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2002-08-06 City Council minutesPage No. 1 August 6, 2002 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, August 6, 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 and Schneeman. Councilmember Vitelli had notified Council that he would be absent. AGENDA ADOPTION Councilmember Schneeman moved adoption of the revised agenda for the meeting. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 APPROVAL OF MINUTES Councilmember Dwyer moved approval of the amended minutes of the regular meeting held on July 9, 2002 as amended. Councilmember Schneeman seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 Mertensotto Councilmember Dwyer moved approval of the amended minutes of the regular meeting held on July 16, 2002 as amended. Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 Mertensotto CONSENT CALENDAR Councilmember Dwyer moved approval of the consent calendar for the meeting, revised to move items 5e, 5f, 5g, 5i, and 5n to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the corrected minutes of the June 25, 2002 Planning Commission meeting. b. Acknowledgment of the Treasurer's monthly report for July. c. Acknowledgment of the Code Enforcement monthly report for July. Page No. 2 August 6, 2002 d. Acknowledgment of the minutes of the July 10, 2002 Airport Relations Commission meeting. e. Approval of the probationary employment of Janet Bolger as the Administration Department Receptionist, at Grade I, Step A in the city's Position and Pay Classification Matrix, effective on August 7, 2002. f. Approval of the landscape plan for the Visitation School middle school addition, along with authorization for the Code Enforcement Officer to issue all necessary building permits, contingent upon compliance with applicable codes. g. Adoption of Resolution No. 02 -39, "A RESOLUTION AUTHORIZING PARTICIPATION IN SAFE AND SOBER • 1' h. Adoption of Resolution No. 02 -40, "A RESOLUTION APPROVING A SPECIAL PERMIT TO TURNERS BYMNASTICS CENTER FOR TEMPORARY SIGNS." i. Approval of the list of contractor licenses dated August 6, 2002. j. Approval of the List of Claims dated August 6, 2002 and totaling $238,536.87. Councihmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 NPDES Council acknowledged a memo from Public Works Director Danielson recommending that Council authorize execution of a Letter of Understanding to submit to the League of Minnesota Cities with respect to participating with the LMC in creating a guide plan to comply with the U.S. Environmental Protection Agency and the Minnesota Pollution Control Agency's rules for obtaining an NPDES Phase II permit. Mayor Mertensotto stated that the memo states that the EPA is requiring all cities in the metro area to apply for NPDES permits, but he does not see that the EPA is requiring anything. Public Works Director Danielson responded that the EPA is requiring that cities apply for NPDES no later than March 10, 2003. It is an unfunded federal mandate. Page No. 3 August 6, 2002 Mayor Mertensotto asked if the $5,000 fee to participate in the League consortium is based on population. He also asked if the League will be asking for additional fees beyond the $5,000. Mr. Danielson responded that all of the participants will pay $5,000 and that there should in fact be an excess of funds and there could quite possibly be a refund of part of the fee. Councilmember Schneeman moved to authorize the Mayor and City Clerk to execute the Letter of Understanding conditioned upon the $5,000 membership fee being a one -time authorization for the expenditure. Councilmember Dwyer seconded the motion. Ayes: 4 Nays: 0 HIDDEN CREEK Council acknowledged a memo from Public Works Director IMPROVEMENTS Danielson recommending that the developer of the Hidden Creek Addition be authorized to prepare the plans and specifications, and take bids for the sanitary sewer, water, street, and storm sewer improvements for the development. Councilmember Dwyer stated that he understands the reason this is being requested is because city staff is very busy with the Town Center project and the developer wants Hidden Creek improvements to move along quickly. He stated that his concern is that by allowing the developer to do the engineering, etc., the city may in some way be mitigating the terms of the developer's agreement. City Attorney Schleck responded that the developer's agreement will need to be amended with regard to inspection and other issues. Mayor Mertensotto stated that the agreement will also need to provide that the city will be protected for three years from any damages that may occur. Attorney Schleck responded that the protection in the agreement now is directed at the storm sewer and surface water run off system. Mayor Mertensotto stated that private installation of streets and utilities has not proven beneficial to the city in the past. He asked if the developer is willing to pay for a full time inspector. He stated that the city has had some bad experiences over the years where streets and utilities were privately installed. The City of Eagan uses this policy routinely and has many problems. Unless there is a real Page No. 4 August 6, 2002 emergency, he did not want to allow a developer to put in his own utilities. Councilmember Krebsbach asked who would inspect the work. Public Works Director Danielson responded that city staff will do the inspections. Any time there is a contractor working on the project, a city inspector will be on site. Councilmember Krebsbach stated that the city has not had a good record in street reconstruction projects with inspections. She was concerned about the storm water and the NURP ponds. Mr. Bill Makins, one of the developers of Hillside Creek, stated that he is asking that he use the same list of contractors the city would use when bidding an improvement project. There would not be any difference from what is being represented in the sewer and water industry. They would work in conjunction with the city engineer and inspection staff. There would be no difference in quality or contractors bidding from a public bidding process. Responding to a question from Mayor Mertensotto, Mr. Makins stated that he would be willing to pay for full -time inspection on the project. Mayor Mertensotto stated that the project would not be done as an MS 429 improvement project because the developer would be undertaking the project, therefore it will not be assessed. The contract would say that the city would have thirty days to accept or reject the bids. Mr. Makin would be entering into an agreement with the city whereby he would undertake the contract. Mr. Makins agreed. Councilmember Dwyer stated that the Public Works Director also suggested that the developer escrow an amount to cover the city's costs. Mayor Mertensotto stated that if the city bid the project, the city would have to put notice in the contract that the city may exercise its option to allow a developer to undertake the contract. If the contractors do