2003-07-01 City Council minutesPage No. 1
July 1, 2003
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY
STATE OF MINNESOTA
Minutes of the Regular Meeting
Held Tuesday, July 1, 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 Krebsbach,
Schneeman and Vitelli. Councilmember Duggan had notified
Council that he would be late.
PLEDGE OF ALLEGIANCE The City Council, audience and staff recited the Pledge of
Allegiance.
AGENDA ADOPTION Councilmember Vitelli moved adoption of the revised agenda for the
meeting.
Councilmember Schneeman seconded the motion.
Ayes:4
Nays: 0
APPROVAL OF MINUTES Councilmember Krebsbach moved approval of the amended minutes
of the regular meeting held on June 17, 2003.
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
Councilmember Duggan arrived at 7:35 p.m.
CONSENT CALENDAR Councilmember Schneeman moved approval of the consent calendar
for the meeting, revised to move items 6, and 6, to the regular
agenda, along with authorization for execution of any necessary
documents contained therein.
a. Acknowledgment of the minutes of the June 24, 2003 Planning
Commission meeting.
b. Acknowledgment of the Building Activity Report for June.
c. Acknowledgment of a report on the 12"' Annual Celebrate
Mendota Heights Parks.
Page No. 2
July 1, 2003
• Adoption of • • ORDINANCE
ADOPTING 11 • BUILDING C•r
WHICH PROVIDES •. THE APPLICATION,
ADMINISTRATION, AND ENFORCEMENT OF 1
MINNESOTA STATE BUILDING CODE BY REGULATING
P ERECTION, CONSTRUCTION, `• 1
ALTERATION, REPAIR, MOVING, REMOVAL,
DEMOLITION, •
EQUIPMENT, HEIGHT, r MAINTENANCE
OF ALL BUILDINGS AND/OR STRUCTURES IN TIES
MUNICIPALITY; PROVIDES FOR THE ISSUANCE OF
PERMITS AND COLLECTION OF •
PROVIDES I FOR VIOLATION THEREOF;
REPEALS ALL ORDINANCES AND PARTS OF
ORDINANCES THAT CONFLICT 1 1
ORDINANCE SHALL PERPETUALLY INCLUDE THE
MOST •' ENT EDITION OF 1 11 • STATE
BUILDING CODE • OF 1
OPTIONAL APPENDIX CH. • OPTIONAL APPENDIX
CHAPTERS SHALL NOT APPLY UNLESS SPECIFICALLY
. r•• r
e. Adoption of Resolution No. 03 -41, "RESOLUTION
ACCEPTING WORKA ND APPROVING FINAL PAYMENT
f. Approval of the list of contractor licenses dated July 1, 2003.
g. Approval of the List of Claims dated July 1, 2003 and totaling
$173,493.32.
Councilmember Vitelli seconded the motion.
Ayes: 5
Nays: 0
PRESENTATIONS Mayor Huber presented Public Works Director Danielson with a
plaque of appreciation in recognition of his service as Acting City
Administrator for the past three months.
CASE NO. 03 -11, FEFERCORN Council acknowledged a memo from Administrative Assistant
TOWN CENTER Hollister regarding the final development plan for the condominium
component (Linden Lofts) of the Village at Mendota Heights (Town
Center). Mr. Ross Fefercorn, from RMF Entities, was present for the
discussion.
Page No. 3
July 1, 2003
Mr. Fefercom explained that there are two buildings, one having 20
units, and the other 16 units. He showed the final design drawing of
one of the buildings and reviewed the site plan, stating that the
buildings are located on Linden Street, on the northeast quadrant of
the development. There is a central court between the two buildings.
Both buildings are similar in materials and feature pitched roofs,
stucco details, a reddish brick and a stone veneer at the base of the
buildings. Each condominium will have its own deck, and the corner
units will have two decks. There will be a common gathering room
unique to each building and a second floor exercise room. The
gathering room is about 1,800 square feet and should accommodate a
gathering of 80 to 90 people easily. Another detail that was added in
the last week was a change in the roof that will allow the air
conditioning unit to be hidden.
Councilmember Krebsbach stated that the streetscape will important
to the community and she wanted to be sure it does not look like a
very large dressed up apartment building from Dodd. She asked if it
could be possible to something comparable to the front, where the
roof is broken up.
Mr. Fefercom responded that the addition of the pergolas adds a very
l nice three dimensional scale. Mr. Fefercom stated that he can bring
back a colored elevation of the Dodd Road side.
Councilmember Duggan noted that there is extensive landscaping
that would possibly address Councilmember Krebsbach's concerns
about breaking up the detail.
Mr. Fefercom stated that the townhome buildings and the
condominium buildings are curved, so one would never see a flat
elevation from any side. Also Dodd Road is glancing away in both
directions and it is preceded by the wetland area and the landscaping.
Also, on the middle units the deck areas are curved also.
Responding to a question from Councilmember Schneeman, it is
most likely that he will begin construction on the smaller building
first. Construction will begin on the townhouses in about a month.
Councilmember Duggan asked if there have been improvements in
the stucco used today versus the stucco used ten years ago which is
causing problems for some of the homes in Copperfield in terms of
internal moisture buildup and mold.
Mr. Fefercom responded that as homes have been built tighter and
tighter, heating and ventilation systems have not kept up with the
Page No. 4
July 1, 2003
demands of the tightness of the houses and as moisture from human
use inside the house builds up it isn't allowed to escape. For the past
two years ago, builders have been required to add heat/air
exchangers in homes to keep the level of moisture balanced.
Without the exchangers, moisture builds up in the wall cavity and
becomes moldy over the summer months. These homes will have
heat/air exchangers. Also, the exterior is brick as well as stucco, and
there will be weep holes.
Councihnember Vitelli moved adoption of Resolution No. 03 -42, "A
RESOLUTION APPROVING A FINAL DEVELOPMENT PLAN
FOR A PLANNED UNIT DEVELOPMENT FOR THE NORTH
NEIGHBORHOOD OF THE TOWN CENTER
REDEVELOPMENT PROJECT."
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
CASE NO. 03-23, GELDERMAN Council acknowledged an application from Mr. John Gelderman for
a conditional use permit and wetlands permit to allow an accessory
structure, retaining wall and wildlife pond at 1812 Valley Curve.
Council also acknowledged associated staff reports.
r
Mr. Gelderman stated that he is requesting a wetland permit to build
a shed in the back and associated filling needs and retaining walls,
and meandering nature walks in the back yard. One option involved
digging a nature pond in the back yard for wildlife, but he is no
longer pursuing that option. The wetland in his back yard is a type
two wetland, which has no water in it, and the city ordinance has an
exemption to fill about 2,000 square feet. He is asking to be allowed
to fill in about a 261 square foot area for the shed, and to do a small
area for the nature paths, and for the retaining walls to extend about a
foot into the wetlands. Because the proposed shed is 200 square feet,
a conditional use permit is required.
Councilmember Schneeman stated that she supports the request.
Regarding the S WCD denial of Mr. Gelderman's plan for a pond,
Councilmember Duggan stated that he would support a proposal for
the pond in the future because it would be an expansion and
enhancement of the wetlands in the city.
Councilmember Vitelli moved adoption of Resolution No. 03 -43, "A
RESOLUTION APPROVING A CONDITIONAL USE PERMIT
Page No. 5
July 1, 2003
AND WETLANDS PERMIT FOR A GARDEN SHED AND
RETAINING WALL AT 1812 VALLEY CURVE."
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
CASE NO. 03- 03 -26, FINK Council acknowledged an application from Mr. Robert Fink for a
preliminary plat and variance to create one additional lot at 1850
Arvin Drive. Council also acknowledged associated staff reports and
petitions from the neighborhood. Mr. Paul McGinley was present on
behalf of the applicant.
Assistant Hollister stated that Mr. Fink owns two lots at 1850 Arvin
Drive. The larger lot has a home on it. Mr. Fink visited staff a
couple of months ago with the idea of combining the two lots and
creating a new lot in the northeast corner of the larger lot. The
Planning Commission recommended approval conditioned on
approval of the grading plan by city engineering and that the
applicant combine the existing southern, landlocked parcel with the
contiguous larger lot to the north. He explained that the portion of
Wachtler along the smaller lot was vacated and is currently an
unbuildable lot since it has no frontage and will never have frontage.
If Council approves the subdivision, the approval should be
contingent upon combining it with the larger lot.
Councilmember Krebsbach asked if someone created the problem by
subdividing the property in the past.
Public Works Director Danielson stated that Wachtler was vacated in
1974. Assistant Hollister informed Council that Mr. Fink has owned
the property for about twelve to fifteen years.
Councilmember Vitelli stated that it is important to note that the
vacation of Wachtler created this problem for the owner.
Councilmembers Krebsbach and Schneeman commented that Mr.
Fink bought it under the existing conditions.
Mr. McGinley, from Loucks McLagan Engineers, Surveyors and
Planners, stated that Mr. Fink and Ms. Jean Zaikaner own two
parcels, consisting of a north parcel at 75,586 square feet with their
house on it and a vacant south parcel at 15,384 square feet. Lot 10 is
the north parcel, the other parcel is a part of original Lot 9 to the
south. He stated that he does not know when Lot 9 was split. He
stated that the history seems to be that the Wachtler vacation must
Ayes: 4
Nays: 1 Vitelli
CASE NO. 03 -27, MINEA
Ayes: 5
Nays: 0
CASE NO. 03 -28, MENDOTA
HEIGHTS CHURCH OF
Page No. 6
July 1, 2003
have been petitioned by the owners on the east side. The entire street
was vacated, but the vacation is only recorded against the properties
to the east in Somerset Hills and not against the properties adjoining
it in Ridgewood Park. Mr. Fink proposes to divide the property into
two lots. The new proposed north parcel would have 29,500 square
feet.
Responding to a comment from Mayor Huber, Mr. McGinley stated
that two plans were included in Council's packet but only the most
current plan, dated June 16, should have been included. The other
plan was the original drawing and it was included in error.
Councilmember Krebsbach moved to table discussion to July 15
because this affects the neighborhood, and Council has not had the
opportunity to review the appropriate documents.
Councilmember Schneeman seconded the motion.
