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2001-07-10 City Council minutesPage No. I July 10, 2001 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, July 10, 2001 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. Mayor Mertensotto and Councilmember Krebsbach informed the audience on the recent deaths of two valued members of the community, former Mayor Donald L. Huber and Josephine Lockwood, wife of former Mayor Robert Lockwood. Mayor Mertensotto called for a moment of silence in their memory. AGENDA ADOPTION Councilmember Schneeman moved adoption of the revised agenda for the meeting. Councilmember Dwyer seconded the motion. Ayes: 5 Nays: 0 APPROVAL OF MINUTES Councilmember Vitelli moved approval of the amended minutes of the regular meeting held on, 2001. Councilmember Dwyer seconded the motion. Ayes: 5 Nays: 0 CONSENT CALENDAR Councilmember Vitelli moved approval of the consent calendar for the meeting, revised to move items 5h, mileage rate, 5i, Metro 11 parking expansion, and 5j, City Hall erosion repairs, to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the June 26, 2001 Planning Commission meeting. b. Acknowledgment of the Fire Department monthly report for June. c. Acknowledgment of a letter of retirement from Tom Olund from the Fire Department, effective April 1, 2001. Page No. 2 July 10, 2001 d. Authorization to transfer $150,000 from the General Fund to the Equipment Reserve Fund for 2000 and 2001 operations. Authorization for payment of the final 2000 City Audit billing from KPMG, acknowledging that the bill is approximately $7,000 greater than budgeted due to new GASB requirements. f. Approval of a variance to Ordinance No. 270 to allow the Mendota Mdewakanton Dakota Community to have a sacred fire burning from 10:00 p.m. on August 10, 2001 to 10:00 p.m. on August 12, 2001 in conjunction with its Pow Wow being conducted on the St. Peter's Church property during those dates. g. Adoption of Resolution No. 01 -35, "A RESOLUTION DENYING AN APPLICATION FOR A COMPREHENSIVE PLAN AMENDMENT FOR AN OFFICE HEADQUARTERS BUILDING FOR THE AMERICAN LUNG ASSOCIATION OF MINNESOTA." h. Approval of the list of contractor licenses dated July 10, 2001. i. Approval of the List of Claims dated July 10, 2001 and totaling $212,291.54. Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 MILEAGE RATE Council acknowledged a memo from Treasurer Shaughnessy recommending an increase in the mileage reimbursement rate for use personal vehicles for city purposes. He recommended that the rate be increased from $0.315 per mile to the Federal rate of $0.345 per mile for 2001. After brief discussion, Councilmember Vitelli moved to adopt the Federal mileage reimbursement rate of $0.345 per mile, effective July 1. Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 METRO II Council acknowledged a request from DeVetter McCarthy and Associates for approval to increase the number of parking spaces at the Metro II building. Council also acknowledged associated staff reports. Mr. Tim McCarthy was present for the discussion. Page No. 3 July 10, 2001 Mr. McCarthy explained that he would like to increase the number of paved parking spaces from 104 surface parking spaces and 12 covered spaces to a total of 133 parking spaces. He explained that this make the parking more consistent 'with city regulations and will improve the facility for future tenants. He reviewed the site plan and stated that he is also asking for an additional, one-way, exit from the site onto Mendota Heights Road. Responding to a question from Mayor Mer-tensotto, Mr. McCarthy stated that the exit will have no impact on Mendota Heights Road. He informed Council that he has incorporated into his revised plan, dated July 9, the city planner's recommendations to eliminate the northern most parking stall in order to meet setback requirements and to designate the angled parking as reserved parking for specific building employees. He stated that existing trees will be replanted and if any of them fail, new trees will be planted to replace them. After brief discussion, Councilmember Dwyer moved to authorize the issuance of a building permit for parking lot modifications in accordance with the plan dated July 9, 2001, subject to code review and approval of the code enforcement officer. Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 CITY HALL EROSION Council acknowledged a memo from City Hall Building Manager Guy Kullander regarding the need for the repair of erosion damage at the west end of City Hall. Public Works Director Danielson informed Council that the proposal is to move the downspout and install a rain gutter along the west side of the building and to install a retaining wall and berms. Councilmember Vitelli moved to authorize City Hall erosion repairs at a cost not to exceed $8,000. Councilmember Krebsbach seconded the motion. Ayes: 5 Nays: 0 PUBLIC COMMENTS Mr. Bob Brown, representing the Mdewakanton-Dakota Community, was present to thank, Council and the residents of the city for allowing them to conduct their Pow Wow and ceremonial fire. He stated that his only concern is about the possible need for additional parking. Responding to a question from Mayor Mertensotto, he Page No. 4 July 10, 2001 stated that many of the people who attend the event come a long distance, and it is unlikely that they will car pool. Mayor Mertensotto stated that Council did not receive any complaints or any reports about incidents relating to alcohol or drug use at last year's event, and he complimented the Community on keeping everything under control. CASE NO. 01 -15, MEENTS Council acknowledged an