not want that clause, they should not be bidding. Mr. Mike St. Martin, from Loucks Engineering, stated that the developers are looking to send the plans out for bid next week. C Page No. 5 August 6, 2002 Attorney Schleck stated that he will work with the developer's legal counsel and bring something back to the next Council meeting. Councilmember Krebsbach moved to approve the proposal in concept. Councilmember Dwyer seconded the motion. Ayes: 4 Nays: 0 XCEL PERMIT Council acknowledged a memo from Public Works Director Danielson regarding authorization for Xcel Energy to bury the electric feeder lines at Town Center. Mayor Mertensotto stated that one of the items on the agenda for this evening is the Xcel litigation. This item is totally independent from, and has nothing to do with, the litigation issue. He stated that he would like to table the matter for two weeks because it could be misconstrued that there has been a deal made even though the matters are totally different. Public Works Director Danielson responded that the grading contractor should be done with his work by the end of August. He would have ask Xcel if they can wait. If the lines are not moved before the grading contractor is done, the city would have to have him come back later to move them. Councilmember Dwyer stated that staff is requesting Council to authorize $110,000 to bury the lines. It was planned that the overhead lines in the Town Center development area would be buried. He stated that he understands that there is litigation with Xcel on other issues, but this is totally different. He asked on what grounds it would be inappropriate to approve the request. Councilmember Krebsbach asked if the Mayor could see a connection between the two issues. She stated that she sees this as being different from the litigation. Mayor Mertensotto stated that the city has an ordinance in effect that says that utilities must get a permit before doing any work in the city. Xcel has done other work in the city under maintenance. Councilmember Schneeman stated that Council wants to get Town Center going and now if Council tells Xcel it cannot bury the lines now, Xcel could come back and ask for another $40,000. If Council does not give them consent to bury the lines tonight, it would be two Page No. 6 August 6, 2002 weeks before another meeting. If the lines can't be buried before the grading is done, it will cost the city another $40,000. Mayor Mertensotto stated that Council knew that the power lines were there and he could not conceive that Council would get itself into a hardship if the lines cannot be buried in two weeks. Councilmember Krebsbach stated that Xcel is providing the service in the city. Council has had an issue with Xcel but they kept the delivery of service apart from that issue. Mayor Mertensotto stated that this is for aesthetics and he has nothing against authorizing the agreement for that reason, but it is inappropriate because there is a question over whether this is maintenance. Also, it is not Xcel asking, but the city. Councilmember Krebsbach asked Mayor Mertensotto if he wants to separate the issues so that they are not under consideration on the same evening. Councilmember Schneeman asked if there is anything illegal about granting Xcel authorization on the consent calendar to bury the lines. Attorney Schleck responded that he cannot see any reason why it would be deemed illegal. The only issue he has is that there is a schedule in the developer's agreement that the city approved, under which the city must meet a schedule for grading, utilities, etc., and delaying this for two weeks might mean the city cannot meet its obligations under the agreement. Councilmember Dwyer moved to approve an Underground Service Form for Xcel Energy for the burying of the electric distribution lines at the Town Center project, and approval of a $110,357 payment to Xcel for the work. Councilmember Schneeman seconded the motion. Ayes: 3 Nays: 1 Mertensotto HIDDEN CREEK City Attorney Schleck asked for a clarification on the Hidden Creek improvements discussion. He asked if it is the desire of Council that the contract be bid through the city process. Mayor Mertensotto responded that it is. Page No. 7 August 6, 2002 Attorney Schleck asked if the developers want to discuss the bidding process with Council. He stated that going through the public bidding process could take as long as six weeks. Councilmember Dwyer stated that Council wants assurance that the same contractor who would have bid on a city project would bid on this project. Mr. Makin responded that he submitted a bidder's list to city staff today for review and that he will be bidding it out to the same list of bidders that the city uses. Attorney Schleck stated that it is his understanding that whenever the city expends funds, the formal process must be used. Mayor Mertensotto stated that the developer is assuming the entire cost and the improvements will not be assessed. It was assumed that the normal bidding process would be used but the city would reserve its right to assign the contract to a private developer. The developer's agreement would need to be amended in order to avoid the bidding requirements of 429. Council would be authorizing the concept plan to include the informal bidding. Additionally, the developers agreement needs to be amended to stipulate that developers agree to pay the cost for a full -time inspector hired and approved by city staff. He stated that Loucks Engineering will prepare the plans and specifications and the city staff will review the plans and specifications to make sure they meet city standards. Attorney Schleck stated that there should also be a provision that if there are any claims against the city with respect to the bidding process, that the developer will indemnify the city. Councilmember Krebsbach moved to amend the Hidden Creek developers agreement to allow the developer to install the public improvements subject to the conditions regarding city approval of the plans and specifications, payment by the developer for all costs incurred by the city, including the cost for a full -time inspector, and indemnification against any claims against the city. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 CRITICAL AREA ORDINANCE Council acknowledged a memo from Assistant Hollister requesting authorization for the city planner to prepare proposed revisions to the j Page No. 8 August 6, 2002 critical area ordinance in order to bring it into conformance with the city's comprehensive plan. Councilmember Krebsbach stated that she would like to determine if the revision will amend the ordinance with respect to 18% slopes. Administrator Lindberg stated that Mr. Grittman will be working on a proposed amendment for Council review. He will include 18% slope language and Council can accept or reject that. Councilmember Krebsbach moved to authorize an expenditure not to exceed $2,570 to NAC to prepare a proposed amendment to bring the city's critical area ordnance into conformance with the city's comprehensive plan and state requirements. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 FOXWOOD EASEMENT Council acknowledged a memo from Public Works Director Danielson regarding a scenic easement in the Foxwood plat. Public Works Director Danielson stated that the plat is located between Delaware and Dodd, south of Wentworth. The three -lot plat was approved in 1993. One of the lots has been developed and two have not. During a title opinion process, it was discovered that the scenic easement required by the city was never filed when the plat was approved. The owners of the lots are asking the city to approve a Consent to Entry of Order and Decree of Registration so that the easement can be filed with the county. Mayor Mertensotto stated asked if the developer will pay the fees associated with recording the easement. Since the developer was responsible for filing the easement, the city should not bear any costs. Attorney Schleck stated that what is happening is that the developer is to going through the Torrens registration process. The purpose of the recommended motion is for the city to file a document documenting its rights to the scenic easement. The city would be protecting its rights. Mayor Mertensotto stated that the easement applied to all three lots. He asked why the city should pay any legal fees. The city had an agreement with the developer, and the agreement is valid. Page No. 9 August 6, 2002 Attorney Schleck responded that he has been working with the city staff and the legal counsel for the property owners and his cost is under $1,000. Once the city approves the order, there will be nothing more that he will need to do on the matter. Mayor Mertensotto stated that he would vote in favor of the recommendation because of the representation that it will not cost the city more than $1,000. Councilmember Krebsbach moved to authorize the Mayor to execute the Consent to Entry of Order and Decree of Registration. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 ELECTION JUDGES After brief discussion, Councilmember Dwyer moved adoption of Resolution No. 02 -41, "RESOLUTION CONFIRMING 2002 ELECTION JUDGES." Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 PUBLIC COMMENTS Ms. Chris Gangl, 2201 Apache, stated that her neighborhood has been having quite a problem with deer running through their gardens. The deer are coming from the archery range area. She asked if there is anything that can be done about the problem. Mayor Mertensotto responded that the DNR has held controlled deer hunts in other areas of the city, but Ms. Gangl's neighborhood has a much higher population density than those areas. He stated that the city can contact the DNR to see if anything can be done. Ms. Gangl stated that the deer problem is a general problem in the city, and a hunt does not necessarily have to be done in her area. Administrator Lindberg stated that bow hunting has been conducted in the super block area, and she can certainly ask the DNR if they would look at different areas of the city. XCEL LITIGATION Council acknowledged a proposed resolution denying a conditional use permit, wetlands permit and critical area permit for the Xcel substation and transmission line changes, a proposed resolution approving the permits, and a memo from Councilmember Vitelli opposing any further legal appeals on the Xcel issue. Page No. 10 August 6, 2002 Mayor Mertensotto stated that the Court of Appeals overturned the decision of the lower court and said that Xcel is automatically entitled to the conditional use permit. The question is whether the city should file a petition for review by the Minnesota Supreme Court. About 10% of the petitions to review filed with the Supreme Court are granted. Council met with its legal counsel yesterday and one of the issues that came up was cost. He stated that the litigation has cost the city $23,687 to date, and the LMCIT has paid the balance of the fees. The total fees were about $75,000. Administrator Lindberg stated that it would cost about $5,000 to file the petition and between $12,000 and $20,000 if the court accepts the petition. The city would have to pay 15% of the total cost, as long as the cost does not exceed $200,000. Mayor Mertensotto stated that Council is not going to discuss the merits of the issue this evening, but whether the city should proceed to the Supreme Court. Ms. Tamara Will, 788 Hokah, stated that the issue is still important to her and her group and they still believe there is a health risk and Significant affect on property values. Those who originated the petition and those who signed it did so thinking Council would take <" it to the end and not stop and she is disappointed. She thought Xcel would try to work with the people they serve but the only way the people will be able to negotiate with them is to go forward with the next legal step. Mr. Mike Black, 904 Mendakota Court, stated that he is representing the organization as the intervener. It seems like a very small amount of money for the city to spend to see if the Supreme Court is willing to overturn the decision. This is the case involving the technical mistake in failing to extend the deadline for the decision under statute. There is nothing about the merits of the project being discussed. The only issue is whether NSP made a waiver of the time limit by participating in the steering committee. In March, the Council was ready to deny the NSP application or place several conditions on it. If the city does not ask for Supreme Court review, the application for conditional use permit will be granted as applied for. NSP said in March they had no plans to build this line for the substation to Bloomington. It would be just the east portion. If the court decision stands, they are free to build the entire line. The only way to impose limitations on the project is to have the Supreme Court accept review and reverse the decision. He does not want NSP to win on a technicality. It will only cost the city $750 to take it to Page No. 11 August 6, 2002 the Supreme Court. On behalf of his group, he urged Council to file the appeal. He stated that his group is going to file as an intervener. Mr. Tom Smith asked Council to vote to appeal the latest court decision and have the matter go to the Supreme Court. At the last discussion on the issue, Councilmember Schneeman stated the matter should be left up to the courts. One court has voted in favor of the city and one against. If Council still believes it should be decided by the court, this should go to the Supreme Court. Councilmember Dwyer voted for the conditional use permit last time but put a series of stringent conditions on it. If Council is sincere in trying to make Xcel toe the on this project, they must vote for the appeal. If Council votes not to appeal, they are voting to capitulate to NSP. Xcel is a poorly managed company with excessive debt and risky investment. He showed photos of locations where energy companies have done