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2002-12-03 City Council minutesPage No. 1 December 3, 2002 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MQNNESOTA Minutes of the Regular Meeting Held Tuesday, December 3,2002 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. The following members were present: Mayor Mertensotto, Councilmembers Dwyer, Krebsbach, Schneeman and Vitelli. AGENDA ADOPTION Councilmember Schneeman moved adoption of the revised agenda for the meeting. Councilmember Dwyer seconded the motion. Ayes: 4 Nays: 0 Abstain:: Krebsbach APPROVAL OF MINUTES Councilmember Schneeman moved approval of the minutes of the regular meeting held on November 19, 2002. Councilmember Dwyer seconded the motion. Ayes: 5 Nays: 0 CONSENT CALENDAR Councilmember Krebsbach moved approval of the consent calendar for the meeting, revised to move items 5b, Planning Commission minutes, and 5i, Drug Task Force Agreement, to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the November 5, 2002 Parks and Recreation Commission meeting. b. Acknowledgment of the cancellation of the December Parks and Recreation Commission meeting. c. Acknowledgment of the cancellation of the December Planning Commission meeting. d. Authorization for the Mayor and City Administrator to execute the Dakota County Agreement for Revocation of County Road 63. Page No. 2 December 3, 2002 e. Authorization for the sale of the 1998 and 2000 Ford Crown Victoria police squad cars to Cheyka Motors, Inc. for $10,000. £ Authorization for the issuance of a purchase order in the amount of $11,395.50 to Jeff Belzer's Chevrolet for the purchase of a 1999 Ford F- 1501/2 ton pick -up truck for Code Enforcement. g. Adoption of Resolution No. 02 -70, `RESOLUTION CERTIFYING DELINQUENT UTILITY CHARGES TO THE DAKOTA COUNTY AUDITOR FOR COLLECTION WITH REAL ESTATE TAXES," and Resolution No. 02 -71, "RESOLUTION CERTIFYING UNPAID WEED CUTTING C /l� W.IW h. Approval of the list of contractor licenses dated May 21, 2002. i. Approval of the List of Claims dated May 21, 2002 and totaling $153,959.31. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 PLANNING COMMISSION Councilmember Krebsbach noted that the Planning Commission MINUTES minutes show that there was a public hearing for the Nemeth case, but it was a concept plan discussion, which does not a require public hearing. She stated that the minutes should be corrected if in fact there was no public hearing. Councilmember Krebsbach moved to acknowledge the minutes of the November 26, 2002 Planning Commission meeting. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 DRUG TASK FORCE Council acknowledged a memo from Police Chief Piotraschke regarding the proposed 2003 Joint Powers Agreement with the Dakota County Drug Task Force. Councilmember Schneeman stated that she noticed that each city has a board member, and asked who the city's board member is. Chief Piotraschke responded that there is usually one representative, and normally that representative is the Chief or a senior administrative officer. C Page No. 3 December 3, 2002 Councilmember Schneeman moved approval of the 2003 Joint Powers agreement between the city and the Dakota County Drug Task Force. Councilmember Dwyer seconded the motion. Ayes: 5 Nays: 0 PUBLIC COMMENTS Mr. Chuck Elliott, 543 John Street, was again present to ask what is being done about ordinance violations by his neighbor. He stated that he has not heard anything and he has been treated rudely by city employees. Mayor Mertensotto directed the City Administrator to coordinate a response to Mr. Elliott. TOWN CENTER BIDS Council acknowledged a memo from Engineer Mogan regarding the bids received for the Town Center/Freeway Road improvements, along with a letter from City Attorney Schleck. Mayor Mertensotto stated that Council acted on the matter last meeting and he does not understand why there is an issue. Attorney Schleck stated that this has become an issue because, the bidder claims to have made a mistake in his bid. Based on his review of the facts and the law, it is not appropriate for Council to allow the bidder to change his bid after it is opened. Council had discussed potentially allowing the bidder to change the bid. Mayor Mertensotto responded that he recalls that Council awarded the bid to the lowest bidder with the correction. There is no element of fraud. The bidder informed city staff of the mistake and it was self - evident that he had made a mistake. Even if Council allowed the correction to be made, the bid was still $230,000 lower than the next lowest bid. The city is not being frauded. Going out for new bids would only delay the project further and would not be in the city's best interest. Attorney Schleck stated that the mistake was found after the bids were opened to allow the contractor to change his bid absent a unilateral mistake runs afoul of the law in terms of how public bidding is conducted and opens the door to others doing the same in the future. Mayor Mertensotto stated that it was called to Council's attention before the bid was awarded and engineering staff knew it anyway. Page No. 4 December 3, 2002 Attorney Schleck responded that the mistake was discovered after the bid was opened in public. To some extent, both of the issues are important. All of the bidders had an advantage of knowing what the next highest bid was. It sets a bad precedent in terms of other bids on this project and how bids could be adjusted on other contracts. Mayor Mertensotto stated that Council could award the bid and agree to a change order if the contractor agrees to accept the contract on those terms. If Council does not act, the contractor will withdraw his bid. Mr. Aaron O'Brien, from Richard Knutson, Inc., stated that his firm is considering withdrawing from the bid if the correction is not accepted. Councilmember Dwyer asked if Knutson would be agreeable to a change order. Attorney Schleck cautioned against a change order. Council is agreeing to amend the bids, but in a different form.. They would be allowing the contractor to change the bid after approving it. Part of the reason for the bidding laws is so that there could never be a question as to the validity of the biding process. Mayor Mertensotto responded that if Council allowed him to make a correction and he became the low bidder, that would be totally different, but even with the correction there is still a $230,000 difference between his bid and the next lowest bid. Attorney Schleck stated that is why there is a bid bond required. The purpose of the bond is to protect against this issue. The bidder has the right to withdraw if he can prove a unilateral mistake. Councilmember Dwyer stated that this is a unique situation and he is not concerned about a negative precedent being established. He thinks Council can move on with the agreement. The bid was accepted with the understanding that a change order will be issued in the amount of the error. Councilmember Vitelli stated that the city attorney has done his job. It is his job to clarify the legal interpretation. He agreed with the Mayor and Councilmember Dwyer that Council has to make the decision. Council should not be debating with the city attorney what should be done. He felt the city will benefit by moving forward with the process and supported issuing a change order. Page No. 5 December 3, 2002 Councilmember Dwyer stated that he does not see where it is necessary to do anything. Council awarded the contract with the change order and it is within Council's legal right to do so. SURVEILLANCE EQUIPMENT Council acknowledged a memo from Building Manager Guy Kullander regarding the acquisition of surveillance equipment to assist the police department in monitoring the police areas and the main entrance to City Hall and the parking lots. Funding would be from the 2002 City Hall budget, and the cost is estimated to be up to $15,000 for all of the equipment. He reviewed the equipment that would be purchased along with lease versus purchase. Councilmember Krebsbach stated that she would not want the equipment in the City Hall lobby because it is a gathering area for people. If there is a camera in the lobby, it should not be on during Council meeting evenings or during the day when residents come to City Hall. Mr. Kullander responded that there is only video coverage, not audio. City Hall is used several nights a week when there is no city .staff present, and the equipment would allow the police to see if there is a problem. There will be monitors in the police department. Councilmember Schneeman stated that there have been times when she has had safety concerns, especially in the parking lot after Council meetings. She would not mind having the surveillance equipment on the nights there are Council meetings, but not during the day.. After discussion, it was the consensus to hold off on the lobby camera. Councilmember Vitelli moved to authorize leasing the recommended equipment with mandatory review after 4 1/2 years. Councilmember Dwyer seconded the motion. Ayes: 5 Nays: 0 WENTWORTH PARK Council acknowledged a memo from Parks Project Manager WARMING HOSUE Kullander regarding replacement of the Wentworth Park warming house. Mr. Kullander reviewed the options and costs for Council. Page No. 6 December 3, 2002 After discussion, Councilmember Krebsbach moved to authorize the enlargement and repair of the existing structure for a cost not to exceed $20,000. Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 CASE NO. 02-46, OLSON Council acknowledged an application from Mr. Mark Olson, 1217 Victoria Curve, for a subdivision to create two lots and a variance for less than 100 feet of frontage on a public street for one of the lots. Council also acknowledged associated staff reports. Assistant Hollister informed Council that Mr. Olson has indicted that he wants the item tabled to a future meeting so that he can consult with an expert about what constitutes a hardship. Mr. Olson has agreed to give the city a written 60 day extension on his application. Mayor Mertensotto stated that the Planning Commission recommended denial, but Council can continue the matter provided that Mr. Olson provides a written request for continuance within one week. Assistant Hollister stated that the city has 60 days to make a decision, and if there is no Council action, the Planning Commission recommendation kicks in. Councilmember Krebsbach felt that the applicant should have submitted something in writing this evening. Councilmember Vitelli stated that he has received many phone calls on the issue and Council should hear the people who are present for the discussion. Mr. Ralph Jewel, 1948 Glenhill Road, stated that his property adjoins the subject property and he is also one of 45 neighbors who filed a petition against approving the variance. He appeared at the Planning Commission meeting as did many of the neighbors and talked about safety considerations. There would be a 300 foot driveway from Victoria Curve to the home that is proposed for the rear of the new lot. No case was made for a hardship, and he did not think the owner understands how that is interpreted. The requirement that only one house be built on this lot does not stand the test of unreasonableness. There are many homes in Mendota Heights that are built on one acre or more and those people do not find it a burden. C Ayes: 4 Nays: 1 Dwyer Page No. 7 December 3, 2002 Mayor Mertensotto stated that one of the requirements of the city's ordinance is that a lot must front on a public street. This does not meet the requirement. The lot existed at that depth and those dimensions when the owner built on it. The owner of 1215 Victoria Curve stated that his lot is the same dimensions. The lots were platted in the 1930's, and he does not have any hardship with his property. Mr. Alan Goldstein, 1954 Glenhill Road stated that he suggested to the Planning Commission that part of the reason people move into this neighborhood is the preservation of the natural habitat. He brought his house plans in for approval by Council and was admonished not to clear cut the lot, but the applicant owns his property and can do what he wants with it. Councilmember Vitelli stated that he is ready to deny the application. Council does not like flag lots. There would be five residents who would have a driveway going past their houses and that is not acceptable. Councilmember Vitelli moved adoption of Resolution No. 02 -72, "A RESOLUTION DENYING A SUBDIVISION AND LOT WIDTH VARIANCE FOR AN ADDITIONAL LOT AT 1217 VICTORIA CURVE." Councilmember Schneeman seconded the motion. Councilmember Dwyer stated that he is concerned about due process. Council has not given the applicant the chance to discuss the matter with Council. Councilmember Vitelli pointed out that the applicant did not come to the meeting or send anything to Council requesting delay. CASE NO. 02 -48, RIDER Council acknowledged an application from Mr. Russell Rider for a front yard setback variance to add a roof over the front entrance at 790 W Wentworth Avenue. Council also acknowledged associated staff reports. Mr. Rider informed Council that he proposes to put a porch over his front stoop and is not adding anything else to it. Public Works Director explained that the open stoop is allowed, but if a cover is put on it, it becomes part of the structure and a variance is required. Ayes: 5 Nays: 0 CASE NO. 02 -47, DRAM, Ayes: 5 Nays: 0 COUNCIL COMMENTS Ayes: 5 Nays: 0 Page No. 8 December 3, 2002 Mayor Mertensotto recommended that the variance be approved with the condition that it not be enclosed in the future. Councilmember Vitelli moved adoption of Resolution No. 02 -73, "A RESOLUTION APPROVING A FIVE FOOT FRONT YARD SETBACK VARIANCE FOR AN OPEN COVERED ENTRYWAY AT 790 WENTWORTH AVENUE," conditioned upon the applicant not requesting adding to the structure or enclosing it. Councihnember Dwyer seconded the motion. Council acknowledged a letter from Mr. David Drake withdrawing his application for variance for fence opacity. Mayor Mertensotto stated that Council is faced with the 60 day rule and recommended denial. Councilmember Krebsbach moved adoption of Resolution No. 02- 74, "A RESOLUTION DENYING AN OPACITY VARIANCE FOR A FENCE AT 837 PARK PLACE." , Councilmember Dwyer seconded the motion. Councilmember Krebsbach stated that she met with Senator Metzen today and he mentioned he was pleased the city has received additional funds from the Livable Communities grant. She felt that Council owes him appreciation because he had been contacted by Chair Mondale and spoke favorably about the project and also mentioned that the project is underfunded. Councilmember Krebsbach moved to send a letter of appreciation to Senator Metzen for his consideration and support for the grant. Councilmember Schneeman seconded the motion. COMIVIISSION APPOINTMENTS Councilmember Vitelli asked how the advisory commission openings are being advertised and asked that they be advertised in the Pioneer Press in addition to the Sun and Southwest Review because delivery of those periodicals is only sporadic. Page No. 9 December 3, 2002 Councilmember Vitelli moved to accept applications for appointment to the advisory commissions until January 10 and to publish press releases in the Pioneer Press, the Sun and Southwest Review and the City's newsletter, and to require that all applications be in writing. Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 CASE NO. 02-45, McDERMOTT Council acknowledged an application from Stephen McDermott, 600 Pond View Court, for a conditional use permit for a four foot high fence. Council also acknowledged associated staff reports. Ayes: 5, Nays: 0 Mr. McDermott stated that he would like to extend a wood fence four foot high running from the front of his garage towards the back yard on a cul de sac to connect with an existing fence. Because his property is on the corner of a cul de sac his back yard abuts the cul de sac road and he has to comply with that setback. He currently has a three foot fence. Councilmember Vitelli moved adoption of Resolution No. 02 -75, "A RESOLUTION APPROVING A CONDITIONAL USE PERMIT FOR A FOUR FOOT HIGH FENCE AT 600 POND VIEW COURT." Councilmember Schneeman seconded the motion. Councihnember Vitelli stated that Mr. McDermott has asked for a fee reduction. Council has received similar request in the past, and his feeling is that a fee has been established and Council should not set a precedent in reducing or refunding planning fees. CASE NO. 02 -49, NEMETH Council acknowledged a request from Mr. Frank Nemeth for consideration of a concept plan for the division of 2455 Delaware Avenue. Mr. Nemeth was present for the discussion. Mr. Nemeth stated that the Planning Commission gave many significant comments and he reacted to them. The commission recommended that he revise the drawings. The property is surrounded by typical subdivisions on all sides. He proposes to move the existing barn. There are also an existing home and drive, and an existing tool shed. He proposes to divide the 2.5 acre lot into two lots. The residence and drive will remain in tact. The barn would be moved so that it is on Lot 1. Lot two has been modified to have 78 feet of frontage. Mr. Nemeth reviewed his amended plan Page No. 10 December 3, 2002 and the changes made in response to the Planning Commission comments. Lot 2 is 1.106 acres and Lot is 1.391 acres. There was also an issue over the zero lot line. Mayor Mertensotto stated that he is concerned about whether a home can be built on Lot 2 and meet all requirements without variances. Mr. Nemeth responded that the average width of the lot is 100 feet. If it were located so that it was 100 feet there would be an encroachment on the optimal location of the barn. The existing tool shed has close to a zero lot line, and that would be the exception. That would not be moved — it is a masonry structure and it sits on a berm. Mayor Mertensotto asked if the new home can be served by independent