application from Mr. & Mrs. Michael Meents for a three foot fence height variance to allow installation of a six foot tall fence at 795 Creek Avenue. Council also acknowledged associated staff reports. Assistant Hollister reviewed the application and the Planning Commission recommendation for Council. The house is at the corner of Dodd Road and Creek Avenue, and the fence is needed to provide privacy along Dodd. The city ordinance only allows three foot tall fences in a front yard, so a three foot variance would be required. The applicants also wish to run the fence around their back yard. A mitigating factor is that the grade of their yard is lower than Dodd, so people driving by will not see a six foot fence. The city planner and Planning Commission recommend approval of a variance for the six foot fence along Dodd Road. Mayor Mertensotto asked why the fence is not restricted to the side of the yard along Dodd. He noted that the applicants propose to bring the fence up to the front of the house instead of beginning it at the back of the house. Assistant Hollister responded that they need a variance for thirty feet from the front lot line and the portion along Dodd. Mayor Mertensotto asked if Council is being asked to permit a six foot fence in the front yard. Council has never granted such a variance in the past. He stated that he can understand why they would want a privacy fence along Dodd and on their south property line but not a fence that would extend into the front yard. Councilmember Dwyer stated that the concern is the 25 foot stretch of fence in the front yard area. Mr. Meents responded that the fence that would be in the front would start at the front corner of the house and run along Dodd. He stated that he was told the variance was for the part of the fence along Dodd Road. Page No. 5 July 10, 2001 Mayor Mertensotto was concerned that approval of the request would set a precedent. City Attorney Dan Schleck stated that the Zoning Ordinance limits front yard fence height to 3 feet, and it appears that this is a sideyard fence, although a 25 foot section of this fence is actually in the front yard. Mr. Meents responded that the fence will start just behind the front corner of the house. Councilmember Krebsbach asked Mr. Meents why he wants the fence to come up to the corner of the house. Mr. Meents responded that it would give him more enclosed back yard space. Councilmember Vitelli stated that if the City Attorney is interpreting the ordinance correctly, it is not an issue. He understood Attorney Schleck to say that this is a side yard fence. Mayor Mertensotto responded that from Creek Avenue, you would see a fence in the front yard. Since the fence is attached to the front of the house, it is in the front yard. Councilmember Dwyer stated that this is unique because it is a corner lot. He did not think any member of Council would have any problems with the fence along Dodd. Councilmember Krebsbach noted that in order to close off the back yard, the fence must be connected to the house. She commended the applicants for choosing a board fence rather than solid vinyl. Attorney Schleck stated that the fence on the Dodd Road side is proposed to be attached to the front of the house, while the portion of fence on the other side lot line is attached to the back of the house. He felt that there must be a way to bring the portion on the Dodd Road side back to the back of the house. Mr. Meents stated that the only variance he was aware he needed was for having a six foot fence along Dodd. Mrs. Meents stated that they have a large front yard and a large side lot and do not want to lose that area from their lot. Ayes: 4 Nays: I Mertensotto Page No. 6 July 10, 2001 Councilmember Dwyer stated that what Council is looking at is uniformity and application of the rule. The ordinance says fences in the front yard can be no higher than three feet. The setback applies to anything within the required 30 foot front yard. Responding to a question from Councilmember Krebsbach about whether there are trees in the back yard, Mr. Meents stated that there is a line of existing trees that will be on the outside of the fence. Councilmember Schneeman stated that she would like to see the property before making a decision. She could see the hardship because the property is along Dodd Road, but stated that there must be conformity in the city. She did not want to place an undue hardship on the applicants, and suggested the matter be tabled to allow time to view the property. Attorney Schleck stated that he is not saying that the applicants do not need a variance for the 25 foot section of fence. What he is saying is that it falls in the sideyard rather than the front yard. It is a sideyard fence but the ordinance still requires it to be no more than 3 feet high. If Council grants a variance, it can be for the L-shaped fence section and the portion along Dodd Road. Regardless of whether it is a front yard or a side yard, a variance is still required. Councilmember Vitelli moved adoption of Resolution No. 01 -36, "A RESOLUTION APPROVING A THREE-FOOT HEIGHT VARIANCE FOR A FENCE AT 795 CREEK AVENUE." Councilmember Krebsbach seconded the motion. Councilmember Krebsbach stated that she would like to review the fence ordinance with respect to solid vinyl fences. Councilmember Schneeman stated that she would also like to review the ordinance provisions within the next month. Attorney Schleck informed Council that the only provision in the ordinance that speaks to opacity requires that front yard fences be 30% opaque. Mayor Mertensotto suggested that Council direct staff to prepare a draft ordinance amendment. Page No. 7 July 10, 2001 Councilmember Krebsbach moved to direct staff to look at the fence ordinance with regard to a uniform height of five feet and solid fencing for the purpose of considering an ordinance amendment. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 BERG CRITICAL AREA Council acknowledged a letter from Attorney Peter Coyle on behalf PERMIT of Mr. & Mrs. David Berg, requesting approval of a critical area permit to allow them to do slope protection at 711 Woodridge Drive. Council also acknowledged associated staff reports and additional information provided by the Bergs. Mr. Coyle stated that the applicants are requesting an exemption from Planning Commission review so that the permit can be expedited in order to alleviate a slope problem caused by a torrential downfall last month. He informed Council that the pool shown on city's drawings no longer exists, and a small three season porch was constructed in 1985. He showed Council photographs of the erosion that occurred during the June 13 storm, including photos showing the dirt that eroded from the site onto Highway 13. He stated that there is a similar erosion west of the Berg property and further stated that there does not appear to have been any steps taken by anyone to alleviate the problem. It appears to him that there are other properties similarly affected, and while he is present for the critical area permit to relieve the Bergs' immediate problem, it would seem that there is a strong desire on the part of the Bergs, MnDOT and city staff to approach the total area as a whole. The Bergs have retained engineers to evaluate how to resolve the problems. The erosion has grown towards the house another ten feet since the storm, and it is about 21 feet from their residence now. The next downpour will only exacerbate the problem. A plan has been submitted to MnDOT and the DNR. He stated that based on his conversations with them, they were generally sympathetic to doing something. Council's approval might be in concept, but he will work with city staff and the other agencies to come up with a plan that will both help the Bergs and the other properties in the area. Mayor Mertensotto informed Mr. Coyle that the DNR is vitally concerned about stabilizing the slope. MnDOT is also vitally interested because the dirt eroded onto the highway. He stated that while the Bergs wish to process a critical area permit first, he feels they area setting up a confrontation between the city and the two other agencies. He felt Council's position should be to defer to the DNR and MnDOT. City engineering's day to day operations do not Page No. 8 July 10, 2001 include stabilizing slopes. In the recent Baldinger critical area permit application, the city retained an outside consultant. Council can bypass the Planning Commission because this is a special situation, but the ultimate question is what is the plan to stabilize the property. He felt Council should not say that the Bergs can work with staff, because the city does not have the expertise. This is unique because of the steepness of the slope, and he felt the Bergs should work with the DNR and MnDOT. Councilmember Dwyer stated that the city also needs to explore who is going to pay for the slope stabilization. He asked whether there is any expectation by the Bergs that the city will contribute. Mr. Coyle responded that the honest answer is that he does not know. He is going to ask for city assistance in identifying potential sources of funds. The DNR and MnDOT anticipate there could well be sources of funds. The Bergs would appreciate the city's assistance in getting those funds. Mayor Mertensotto stated that if the Bergs are going to apply to the state or federal government for funds, they will need a stabilization plan. The city has limited engineering resources and, while the city would like to help any property owner, Council must be practical. Councilmember Dwyer stated that there is an allegation in Mr. Coyle's letter that the city prohibited certain improvements to the property and therefore is somewhat responsible. He was concerned that Council not take any action tonight that could be construed to set the city up as being an involuntary participant. Councilmember Vitelli agreed that Council should defer to the professionals and also agreed with Councilmember Dwyer that it is not in the best interest of the city residents to take action tonight other than to defer to MnDOT and the DNR. Mayor Mertensotto stated that Council would have no problem with the city assisting the Bergs in applying for funding from other agencies, but the DNR and MnDOT have more experts than the city. Mr. Coyle stated that the Bergs have not asked the city to design anything. They would like the city's active interest in approaching the other agencies in what they say is a regional problem. There are other failures that have occurred along T.H. 13, and if the Berg property must do something to keep erosion from coming onto the highway the others must also. He stated that he is here this evening Page No. 9 July 10, 2001 because the Council is the decision making body that grants critical area permits to do what the Bergs must do. The city process is much longer than the other agencies, and it makes sense to get Council's concept approval on what the Bergs need and then go the other agencies to ask them the most appropriate remedy and to ask them what it will cost and how the cost will be paid. The Bergs are not present to say this is the city's problem, but it is not the Bergs' problem either. Councilmember Dwyer pointed out that Mr. Coyle is