Councilmember Duggan stated that he has two concerns about
drainage. He stated that his is comfortable with the proposal, which
just moves a lot line north, and would support the proposal in general
terms.
Council acknowledged an application from Mr. Thomas Minea for a
wetlands permit to allow construction of a deck 86 feet from the
wetlands area at 1562 Wachtler Avenue. Council also acknowledged
associated staff reports. Mr. Minea was present for the discussion.
Mr. Minea stated that he has been a resident for nearly fifty years and
has lived at his current home for sixteen years. His home had an
extensive fire in January and during the process of rebuilding, they
decided to put a wrap- around deck between the three season porch
and the den, which would only extend six feet out into the buffer
area and it will be elevated. His lawn has very little slope towards
the wetlands. The vegetation is all grass.
Councilmember Vitelli moved adoption of Resolution No. 03 -44, "A
RESOLUTION APPROVING A WETLANDS PERMIT FOR A
DECK AT 1562 WACHTLER AVENUE."
Councilmember Vitelli seconded the motion.
Council acknowledged an application from the Mendota Heights
Church of Christ for a conditional use permit to allow installation of
C
Page No. 7
July 1, 2003
CHRIST a fence around the daycare playground area at 680 Highway 110.
Council also acknowledged associated staff reports. Reverend
Connie McCallister was present for the discussion.
Reverend McCallister stated that the request is for approval of a
fence that would be in back of the church and would secure the
playground area. It would be a four foot tall, black galvanized fence.
Councilmember Duggan moved adoption of Resolution No. 03 -45,
"A RESOLUTION APPROVING A CONDITIONAL USE PERMIT
FOR A FENCE AT 680 HIGHWAY 110 (MENDOTA HEIGHTS
UNITED CHURCH OF CHRIST)."
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
CASE NO. 03 -30, MENDOTA Council acknowledged an application from Mendota Golf LLP
GOLF LLP for an amendment to the comprehensive plan to change the
designation for the Mendota Heights Par 3 Golf Course property
from GC "Golf Course" to LR "Low Residential District." Council
also acknowledged associated staff reports, a letter from Alan
Spaulding, and a memo from Assistant Hollister regarding the
recommendation from the Parks and Recreation Commission.
Assistant Hollister stated that the Mendota Heights Par 3 is owned
by Cashill Spaulding Properties and for at least the last six months
they have been interested in marketing the property. A couple of
months ago, Lyman Development presented a concept plan to
Council and the Planning Commission for a 30 lot subdivision on the
property. No formal action was taken by the city on that concept
plan, but both the Commission and Council indicated they were not
interested in changing the comprehensive plan designation to
facilitate the development. Mr. Cashill has now submitted a formal
application to amend the designation of the property from GC Golf
Course to low density residential for the purpose of marketing the
property to people who would be interested in developing the
property as a single family development. Since this is a formal
application, formal action is required by both Council and the
commission. Notices of the public hearing by the Planning
Commission were mailed and published, and there were many
neighbors at the meeting. Staff has also received several emails and
voice mails from the neighbors concerning this issue. He stated that
within the spectrum of zoning decisions that cities make,
comprehensive plan designations and zoning designations fall
squarely within the legislative authority of the city. Those are the
Page No. 8
July 1, 2003
types of decisions, as opposed to variances and other things, in
which the city has the most authority and the most discretion in
deciding what they wish to do. Unlike the concept plan proposed by
Lyman Development, where the firm submitted a concept drawing
showing possible lots, Mr. Spaulding has not accompanied his
application with any drawing for any specific residential design. He
made it clear in his materials that he has no specific development
plan in mind but would simply like the change in designation. He
has provided some financial information about the golf course
designation and how it has been doing.
Mr. Spaulding stated that the property remains under purchase
agreement to Lyman Properties. Although he is solely asking for the
guidance of the property tonight, it is his intent to move forward with
Lyman to develop the course. He stated that he submitted a thorough
accounting of the golf course situation. He stated that his firm has
operated the course for eight years and tried to be good neighbors.
They have done a good job of operating the course and keeping it in
good condition and tried several things to make the course profitable,
including putting on an addition to sell food and to have leagues and
events. They bought equipment and put in a new irrigation system,
but they have not been able to make the golf course a success. They
would like to sell the course so they can move on to different career
paths and sell the golf course to recapture some or all of their
investment. Mike Cashill met with the city to express their interest
in selling the golf course. In marketing the property, they made
several calls to brokers and friends, and they marketed it themselves.
The only interest they had was from developers. There was interest
from one person as a golf course, but the price was no where near
where it had to be. They decided they had to move forward with the
comprehensive plan redesignation to make it compatible with the
zoning. He stated that he can find no merit in the factual findings of
the Planning Commission. First, they cited that a golf course is the
highest and best use for the property. The price he has it under
contract for is well over double and almost triple what anyone came
forward with for a golf course, so its highest and best use is not as a
golf course.. Second, the character of the neighborhood is consistent
with single family use of the site. The golf course is the only
commercial use of property within a quarter mile of the site —
everything else is residential. In his opinion, the reasons given by
the Planning Commission for denial are irrational and injurious to
his rights as land owners. They ignored the principal question of the
application, and that question is if it is fair for the city to give the
property a conflicting status of the zoning and comprehensive plan
guidance. Unlike any other land owner in Mendota Heights, they
Page No. 9
July 1, 2003
have to satisfy the conditions of both. Other property owners merely
1 have to satisfy the conditions of zoning. If they wish to use the
property for anything other than golf course, they need approval. He
stated that the comprehensive guide plan is arbitrary and
contradictory to zoning, and they are being forced to subsidize this
resource, and that in his opinion is a taking of his property rights.
Councihnember Krebsbach commented that golf courses are
customarily within residential areas. She asked what business is
within a quarter mile.
Mr. Spaulding responded that Somerset Golf Course is within a
quarter mile and Town Center is probably about that distance. He
stated that on league nights and Saturdays and Sundays, parking goes
half way down Bachelor and that is inconsistent with the
neighborhood because the neighborhood is single family. He is
working to make the property more consistent.
Councihmmber Schneeman stated that she has a tough time with the
request because the owners bought it as a golf course and it is a
treasure to the neighborhood because it is like a park and a park is
consistent with the neighborhood. She stated that she would like to
know what they paid for the property and what they want for it.
Mr. Spaulding responded that his firm purchased the property for
$1,289,000 and this is the eighth season of operation. They have had
an operating loss for all eight seasons, so they have substantially
more than that invested in the property. He stated that at the time
they bought the property, their attorney said that even though the
comprehensive plan was golf course it was zoned residential, and
they could have developed it on the date of their purchase and when
they purchased it they were competing with developers. In a sense,
for eight seasons they have subsidized the golf course and saved it
from becoming residential development for eight years.
City Attorney Schleck responded that it is interesting that Mr.
Spaulding used some terms he equates as legal terms of art, one of
them being that the city's actions may be injurious to him. The other
one he talked about was that the Planning Commission's decisions
were arbitrary. Those are legal terms of art and have specific
meanings. He asked if Mr. Spaulding if he is coming before Council
tonight with the idea that, depending on the decision of the Council,
that he may be instituting litigation against the city.
Mr. Spaulding responded that he would greatly prefer not to.
Page No. 10
July 1, 2003
Attorney Schleck asked if that is something is contemplated as part
of Mr. Spaulding's plans. i
Mr. Spaulding responded that after eight seasons of losses and being
in a situation where it is requiring the owners time and they are
losing money, anything they have available to them is a distinct
possibility to move on.
Councilmember Vitelli asked what the sell price was to the golfing
group that was interested in purchasing the course.
Mr. Spaulding responded that it never got that far — it wasn't close
enough to even consider.
Councilmember Vitelli asked what the owners would sell the
property to the city for.
Mayor Huber stated that he would prefer that Council focus on the
land use at this time.
Councilmember Schneeman stated that since there is a threat of
lawsuit, she did not think Council could even discuss the matter.
i
Attorney Schleck suggested that Council has a proposal before it on
the agenda and perhaps Council should continue with the public
discussion and address the proposal before Council. He felt that Mr.
Spaulding has made it clear what position his company has and that
Council should continue on with the process of evaluating the
application that is before the city.
Councilmember Vitelli stated that the point he is trying to make is
that Council does not owe it to land owners to double their money.
If this is a golf course and has been planned as a golf course, making
it R -1 is essentially doubling the money of the investor and the city
does not owe that to the investor. The key point he would like to see
the owners pursue is an aggressive attempt to sell it as a golf course.
If they are going to try to sell it to people who are interested in
investing in a golf course and their sell price is $2.7 million he can
see why they are not too interested. If they want to sell it to the city
for $2.7 million, they would basically be trying to sell it as R -1
property. Also, in the tax statements there is a line item at the
bottom of the statements called other deductions. He asked what
makes up that line item that swings this from a profitable situation to
a non - profitable situation.
Page No. 11
July 1, 2003
Mr. Spaulding stated that the does not know without looking into it.
It may include depreciation.
Councilmember Vitelli responded that depreciation is listed
separately as are taxes, licenses, and salaries. There is a big line item
that swings it from a profitable statement to a negative statement.
The other deductions item was $68,000 in 1995, $46,000, then
$22,000, then $17,000. Then they jumped up to $85,000 in 2000,
then $62,000. then $50,000. He stated that he would like to know
what those are.
Mr. Spaulding responded that he can submit his income statement
which details expenses more than the tax return does.
Councilmember Vitelli stated that also in the year 2000 taxes and
licenses was $3,000. In 2001 it was $31,000 and $30,000 last year.
He asked why those went up so drastically.
Mr. Spaulding responded that he would guess there are two or three
different accounting firms that prepared them and maybe they have
different ways. He submits the income statements to them each year.
For a few years they prepared their returns themselves.
Councilmember Vitelli asked what the real estate taxes are.
Mr. Spaulding responded that he believes they are $7,000 or $8,000
a year.
Councilmember Vitelli asked how the company could get to $30,000
for taxes and licenses.
Mr. Spaulding responded that some business operations do not jibe
perfectly with tax statements and expenses get lumped together.
There is a detail that typically gets attached to the tax statements to
detail the expenses. He stated that he would be pleased to submit the
income statements in detail.
Councilmember Vitelli stated that he would like to be convinced that
the owners are not grooming this to be a loser and that partners are
not taking money out of it on other deductions.