clear cutting of trees in order to install overhead lines and stated that instead of making power lines environmentally friendly, Xcel is living in the past. Mayor Mertensotto stated that Mr. David Herridge pointed out in past discussions that the second line will actually terminate before it changes direction. Mr. Herridge responded that the two lines that run from the stock yards will not be circuited the same. Mayor Mertensotto stated that was not part of the original application. There are two different functions of the dual line coming and that may be why NSP would not undertake Councilmember Dwyer's question about whether the line is extending to Bloomington. If NSP submitted that in the application to begin with, fine, if not, it is a change in the application. He asked whether a terminus of one of the lines coming into the substation was part of the application. Public Works Director Danielson stated that the lines NSP applied for are the lines that go east/west through the city. The terminus of one of the lines was in the application. NSP would bring in an extra set of redundant lines and showed more plans where they would install a new terminus for that line. Councilmember Krebsbach stated that she appreciates the comments. This issue is really about the process the city followed. She felt assured with the funding of the task force by Xcel that the city and Xcel were engaged in a fact finding process together. Before it Ayes:2 Mertensotto/Krebsbach Nays:2 Dwyer /Schneeman Page No. 12 August 6, 2002 culminated, Xcel said they had the right to apply for the conditional use permit and they said they did not grant the city an extension of the review period. By participating in the committee, Xcel did grant the extension. She felt the city should go forward to the Supreme Court because it is a question over the city process. The city was in a fact finding mission with NSP during 2000 and 2001 when they were funding the task force. Mayor Mertensotto stated that he was particularly concerned that a utility providing an essential service has to be on equal footing with the city. There is no question Council should file the appeal. Councilmember Dwyer stated that he thinks the appeal process postpones the inevitable. If the city were to prevail, that would get the issue back to the trial court. and Council already knows what the trial court thinks about the issue given its decision on Sunfish Lake's litigation. The city has spent an inordinate amount of time and resources on this issue and there are other issues in the city that need Council's time and the city's resources and Council needs to get back to that business. Councilmember Schneeman agreed, stating that she must do what she thinks is right. She asked Ms. Will if she has been in touch with the state about health issues. Ms. Will stated that she has, and was told that the California study would be coming out this summer and there are no significant changes. Councilmember Schneeman stated that she is familiar with the study, and there is no new information and nothing from the University of Minnesota about leukemia in children. To go forward to the Supreme Court would just give people false hope. The city will not win this because people need electrical power. Mayor Mertensotto moved to authorize legal counsel to file a petition with the Supreme Court and request review. Councilmember Krebsbach seconded the motion. Motion failed. RECESS Mayor Mertensotto called a recess at 9:05 p.m. The meeting was reconvened at 9:15 p.m. Page No. 13 August 6, 2002 CASE NO. 02 -25, ROTHMAN Council acknowledged an application from Mr. Jim Rothman for a wetlands permit for a dock at 778 Havenview Court. Council also acknowledged associated staff reports. Councilmember Schneeman asked if there is an ordinance controlling decks on city ponds. Mayor Mertensotto responded that it is his understanding that there are restrictive covenants on the plat. He stated that Council has had similar requests in the past and the applicants have said they would not put the docks out into the water. Councilmember Krebsbach stated that there is a five foot city easement all the way around the pond: Councilmember Dwyer stated that Mr. Rothman built and installed a cantilevered dock, but the Planning Commission termed it a non - dock. Under the city's wetlands ordinance, nothing can be built within 100 feet of a wetlands without a wetlands permit. Approving the dock would be a precedent he would not want to establish. It is his perception that people enjoy seeing the large expanse of water in the city without seeing docks. He was disturbed that Mr. Rothman was not knowledgeable about the wetlands regulations and was concerned about the precedent that would be set by saying Mr. Rothman can keep his dock. The Planning Commission, on a 3 to 2 vote, recommended that the dock be reduced in length or moved and that Mr. Rothman retroactively apply for all of the required permits. He stated that Mr. Rothman should pull the dock out. Mr. Rothman stated that at the commission meeting, the original vote was 2 to 3. The motion was to grant the permit and allow the structure to stand as it is. The reason for voting against it was precedent. To everyone's knowledge at the meeting, there is nothing in the rules or ordinances about a dock or non -dock and it was agreed that what he did is aesthetically pleasing. The structure only extends about two feet past the vegetation. He asked if there is something actually in writing that keeps him from doing this. Councilmember Krebsbach responded that people from Bridgeview Shores came before Council about ten years ago wanting to build a dock on the pond, and they agreed not to build it. Mr. Rothman stated that he canoes on the pond and there is a dock on the other side of the pond. He never goes over there and says it is an awful structure. There is a lot that was clear cut and replanted Page No. 14 August 6, 2002 with grass. He also sees the algae and weeds in the pond from fertilizer. He stated that the city should set its priorities. He doubted the people who clear cut their lot had a permit to clear cut and plant grass. He stated that Council should look to the major issues first and change the ordinance. He asked Council to allow him to leave the dock. Mayor Mertensotto stated that Mr. Rothman informed the Planning Commission that there is an informal pond committee. He stated that he cannot believe that there are no covenants. Mr. Rothman responded that the pond committee's focus is to clean up the pond. Mrs. Rothman stated that they did not have a view of the pond before they removed the vegetaion, and most of the neighbors do not have a view of the pond because of all the buckthorn. The dock is not visually obstructive, and it allows them to get onto the pond and enjoy it. They are one of the few families who actually go on the pond. There is a bridge over the pond, and there dock doesn't even touch the water. Councilmember Schneeman stated that the Rothmans did