asking Council for a permit for a fix for which no information has been submitted. Mr. Coyle responded that the Berg's engineer, Lawrence Samstad, has submitted information on what he believes is an appropriate remedy. That information has been submitted to the DNR and MnDOT as well. Councilmember Dwyer stated that the Bergs are asking Council for a conceptual permit. While the city want to coordinate a "fix," Council is not going to blindly buy anything. What he sees in the Sanstad proposal is a great deal of concrete, and Council needs more than the Bergs' expert saying what is needed. Mr. Coyle responded that this is the reason why he needs city staff to attend the meetings with the DNR and MnDOT. Mayor Mertensotto stated that those agencies are larger units of government than the city. This is not a special improvement project, although Council could order a special improvement project if the affected property owners agree to the assessments. Councilmember Dwyer asked if Council can agree to fast track the deliberation on the critical area permit once MnDOT and the DNR and city staff have spoken. Mayor Mertensotto stated that Council should definitely defer to MnDOT and the DNR. He felt that it would be a colossal mistake for the city to take the lead in this issue. Referring to Mr. Samstad's letter, Councilmember Krebsbach stated that it doesn't appear that there has been a formal approach to MnDOT. Page No. 10 July 10, 2001 Mr. Coyle responded that he had a meeting with MnDOT and the DNR a week ago. He did not have the plan then but told them he would come back to them with a plan. Mayor Mertensotto asked what would happen if those agencies say they do not want concrete used. Councilmember Krebsbach stated that the proposal should be presented to the state agencies and if there is approval and the Bergs need to move quickly, Council could agree to fast track the critical area permit process. Mr. Coyle stated that those parties have received the plan but have not given their input. He expected to call them tomorrow to ask for input. He stated that Council must understand that the Bergs must work with those agencies but would like to know they have Council as a moral partner if not financially. Councilmember Dwyer stated that Council does not want the Bergs to walk out of here thinking that the city is participating with them. Public Works Director Danielson stated that this is the closest house to Highway 13, and it has the steepest slope. He was concerned that the final solution must be a well engineered and aesthetic plan that will solve the problem of sliding. Responding to a question from Mayor Mertensotto, Mr. Coyle responded that the 60 day rule applies. Mayor Mertensotto stated that the city will keep a watch on the timing. Councilmember Vitelli stated that he agrees with Councilmember Dwyer's comments that the applicants should not walk away thinking the city is a partner or that Council gives concept approval to a solution yet. Also, before he could agree to a fast track approach, he would want an agreement that no claim or lawsuit will be filed against the city. Mayor Mertensotto suggested that the matter be tabled on the basis that the city will defer to MnDOT and the DNR and that Council wants to review the matter within 45 days. Page No. 11 July 10, 2001 Mr. Coyle asked whether, assuming in the next two weeks another downfall occurs that further erodes the slope, the Bergs must defer until the other agencies have approved a plan. Mayor Mertensotto asked whether Mr. Coyle was suggesting that if Council does not act tonight the city will have liability. Mr. Coyle responded that he was not making that suggestion, but the Bergs may need to take steps to stabilize the slopes before the approvals are all granted. Mayor Mertensotto was concerned about the 60 day rule. Nothing can keep the Bergs from coming back sooner than 45 days. If they can find a source of money and the city has to file the application, Council will certainly help. The city does not have the staff or the finances to engineer the remediation. Mr. Coyle stated that he is trying to follow the rules. He met with the state agencies and the follow tip process with them was predicated on what Council directs him to do tonight. He stated that he will call the two agencies tomorrow to set up a follow up meeting and asked for Council approval for city staff to participate in the meetings. Councilmember Dwyer moved to table the application with the provision that the applicant report back on the status of negotiations with MnDOT and the DNR within 45 days. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 HAVEN TREATMENT Council acknowledged a memo from Assistant Hollister regarding FACILITY continued discussion on a request from Haven Chemical Health for a residential treatment facility for up to ten chemically dependent adult women at 2535 Condon Court. Council also acknowledged information from Haven and associated staff reports. Robert Haven, President of Haven, LLC, was present for the discussion. Mr. Haven informed Council that he is proposing to provide a ten bed women's residential treatment program at the home on Condon Court. He has been in the treatment business for 29 years, and collectively the partners have been in the treatment business for 94 years. This is the firm's first residential program. Page No. 12 July 10, 2001 Mayor Mertensotto stated that there is no question about Mr. Haven's background and experience in the field or whether he is qualified. His first concern was to what extent the state health department will monitor the facility. Mr. Haven stated that