Mr. Spaulding responded that none of the partners have received any
interest, distribution, management fee or wages or any other
compensation and no return on their investment or time.
Page No. 12
July 1, 2003
Attorney Schleck stated that Mr. Spaulding stated that he spoke to an
attorney eight years ago who told him that the comprehensive plan
has to run with the zoning. If the attorney had done more research,
he would have found that the statute changed in 1995. Attorney
Schleck read from Minnesota Statute 473.858 that states that after
August 1, 1995 a local government shall not adopt any fiscal device
or official control which is in conflict with its comprehensive plan.
That is pretty clear that the comprehensive plan controls, and that has
been the position that the courts in the State of Minnesota have taken
ever since the law was passed in 1995.
Mr. Spaulding stated that the owners were always under the
impression since they purchased the golf course that they could
develop the golf course, and that was kind of a safety net. If one
were to look at the price at that time and the operating statement at
the time they purchased the property, that justified a price of about
half of what they paid for it. They paid more for it because they
thought that with some different ideas and hands on management,
they could improve the operations but safety net of being able to
develop it if it didn't go well. That was the only reason they paid the
inflated price for it, which is more than it is worth as a golf course
today. Golf courses are not being built or acquired in Minnesota at
this time. He has sold two other golf courses and is attempting to
sell this one and has a fourth one that is currently for sale. The
amount of interest he has received over the past two years on all four
of them has been negligible as far as operating a golf course.
Councilmember Duggan asked if those golf courses were sold as golf
courses or for development.
Mr. Spaulding responded that they were sold to developers.
Councilmember Duggan stated that he believes there was some
discussion in one of the local papers in the recent past about golf
courses and their challenges, and he feels Council needs some
clarification on the finance questions raised by Councilmember
Vitelli. He stated that the response from the people is that they want
the property open and the golf course to continue. The challenge to
the city has is how to help that. He would like to work amicably
with the owners but to keep the options open for three or four
months.
Mr. Spaulding stated that he sent a letter to the Mayor and
Councilmembers after the Planning Commission meeting. He stated
Page No. 13
July 1, 2003
that he called Lyman Properties to see if they were amenable to
keeping it as a golf course and he was open to that.
Councilmember Duggan asked if there is an end date to the purchase
agreement.
Councilmember Schneeman stated that the issue that is before
Council is the comprehensive plan designation.
Mayor Huber stated that the Council updated the city's
comprehensive plan a few years ago and held many public hearings.
He asked Mr. Spaulding if he participated in any of those hearings.
Mr. Spaulding responded that no one on behalf his company was
aware that there were any hearings.
Mayor Huber stated that he is certain that the hearing notices would
have been posted in accordance with law. This would have been
discussions that took place after the law changed in 1995. When
Council was going through that process, Mr. Spaulding and his
partners chose not to participate in the process even though the law
changed.
Mr. Spaulding responded that he was not aware of it. None of the
partners attended the hearings.
Councilmember Krebsbach stated that the plan updating process was
very extensive.
Mayor Huber asked for comments from the audience.
Mr. John Chasman, 723 Evergreen Knolls, stated that Council is
faced with the challenge of balancing the good of the city and being
reasonable to the businesses in the city. With respect to the
comment from the applicant that they always knew that they could
develop the property, he submitted that they always intended to
develop the property. This was designated as a golf course in all
memory since 1979. Notwithstanding the issues of zoning and the
land use act, it was still designated as a golf course. Did the
applicants undertake the venture and use reasonable approach in the
businesses they took. The applicant cites they purchased the
property with the intention of continuing the golf business. Any
business person would be applying financial models to determine the
return on investment. Certainly, someone purchasing four golf
courses would have a keen eye on the numbers. The applicant stated
Page No. 14
July 1, 2003
at the last meeting and today that they had to bid up on the Par 3
property. By the applicant's admission, the property was valued at
$900,000 when they bought it but they paid $1.289 million. They
could say that they made a mistake in 1995 and one mistake is
reasonable. They could always sell as development and realize a
gain, but they decided to keep going. The land use act was adopted
in 1995 and they had to know, because debate was going in the
legislature, they had to know that something was going on with the
comprehensive plan. There was a review of the city's
comprehensive plan in 1998 and it was known then that it was
designated as a golf course. They could say they did not know that
the comprehensive plan update was coming. Their reasonable plan
was not reasonable in the beginning and the applicants should have
initiated what they intended to do in 1995. Going eight years is not
going to change the original flaw in their decision. It is not
reasonable for the city to consider eight years later to make
adjustments in a flawed business plan in 1995. In looking at the tax
statements, he was not sure where the cash flow was going. He did
not understand if it is a loss or not a loss. What was submitted was
one of four pages of the partners tax form. There is more detail on
the other pages, and he would suspect those pages would say there
was a gain on the land. They built equity and could sell it for their
price.
Mr. Tom Van Horn, 758 Evergreen Knoll, stated that has he
understands it, the owners of the Mendota Heights Par 3 Golf Course
have applied for a change from the GC designation to the low
density residential designation. That could be summarized more
simply: the owners are here to ask for a bail out. They have talked in
the past about adding sprinkler systems, redoing the club house and
putting up a new building for machines, and he commends them for
that. That is not what this is about tonight. This is all about some
businessmen who paid too much, borrowed too much, and now want
the city to bail them out at the expense of decades of citizens of
Mendota Heights so that they can make a couple of million dollars.
That is what this issue is all about. He pointed out that since the
owners purchased the course in 1995, first of all they paid $400,000
to $600,000 to much. They stated in the material they submitted to
the Council that the selling price of the land parcel to them was
higher because they were competing with other buyers who were
planning to buy the land for development. So they paid too much to
beat out the other developers, and it was their decision to do that.
They also stated in their letter that they were comfortable paying the
higher price and the reasons why they paid the higher price. Just
because they outbid other developers doesn't mean they should be
Page No. 15
July 1, 2003
bailed out. In their letter they stated that if they had known about the
looming changes to the statute in 1996 they either would not have
bought the property or would have done so at a vastly reduced. He
stated that statutes change every year, and that is what happened
here. He felt that the change was made to prevent people from doing
exactly what Mr. Spaulding is asking. Most importantly, they paid
too much and borrowed too much and it is too much of a debt load.
If one looks at the 1995 tax statement, they had $65,000 in interest
alone and in 1996, $71,000 in interest alone. That was greater than
all of the maintenance and repair and all the salaries combined. They
are businessmen and can borrow as much as they want, but that is
not a reason for a bail out and it is not the reason the golf course is
not profitable. He felt that they were intending from the beginning to
be right where they are now, to pay to much, to borrow too much, to
never show a profit and to bull doze the golf course and walk away
with $2 million. They have done that to two other golf courses. It is
time to tell them not in Mendota Heights. He stated that from what
he has been told, the owners are very successful businessmen, not
only because of all the money they made from selling the other golf
courses but because they have had profitable businesses also. They
do that because they buy low and sell high. Sometimes people make
mistakes, and they have not learned that yet. They are with some
good company, the state, many cities in the state, the schools and
many investors who have lost millions of dollars recently. They
have to do what everyone else does and take a loss. In this case, they
sell the golf course as a golf course. He stated that he hopes that
fifty years from now that the golf course is still there for the
enjoyment of the city.
Mayor Huber stated that Mr. Spaulding is here on a land use matter
and he is very sympathetic to the fact that the proposal has people's
emotions running high. He asked those who comment tonight to
carefully consider what they say. People may not be happy with
what the applicants want to do, but they are here to make a proposal.
He would like to keep the comments related to whether this is the
appropriate land use. He asked people to keep from making
comments that might cross over to being disparaging remarks about
the applicants.
Dr. Jim Smith, 1716 Trail Road, stated that he does not know much
about land use or business but does know about green space. He
moved to Mendota Heights twenty years ago because he saw the city
Council as someone who would protect the environment and the
green space. It is sad for him to see what is happening to the green
space on Dodd Road. It is also sad that Trail Road has become a
Page No. 16
July 1, 2003
speedway. That is the reason he wants to see the golf course remain
as a golf course. The city needs green space. That is what land use
is all about — protecting the future of the environment. Those in the
city who were involved when the comprehensive plan was updated
were concerned about insuring there would be a certain amount of
green space in the city. When that is gone, Mendota Heights loses its
integrity and it becomes like every other suburb.
Ms. Leigh Opp, 789 Evergreen Knoll, stated that she agreed with
Councilmember Vitelli's comments. She stated that if she were here
asking to change her single family lot into a commercial business
and ask for a zoning change for the use of that property she doesn't
think people would let her double or triple her money by selling it as
commercial when she bought it as residential. She didn't know why
there would be any different treatment for other people in the same
community asking to change a golf course to a different type of
zoning.
Mr. Bruce Kopuck, 1696 Dodd Road stated that since he has moved
to his property, the Ridder property to the south has developed and
with the prospect of the golf course being developed he has already
seen a significant diminishment in the wildlife in his area and that is
a source of significant sadness to him. As he drives home from work
down Dodd Road, especially in the summer evenings, he sees many
kids in golf classes on the golf course and he commends Mr.
Spaulding for sponsoring that activity. That is what makes Mendota
Heights a special place to live. He stated that he hopes Council will
be resolute in its commitment to saving these wonderful open spaces.
Mr. John Roach,706 Evergreen Knolls, asked whether low density
means fewer homes. He stated that under the original (Lyman)
proposal the homes were going to be $500,000 to $700,000 and that
would almost have to be high density. That is a low price range
considering the homes that butt up to it.
Mayor Huber responded that something other than single family use
would have no chance.
Councihnember Duggan stated that the Lyman proposal was for 30
lots and he asked if they would consider reducing the number of
homes. If it went forward, the reduction would be to 22 or 23, and
the sizes of the lots and the homes would have been in keeping with
the Evergreen Knolls area and the Bachelor side. The city has no
control over what the cost of the homes might be.
C,
Page No. 17
July 1, 2003
Ms. Pam Ehrlich, 1656 Gryc Court, stated that she feels the golf
j course should remain open space for children. She was concerned
about the new homes on Dodd and all the homes on 110 and Dodd
Road, and the city must retain open space for the children.