a magnificent job with their property. Their steps go right down to the pond, so if they took the dock out they could still have access to the pond. The Rothmans would not enjoy it if everyone on the pond had a dock. There are not even any docks on Rogers Lake as far as she knows. Councilmember Dwyer asked whether there is a scenic easement around the pond. Public Works Director Danielson responded that the width of scenic easements vary, depending on where the vegetation is, but there is a scenic easement around the pond. Councilmember Dwyer stated that land owners are prohibited from doing anything within a scenic easement and the Rothmans have done two things wrong. Mrs. Rothman stated that she does not know what a scenic easement is or what the covenants are. When they bought their home two years ago, they were told they had land going into the pond. She did not care if all the neighbors built docks. Page No. 15 August 6, 2002 Public Works Director Danielson stated that the city put the bridge across the pond so that residents in the two Bridgeview Shores neighborhoods could get across to each other without having to go all the way around the pond. Mayor Mertensotto stated that the city has a ten foot scenic easement around all of the ponds in the city to protect vegetation so that people cannot remove it. This usually comes up when someone wants to build a fence to keep people from walking around the pond. That cannot be done without a wetland permit. The city adopted a wetlands ordinance years ago because there are a number of ponds in the city. The issue here is that if the Rothmans can put in a dock, everyone could because a precedent would be set. The Rothmans are saying that there is another dock on Pagel Pond, but unless the owners have a permit, it is not legal. Mrs. Rothman stated that their dock is not permanent. Mayor Mertensotto stated that Council is not penalizing the Rothmans. The wetlands ordinance does not permit a dock without a permit and it is a policy decision Council must make. ( Councilmember Dwyer stated that if Council were to look at this as someone coming before Council requesting permission to build a dock, he would say no. That is consistent with what the city has done in the past. Councilmember Krebsbach stated that she would not support the Rothman dock request. The dock was built before the city was aware of it and the Rothmans are asking Council to approve it because it is already there. Mrs. Rothman stated that they did not do this on purpose. They understood it was their property. She did not understand why it is all right for a developer to put homes around the pond and build a bridge. It doesn't make sense to allow those things if this is a protected wetland. Public Works Director Danielson responded that the bridge is part of the city's trail system. Councilmember Dwyer stated that if the Rothmans came to Council before building the dock and asked for permission for a dock, he would say no because it encroaches on a protected wetlands. Ayes: 4 Nays: 0 Page No. 16 August 6, 2002 Councilmember Dwyer moved to deny the retroactive application for wetlands permit and to direct the applicant to remove the dock, and if they do not remove it, the city will take appropriate action to do so. Councilmember Schneeman seconded the motion. Mayor Mertensotto stated that this is a policy decision. The ordinance does not permit structures within the scenic easement around wetlands areas. Mr. Rothman asked when he needs to remove the dock. He stated that it was constructed in winter using the ice. He also asked if everything must be removed, even the steps that go down to the water. The dock is on a bank, and part of it is wood steps so that they can get their canoe in and out. Mayor Mertensotto stated that the steps are a man -made improvement in a scenic easement. Mr. Rothman stated that he doesn't know how he can get it out before winter. It is a cantilevered structured and there is no support structure into the pond. He could pull it back if he took his truck there. He would like to take it out when the ice comes in, because he can take it out in pieces then. Councilmember Krebsbach suggested that it be taken out by February 14. Mr. Rothman responded that in the winter, the part that is on shore will be frozen in. Mayor Mertensotto asked Mr. Rothman to give Council a date by which he can have the dock out. Mr. Rothman responded that he could have it out by early April. He needs to be able to support the portion that hangs out over the water and unbolt it and carry it out and take the rest out when the ice melts. Mayor Mertensotto stated that 90 days should be more than ample time to remove the structure. If Mr. Rothman cannot find a way to remove it, he will have to saw it off. Councilmember Dwyer moved to amend the motion to require removal by November 15, 2002. Page No. 17 August 6, 2002 Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 CASE NO. 02 -26, ROYAL Council acknowledged an application from Royal Redeemer REDEEMER Lutheran Church for a one foot height variance for a fence around the daycare center playground. Council also acknowledged associated staff reports. Ms. Mary Moore was present on behalf of the church. Ms. Moore informed Council that the fence is already up. It was put up by Midwest Fence. The church representatives thought Midwest had pulled the permit, but they had not. She came to City Hall to apply for the permit after she found out that a permit had not been acquired and was told it needed a height variance. Councilmember Dwyer found that there are grounds for the variance because the children could climb over a three foot fence. He recommended granting the variance. Mayor Mertensotto stated that the intent of the fence is to restrain children - the fence is along Victoria Curve. He asked what will i happen if the Church decides not to do daycare in the future. Ms. Moore responded that if the church gets out of the daycare business, the fence will not be needed. She also stated that the playground is open to anyone in the city, and everyone is welcome to use it. Councilmember Dwyer moved to approve a special use permit for the fence, with the stipulation that the permit will be in effect as long the children's playground exists. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 CASE NO. 02 -28, DODGE Council acknowledged an application from the Dodge Nature NATURE CENTER Center for a conditional use permit to allow an additional accessory structure on the nature center property. Council also acknowledged associated staff reports. Mr. David Napier was present on behalf of the Dodge Nature Center. Mr. Napier stated that the Dodge Nature Center would like a conditional use permit to move a barn from the former Ridder property onto the nature center property. The barn will be used as a Page No. 18 August 6, 2002 shelter during inclement weather for students who are visiting the nature center. Councilmember Dwyer stated that the proposal is that the barn is proposed to be placed over a lot line, and there is a concern about what would happen if one parcel were sold and half of the building was on it. Mr. Napier responded that the Planning Commission directed him to work with the city staff on the matter. There are two options, to move the barn off the lot line or to tie the two parcels together by coming back to the city. The nature center owns both parcels. If the barn were moved, it would be moved further to the east, but his preference would be to combine the two parcels and leave the barn where it is proposed to go. Mayor Mertensotto suggested granting a temporary conditional use permit which would not become permanent until such time as the parcels are combined. Councilmember Dwyer moved to grant a temporary conditional use permit to site the former Ridder barn at the proposed location on the Dodge Nature Center property, with the understanding that the conditional use permit will become permanent at such time as the parcels are combined. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 CASE NO. 02 -29, Council acknowledged an application from Ms. Chris Matykiewicz MATYKIEWICZ for a 2.5 foot sideyard setback variance to allow an addition to her home at 2131 Aztec Lane. Council also acknowledged associated staff reports. Ms. Matykiewicz stated that she and her husband have lived in their home for 19 years and have four children. They have discussed adding onto their home or moving for five years and would like to add on. They propose to construct an addition to their home and garage addition because they can only get one car in the garage. The old garage will be taken down. Councilmember Dwyer stated that if the structure is built as proposed, it will be 71/2 feet from the property line. He noted that the home is in Friendly Hills and Council has granted setback Page No. 19 August 6, 2002 variances in Friendly Hills many times. He pointed out that one of the neighbors has objected to the variance. Mr. Gerald Hansen, 2137 Aztec, who lives next door, stated that he thought the original proposal was for a two foot variance and now it is for 21/2 feet. The Matykiewiczs' want to put a 40 foot wall 2 V2 feet closer to his property. Mayor Mertensotto stated that the proposal is to tear down the entire existing garage. Perhaps the applicants could get by with a two foot variance so there is at least an eight foot setback. Ms. Matykiewicz stated that they originally wanted two feet but when her architect measured the garage, he found that it is only 18 feet wide, not 19 %2 feet like they thought. Adding two feet would give her a 21 1/2 foot wide garage. There are lilac bushes at the fence line. There will be windows and a service door on that side of the garage also. The kitchen will also be moved. Councilmember Krebsbach asked Ms. Matykiewicz if there is room to plant bushes between the garage and the property line. Ms. Matykiewicz responded that their sidewalk is at the property line now. There are lilac bushes now, and there is a fence behind the house. She showed Council photographs of her property. Mayor Mertensotto asked why the service door cannot go to the back to reduce the foot traffic. Ms. Matykiewicz responded that she needs the service door for the garage on that side in order to get into the garage, but does not need the extra door for the kitchen. She could put a window where the kitchen door is. There would be a service door and windows in the garage. Mayor Mertensotto stated that there should be a condition that the sideyard not be used as a storage area. Mr. Hansen wanted the garage stepped back to a two foot variance. Councilmember Dwyer responded that the applicants already reduced the garage by 44 square feet. Councilmember Schneeman stated that the houses are so close together there is not room to do much adjustment to them. She asked Mr. Hansen how much of the Matykiewicz yard he could see. Page No. 20 August 6, 2002 She stated that she was at the property today and Mr. Hansen has a lot of tires, etc., in his yard. The Matykiewicz plan is beautiful and will be a wonderful addition to the neighborhood. The Planning Commission recommended approval as long as the siding on the house and addition be the same. Mayor Mertensotto suggested that perhaps the step back could be one foot rather than two. It is common practice to step long walls back to break up the length of the wall. Councilmember Dwyer stated that the purpose is to take a small house and make it more livable, which is something Council has approved and encouraged in Friendly Hills. Mr. Hansen asked if he could add on to his home in the future if he wants to. Mayor Mertensotto responded that Council has to treat everyone the same. Councilmember Schneeman stated that the Matykiewicz family needs to make their house more useable, and they have a beautiful plan. Councilmember Dwyer moved adoption of Resolution No. 02 -45, "A RESOLUTION APPROVING A 2.5 FOOT SIDE -YARD SETBACK VARIANCE FOR A HOME ADDITION AT 2131 AZTEC LANE," with the condition that the siding be consistent with the rest of the house, that there be a side service door in the garage only and that and that as it proceeds westward, there be a window in the kitchen area and that it continue westward without a jog. Councilmember Schneeman seconded the motion. Mayor Mertensotto asked the width of the structure. Ms. Matykiewicz responded that it is 82 feet wide at the front and about 88 feet wide at the back. Mayor Mertensotto stated that the whole structure will be pushed over against the neighbor's property, eight feet from the lot line rather than ten feet. He felt that it would be a reasonable request to step it back about one foot. Ms. Matykiewicz responded that she would like to have the extra two feet for the garage. Page No. 21 August 6, 2002 Mayor Mertensotto stated that the structure will be forty feet deep and if it were stepped back one foot at the end of the garage, the applicants would have two feet of extra width for the garage. Stepping it back would break up the expanse of the wall. Councilmember Dwyer stated that there would then be a two foot variance for the garage and one foot for the remainder of the addition. Mrs. Matykiewicz stated that would be great. Councilmember Dwyer moved to amend the motion to add a condition to grant a two foot sideyard setback variance for the garage and a one foot variance for the remainder of the addition, and to add a condition that there be no sideyard storage. Councilmember Schneeman seconded the motion. Vote on Motion As Amended: Ayes: 4 Nays: 0 t SANITARY SEWER CLAIMS Council acknowledged a memo from Public Works Director Danielson regarding sanitary sewer backup claims, along with letters from Mr. & Mrs. Tom Pate, Mr. & Mrs. Peter Rusterholz, and Mr. & Mrs. James MacDonald. Public Works Director Danielson stated that he is asking Council to consider the requests. The homeowners have submitted receipts and/or estimates to repair damage from a sewer backup. The city only carries