utilities. Mr. Nemeth responded that a sewer has been stubbed in but not activated. The two homes would share the sewer line. Mayor Mertensotto responded that they could not share the same line because that would be a maintenance problem. Public Works Director Danielson stated that sewer is stubbed into Delaware and there could be two separate lines. Responding to a question from Councilmember Dwyer, Public Works Director Danielson stated that the city requires 100 feet of frontage at the public street, but this would be a flag lot. It meets the 100 foot setback at the 30 foot building setback line. Mr. Nemeth stated that the lot line was drawn as proposed because there is a significant drop in the landscaping and it seemed an appropriate place. Mayor Mertensotto stated that the property is large enough to divide, but not with a bunch of variances. Councilmember Krebsbach stated that she would not approve the subdivision and cautioned that the house would be very close to the rear yards of property to the back. The only way she could see splitting it is to divide it in the middle. Councilmember Dwyer stated that if Mr. Nemeth comes in with a plan that does not require any variances there would be no basis for denial. Page No. 11 December 3, 2002 Councilmember Vitelli agreed with Councilmember Krebsbach. He stated that ideally, the property would be split down the north side. To him, the obvious way to subdivide would be to divide the property into as 200 foot lot and another that would be 100 to 120 feet wide and have them be two deep lots. Hopefully there would be a way for Mr. Nemeth to get around the driveway problem. Mayor Mertensotto pointed out that there would have to be a utility easement granted to bring the sewer in to serve the properties. Mr. Nemeth stated that he would be more favorable to a joint sewer line than to changing a driveway because of the safety issue. His youngest child is special needs and plays basketball in the driveway. The mixture of the driveway and the intrusion would not be acceptable. He does not feel it would be workable. In his plan, each of the properties has a driveway and each has a sense of peace and security. Responding to a question from Councilmember Vitelli, Mr. Nemeth stated that he has spoken to some of the neighbors who would have a driveway running along their lots. Councilmember Krebsbach pointed out that the neighbors have not been notified by the city because this is a concept plan at this time. Mayor Mertensotto stated that there is enough land area to divide and there should be something that could be worked out without variances. Mr. Nemeth will also have to work out something to avoid common usage of the sewer line. Councilmember Vitelli stated that he would support the lot division if the proposed property by the tool shed be moved closer to the Nemeth home to get 100 feet of frontage at the street. He would be in favor of 100 feet of width all the way back, which would require Mr. Nemeth to give up the tool shed. RECESS Mayor Mertensotto called a recess at 9:15 p.m. The meeting was reconvened at 9:25 p.m. CASE NO. 02-50, RON CLARK Council acknowledged an application from Ron Clark Construction and Design for rezoning, subdivision, street vacation, conditional use permit for PUD, plan approval and variance for the Garron/Acacia property. Council also acknowledged associated staff reports, a memo from the Airport Relations Commission, letters from Sister Jan Dalsin and Jeremy Hubbell, and a notice of filing petition of an Page No. 12 December 3, 2002 Environmental Assessment Worksheet. Mr. Ron Clark and Mr. John Uban were present on behalf of the developers. Mayor Mertensotto informed the audience that this is not a public hearing and that the hearing took place at the November Planning Commission meeting. He asked that those who wish to make comments confine their comments to new information rather than repeating what others say before them. Mr. Uban stated that he is a planner and architect and is assisting Mr. Clark with the development of the Garron and Acacia properties. He informed Council that he will review the changes that have been made since that last time the proposal was viewed by Council. He has attempted to adjust the plan based on Council and Planning Commission comments. The views from the site have driven the design. The two properties have been assembled at the request of the city so that there would not be piecemeal development of the properties. The previous plan for development was all the same buildings in a geometric form that was not to the city's liking. The developer has been following the comprehensive plan that shows high density residential on the Acacia property and medium density on the Garron property. The density proposed is 6.1 units per acre. The PUD process has been used to blend the densities together. The lowest density is on the sloping face out to the west. He reviewed the revised plan for Council and the audience, stating that the improvements that were suggested by the Council and commission have been incorporated into the plan, which now shows different building configurations. Space has been opened up between the buildings, there is a trail that connects the regional trail with the city trail. There are two islands with historical markers plus observation areas to help address the historical elements. Enhanced setbacks from the highway are being proposed. The exterior of the units will be stucco and stone. Open space has also been addressed. He reviewed the extensive landscaping to create treed public streets, etc. Informal open space gathering areas with gazebos and play areas have been added as well as a major overlook with an entry feature island. Open space is 40 to 41 %, which is higher than what the PUD regulations require at 25 %. The normal R -3 district does not have open space requirements. If it were office or industrial development, it would have 70% hard surface coverage. In most PUD's there may not be open space next to the area and you want to crate open space within it. In this case, the property is surrounded by Acacia Cemetery and large national and state parks. If this were developed without a PUD, hard surface coverage would be much higher and there would be no requirement for open space. Also, over half the Page No. 13 December 3, 2002 site is from Acacia and is still owned by Acacia and Mr. Clark just has a purchase agreement for it. A significant open space will be maintained by virtue clustering the development on only a portion of the total Acacia property. There will be an overlook at the west end of the property where the trail connects to the regional trail, and on the west side there will be a "bump out" and large retaining wall area with ceremonial plaque to mark important events that happened in the past. He felt that the informal area with the marker is a good way to commemorate the many important things that have happened on the site. Also, Acacia Cemetery preserves Pilot Knob. The design provides a scale of buildings that are village like. The access to "bump out" area is only via the trail. The trail will connect to the cul de sac to the east as well as to the regional trail. The developer is trying to accomplish two goals -- a good high quality development and integrating into it opportunities for public views, public trails public markers and historical references throughout the site. Anything more than that should be probably be acquisition of the property for park or other public purposes. The developer proposes to dedicate the lower portion of the site to park and will still pay all of the park dedication fees. The developer can also building things for the city with the park fees, including developing the overlook area. Responding to a question from Councilmember Vitelli, Mr. Uban stated that the park fee is $1,500 per unit and that the developer will both pay the fee of between $200,000 and $250,000 and dedicate land. Mr. Uban stated that another issue that was raised is that the site is inappropriate for residential development because of airport noise. The developer agrees that he must attend to the noise issue. All of the buildings will have noise attenuation designed into them. The site is as noisy from air noise as Augusta Shores, and the developer will use the same consultant that the Augusta Shores developer used for noise attenuation. The level of attenuation will be at least as good as Augusta Shores or better because the property is also affected by highway noise, and a berm will be created along the highway to screen the noise. The area is between the 60 and 65 DNL and is consistent with other developed areas such as tangle -town, Lake Nokomis, etc. One of the other issues was that the Comprehensive Plan calls to preserve and enhance the quality of life. The Planning Commission though this was detrimental to the quality of life, but the developer is following the Comprehensive Plan, which clearly calls for residential and has for quite a