for most or all of the right - of -way. Councilmember Duggan stated that the city would be filling in wetlands and asked where those wetlands would be replaced. Mr. Kullander responded that the city's consultants have reported on what mitigations are required. He reviewed those mitigation options, including removing the entire sunken roadway through the Maczko property if the city buys the entire property. Councilmember Vitelli recommended that staff be authorized to make offers for only the land that is needed for the current project. He did not want to buy land under water that the city does not need. Councilmember Vitelli moved to authorize staff to make offers for only that land that is needed for this project, establish a fair value per square foot and make the offer in writing to each of the land owners and ask them for their acceptance, and that the be negotiations and everyone be treated equally. Councilmember Schneeman seconded the motion. Councilmember Duggan stated that Mr. Kullander had a concern about creating several parcels on the Maczko property and creating a description of each of the parcels. He asked whether Council would consider buying the entire Maczko parcel if there is a minimal difference between buying the whole thing versus four parcels. Councilmember Vitelli stated that he would not support it. Mr. Kullander stated that if the wetland mitigation is to remove the roadbed, if the city had the entire Maczko parcel staff could say the city does have the option to remove the roadbed. Page No. 23 August 5, 2003 Councilmember Vitelli stated that instead of four pieces of the Maczko property, he would support connecting the three lots but would not support buying the rest if the land under water. VOTE ON MOTION: Ayes: 5 Nays: 0 COUNCIL COMMENTS Councilmember Krebsbach recommended that the city send a letter commending MnDOT, the contractor and project manager responsible for the 1-3 5E bridge reconstruction. Councilmembers Vitelli and Schneeman agreed, stating that MnDOT has done an excellent job and that the project has been on time as well. Councilmember Duggan asked staff to consider preparing a resolution regarding the St. Peter's Church 150 year anniversary. He also stated that the flashing warning lights on T.H. 11.0* Dodd Road have been removed. Mayor Huber expressed appreciation to everyone who participated in the National Night Out this evening. ADJOURN There being no further business to come before Council, Councilmember Duggan moved that the meeting be adjourned. Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 10:27 p.m. z A a/,7 _ KAMeen M. Swanson City Clerk ATTEST• Jo u r