Mr. Spaulding stated that the golf course was built in the 1950's as a
profit making business. His point is that his company is only the
second owner. He asked if it is fair that the ramifications of the
change in designation fall on their shoulders. The person they
bought the property from bought it and developed it for a profit and
sold it to them for a profit. He stated that he was 27 years old and
living in an apartment on Victoria Road with Mike Cashill when the
golf course came up for sale and they thought it would be fun to buy
and maintain a golf course. At that time they were renovating
apartment buildings. They thought the golf course would be a
diversion and would be an enjoyable part of their career and they did
most of the renovation of the club house themselves. Two years ago
they spent $70,000 on a maintenance shed. Why would they spend
$70,000 if the planned to tear it down. Four years ago they spent
$50,000 on a new irrigation system. It is unfair for people to say
they had negative intentions or planned to defraud the city of its open
space. They came to the city before they tried to sell the golf course.
Councilmember Schneeman asked if they bought the other golf
courses before or after Par 3.
Mr. Spaulding responded that Mendota Heights was the first golf
course they purchased.
Councilmember Schneeman stated that when they were showing no
profit all along she felt it made no sense to that they would buy three
more golf courses.
Mr. Spaulding responded that they paid $855,000 for the second
course, $1 million, for the third and $600,000 for the fourth one.
The people they bought the golf courses from probably called them
because they were dumb enough to pay that much for the first one.
Councilmember Schneeman responded that they sold them to
developers and made a lot more money.
Mr. Spaulding stated that in eight years of operating the golf course
he has received dozens of calls from neighbors. He tried night golf
with lighted golf balls and the police were there all the time. They
had a major law suit that cost tens of thousands of dollars because
Page No. 18
July 1, 2003
golf balls were hitting the home. They had people calling and asking
them to move trees and to compensate them for golf balls hitting
their cars. All those things made them spend additional money and
make it less profitable. He asked where all those people are now
He felt that single family residential has a less negative impact. His
intent in applying was to get a change in the comprehensive plan
designation to be consistent with the zoning, and he asked for the
lowest possible use. He asked the Council what the negative impacts
of that property being single family residential would be.
Mayor Huber stated that Mr. Spaulding has talked about conflicting
guidance from the city, but the city has not changed the
comprehensive plan designation on this for twenty five years or more
and all notices of public hearings were published when the
comprehensive plan was updated.
Mr. Spaulding responded that the city has always been very fair to
them whenever they have asked any changes, and he has never
received any conflicting information from the city.
Councilmember Krebsbach moved adoption of Resolution No. 03-
46, "A RESOLUTION DENYING A COMPREHENSIVE PLAN
AMENDMENT FROM GC "GOLF COURSE" TO LR "LOW- "
DENSITY RESIDENTIAL" AT 1695 DODD ROAD." `
Councilmember Vitelli seconded the motion.
Ayes: 5
Nays: 0
RECESS Council took a brief recess.
CASE NO. 03 -16, Council acknowledged an application from Mr. Craig Wagenknecht
WAGENKNECHT for preliminary plat and variance to create three additional lots at
1062 Wagon Wheel Trail. Council also acknowledged associated
staff reports and a letter of opposition from Mr. Roger Manthey,
2258 So. Lexington.
Assistant Hollister stated that the Planning Commission
recommended approval of the subdivision conditioned upon the
applicant consulting with the Fire Chief and submitting revised
drawings, both of which he planned to do this week. Mr.
Wagenknecht has indicated that he would be willing to continue the
discussion to the July 15 meeting to allow him time to prepare
revised drawings and discuss access and vehicle turn around with the
fire department. With respect to the 60 day review period, the
original 60 day review period has been extended an additional 60
Page No. 19
July 1, 2003
days, to the beginning of August. July 15 would be the last regularly
scheduled meeting at which Council can take action on the matter
under the current 120 day period unless the applicant agrees to
extend the review period. The application is to divide the property
located at 1062 Wagon Wheel Trail into four lots. Mr. Wagenknecht
came to Council with a proposal for three lots in May and had with
him an alternate plan for four lots. The Council referred him back to
the Planning Commission for consideration of the four lot
alternative. The Planning Commission recommended approval of
the four lot alternative with seven conditions that are detailed in a
proposed resolution to approve the preliminary plat. Mr. Hollister
reviewed each of the recommended conditions.
Mayor Huber stated that he viewed the property over the weekend
and the more he has thought about the proposal, his feeling is that
the appropriate development of the land would be to bring in a
public street. That may mean that only three lots could be
developed, but Council has clung tightly to the concept that lots
should front on public streets and he feels that should be continued.
Councilmember Krebsbach stated that she may end up agreeing, but
that she would find it more desirable to have three lots than four and
whether the street is private or public she would like to see a turn
around at the end.
Councilmember Schneeman stated that she would like to hear the
input from the Fire Chief before making any decision.
Councilmember Duggan stated that if the acreage on the drawing is
added up, that does not equal the acreage that is presented for the
four lots on the plat that was submitted. He was concerned that there
may be other inaccuracies. He stated that as he looked at the
preliminary plat requirements, the submissions are incomplete.
There is no tree survey or soil survey and there is no vegetation and
tree preservation plan.
Mr. Wagenknecht stated that there is a drawing that shows the
topography and the significant vegetation. He stated that he
contacted Dakota County and they gave him the soil results. That
was included in his original submission letter.
Mayor Huber stated that if Mr. Wagenknecht has additional
materials he would like to submit, Council can continue the
discussion. He also asked for comments from Council on whether
all of the lots should front on a public street. If that is the consensus,
Page No. 20
July 1, 2003
Council should deny the current application and allow Mr.
Wagenknecht to reapply and come directly to Council.
Councilmember Krebsbach supported a public street. She also stated
that she feels the proposal should be for three lots.
Mr. Wagenknecht responded that at the last Council discussion he
presented a three lot proposal that included a flag lot, and Council
told him that it would prefer four lots with a common road over the
flag lot. With respect to the private road issue, he stated that in the
past sometimes there have been problems with private roads because
they were done without any legal maintenance agreement between
the adjoining property owners. With townhouses and common
shared properties being more common now, agreements are being
put together and if there is an agreement between all of the four
property owners saying that they all agree to maintain the road every
so many years, those problems can be avoided.
Councilmember Schneeman stated that she would prefer to table the
matter to July 15 so that more information is available.
Councilmember Duggan stated that former Planning Commissioner
Friel called him today and stated that he was surprised that Council
was considering a subdivision with a variance in it. Normally in an `
independent subdivision there should not be any variance request.
The subdivision should be able to stand on its own merits.
City Attorney Schleck responded that the variance is that a buildable
lot in Mendota Heights must front on a public street. In the
preliminary plat as proposed, the lots will not front on a public street
— what is proposed is a private street. Normally one would not ask
for a variance from the subdivision ordinance requirements, you
would either be able to do it or you wouldn't, because subdivision is
not a restriction on land use.
Mayor Huber stated that it appears that there is a consensus that the
lots should front on a public street. The preferred route to take
would be to deny the application and let Mr. Wagenknecht that if he
wants to come back with a new application, he can come back
directly to Council.
Councilmember Krebsbach moved to deny the application.
Councilmember Duggan seconded the motion.
Ayes: 5
Nays: 0
Page No. 21
July 1, 2003
Councilmember Schneeman stated that when the city does an
improvement project it becomes very difficult in the assessing
process if there are both public and private streets.
Councilmember Duggan moved to allow the waive the 180 day
requirement for reapplication and to waive the required application
fee.
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
CASE NO. 03 -31, BUROW Council acknowledged an application from Burow Pond LLP
POND LLP for a conditional use permit for planned unit development and a
wetlands permit to allow a 24 unit attached condominium building
and accessory structure at 1875 South Victoria. Council also
acknowledged associated staff reports, a neighborhood petition and
copies of numerous email messages. Mr. Dan Tilsen was present on
behalf of the applicants.
Assistant Hollister stated that the applicant has already applied for
and received approval of a preliminary plat for seven single family
lots on the property. Victoria Road is currently a county road and
there are discussions going on with Dakota County about seven
driveway accesses and about turn back of the road to the city. In
response to the interest expressed by some neighbors, Mr. Tilsen
agreed to apply for a conditional use permit for a 24 unit
condominium building on the north end of the property and leave the
southern part of the property open and green. Mr. Tilsen appeared
before the Planning Commission last month with the concept and the
commission recommended denial. The city planner had suggested
that perhaps if the city approved a CUP for a condominium building,
that it be limited to 16 units. Mr. Tilsen indicated that he needs 24
units to make the project feasible and if he was limited to 16 units he
would not pursue the condominium proposal. Mr. Tilsen also
indicated that if the CUP application is denied he will continue to
pursue the seven lot subdivision.
Mayor Huber asked if anyone on staff who would take exception to
the city planner's recommendation to limit the building to 16 units.
Assistant Hollister responded that the planner based his
recommendation on what he perceived as the buildable density of the
lot — he removed the pond from consideration. Mr. Hollister agreed
with that analysis because there is a clause in the PUD section of the
Page No. 22
July 1, 2003
zoning ordinance that says that for density purposes bodies of water
cannot be used.
Mayor Huber stated that some residents have asked about the
possibility of making Marie and Victoria a four -way stop. Dakota
County has indicated the road will be turned back and if that occurs
it will be under Council's control to determine whether to install a
stop sign or not. Installation of stop signs are directed to the police
department for analysis, and if the road is turned back, Council will
direct the Police Chief to do an analysis.
Mr. Tilsen stated that his feeling is that Council has the authority to
interpret a PUD and CUP density issues and give flexibility for a
project. At 16 or 24 or even 30 units, this project would be a very
low density project. He feels Council has the authority to decide
whether it is appropriate to have a 24 unit building on the site. He
stated the rule of a 10 acre minimum for a PUD is arbitrary and
seemed to be a good number to choose (he was on the planning
commission at that time) this parcel because it is close enough to ten
acres that the intent of the ten acre rule need not be applied. He did
not feel that the commission discussed the issue very thoroughly
with respect to his proposal. He stated that he feels his proposal is
about vision, good planning, best use open space, green space,
historical significance and the rural character of Mendota Heights.
He is proposing to keep and restore the existing barn. The barn and
the open land would be maintained by the home owners association.