while. The Comprehensive Plan was reviewed by the Metropolitan Council and Page No. 14 December 3, 2002 many other agencies. To say that residential is detrimental is not the correct way to view the Comprehensive Plan. Regarding orderly growth, all utilities are present. This is really infill, and it is orderly growth. Another issue was that the density information has not been submitted to the city, but it was in fact sent to the city's consultant. There are over one million square feet on the site and just over a million square feet would be required if all of the units were three bedroom units. He stated that he does not know at this time what the mix of units will be. The final issue was impervious surface, and the developer feels that should be looked at rationally. He is asking for a variance on that. The question is what the purpose is — the developer is providing open space. The site is really part of Acacia, so he feels that open space around the site also counts towards open space. The property has also suffered from having highway right -of -way acquired over the years and has lost amenities because of the taking. The developer is hoping Council will look at the development with the flexibility of a PUD recognizing the open space that Acacia provides in that area of the development. Mayor Mertensotto stated that Council needs to be clear that Mr. Clark is not going to ask for any subsidy from the city. Mr. Clark responded that he will not ask for any city subsidy. He " stated that he would like to speak to the issue of the EAW request that was just filed by the attorney for the Dakota community. He stated that he understands that the city must determine whether an EAW is truly required. Before he entered into the purchase agreement, he exercised a lot of due diligence. He believes the city will find the EAW is not necessary. He stated that he has a copy of a letter dated December 1, 2000 from the Historical Society that said there are no burial sites on the property. The letter was from State Archeologist Dudzik, who he believes has been retained by the current land owner. It was also stated in the letter that the significant top of Pilot Knob is really on the Acacia Cemetery site where their building is located, and that is 1,000 feet from the development site. He felt that filing of the petition for EAW at the last minute was done to prevent Council from approving the plan tonight. The law clearly provides that Council can give a conditional approval based on findings that if it if it is determined that an EAW is needed, it will be done. He asked for conditional approval subject to the outcome of the EAW and what other conditions Council would like to add. He stated that he is very willing and open to work through all of the issues that have been raised. Page No. 15 December 3, 2002 Mayor Mertensotto stated that he understands that once a petition for 1 an EAW is filed, that stops the 60 day rule and stops the city from making any final approval with regard to the application, including the preliminary plan. Mr. Clark is asking for conditional approval, but that is not binding on the city and Mr. Clark would not have any rights. Mr. Clark responded that he understands that it would not bind the city but it would give him the chance to work through some of the issues. With regard to air noise, Mr. Clark stated that he has spent a lot of time at Augusta Shores and will hire the consultant who was used for that project to be sure his development has the best sound attenuation. He stated that he has had a lot of questions about who the likely buyers will be. In similar developments he has developed, the make up of buyers is about one half young empty nesters and the rest are professional singles, and they demand associations and a higher level of maintenance. There have been no renters in his similar developments and there has been a significant appreciation in values. There was a question on whether there was enough natural light for the veranda homes. He stated that he will increase the number and size of the windows in those units. The living rooms will have nine by five foot windows. Also, in most of the homes, the living rooms will be two story and there will be a window in the second story to flood light into the living room. Responding to questions from Mayor Mertensotto, Mr. Clark stated that he continuously builds based on market and would estimate that the development will be built out in three years from the time the model home is opened. There are two different price points because there is a need in the community for homes under the $400,000 price range. He felt that it is really important to show the public what the development will be as quickly as possible and would put in all the streets, common amenities, overlook features and common area landscaping so that the buyer starts to see what it would be. He would build on both parts of the development at the same time, complete the models and fully furnish them as quickly as possible. He builds inventory ahead, estimating demand, so he will probably build two to three of the classic townhomes right away and probably three times that many units in the veranda townhomes because the feels the demand for them will be three times the other townhomes. Mayor Mertensotto asked if the classic is the higher market would Mr. Clark then replace the veranda homes, lowering the number of units on the project. He stated that Council would not allow the veranda homes to proceed around the bluff. He feels the balance of Page No. 16 December 3, 2002 what he is proposing is right: 31 of the classics in the $400,000 to $600,000 range and four times that many veranda townhomes. Councilmember Krebsbach asked if Mr. Clark would start on the veranda homes on the Acacia Boulevard end or the end closer to the classics. Mr. Clark responded that he would want to coordinate that with the city's utility construction. Councilmember Krebsbach encouraged Mr. Clark to leave space for more classic homes around the perimeter. She asked how flexible he is, if he gets conditional approval, in terms of reducing the number of units. Mr. Clark responded that the project is very challenging financially. He will look at anything, but the more he reduces the density, the harder it is to pay the full park fee and dedicate land, but if he needs to reduce a couple of units to provide more open green space or setbacks, he would do that. Councilmember Krebsbach stated that Mendota Heights community standards are different - people really value their views and the green space. She stated that she visited Augusta Shores today and met a home owner and who moved there from the Nokomis area. He stated that his home is quiet and he is very happy here. Councilmember Vitelli stated that the Planning Commission did a good job. He would like to see the impervious surface reduced from 40% to 30% and he would like to see the city's perimeter and setback requirements met. He stated that Mr. Clark has clarified the density and he believes the density requirements have been met. On the public streets, he would like to see 60 feet of right -of -way and 32 foot widths unless the Public Works Director clearly states it is not important. The Planning Commission brought up deficiencies, many of which Mr. Clark addressed: developers agreement, landscaping plan, and park dedication. He stated that he had been bothered by the lower priced units being $225,000 to $275,000. He is concerned about the units selling for $225,000 because there is a lot of cost for sound attenuation, so the units would actually sell for about $200,000. He was worried that several years out there may be a lot of turn. -over or rentals or that it might become a blighted area because of the density and because $225,000 is low for Mendota Heights. Even if Mr. Clark has to increase the purchase price, he would like the density to be reduced. He stated that MAC is against Page No. 17. December 3, 2002 any residential going on the site. He has been in homes in Augusta Shores and inside them, the sound attenuation is fine, but it is not acceptable out on the patio. Airport noise is an issue, but when one looks at an air noise map, there are many homes in areas where the DNL is the same. Many of them have been there for years. He stated that he could go either way on the highway and air noise issue. He felt that the highway noise is more annoying than the air noise. Councilmember Dwyer stated that he finds it an unacceptable argument that the cemeteries add to the open space. That open space is not available to the people who would live in the development. The historical significance of the site is problematic, but he did not think there is anything Council can do about that. The city does not own the site. Councilmember Schneeman stated that this is a historical gem and Council is learning more and more about it recently. She was very concerned about the overall density, and also the 40% impervious surface is a