liability insurance coverage and does not carry no -fault coverage because the premium for the coverage is about $7,000 per year. No -fault coverage pays claims up to $10,000. The city's insurance carrier has rejected all of the claims on the basis that the city was not negligent. Mayor Mertensotto noted that the damage to the McDonald home was more extensive because they were out of town when the backup occurred. Their claim is for $44,000. Mrs. MacDonald stated that their house was not abandoned. They were gone on vacation for five days over the Fourth of July. When they came home they were told there was a sewer backup and they couldn't live in their home for a week. They have done the clean up they had to do so that they could get back into their home. They will Page No. 22 August 6, 2002 do the best they can to clean it up and got estimates just to make it livable again. Mayor Mertensotto informed Ms. McDonald that they will need to submit receipts or work estimate. Councilmember Dwyer stated that he doesn't understand why the city would be willing to pay this claim if there is no showing that the city is responsible. The city's insurance carrier will not pay the claim. Mayor Mertensotto responded that the on the small claims it has been the city's position that the city is better off paying the claims rather than paying the annual no -fault premium. Councilmember Dwyer stated that unless the owners can demonstrate the city caused the problem, he is not sure the city should be dipping into its funds to pay the claim. Ms. MacDonald responded that there was a manhole blockage on city property from something that accumulated over time. Councilmember Dwyer stated that the LMCIT has investigated and concluded the city is not negligent. Mrs. MacDonald stated that it would be up to a jury to decide. They are being reasonable and are trying to get to the point where their house is livable again. The damage occurred through no fault of hers. Councilmember Dwyer responded that if the city had no fault insurance there would be $10,000 available to the MacDonalds. That is how claims have been treating in the past — recognizing that claims up to $10,000 would be paid. Mayor Mertensotto stated that the MacDonalds' claim is one of the largest the city has ever had except perhaps for claims for storm sewer damage. Councilmember Dwyer stated that if the city had acted negligently it would have to pay. There is no evidence of negligence in this case. The most he would approve is $10,000. There are other people in the city who have had unfortunate things happen to them, like th damage to the Berg property. Council would be establishing a precedent if it authorized more than $10,000. Page No. 23 August 6, 2002 Mayor Mertensotto responded that the city is responsible for providing water and sewer, and the residents are billed quarterly for the service. There is a distinction between the MacDonald claim and the Berg property, because the city must maintain the sanitary sewer lines. Even though there is no negligence on the city's part, there is a reasonable basis for payment of the claim. Mrs. Rusterholz stated that they live in a valley and are on the lowest level. When there is a storm, all of the rain water empties into the depression between her lot and the MacDonalds. The gravel is coming from the city putting sand and gravel on the road in the winter time Councih- ember Dwyer responded that the rain water is a storm sewer problem, not a sanitary sewer problem. Ms. Rusterholz stated that the city people came out and worked to clean up the sewer line for two and one half days. She kept the damage to her home down because she was home and three people were running vacuums to pump the water out. Her friends brought over shampooers, etc., to help keep damage to a minimum. Councilmember Dwyer stated that he has no problem with paying the Rusterholz claim and the claim on Callahan. Council had the option to purchase no fault insurance whereby the city's insurer would pay up to $10,000. Council decided not to buy that insurance because of the annual premium and made a policy decision at that time. Mayor Mertensotto stated that from a legal standpoint the MacDonald's would have to show negligence. The no fault insurance would cost $7,000 per year but would pay only up to $10,000 per claim. This is the first time he can recall a claim over $10,000. When Council made the decision not to carry no fault, it was Council felt that it would be better to save the premium and pay the claims. Councilmember Krebsbach stated that the city has coverage if the city was negligent, and there is no proof that the city was negligent. Mayor Mertensotto responded that if the city were sued for the claim, LMCIT would have to defend the city. Page No. 24 August 6, 2002 Councilmember Krebsbach stated that Council is steward of the city and should not pay a claim where the city is not at fault. i Councilmember Schneeman stated that a blockage in the city line in the middle of the street that caused the backup. City Staff does not know why it happened. Counci - member Dwyer stated that if that is the truth, the MacDonalds have the grounds for pursuing the claim through the court. If they do that, the city's insurance carrier will defend the city and would have to pay a claim based on the court decision. Councilmember Krebsbach stated that the LMCIT claims adjustor is a professional and he has determined the city is not at fault. Councilmember Schneeman stated that if the problem had happened to a member of Council, they would want someone to pay for it. Councilmember Krebsbach stated that there was a determination that there was sand and gravel in the line and the adjustor viewed the damage at the Rusterholtz home and found that the amount of the claim is reasonable, but he is making no call on who is responsible for the damage. Councilmember Dwyer stated that the city has an insurance policy for the MacDonald Claim and he thinks the MacDonalds should pursue that policy. Mayor Mertensotto felt that Council should handle the claim like it has handled claims in the past, but that the homeowners must submit formal estimates. Mrs. MacDonald stated that she has estimates from Clean Response to get rid of the biological hazard. They told her it would cost $44,0000 to repair all the damage minus the $4,000 that her insurance would pay. She agreed that the actual cost would be the appropriate cost. Mayor Mertensotto moved to authorize up to $30,000 to reimburse the MacDonalds for their expenses, from the Utility Reserve Fund, and that the Public Works Director make the authorization for reimbursement upon demonstration that the MacDonald's incurred the expense. Councilmember Schneeman seconded the motion. VOTE ON MOTION: Ayes: 2 Mertensotto, Schneeman Nays: 2 Dwyer, Krebsbach Ayes: 2 Dwyer, Krebsbach Nays: 2 Mertensotto, Schneeman Page No. 25 August 6, 2002 Councilmember Dwyer stated that he opposes the motion on the basis that there is no showing of city fault; the