He talked to people who build condominiums and others and was
told that two parking spaces would be needed underground for each
of the units. There are two levels of buried parking underground and
eight units on each of three floors above the parking. He tried to
minimize the size and height of the building. He realizes that
architecture is an issue that has taken on a life of its own for the
project, and if Council has the vision to approve the proposal he will
work with an architectural committee and work out the issues. He
proposes an all brick building with stone around the bottom to match
the barn. He would be willing to put a gable roof on it if desired, but
he is trying to keep the building as low profile as possible. The trees
on the north, on the hill and along the trail would remain with this
proposal. It preserves 55% to 60% of the view from Victoria. The
issue on the golf course development was open space and protecting
the character of the city. He believes what he is proposing is a good
plan. Although it does raise some emotions, he believes it is good
for neighbors to discuss it.
Page No. 23
July 1, 2003
Mayor Huber responded that what he has consistently heard from
residents has been very complimentary of Mr. Tilsen and how he has
approached developing the property, whether those people were pro
or con with respect to the condominium proposal.
Councilmember Krebsbach asked about the proposed architecture
and was concerned about reducing the mass. She noted that Mr.
Tilsen has stated that he is amenable to working with an architectural
review committee, which would include members of Council. She
asked to what extent Mr. Tilsen is willing to make indentations in
the building to make it look _much more like a residential structure.
Mr. Tilsen responded that he would be willing to work with the city.
His focus has been to create a building footprint that minimized the
size of the building and made the most efficient use of the land and
retained the maximum amount of trees and open space. When he
discussed the matter with staff, they felt it would be acceptable at
this point just to show pictures of what the building might look like.
He showed a photo of the Eagle Ridge condominium building, which
he feels is a handsome building that stands the test of time. That is
why he was proposing all brick construction.
Councilmember Krebsbach stated that would not be acceptable in
this neighborhood and would not be appropriate with the historic
barn. The building should more closely reflect the character of the
neighborhood.
Mr. Tilsen responded that he has not designed the building and is
very open. He stated that under the PUD, Council has the authority
to approve everything in the design and he is very willing to work
with an architectural review committee.
Councilmember Krebsbach stated that the architecture is one of the
very strong conditions of her supporting the application and also that
the footprint not increase. She asked what guarantee there would be
that the open space would exist in perpetuity.
Mr. Tilsen stated that part of the PUD approval would be that the
property not be further subdivided. He also stated that nearly all of
the land south of the barn and west of the barn is in a drainage utility
easement. It would be part of the proposal that there could not be
further development.
Councilmember Krebsbach asked what can be done to guarantee the
preservation of the barn for twenty or thirty years.
Page No. 24
July 1, 2003
Mr. Tilsen responded that he is committed to restore the barn and
will pay for that restoration but is not committed to bring it into a
use. He would like the flexibility for the association to be able to use
the barn for a party room or storage, but they would have to comply
with all of the building code requirements if they wanted to use it for
any use other than no use. He stated that the barn is better than it
looks. It needs shoring up and needs a lot of money put into it to
make it look like. It would be set up so that the association would
maintain it.
Councilmember Krebsbach asked about maintaining the grassland
that gives the view to the pond.
Mr. Tilsen stated that if it is left alone, the maples would take it over.
The association would be committed to maintain the area as it is,
even more prairie like.
Councilmember Krebsbach stated that she walked around to the
other side of the pond and she is more committed than ever to a
condominium use. The reflection of the barn in the pond is a
phenomenal site and if the condominiums can be scaled to appear to
be more residential and she has the other assurances, she is prepared
to support it — at 24 units.
Responding to a question from Councilmember Krebsbach, Mr.
Tilsen stated that if he went to 16 units it would increase the
footprint of the building by 30% and greatly increase the market
range. He would market 24 units in the range of $300,000. With 16
units he would have to increase that range to well over $550,000.
That is not the price range he wants to be in and he does not think it
would work and they would take a long time to sell. It would also
not serve the community well. The calls he has been receiving are
from residents in the neighborhood who are looking to downsize and
have money in their pockets after they sell their homes. He stated
that he has done a layout for a sixteen unit building with 32
underground parking spaces, but it does not work well and would
cause the removal of more trees and less of a setback from the lot to
the north.
There was discussion over the planner's comments on density. Mr.
Tilsen felt that there are many examples in the community of where
water has been included in land area for density purposes. This is a
unique property and it will take unique thinking to accept that the
PUD is a good use.
Page No. 25
July 1, 2003
Councilmember Schneeman asked Mr. Tilsen whether he really cares
l whether the development is single family or condominium. When
Mr. Tilsen appeared before the Council with the single family
proposal he said that it made no difference to him one way or the
other.
Mr. Tilsen responded that he feels that the PUD is a better use and
better for the citizens of the community. When he made the other
proposal, he wanted to come to the city with a project that would
meet all city requirements and needed a project to move the county
forward and needed a project so that he could tell the bank he had a
project. He also needed a project so that he could feel good about
spending more money and take it to the next step.
Councilmember Duggan stated that Council heard many community
comments when the seniors assisted living proposal was made for
the property. That would have been 60 units and would have
blocked and destroyed everything. Mr. Tilsen is proposing a 24 unit
condominium tucked on a corner of the property. He stated that like
Councilmember Krebsbach he is surprised that he favors the
condominium versus single family. His concern over the single
family proposal is that people want open space in Mendota Heights.
The condominium is the only way to save 50% of the open space on
the site. He stated that he has had four or five calls in favor of the
condominium. He commended Mickey Kieffer and Kevin Milbery
for the work they have done with regard to the development. If there
are seven homes on the property, no one walking by on Victoria will
be able to see the pond. He did not care for the building drawing
showed by Mr. Tilsen but would support something similar to the
Eagle Ridge development and similar to Town Center The
condominium proposal would keep the area open, which is what
most people want.
Mr. Mickey Kieffer, 1830 Rolling Green Curve, stated that there
were surveys sent out to everyone within one and one half to two
blocks of the perimeter of the site. The survey results were that 174
respondents wanted seven single family homes and 18 people who
wanted condominiums. The planning commission declined the
request for the condominium, which apparently has not met two of
the five requirements. He is present to represent his neighbors who
would like to see single family homes, which has been approved by
the city, and to reject the conditional use permit for planned unit
development and the wetlands permit. Traffic from seven homes
would be 28 trips per day versus 96 trips per day from the
condominiums.
Page No. 26
July 1, 2003
Mr. Kevin Milbery stated that he likes to think outside the residential
versus condominium argument and look back at the history of the
property and what Mr. Burows brought to the city. What has
happened is development allows seven single family homes but it
would be very invasive to the city as the way it is positioned. Some
of the developments that have taken place in the city, such as
Knollwood, have really changed the look of the area. What would
be accomplished with a 100 foot lot and a home that could be as
wide as 80 feet with a 2.5 story front and a base of three stories on
the back side, the wall that would be created would take away
everything the property has allowed the city to have. The open space
that has been created in the condominium proposal is a gift that
everyone will benefit from. He knows that change is inevitable, but
he feels it would be in the best interest of the community to approve
the condominium versus seven large homes on 100 foot lots. In his
survey, he surveyed 49 properties surrounding the pond and 18
owners responded positively to the condominium and 9 responded
negatively. The Kieffer survey was more comprehensive and
included a much larger area, including Eagle Ridge. He was
surprised that the people who live in those townhouses and
condominiums oppose the condominium. He felt that the space
generated by the condominium proposal and the beauty of the
property will make the city a more valuable place. Responding to a
question from Councilmember Krebsbach, he stated that he had 7 `
people who live on the pond favor the condominium and five turn it
down. In the second survey, there were more people on the pond
who said no to the condominium.
Councilmember Krebsbach noted that the vast majority of the people
who responded to the Kieffer survey live in Eagle Ridge.
Councilmember Schneeman stated that she knows people who
boarded their horses on the Burow farm and they oppose the
condominium.
Councilmember Krebsbach moved to approve the application before
Council with the condition that the barn be preserved, that there be
an architectural review committee comprised of neighbors and
Council members, that the open space be guaranteed in perpetuity,
that planting of the green space be managed so that brush does not
overtake the view, and that the barn be strengthened so that it can
withstand normal wear.
Councilmember Duggan seconded the motion.
Page No. 27
July 1, 2003
Mayor Huber pointed out that if Council approves the motion, Mr.
1 Tilsen has the conditional use permit. There is a departure from
density, and Council would be giving the applicant a lot without
seeing anything. He did not think Council would give anyone else
that much latitude given the concerns that have been expressed about
the structure.
Council-member Krebsbach stated that she would want the ability
that the architectural review committee can determine a standard.
Councilmember Duggan stated that this is under a PUD and Council
has all kind of latitude in reviewing and approving the final design
and tell Mr. Tilsen what Council wants.
Administrator Lindberg stated that Council could require Mr. Tilsen
to come back for final approval and Council has the opportunity to
set conditions, but granting this tonight would be granting a lot
without seeing many concrete details. Council would have the
opportunity for review in the future, but Council would be giving an
approval tonight.
Councihmember Schneeman stated that she is not going to support
the motion because she has been contacted by too many people who
were happy there were going to be houses there. She stated she
thinks Council has a better feel for what will go there for sure. The
survey really didn't make a lot of difference to her, but the people
who boarded horses there want houses there. They have been on the
property and kind of lived on it.
Councihnember Vitelli stated that he will not support the motion
either. There is too much of a risk in the maintenance of the barn
because it has to be paid for by the association and those prospective
buyers are not here. It is too much of a risk If they don't come
forward with money, the maintenance won't happen. Secondly,
approving this and then working architectural details is too much of
a risk also. He felt there will be a big gap between what Mr. Tilsen
can afford and agrees with an what the residents agree with. The
third item is the density, 24 families versus seven is a big difference
—and it bothers him planting that in the middle of what would be
expected to be a single family residential area. His fourth concern,
also a risk item, is trying to guarantee that the rest of the space will
remain open in perpetuity. What he has learned during his time on
Council is that there are all kinds of covenants and rules and ten
years later there are reasons to change them. He does not know that
legally one can guarantee there will always be green space and there
Page No. 28
July 1, 2003
will always be a barn. There is too much risk in that. Finally, to him
it is just too undefined to be granting approval to the proposal.