concern. Some of the homes have three car garages and that would add more impervious surface. She would like to see the impervious surface reduced to 25 %. Council took the Town Center developer to task and brought the impervious surface down to 25% or less. She stated that when she comes across the Mendota Bridge, she loves seeing the beautiful view, and she does not relish looking at a lot of roofs and blacktop. She was also worried about the health and safety issues that the people who live there might face. If Mr. Clark could reduce the density and the impervious surface, it would be much better. Mayor Mertensotto stated that Mr. Thomas Casey filed the petition for EAW. The Metropolitan Council has appointed the city as the responsible government unit and will review the petition for EAW and submit it to the city. The city will need to determine whether an EIS is necessary. He asked what the salient points are. He stated that he has been on the Council since 1963 and this is the first time he has heard about the significance that has been put on the Garron and Acacia site. He knows the Acacia Cemetery is the highest point. He asked what points Mr. Casey is stressing about the important significance of the property. Mr. Casey responded that his clients are Mr. Brown and the Mendota Mdwakaton community. He submitted a memorandum he prepared for discussion this evening, along with a copy of the EAW petition. In the petition are the exhibits that talk about the historical significance. The EAW petition was filed on December 2. He stated Page No. 18 December 3, 2002 that his clients have spent substantial time putting together the historical record and he and others will talk about the historical features and archeological cultural features tonight. As far as the EQB is concerned, he has seen memos from the EQB that suggest that conditional approvals are not advised because that is prejudicial to those who are asking for denial. If Council is inclined tonight to deny the project, his clients will withdraw their petition for EAW because if the project is denied there will not be potential for significant environmental effects. Mayor Mertensotto stated that the developer has a right to ask for conditional approval and the petitioners have the right to ask that the development be denied. Councilmember Dwyer asked if Mr. Casey is asking to present to Council tonight what he will be presenting again at the EAW hearing. Mr. Casey stated that he is. Historical resources are part of the consideration by Council in considering whether or not the project should be approved or denied. Above and beyond the issue of whether the historical resources are such that if the project is approved there may be the potential for environmental effects which would kick in an EAW. They are overlapping issues that he needs to C' talk about tonight because the arguments on historic resources are in two contexts, one for the EAW which is deferred and one for tonight in respect to the city's ordinances that incorporate by reference historical resources. Mayor Mertensotto stated that Council needs to know what the points are that make this site unusual or why it should be protected and why the project should be held up. Councilmember Vitelli asked Mr. Casey if the objective of his clients is to never have any development on this site and if they are attacking this development or any development that might be entertained. Mr. Casey responded that he cannot foresee all the possible combinations of applications that may be forthcoming so he cannot commit himself to that question. He is present to suggest legally and factually why the present application should be denied. Page No. 19 December 3, 2002 Mayor Mertensotto stated that anything that could be developed under the city's ordinances would interfere with keeping the site open for cultural or historical reasons. Attorney Schleck stated that there seems to be some confusion about the process. The Dakota Community has petitioned the EQB to require a mandatory EAW. There are two different types of requests for EAW. There are certainn projects that include residential projects, nuclear power plants, etc., that can require EAWs to be prepared by a responsible governmental unit. There is another vehicle by which community members can pursue the preparation of an EAW and that is through the petition process, which allows the responsible government unit to determine whether an EAW is required for a project. This project falls within the mandatory category since a petition has been submitted. The results of the EAW will be reviewed by Council and they will determine whether an EIS is required. With respect to the EAW process, there is a provision within the EAW process for submitting public comments and for the responsible governmental unit to respond. There is no requirement for public hearing, although Council can conduct on if it wishes. As opposed to going through lengthy testimony tonight with respect to historical significance, those items might e better submitted through the EAW comment period. Council may want to consider that before taking lengthy public comments tonight. Mr. Casey stated that the zoning ordinance incorporates by reference historical resources as something that becomes a community interest and gives Council the right to deny the project. While he agrees with the city attorney that historical resource is also part of the testimony for the EAW process, it is relevant to the discussion this evening. Council may be interested in continuing the discussion tonight and do it concurrent with the EAW hearing. Mayor Mertensotto asked who pays for the EAW. Mr. Casey responded he believes that the rules allow the city to ask the developer to pay for the cost of its preparation Attorney Schleck stated that the rules allow the city to request a developer to pay for preparation of an EIS but with respect to EAW the rules provide that the developer is to submit all information required by the city to prepare the EAW but the city has nothing on its books that would require the developer to pay for the EAW. Therefore the EAW would be the city's expense. The process is not about prevailing or not. It is about identifying significant Page No. 20 December 3, 2002 environmental effects associated with a project and addressing them. The law requires the responsible governmental unit to identify significant environmental effects and comment on how they propose to address them with respect to their decision. There is no provision to require the presentation of mitigation measures although that can be required. It is really an issue identification process. There has been quite a bit of discussion about conditional approval. Conditional approvals are not specifically allowed under the law, nor are they specifically prevented. What the EQB has said is that the responsible governmental unit must have a really good reason for issuing a conditional approval, not simply for the convenience of the developer. Mr. Alan Woolworth was present on behalf of the Dakota Community. He stated that has degrees in history and anthropology and worked as a consultant for the Department of Justice on Indian land claims and has done a lot of archeology for the State of Minnesota. He was employed by the Minnesota Historical Society from 1960 to 1998. His comments have no bearing on their views — he is speaking for himself as a professional. He reviewed a document he prepared regarding the historical significance of Pilot Knob. Pilot Knob, the mouth of the Minnesota River, and Fort Snelling are of a combined historical significance. Because he (' believes there were many Indian burials on the parcel under discussion, he suggested strongly that a detailed environmental impact be made of the area before construction is allowed. Councilmember Vitelli asked Mr. Woolworth to draw out on a map the area of the site that is sacred so that people could see it on television. Mr. Woolworth stated that he could not do that because there are no geological features on the map showing the topography of the area. Councilmember Vitelli stated that Mr. Woolworth's comments refer to an area called Pilot Knob and its archeological history. He asked what area Mr. Woolworth is talking about — the whole river front from I -494 to Axel's Restaurant. Mr. Woolworth stated that he just once has been on the cemetery possible. He stated that there should be an EAW done on the area of development. Responding to a question from Councilmember Vitelli, he stated that there was no EAW done when the highways were reconstructed. He stated that in 1967 he was in charge of Page No. 21 December 3, 2002 starting a highway archeology program for the State and it took a long time to build a rapport with the DOT people. Mayor Mertensotto stated that Councilmember Vitelli showed Mr. Woolworth a map showing two red spots that encompass the area of proposed development. The parcels under consideration are privately owned and the developer is here