city carries insurance coverage to take care of these claims; and the city would be paying $30,000 and the expense would not even be capped at that amount. Councilmember Krebsbach stated that she is not prepared to support a $30,000 payment this evening. Mrs. MacDonald stated that every resident she has talked to is shocked that she would have to pay for the damages. Councilmember Dwyer stated that the city has an insurance policy that will take care of the damage if the MacDonalds can show that it was caused by city negligence. The insurance carrier has denied the claim, and if the MacDonalds file suit, the LMCIT will have to defend the city. Mrs. MacDonald stated that suing the city would cost them significant attorney fees and lengthy litigation. It was sand and gravel that accumulated in the sanitary sewer over a period of time that caused the backup. Councilmember Schneeman stated that the city has paid every one of the claims in the past. It is just because this claim is so high that it is not being paid. The no fault insurance would only have paid $10,000. Motion failed. Councilmember Dwyer moved that the claim be satisfied for $10,000 to settle the claim in full subject to the MacDonalds executing a release that it is settlement of a disputed claim. Councilmember Krebsbach seconded the motion. Motion failed. Councilmember Krebsbach stated that she would like to have more discussion on the issue. It is a big decision and she needs more information. Page No. 26 August 6, 2002 Councilmember Dwyer stated that Council should authorize payment of the other claims because the city elected not to carry no fault (' coverage. No fault coverage would have paid up to $10,000 where there is no showing of fault by the city. The other claims are under $10,000. Councilmember Krebsbach stated that she feels all the decisions have to be the same. The Rusterholz and MacDonald homes are next to each other. She stated that she would like more time to consider all of the claims and more information from the claims adjustor. City Attorney Schleck stated that if there is potential litigation, some of these discussions are better taken in closed session. Councilmember Schneeman responded that she does not think it is fair to pay the others if the MacDonald claim is not paid. She suggested that action be tabled to the next meeting. Administrator Lindberg stated that staff will try to provide additional information to assist Council in making a decision. Mayor Mertensotto stated that past practice has been that the city has paid the claims, but the city has never had a claim over $10,000. He pointed out that there will be a full Council next meeting. Mrs. MacDonald stated that $10,000 is at least more than they have now. She asked those who voted against the $10,000 to at least authorize that. She stated that she knows how expensive litigation would be. It would cost about the same as her claim to go to litigation. The $10,000 would at least pay her bills for cleaning up the back -up. It was the consensus to table action to the August 20 meeting. MARIE PARK TENNIS COURTS Council acknowledged a memo from Administrator Lindberg regarding a request from Ms. Ann Norton that the city resurface the Marie Park tennis courts. Council also acknowledged associated staff reports and a letter from Ms. Norton. Ms. Norton and her husband, Jonathon Storer, were present for the discussion. Ms. Norton stated that she was on the Parks and Recreation Commission when they developed their capitol improvement plan. Marie Park tennis court improvements are overdue. Other neighbors have also complained that the courts are in deplorable condition. C Page No. 27 August 6, 2002 Councilmember Dwyer asked whether Ms. Norton thinks the condition of the courts is due to the frequency of play or other conditions. Ms. Norton responded that the courts used to be used a lot but not any more because of the condition. Mayor Mertensotto stated that the Ivy Park tennis court project was authorized up to $11,000. . He stated that he would be willing to do the same type of work for Marie Park, but the work may not start until October 1. He asked whether Council wishes to spend that much money in October since the courts would not be used over winter. Administrator Lindberg responded that the contractor has indicated it would be late August or September before he could start and it would be completed by the end of September. Councilmember Schneeman stated that she would hate to see a brand new court be laid and then sit all winter. She would rather not see a brand new court go through the winter months. She stated that when these courts were built in the 1970's there were no other courts in the city. There are other courts now that could be used until spring. Mr. Storer stated that there are other contractors, and the city should find out what technology is available. He felt that it was appalling to only get ten years of use out of the courts. Mayor Mertensotto stated that staff has worked with this contractor and Council knows what costs are involved. The contractor has done satisfactory work and has said he would do the work for approximately the same price as Ivy Park. Ms. Norton stated that Council is going to consider a proposed ordinance about people maintaining their properties. The city should maintain its property as well. She stated that she wants to be able to play tennis in October, but certainly in April. Mayor Mertensotto stated that he does not want to have the courts resurfaced on October 1 and sit all winter. Administrator Lindberg responded that Parks Project Manager Kullander just talked to the contractor who did the Ivy Park courts and he said he could begin work in late August, but it would not be completed until late September. Page No. 28 August 6, 2002 Councilmember Schneeman moved to authorize up to $11,000, plus 10% for engineering, from the equipment reserve fund, to repair the Marie Park tennis courts provided the contractor can complete the project by the end of September. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 NOISE /MAINTENANCE Discussion on proposed noise and property maintenance ordinances ORDINANCES was tabled to August 20. COUNCIL COMMENTS Councilmember Krebsbach stated that Mendota Heights has always advocated for the airline corridor, and she is concerned that because residential housing for children will be built in the corridor, the City of Eagan will not advocate that planes fly in the corridor. Mayor Mertensotto asked what the City of Eagan is doing to remind the applicant for the housing project that the area is entirely within the flight corridor. City Administrator Lindberg was directed to send a letter to Eagan expressing Council's concerns. ADJOURN There being no further business to come before Council, Councilmember Krebsbach moved that the meeting be adjourned. Councilmember Dwyer seconded the motion. Ayes: 4 Nays: 0 TIME OF ADJOURNMENT: 11:25 p.m. Kathleen M. Swanson City Clerk ATTEST: Charles E. Mertensotto Mayor