Councilmember Krebsbach stated that if there is if there is some
other way more information can come forward she would be fine
with that but does not know what that information would be in terms
of what kind of conditions to set. Mr. Tilsen has approval for seven
lots but doesn't have driveway approvals. If Council is moving in a
different direction, she would think Council would have to take some
kind action or get some kind of assurance that he will do more in
terms of developing what the architectural design would look like.
She agreed with Councilmember Vitelli that there is a risk in
approving the conditional use permit and that is why she wants it
some way defined that there would be a committee to review the
architecture. With respect to the risk over guaranteeing that the open
space will remain, her point is that by denying this for the single
family plan, the open space is gone and the barn is gone without
making an effort to preserve it and retain it.
Mr. Tilsen stated that there are many PUDs that have guaranteed
open spaces. The Ivy Hills townhouses have huge open space and
they tried to add on but the city turned them down. The density was
tied to the PUD, and to put a deed restriction on a parcel that will be
one parcel is commonly done in cities. The deed restriction says that `
it cannot be further subdivided and that is filed with the county.
With respect to the barn, he would want to have an attractive product
so that people would want to buy a condominium there. He would
fix the barn up and the long term maintenance, with a maintenance
schedule, by the association is a slight risk in his opinion. As far as
the issue of 24 units and architecture, this has been a healthy
discussion. He wondered if there is a way to fashion approval
contingent on the architectural or with the table it with the
architectural coming back to Council. The problem is if Council is
still against it on the basis of 24 versus 16 units, there is no reason
for him spending the money on architectural detail. The question is
whether or not he has a project that Mendota Heights wants. He
asked Council to come to a direction that would allow him to either
stop or move forward.
Mayor Huber stated that there should be action on the motion.
Councilmember Krebsbach stated that she would be willing to
withdraw the motion if Council wants a motion to table.
Page No. 29
July 1, 2003
Councilmember Duggan agreed, stating that the matter can either be
tabled or held over until Mr. Tilsen has time to come back on his
initiative with more acceptable and more detailed architectural
designs. There will be another 30 to 45 days before anything can
happen about the driveways. That would give the neighbors more
time to think about open space versus the single family.
Mayor Huber stated that his hang up is the 50% departure from the
density and he was concerned about Mr. Tilsen spending more
money when he is probably not going to support the conditional use
permit.
Councilmember Duggan withdrew his second to the motion.
Councilmember Krebsbach withdrew the motion.
Councilmember Krebsbach moved to table.
Councilmember Duggan seconded the motion.
Councilmember Krebsbach stated that reason she moved to table is
to allow Mr. Tilsen time to come back with architectural drawings.
Mayor Huber responded that Mr. Tilsen is asking for an indication of
whether Council is willing to accept 24 units. Tabling the issue
without giving him an answer would not help him.
Councilmember Schneeman agreed, stating that what Mr. Tilsen
needs to know is whether Council is willing to look at
condominiums.
Mr. Tilsen stated that if he looked for a similar piece of property,
with a lake on it, there would be instances where the water area was
not excluded from the density calculation. He felt his proposal fits
within the density issue and the issue of waiving the exact
determination on the ten acre rule is more key to the ordinances than
the density issue. In his mind, if Council wants to discuss it further,
he is not under a strict time table. He can look at the issues and see
if there is a resolution or not and Council can pass or deny it at the
next meeting.
Mayor Huber stated that he has a sense that the majority of Council
is going to support the Planning Commission recommendation.
Councilmember Schneeman stated that she is going to support the
recommendation.
VOTE ON MOTION:
Ayes: 2
Nays: 3 Huber, Schneeman, Vitelli
Page No. 30
July 1, 2003
Councilmember Vitelli stated that he is also leaning against the plan.
Councilmember Duggan stated that Council does not have a design
plan or architecture that Council can either latch onto or say no to.
Councilmember Vitelli asked if there are other examples of
associations that are maintaining a historical facility like this.
Councilmember Krebsbach stated that this is a big decision and if
Mr. Tilsen is willing to work on this more it should be tabled. She
asked Mr. Tilsen if he is willing to look at a lower density.
Mr. Tilsen stated that he doesn't think a lower density will work. He
has looked at a different footprint and the market and the physical
constraints and does not think the lower density will work. He stated
that his issue is that he does not agree with the planner's report,
which says in the beginning that he is allowed up to 28 units and in
the end only 16. He agreed with the beginning of the report.
Councilmember Schneeman stated that she would prefer to see
houses on the site.
Councilmember Duggan asked Mr. Tilsen if he is comfortable with
tabling the matter until he can come up with a design.
Mr. Tilsen stated that he is comfortable with tabling it on the
architectural detail issue but there are other issues. The ten acre rule
and net density are issues. Is Council willing to waive the ten acre
rule on the basis that the site is close enough to ten acres so that he
does not have to comply with all five conditions that apply if a site is
under the ten acres. Secondly, is Council willing take a look at
existing PUD's in Mendota Heights to see if there is a comparable
density issue and resolve the issue, perhaps directing to staff to look
at comparables to see if it has truly been determined in the past that
the density should be 16 or 24. The third issue is architecture.
Councilmember Vitelli stated that he does not think he can see
himself approving 24 units and it is not financially viable at 16.
Councilmember Schneeman moved adoption of Resolution No. 03-
47, "A RESOLUTION DENYING A CONDITIONAL USE
Page No. 31
July 1, 2003
PERMIT FOR A PLANNED UNIT DEVELOPMENT AND
WETLANDS PERMIT AT 1875 VICTORIA ROAD SOUTH."
Councilmember Vitelli seconded the motion.
Ayes: 4
Nays: 1 Krebsbach
CASE NO. 03 -32, BADER Council acknowledged an application from Mr. Michael Bader for
preliminary plat and variance to allow the subdivision of 1673
Delaware Avenue. Council also acknowledged associated staff
reports. Mr. Bader was present for the discussion.
Assistant Hollister stated that Mr. Bader had a previous application
denied by Council. Council determined that the alternate plan he
presented at that time constituted a new application and referred Mr.
Bader back to the Planning Commission. The commission reviewed
that proposal at their June meeting and recommended approval with
six conditions, which he reviewed for Council. There was
considerable discussion about whether the county had actually
denied access to Delaware Avenue.
Mayor Huber asked Public Works Director Danielson for his
representation on his conversation with Dakota County about access
to Delaware.
Public Works Director Danielson responded that after the
commission meeting, he held a conference call with the county
traffic engineer, Pete Sorensen and the county surveyor, Fred
Johnson. They are two of the five members of the Dakota County
Plat Commission Review Board, so they said that what they say
could not be a representation of what the full board would officially
say when a plat is put before them, but they are the two technical
members of the board. They said they would consider an access onto
Delaware but the obstacles to approval were great. They had a plan
of the area in front of them and looking at the plan They said that in
order to grant the access it would have to improve the safety of
Delaware Avenue. One of first things they saw that they would
require was to have the Bader driveway, the Drake driveway and the
Chadima driveway all be combined into the new access point, and
the access point would have to be directly across from an access east
of Delaware in West St. Paul. Because they are only two of five,
they said that to get a formal response the city must submit a formal
request for review.
Mr. Bader stated that he is asking for approval of the subdivision of
his original ten acre parcel into to additional lots to the west. Prior to
Page No. 32
July 1, 2003
purchasing the land, he hired a land use planner who developed some
different plans, including raising the house, which would have been
much less costly than doing the renovation they did. He also
developed plans for subdividing, including coming off Delaware or
Foxwood. They were discouraged from coming off Delaware and
were encouraged to come off Foxwood for topographic reasons and
because it was consistent with the city's overall plan for the Super
Block. There is a plan somewhere that loops the water from
Wentworth to Marie and there is an easement from Foxwood that
abuts his property. The plans for the city utilities would continue
that loop and would assist in the elimination of septic systems all
along Delaware and use that utility easement over 1673 Delaware for
eventual city sewer. He stated that he too has investment backed
expectations. He had to purchase the property at lot 3, Foxwood in
order to gain access and to fulfill his expectations to develop the
western portion of the land, which was consistent with the city's
overall plan. Now he finds out that he is landlocked from Delaware.
The county plat will not grant access. The only reasonable access is
from Wentworth, which is consistent with the county's April letter
after Mr. Danielson sent them his plans A and B. Plan B did call for
the vacation of his driveway. There may have been some
misunderstanding by the neighbors who thought he was going to
retain his driveway and keep access to Delaware. The county has
asked for twenty feet of right -of -way on Delaware, which he will
grant, but they have denied by letter and in the conversation with Mr.
Danielson, granting him access to develop from Delaware. He stated
that he talked with Mr. Menkens and he finds it upsetting to be the
poster child for some issues. He was told by Mr. Danielson and did
research himself, that his is the first variance that has been requested
for a cul -de -sac greater than 500 feet. As his attorney explained at
the planning meeting is that the city has not historically applied it in
situations like this where the property is landlocked. The clear terms
of the subdivision ordinance actually exclude by definition situations
like his where there is no other reasonable access. He feels it is
arbitrary to require a variance. The planners report indicates that
historically no variance has been required. Assuming he could get
access from Delaware, it is very steep and more trees would need to
be taken out. His property is landlocked and he has a right to
develop his property consistent with the subdivision ordinance. He
needs direction from Council, something he can discuss. One of his
neighbors is threatening a law suit. Mr. Bader stated that he is not
threatening anything. He has owned the land since 1998. Mr. Oney
has built a home since then and Dr. Lutz has cleared much of the
land and there has been no request to the homeowners committee,
and there really is no committee. He thanked city staff for being
Page No. 33
July 1, 2003
very helpful. He stated that Dr. Lutz' representative, Mr. Berg, was
critical of staff record keeping in file to support his contention that
the city was involved in drafting the restrictive covenants. Mr. Berg
was the attorney that actually drafted the covenants.
Councilmember Krebsbach stated that she has been on Council for a
long time, and the city has never gotten involved in covenants.