asking for approval of the property. it appears that Mr. Woolworth cannot expressly identify Councilmember Dwyer asked if the Pilot Knob that Council has seen in the historical references in the red area. Mr. Woolworth responded that it is not. He is talking about the top of it, which was transformed into Acacia Cemetery. The parcels under discussion are on the slopes of it. Councilmember Krebsbach pointed out that the property was disturbed when the freeway interchange was constructed. Mn/DOT removed 200 million square yards of bluff when the interchange was constructed. There was a tremendous amount of earth moved as well as many oak trees. Mr. Woolworth stated that he is sure that was gone over carefully by state archeologists. Councilmember Krebsbach stated that it was significant in terms of removal of the entire bluff adjacent to the Garron site. That area has already undergoing major excavation. Councilmember Vitelli stated that Mr. Woolworth has talked about Pilot Knob and all of its history, but Councilmember Vitelli does not know what is Pilot Knob. He stated that when Mr. Woolworth develops his data for the EQB, he would like to see a clear definition of where Pilot Knob is. Mr. Bruce White, historian and anthropologist, stated that he recently co- authored a study on Fort Snelling in the 1830's for the Minnesota Historical Society. He showed Council a Seth Eastman watercolor showing Pilot Knob in approximately 1847. The question is, is Pilot Knob the high point or is it a wider area. The high point is in Acacia Cemetery. When historical sources talk about Pilot Knob, they do not mean just the top. Pilot Knob was a wider area. The treaty of 1851 was signed on the slopes of Pilot Knob. The medicine dances were danced on the slopes of Pilot Knob. The area for question for development is on the slopes of Pilot Knob and it is part of what Page No. 22 December 3, 2002 historically was called Pilot Knob. He showed a map that was done in 1989 for the State Historic Preservation Office. One of the 100 or so sites included in the study was Pilot Knob. The inventory form done defined Pilot Knob, and it includes the Garron and Acacia sites as shown on the original USGS map. The historic area that people mention as being Pilot Knob was not just the central point. It is interesting that the developer has chosen to put an overlook on the lowest point of Pilot Knob. The basic point is something that people in Mendota Heights already know, and it is mentioned on the City's web site and the comprehensive plan — the prominent hill on the Minnesota Historic Inventory overlooks the confluence of the rivers and is unusual in the broad scope of historical significance. A 1975 inventory done by the state, the initial list of all of the historical places in Minnesota that were considered to be eligible for the national register of historic places, Pilot Knob is one of those places. In that report, the Historic Preservation Office said that it would strongly urge that before any work was done on any of the sites, the Office should be consulted to see if the sites would be adversely affected. Pilot Knob was not nominated for the National Register of Historic Places because everyone thought it was already protected because of the presence there of Acacia Cemetery. In 1966 when the Fort Snelling State Park Association put together a publication on old Mendota talking about areas that need to be protected, they said that Pilot Knob (the site of the signing of the Treaty of Mendota, the treaty was not signed in the middle of Acacia Cemetery) is now a cemetery and is not expected to be changed or industrialized and preservation seems assured. Acacia Cemetery is now selling some of the land that the State Park Association said was protected. He found it surprising that the historical information has not been raised in discussions over this development. Preservation of Pilot Knob is very important. It is a historical and cultural gem and its importance does not hinge simply on burials. If Mr. Dudzik said that the area of signifance is in the cemetery, that may speak to burials but does not speak to the historical and cultural importance of the entire area. With respect to the Acacia portion of the development, Mayor Mertensotto stated that the cemetery bought the land as an investment as a separate parcel and has never asked for it to be dedicated for cemetery use. It was not part of the original cemetery. Also, MnDOT has its District 9 facility along the west boundary of the cemetery and that was bought in the 1970's. Mr. White responded that Pilot Knob is not just the cemetery and never was and the history of Pilot Knob long precedes the cemetery. C Page No. 23 December 3, 2002 Responding to a question from Councilmember Krebsbach, Public Works Director Danielson stated that Resurrection Cemetery owned the property but it was never dedicated for burial sites. Mr. White stated that the Pilot Knob has been discussed by numerous visitors over the years and it is considered a place of national importance. Mr. Robert Brown stated that Pilots Knob is a term that was used on the rivers. In the Dakota language, Pilot Knob means much visited hill and it refers to the burial place of their ancestors. It should always be available to everyone in the state. Reviewing his brief, Mr. Casey raised the following legal points: the question of whether the project is consistent with the comprehensive plan; encouraging citizen participation; Pilot Knob is considered sacred by the Dakota; protection of the environment; preservation of open spaces; the Garron portion of the site is guided for high density residential and is zoned industrial and the Acacia parcel is guided for medium density residential and is zoned R -3. There is a park plan in the comprehensive plan identifies park area north of Acacia Boulevard. The technical comprehensive plan talks about river corridor guidelines and his brief tells why those guidelines are applied to the site, and the guidelines also include prptecting historic and cultural qualities of the land. Councilmember Krebsbach stated that the city has been a great steward of the bluff. The testimony before the Planning Commission from people across the river was that they enjoyed looking across the river toward Mendota Heights where the city has preserved the green bluff. Residents who have homes on the bluff have preserved the trees. That is one of the reasons she has not wanted commercial or industrial on the site. With housing, eventually the bluff will fill back in. Council has been stewards of the bluff and the critical area. The owner of the Garron site has clear cut it and there was nothing Council could do. The property is not within the critical area. Mayor Mertensotto asked what Mr. Casey's clients' real interest is, whether they want a commemorative area preserved of if they want to own the site. Mr. Casey responded that what his clients' interest is is to ask for denial of the project. Page No. 24 December 3, 2002 Mayor Mertensotto stated that if Mr. Brown is looking for a historical open area, Mr. Clark has offered a site. If the thought process is of Mr. Clark's group acquiring the whole site, that is different. In that case, the developer is wasting his money. Mr. Casey responded that he is asking Council to rule on the merits of the project tonight. Councilmember Vitelli asked what is it that Mr. Brown could ever endorse as far as development on this site and he would conclude that would be nothing. He could not imagine an office building, an industrial park, residential, a hotel or anything that any developer would come forward with that Mr. Brown would not ask Council to deny. He stated that he feels that Council needs to be fair to the people who own this property. If the city is never going to be able to allow the site to develop, they must tell the owners and someone has to buy the land at a market price. If this is such a sacred and historical site, why has the owner not received a proposal from the state or federal government to buy the land and put up a monument. This owner has property and Mr. Casey is telling him he can never do anything with it. He stated that when Mr. Casey and his clients do his analysis, he should come forth with a couple of ideas on what might be acceptable as far as development so that Council can be fair to the owners of the property. Mr. Casey stated that perhaps the process by which that might unfold would be, because the guide plan has medium density for one portion and high density for the other and zoning is different, going through the comprehensive plan process for that site. Councilmember Krebsbach stated that she does not see that Council has the right to usurp the rights of the current owner because there is someone who challenges it and may propose structures for that parcel. With respect to the comprehensive plan and zoning, Council has taken the MAC at its word that the DNL is shrinking and that the north/south runway will be implemented