Mr. Bader stated that at the commission meeting, Mr. Berg indicated
that because the covenants were filed prior to the plat, the covenants
prevent the city's ability to utilize its utility easement. He stated that
covenants are private matters. Council's job is to apply the
ordinances. He does not feel he needs a variance but if Council feels
he needs a variance, he has met the criteria. He stated that he has
shown a photo of a cul -de -sac on Abbey Way which has
development much more dense than he is proposing and at the end of
the cul -de -sac there is a 12 foot private drive that serves two homes
and there is no turn around. He stated that he has put maps together
that proves this Council has approved private drives in the Super
Block. He stated that he is okay with a private drive if the city wants
to take the neighbors' concerns into consideration and not extend the
right -of -way to the Drake property. A private drive would eliminate
the neighbors concerns but it does not give the city an overall plan
for the super block, but neither did Mr. Menkens. He stated that he
is talking about two lots that are consistent with the city's overall
plan. He stated that his strong impression is that a private drive
would appease the neighbors. He feels their thoughts on
development are different from his.
Councilmember Schneeman asked Mr. Bader if he would ever look
forward to buying and developing the Drake property.
Mr. Bader responded that he is not a developer and only wants to
develop his own property. He is not interested in the Drake property.
Mr. John Uban, consultant planner for Mr. Bader, stated that when
he was the city's planner about ten years ago, the super block and
specifically Foxwood was before the city. This is only one of three
times the super block had been looked at. The city had many ideas
and plans but resolution could not come about because specific
interests did not want to contemplate any future subdivision of any
parcel. One of those was the Ridder piece, and that has developed.
He showed a graphic of lots in the area that had been subdivided by
virtue of flag lots and private driveways. That was the most
expeditious way of doing it without a public road system. When
Page No. 34
July 1, 2003
Foxwood came about, the owners to the south did not want to deal
with a road system, but a public easement for utilities was put in
place. He stated that he looked at access off of Delaware for the
Baders and it doesn't make a great deal of sense coming that way
because of the steep slopes and trees. There are concerns about
coming off Foxwood because of adjacent land owners concerns. The
Bader property is heavily wooded but there is a large meadow on Lot
3 (lot adjacent to Foxwood) where a road, private drive, flag lot,
public right -of -way or any of those solutions could take place and
not disturb a significant number of trees, so much of the screening
that is available to the neighbors can remain. The proposal before
Council is one in which the extension of the public right -of -way has
been moved over so that the whole 30 feet easement for the benefit
of the adjacent property is undisturbed. An oversized cul -de -sac
with a hydrant will provide better fire protection than any other lot in
the super block. The solution minimizes tree removal and provides
fire protection. It can also be done as a flag lot with a private road
without doing public right -of -way.
Councilmember Krebsbach asked where the utilities will come from.
Mr. Uban stated that in the future a connection could be made to
Ridgewood.
Public Works Director Danielson stated that at this point staff are
proposing that any new houses in this area be served by on -site septic
systems.
Mr. Uban stated that there are choices to do this differently, with
public right -of -way, flag lot, cul -de -sac or private driveway. All of
those options are available and all can be done with great sensitive to
existing screening, woods and topography. He stated that past
history shows him that this is the process the city has chosen to
subdivide this area, piece by piece painfully looking at every detail
concerning adjacent neighbors.
Mayor Huber stated that Mr. Uban has categorized this as a political
solution. He asked what Mr. Uban's thoughts are on what some
might view as an extension of the political solution and if that avails
the city of less options short of the property owners to dedicate their
land to the Dodge Nature Center. Most of the lots have developed
and whether or not the current owners want to develop or not, it is
likely that some day it will happen.
Page No. 35
July 1, 2003
Mr. Uban responded that if the city says at this point that it does not
want to make the political decisions blind to the rest of the area, it
must choose a solution that protects future opportunities. That is
were continuing an easement to continue the pattern to the south
would be a prudent decision. That would at least give the
opportunity for a future road. Access could happen in different
ways. Council has two choices, to continue public right -of -way to
the south with the private drive or just a private neck lot with an
easement over it that would include utilities and some future exercise
of the right to put a road on it if an adjacent land owner requested
access.
Mr. Gary Fuchs, representing Tom and Linda Garrett, stated that the
Garretts are opposed to the proposal for several reasons. They live
on the parcel of property along side of Foxwood. When Foxwood
was developed in 1993 it was a political solution to a host of
neighborhood concerns from what he has been told. It ultimately
lead to the development of Foxwood. At that time, very specific
restrictive covenants were imposed on Foxwood. It also specified
two groups of people who could enforce those covenants — one
group are those who live within the Foxwood development. They
are treated differently in the covenants from the owners of the lots
that surround Foxwood. He stated that he is pointing this out
because Council and the Planning Commission have heard from Mr.
Bader and others that there is supposed to be an architectural review
committee. That may or not be true, but Mr. Garrett would not be
part of that because he is a neighboring property owner. The
declaration that was recorded in 1993 says that in order to provide
for the necessary administration, preservation and enhancement of
the property and certain neighboring properties, the declarant
declared that the property shall be transferred, held, sold, conveyed,
occupied and developed only subject to the covenants, conditions
and restrictions. When the property in Foxwood was platted, those
were the terms that went with the properties. It applies to the
neighboring properties too. The declaration identifies a no cut zone
within Foxwood. He showed a drawing identifying the no cut zone.
That zone must be maintained in its existing landscaped conditions.
Managed pruning and additional planting and replacement is
permitted, but no earth, gravel, soil or any other natural substance
shall be removed and there shall be no excavation other than in
relation to new plantings and no fill shall be brought in as landfill.
Dr. Lutz, Mr. Oney bought their properties knowing those were the
conditions, and so did Mr. Bader. Those are the terms that go with
Lot 3. There are areas identified within the zone for homes. In order
for Mr. Bader to build a street or driveway he would have to violate
Page No. 36
July 1, 2003
the covenants of the no cut zone which the neighbors have the right
to enforce. He referred to a letter from 1992 in which Gerald
Mazarra wrote to Kevin Batchelder in response to the Foxwood
PUD. The letter discusses the entire declaration and about how it
would protect the neighboring properties. It is true that people make
assumptions and promises that may not make sense several years
later, but in this case there was a compromise made in 1993 under a
PUD, which required city participation and a contract of sorts
between the developer and the city. In addressing that issue, one of
the planning commission members said he wasn't here in 1993. The
citizens should have a right to rely on an institutional memory. That
doesn't change anything and is not a relevant position to take in
making a decision.
Councilmember Krebsbach stated that she has been on Council since
1992 and can recall at every discussion when Foxwood was
discussed was that Mayor Mertensotto always pointed out that the
city does not get involved in covenants — they are a private matter.
Mr. Fuchs agreed that the city does not enforce covenants but the
point he is making is that if the city approves a plat of a public street
it will never be built because of the covenants.
Councilmember Krebsbach asked whether the law enforces
superceding the city's right to build a public street.
Mr. Fuchs responded that the city has condemnation authority and
can take property for public purposes whenever it wants to. If the
city grants this request, all it is granting is Mr. Bader's right to plat,
but not the right to build because the restrictive covenants prohibit it.
Councilmember Krebsbach stated that what she remembers distinctly
is that it did not have sanitary sewer, and the access was kept looking
like a private road on public right -of -way. That was the solution.
Nothing in the motion said anything about the covenants.
Mr. Fuchs stated that the Planning Commission has had this matter
twice. The first time, the proposal for the cul -de -sac was to come off
Wentworth and make a slight curve. The bulb portion of the existing
cul -de -sac was to have been vacated. The commission
recommended denial of that proposal. One reason was that there was
no hardship with respect to the cul -de -sac. When the Council
reviewed it, they voted to deny based on the recommendation of the
planning commission. The current proposal shows the cul -de -sac
coming off Wentworth and goes straight down and ends in a cul -de-
Page No. 37
July 1, 2003
sac. It is about the same distance as the first proposal. His client's
position is that if there was no hardship to support the first cul -de -sac
variance, there is none to support this one. Also, in order to support
a variance, the city ordinance requires the commission to make
certain findings. There were no findings made by the planning
commission at its last meeting. There was no finding there are
special circumstances or conditions affecting the property, no finding
that the granting of the variance will not be detrimental to the public
welfare or injurious to the property in the area, nor was there a
finding of an extreme physical hardship due to topography. He
stated that when the same proposal except for the vacation of the
bulb in the cul -de -sac is submitted and one time there is of no
hardship, therefore denial and the next is approval with no finding of
hardship. One of those has to be an arbitrary decision. He stated
that with respect to the county plat commission, he has spoken to
Fred Johnson several times, the applicant has spoken with Mr.
Sorenson, and he got a memo from Public Works Director Danielson
who spoke to both Mr. Johnson and Mr. Sorenson. There are now
three different versions of what the plat commission may do. Even
Mr. Danielson did not say the county would not grant access. They
will grant access under certain conditions, but that is only two of the
members. It is entirely possible he could have access under
conditions that are acceptable to him. The Planning Commission
condition was that the applicant submit information on what the plat
commission would do, and he has not seen anything. To find out
what the plat commission will do, the city has to go down and ask
him. They respond to requests from the cities. He stated that
without that definitive answer, the Planning Commission conditions
have not been fulfilled. If the city approves the application and the
right -of -way is platted through Lot 3 and the restrictive covenants are
enforced, why would the city want a right -of -way that it cannot build
on without condemning the neighbors and why would Mr. Bader
want a piece of property (Lot 3) with a right -of -way through it that
he can't build. If the covenants can be enforced the road cannot be
built unless the city condemns all the owners out of a deal they
thought they had in 1993. Also only one perc test has been done on
Lot 3 to determine where the drainfield can go, and the only good
spot is in the middle of the right -of -way. What will be done with the
new owner when he shows up for a building permit. He felt that the
decision made on the first proposal was the correct one — that it
should be denied. There is no hardship shown to justify the variance
on the cul -de -sac, no finding to support a hardship or a variance by
the Planning Commission.