so that the site could be residential. Council sees this as one of the prime sites in the city and values its view and values it as Minnetonka values the lake. There is no way Minnetonka would not want to develop around the lake as they see fit. She did not see the benefit of one buyer for the benefit of another buyer who may put another-structure on that space. Councilmember Schneeman stated that Council wants to know what the vision of the Indian community is for the property. Page No. 25 December 3, 2002 Mr. Casey responded that the comprehensive plan already says that the Acacia portion of the property should be park land. Councilmember Vitelli stated that implies that someone has to pay the owner for the property. Mayor Mertensotto stated that Dakota County has refused, the Metropolitan Council has refused and the state has refused. Councilmember Krebsbach stated that during the comprehensive plan process, Council inventoried all of the open space in the city so that it would have flexibility for the future. At one time, Council looked at doing Mendakota Park there, but with the planes going over the Acacia site, the Dodd Road site was better. The value of the property in terms of wanting to live there is the view. Council has asked that there be some marker and Mr. Clerk has agreed to put in the retaining wall with a gathering place for thirty people at the cost of $250,000. Council and the Planning Commission and the developer are showing a level of respect for this project in 2002 with private ownership. Mr. Casey stated that there isn't much time to come up with alternative ideas. He asked whether that would affect the decision and whether his clients' input in terms of what they envision would affect the decision. Councilmember Vitelli stated that if Mr. Casey came forward with some ideas it would begin to give him some confidence that his clients have a vision. The state has bought other sites. He asked when Mr. Casey's clients last went to the state to request that they buy the property. If nothing can be developed on the site, why doesn't the state buy it. Mr. Casey's clients are not doing their homework but rather are coming to Council every time there is a development proposal and asking Council to deny it. Mayor Mertensotto stated that when Mr. Casey's clients submit materials they should be sure to give Council some alternative visions for the site. Mr. Casey reviewed his written comments regarding the PUD requirements for the scale of developments, protection of public interests (which is why the historical aspect is being raised), with respect to street vacation, variances and procedural due process. He stated that he appreciates Council allowing he and his clients to speak tonight and would like the opportunity to respond to some of Page No. 26 December 3, 2002 the late submitted documents the next time he has the chance to speak. Mayor Mertensotto asked Mr. Casey and his clients to be sure to provide an alternative vision for the site. He stated that the city has an excellent steward of the bluff area and has probably done a great deal for the Fort Snelling State Park and the Mississipi River bluff. By way of clarification about due process, City Attorney Schleck stated that Council has always given people the opportunity to be heard and there is no intention of Council to try to circumvent the public hearing process. People should remember that speaking at the microphone is not the only way to be heard. One very pointed letter can do a lot more than many bad letters. Responding to a question from Mayor Mertensotto, Mr. Clark stated that he has a very tight time frame with his contract to purchase the Garron site. The contract requires him to remove all contingencies on December 15. The only way he can remove contingencies is if he has some level of confidence that it is moving forward. Mayor Mertensotto stated that conditional approval is not binding on the city. It could be changed later on, and it would only tell Mr. Clark whether he is on the right track without judging on the merits of the petition. Mr. Clark stated that if he were to get conditional approval subject to the EAW and whatever conditions Council wants, it would keep things moving forward and give him the option to raise his level of risk or a stronger position to go back to the seller to say that it is moving forward but he needs a little more time. MAC Executive Director Jeff Hamiel stated that for over 35 years the MAC has been either acquiring or mitigating properties in Mendota Heights related to aircraft noise. The MAC believes that property within the 65 DNL is incompatible with residential development. The 2007 future noise projections show this property within the 60 to 64 DNL. This property will always be subjected to frequent and regular overflight of aircraft that will subject the community to what is federally defined as a noise impact area of high aircraft concentration and noise impact. Noise regularly exceeds 95 decibels on this site. The city's Planning Commission and Airport Relations Commission have recommended denial of the development proposal. The MAC receives in excess of 20,000 complaints annually from citizens who live within the 65 DNL air Page No. 27 December 3, 2002 noise contour around the airport. Putting another 168 residential units on this property within the 65 DNL contour only subjects another group of community residents inside the high complaint zone. Mayor Mertensotto stated that he thought only the southwest portion of the parcel was in the 65 DNL. Mr. Hamiel responded that the entire site is currently located in the 1996 65 DNL contour and it will be in the 60 to 64 contour in the future. The MAC has spent over $220 million mitigating or homes that already existed within the contour and has acquired and mitigated homes in Mendota Heights within the 65 contour. It is extremely challenging for the MAC to see new homes in areas where MAC is already mitigating. Mayor Mertensotto asked if Mr. Hamiel is say8ing that MAC is going to expand the contour. Mr. Hamiel responded that the noise area will be reduced in size as planes become quieter. The airport operates about 500,000 take offs and landings a year. The airport is predicted to grow to over 680,000 by the year 2020 and there will be more frequent overflights as operations grow. There will be more flights over the east and west directions of communities close to the airport. Mayor Mertensotto asked why MAC would be fanning out to the north when there can't be fanning out to the south. Mr. Hamiel responded that there is residential development in Eagan that existed prior to any mitigation programs and as a result a corridor was defined east of the airport preventing aircraft from making southbound turns before they reach the three mile point on departure. That is because the Highview development in Eagan has existed for decades. MAC recognized the existing use at that time and looked at the open space areas in Mendota Heights and Eagan and decided to preserve that area as a corridor. If communities continue to permit new residential development inside areas MAC is mitigating the entire mitigation system breaks down. Mayor Mertensotto asked why the MAC wants to put more aircraft over the north part of the city. Page No. 28 December 3, 2002 Mr. Hamiel responded that MAC doesn't have a choice. As the community continues to demand more aircraft service, there will be more noise exposure. Mayor Mertensotto asked if the corridor limits mean nothing. Mr. Hamiel responded that there is a corridor that the city and MAC have worked out and that meets MAC's needs — approximately TH 110 on the north and the City of Eagan on the south. He stated that the MAC will not attenuate any homes built after 1998. Mr. Tom Holsider, from South Minneapolis, stated that the houses should be set back from the bluff line so that there is a bluff line that everyone can use. The open area now is between two homes, so people would feel like they are invading someone else's property. Ms. Eleanor King, from Minneapolis, stated that she is bothered that it keeps being brought up that the land has been abused in the past. She wanted to shy away from the line of thinking about why the property was not protected in the past. The historical and gathering points, with plaques, does not have to be done because the history is still there and the property should be kept the way it is. As a historical site, it is a strong addition to the city. Mr. Steve Lander, 2085 Valencour Circle, stated that he has a kennel and one thing that was overlooked in all of the discussions is that he has a 65 dog capacity kennel on the Highway 55 side of the proposed project. The dogs bark 24 hours a day. In addition to the airport and the highway, the kennel has been there for 18 years. He asked if he would incur liability by residents being attracted to the three horses he has in a pasture abutting the proposed development. Also, there is already a problem with drainage on his property and it appears to himm that if the project is constructed he will have more run off. He stated that he was the Fire Marshal for Edina for a time, and if Council is looking to develop the site in a residential fashioin, Mr. Clark has an excellent reputation. Mr. Jerry Duffy, legal counsel for the land owner, stated that the owner has been trying to get the property sold and has had a proposal for an office building turned down. At that time, Council said it wanted residential on the site, and the owner found Mr. Clark. At some point, the owner needs to know how the land can be developed. He asked Council to support the proposal. Page No. 29 December 3, 2002 Mr. Joe Buttenoff, one of the owners of the property, expressed frustration over the process. Last year, the American Lung Association presented a proposal for a $15 million office building. At that time, Council said they wanted residential development, and that what the proposal is for. He stated that he pays the taxes on the property. He sympathizes with the Native Americans and the MAC, but the property has been on the market for ten years and he has never received a proposal from them to purchase the property. He asked Council to make a difficult decision and to support Mr. Clark with conditional approval. Mayor Mertensotto stated that from what he has seen on the proposal and the flexibility of the developer, he feels this is the best proposal he has seen for the use.of the property. The developer is not coming in asking for a subsidy from the city and will pay the park contribution and will be flexible with the density and the impervious surface. The Acacia property is guided for medium density and the Garron site is guided for high density. Council is looking for a PUD on how all of the land will be developed. He stated that he can appreciate that the EAW process will continue, but that the developer must know whether he is going in the right direction. He felt that the request for conditional approval is appropriate if there is Council support for the project. The conditional approval is not binding on either the city or the developer. Councilmember Schneeman stated that if Council approves the concept tonight, the EAW must still be done any way. She stated that Mr. Clerk must understand that the risk if the EAW does not come back the way he wants it. Councilmember Krebsbach stated that Council may be looking at reducing density and may want more of the bluff exposed. She asked Mr. Clark if he is amenable to working with Council on the density and the impervious surface, such as removing one of the six unit buildings, and pulling the development back a few feet from the bluff. Mr. Clark stated that he is open to working with Council on those issues. Councilmember Krebsbach moved to grant conditional approval to the development for both the Garron site and the Acacia site with the understanding there may be changes to it, noting that the plan shows a space where there can be a gathering and a commemoration of the Page No. 30 December 3, 2002 site and a place to view the full river valley which shows a level of respect for the prior condition of the area. C Councilmember Vitelli stated that the only way he would support conditional approval is if Council is more specific in what it is looking for. One of the conditions is reduction of the impervious surface to 30 %, that they meet perimeter and street setback requirements, removal of 15 units from the site, and that there be 60 feet of right -of -way for the public streets and 32 foot street widths. Mr. Uban stated that all the streets are very low traffic with parking on one side and there will be utility easements adjacent to them. He stated that he has worked through this with the City Engineer and there is no engineering issue that would require the right -of -way to be 60 feet or wider. Public Works Director Danielson stated that staff has looked at the matter, and if wider easements along the right of way is needed, the developer will provide them. Other cities require 50 feet of right -of- way, and that would be fine if the streets are narrower. The extra - wide streets in other developments provide parking on both sides, whereas there will only be parking on one side here. The narrower street also reduces the impervious surface. Responding to a question from Councilmember Dwyer, Mr. Uban stated that the Fire Chief has reviewed the plan and his comments are in the agenda. His comment was that the proposed street widths accommodate the department's needs. Councilmember Vitelli stated that he would like Mr. Clark to state in his submittal that the lower units are $250,000 to $300,000. He was concerned about the project turning into a blighted area in the future. Mr. Clark stated that there would be a base price a bit lower than that but the average price will be $250,000 to $300,000. It will cost about $15,000 to attenuate a house. Mr. Hamiel stated that with the quality and planned acoustical treatment that has been described by Mr. Clark, the interior noise level will be quite acceptable. Outdoor use will be the problem. Councilmember Krebsbach thanked Mr. Hamiel for publicly making the statement about the acoustical quality. Page No. 31 December 3, 2002 Councilmember Schneeman asked Mr. Clark if he is comfortable in his contracts with buyers that they cannot sue because of airport noise. Mayor Mertensotto stated that Mr. Clark will have all of the same disclosure requirements that were required for Augusta Shores. Mr. Clark stated that his understand is that he will have full disclosures in the model homes and also have the disclosure in the purchase agreement and it will be recorded in the deed so that it is of record for future buyers. Mayor Mertensotto stated that every prospective home owner would need to receive the disclosure information. He suggested that Mr. Clark get a copy of the information that Mr. Hoffman provided to prospective buyers. Councilmember Vitelli stated that he would like to see the statement that buyers will have to sign. Councilmember Krebsbach withdrew the motion. Councilmember Vitelli moved conditional approval with the developer understanding the following conditions: 1) that the decision to issue the conditional approval is unique and the city is varying from the standard environmental review process for the important reason that if it does not, the developer is in jeopardy of losing the right to purchase the property; 2) that nothing in the conditional approval should be interpreted by the developer as a decision by the city not to require the developer-to make changes to the project or implement mitigation measures that are warranted based on review of information during the environmental review process; 3) that the city wishes to inform the developer that issuance of the conditional approval will not be a factor in determining whether an EAW or and EIS will be required for the project; 4) that issuance of the conditional approval should not be interpreted by the developer as an indication from the city that it will not recommend another alternative for the property or even the "no build" alternative after it has completed the environmental review process for the project and the city will evaluate all alternatives and the "no build" alternative as required by Minnesota Statutes as if this conditional approval never took place; 5) that the total impervious surface coverage shall be reduced to 30 %; 6) that the developer meet street and perimeter setback requirements in accordance with the city code; 7) that 15 of the verandah units must be removed; 8) that the sale Page No. 32 December 3, 2002 price for the verandah units will be $250,000 to $300,000 as a target and that the classics be $450,000 to $500,000; 9) that the developer will provide all prospective buyers an air noise disclosure statement and will require that all buyers certify in writing that they have received and read the statement. Councilmember Krebsbach seconded the motion. Councilmember Dwyer stated that he is not prepared to give conditional approval. The 10 page brief from Mr. Casey was just submitted this evening about the EAW with 35 exhibits talking about historical significance. He stated that he would like to study it before taking action. Councilmember Krebsbach stated that the EAW process will go forward and it is assumed that all of the materials will be studied. Attorney Schleck stated that the EAW process will take 60 to 90 days. Mr. Casey stated that the EAW has a provision for public comment and it comes back to the city to determine whether there needs to be an EIS or not. The whole process can be completed as part of Council's conditions. Ayes: 3 Nays: 2 Dwyer Schneeman 6ADJOURN There being no further business to come before Council, Councilmember Dwyer moved that the meeting be adjourned. Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 12:12 a.m. Katfideen M. Swanson City Clerk ATTEST: 0 . Ir, A4�-Zft Charles E. Mertensotto Mayor