Page No. 38
July 1, 2003
Mr. Tim Oney stated that he has tried to embrace a reasonable
person's standard. He looked at MS 394 and 492 today, which stated
that hardship does not include hardship caused by the owners action
or inaction if the hardship was reasonably foreseeable. If the Baders
purchased the property in 1998 and did a net present value, there
may be a case, but they should have foreseen that. The hardship
exists off of Foxwood and off of Delaware and somebody has to be
first. The hardship cannot be caused by undue economic hardship, -
a road could come down from Delaware if it minimizes the net profit
of the project, that is fundamentally not the city's concern. He stated
that there is nothing in the covenants that says the city has to enforce
them. He bought his property in 2000, and in the closing his attorney
asked him if he was sure he knew what he was getting into. He has
two documents with a quorum of the architect committee, where
they signed his house plans. The covenants say that even if the
committee fails to enforce something, that does not waive the
effectiveness of the covenants. If this is tenuous at best, he would
not like to be pushed into litigation. He built his home in a
reasonable manner. If the city wants to bring sewer and water all the
way through, that would be great. He is the first property owner
hooking up.
Mr. Bader stated that the Drakes and Obers own a parcel at
Ridgewood, and that is the reason Mr. Drake does not want the
extension of the right -of -way for the cul -de -sac to run to his
property, because he would want to develop from Ridgewood.
Foxwood was not a PUD (referring to the comment from Mr. Fuchs
about the letter from Mr. Mazarra to Kevin Batchelder). He stated
that he has reviewed the history and detail. It started out as a PUD
and the developer was directed by Council to develop it not as a
PUD. The letter from his planner, Mr. Kretman, addresses the
reasons he feels a variance is required. He did not put forth any
justification for a variance in reliance on the supplemental report
from the city planner saying a variance is not required. Also, he was
shocked to hear it said that a variance was required. He stated he
was advised on the Friday before the Council meeting that he was
not allowed access from Delaware (which would not have required a
variance). There has been a perc test on Lot 3 and it is a mound
system for Lot 3 with gravity drain, and the city has an opinion letter
on that. That information has been submitted to Dakota County.
With respect to the no cut zone, he showed photos as examples of
how one of the property owners has violated that zone by piling cut
wood on it. He stated that he has given Mr. Garrett more than a 30
foot buffer when Foxwood was approved — the buffer is now in
excess of 66.
Page No. 39
July 1, 2003
Councilmember Duggan stated that Council must wait for resolution
about access to Delaware and must wait for resolution of the
question of who is right with respect to the covenants. He asked
whether there is any plat benefit -is it first come first served, existing
property owner such as Mr. Oney, a property owner who does not yet
have a plat.
City Attorney Schleck responded that there are a myriad of issues
related to that question. There are the rights of land owners, one
versus another. Secondly, is the issue of the deprivation of property
rights based on governmental decisions. With respect to the priority
issue, someone who owns the land has certain rights with respect to
that land. If they have governmental approvals, they have the rights
that are given to them by those approvals and it is up to the
governmental body to decide if approvals for other land owners
somehow impact that.
Councilmember Duggan stated that he knows that a subdivision is
voluntary but does believe that a variance as part of this
consideration is n of acceptable. All the lots are larger than required.
The variance is being able to get past the existing platted cul -de -sac
and get to the new area.
Attorney Schleck responded that they are two different issues,
subdividing the land versus approving a non - standard cul -de -sac and
the two are not necessarily combined.
Councilmember Vitelli asked Attorney Schleck the following. If
Council approved the plat and there was a dispute on the covenants
and Mr. Bader lost, what is the result. If Council disapproves it, Mr.
Bader goes to resolve covenants and wins, what can Council do.
Can he come back with a proposal or does Council's denial forever
prohibit it. If Council approves it and there is a dispute on the
covenants, Council would have approved a plat and the plan could
not be executed because of the covenants.
Attorney Schleck responded that the issue is the street. It is not an
impossibility. He tends to agree with Mr. Fuchs with respect to if a
city requires a public street to be put in, the city would have to
compensate the property owners for the destruction of their property
rights with respect to the covenants. In other situations where this
has come up, there has been a developers agreement whereby the
developer agrees to pay all the costs. That is an option. He did not
think it is good public policy or in the best interest of the city to
approve a land owner dispute, which is essentially what would
Page No. 40
July 1, 2003
happen if the streets were approved. As Mr. Fuchs discussed, these
are private covenants enforceable between the land owners but there
is a dispute. In other situations where this has come up, the city has
asked the parties to resolve the dispute prior to taking action as a
Council. A similar situation was Hidden Creek, where there were
similar issues between some of the land owners and some issues
related to driveway access easements that the city required the
developer to resolve with the adjoining land owners before Council
would take any action. With respect to the question if Council
disapproves and Mr. Bader won on the covenants, Mr. Bader could
come back with the proposal.
Councilmember Vitelli asked if the city is required to allow property
to be subdivided as long as it meets zoning requirements.
Attorney Schleck responded that case law says that if a party meets
all of the requirements of the subdivision ordinance, the city should
approve the subdivision with no variances or changes.
Councilmember Vitelli stated that his last question has to do with
providing Mr. Bader with access to his land. The city doesn't have a
problem because he has access to Lot 3 from the cul -de -sac and to
his other land from Delaware. He asked if the city has a problem
with Mr. Bader arguing that the city is denying access.
Attorney Schleck responded that he would argue that the city does
not have a problem. With respect to what a city must do and must
not do, the city must not restrict a property owner from all
economical use of their property. Simply because someone has an
idea of how they can make better or more valuable use of their land
does not give them the right to do that if it conflicts with the police
powers of a municipal body. The municipal body has the right to
protect the health, safety and welfare of the community. The
property owner does not have an entitlement to develop the property.
Councilmember Schneeman stated that this discussion has been
disturbing because there have been many things said. First, did the
Baders really know about the restrictive covenants when they bought
their property. Some people say they did. She feels the city will lose
something in this as far as integrity. At the time Foxwood was
develop made good effort to let people build in Foxwood. If there
are covenants, why does Council not pay attention to them. She felt
many promises were made and the city made some of those
promises. She would like to get a real reading on the curb cuts on
Delaware — the full committee's input.
Page No. 41
July 1, 2003
Councilmember Krebsbach stated that what the city would have said
in 1992 was that the covenants are a private matter.
Councilmember Krebsbach moved to deny the application for
preliminary plat and variance at 1673 Delaware Avenue because the
issue of covenants must be resolved, and to direct the City Attorney
to prepare a formal resolution and findings for adoption at the July
15 meeting.
Councilmember Duggan seconded the motion.
Councilmember Vitelli commented to Mr. Bader that he will support
the motion simply because he feels the covenant issue should be
resolved. It is simple for Mr. Bader then and simple for the Council
because the city would then not be getting in the middle of the
private issue of the covenants. He will vote for denial because he
thinks the covenant issue should be resolved and then the city can get
involved.
Mayor Huber stated that he will also support the motion for the same
reasons and because he is thinking about the long term of the area.
Ayes: 5
Nays:0
VICTORIA ROAD Council acknowledged and briefly discussed a memo from Public
Works Director Danielson regarding county turnback of Victoria
Road to the city. It was noted that Mendota Heights would maintain
the Lilydale portion of the road and bill them for the costs.
Councilmember Krebsbach asked if the city has been plowing the
intersection with T.H. 13.
Public Works Director Danielson responded that it has been
maintained by the state, the county and the city. Lilydale has agreed
to pay Mendota Heights for its share of the cost of maintenance of its
portion of the road.
Council directed the Public Works Director to draft a joint powers
agreement with Lilydale.
REFUNDING BONDS Council acknowledged memos from Finance Director Schabacker
regarding refunding of the 1994 General Obligation Bonds and
refunding of the 1995 improvement bonds. Mr. Monte Eastvold,
from Northland Securities, was present for the discussion.
Page No. 42
July 1, 2003
Mr. Eastvold reviewed information on savings to the city if the
refunding is authorized. He compared interest rates on the existing ~
issues versus anticipated rates if the refunding is approved.
Councilmember Duggan moved to approve a contract with Mericor
Financial Services, Inc. to review and render an opinion with respect
to the fairness associated with the pricing of the bond offerings.
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
Councilmember Vitelli moved adoption of Resolution No. 03 -48,
"RESOLUTION PROVIDING FOR THE ISSUANCE AND SALE
OF $730,000 GENERAL OBLIGATION WATER REVENUE
REFUNDING BONDS OF 2003."
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
Councilmember Schneeman moved to approve the contract with
Northland Securities at the stated interest rates.
Councilmember Duggan seconded the motion.
Ayes: 5
Nays: 0
Mr. Eastvold stated that the 1995 bond refunding issue is a cross
over and in a cross over refunding, the hiring of Mericor is not
required.
Councilmember Duggan moved adoption of Resolution No. 03 -49,
"RESOLUTION PROVIDING FOR THE ISSUANCE AND SALE
OF $690,000 GENERAL OBLIGATION CROSSOVER
REFUNDING BONDS OF 2003, PLEDGING FOR THE
SECURITY THEREOF SPECIAL ASSESSMENTS, AND
LEVYING A TAX FOR THE PAYMENT THEREOF."
Councilmember Schneeman seconded the motion.
Ayes: 5
Nays: 0
Councilmember Duggan moved approval of a contract with
Northland Securities at the stated interest rates
Councilmember Vitelli seconded the motion.
Ayes: 5
Nays: 0
COUNCIL COMMENTS Councilmember Krebsbach stated that she would like the Parks and
Recreation Commission to look at increasing the park contribution
Page No. 43
July 1, 2003
requirement. She stated that the fee is currently $1,700 per lot and
she felt that $5,000 would be more appropriate given the value of
property in the city.
Administrator Lindberg responded that the commission meeting for
July has been cancelled but that staff would bring the matter to the
commission at its next meeting.
Councilmember Vitelli informed Council that he attended the first
meeting of the Noise Oversight Committee at the airport last week.
The key event was designating two co- chairmen. There are
representatives from the surrounding cities on the committee. He
represents Mendota Heights and there are elected officials from
Eagan, Bloomington and Minneapolis and there are representatives
from the charter airlines and commercial airlines. His impression is
that it is a very professional group of people that are open minded
and do not seem to have axes to grind. The next meeting is
scheduled for July 17.
Mayor Huber announced that he will most likely not be at the July 15
meeting.
ADJOURN There being no further business to come before Council,
Councilmember Schneeman moved that the meeting be adjourned.
Councilmember Duggan seconded the motion.
Ayes: 5
Nays: 0
TIME OF ADJOURNMENT: 1:15 a.m.
K thleen M. Swanson
City Clerk
ATTEST
John J be
Maybr-