the state comes out once a year and brings a team of three to review the facility and program. Mayor Mertensotto stated that Dakota County also has a health department, but when they can to get the state or private enterprise to take over, they do. If Mr. Haven is planning to have ten residents in the home, a variance is needed. He felt Council should consider setting up a special district to handle this type of treatment facility. The applicants are present for preliminary discussion on whether a variance or conditional use permit is needed. He was concerned that the city have some control over the use of the facility. He felt Council should set a condition that there can be ten residents if the facility meets the building code and other code requirements including on site sewage disposal. There are health department requirements, and the applicants should also talk with the city's code enforcement officers and fire marshal to determine what conditions should be required. This should not be a facility operates like a weekly or monthly hotel. He stated that he understands that a 30 day stay is standard, and felt that there should be a city imposed condition that if someone stays more than 45 days the conditional use permit would be violated. Council also needs to know what control Haven has so that people do not walk away. The controls would also be part of a conditional use permit. Councilmember Dwyer asked whether a special use permit could be issued instead of rezoning and conditional use permit. Mayor Mertensotto stated that special use permits have been issued in the past for churches on a temporary basis but this is not a temporary facility. Councilmember Schneeman wondered whether the permit could be issued for one year to see what happens. Councilmember Krebsbach stated that she would like to have an ordinance that really restricts residential facilities in the city's neighborhoods. She would want to enforce within the ordinance some of the points raised at the last council meeting, such as residents leaving the facility. She would also want the ordinance to require consistent monitoring. Another question she has is security, Page No. 13 July 10, 2001 in terms of residents having the same safety issues as someone using a shelter. Mr. Haven responded that the house has been purchased and there is no debt. He plans to operate the facility for a long time and wanted to assure council that Haven is a viable operation. The facility will be staffed 24 hours a day, and no resident will be there longer than 45 days. Chemical dependency treatment is what the program is for, and there is no long term care. He stated that the facility will not have court commitments. Most of the residents will be third party referrals. If they are court ordered, Haven would not get reimbursed. Residents do not walk away. If they want to leave, his staff will given them a ride home. It is highly unlikely that anyone would want to leave, but in any event, Haven would not just let them leave. A security system has been installed in the home and no one could sneak out. Mayor Mertensotto stated that this type of facility is definitely needed and that their application should be for a conditional use permit for a gender specific treatment facility. Mr. Haven asked how long the process would take, stating that he is ready to begin operation now. Attorney Schleck responded that it would take about six weeks for an ordinance amendment and that the amendment and conditional use permit processes could be done concurrently. Councilmember Dwyer stated that Council recognizes this as something that is absolutely needed in our society and Mr. Haven and his associates have the needed expertise. Mayor Mertensotto stated that Council could issue a temporary permit. He stated that Council could limit the number of residents to six before the ordinance amendment and conditional use process are completed. Council needs to know whether the sewer system is adequate and that all codes are met. Councilmember Dwyer stated that he read in the materials from the applicant that there will be a financial burden on the applicants if Council takes too long. The temporary permit would be an accommodation to people who will benefit from a needed service. Ayes: 5 Nays: 0 Page No. 14 July 10, 2001 Attorney Schleck stated that the state statute reads that if Haven wants to restrict the facility to six residents right now they do not need city approvals. Councilmember Krebsbach stated that she has no problem with the dual track approach but the ordinance amendment is significant. A house could be purchased in any neighborhood for this purpose. Councilmember Vitelli asked Mr. Haven if he would be willing to limit the facility to six residents while the city works on the ordinance. Councilmember Dwyer informed Mr. Haven that he must make sure there are no surprises. Mr. Haven will need to appear before the Planning Commission and they will make a recommendation to Council. Councilmember Krebsbach informed Mr. Haven that if his attorney's representations were not correct at the last council meeting, he should correct them before the matter goes before the Planning Commission. Attorney Schleck asked that Council pass a motion to direct the Planning Commission to conduct a public hearing at its next meeting. Councilmember Dwyer moved to direct the Planning Commission to schedule and conduct a public hearing. Councilmember Schneeman seconded the motion. Attorney Schleck asked Mr. Haven to direct his legal counsel to give the city a letter saying that six or fewer residents is allowed by statute. Dr. Jeffrey Boston stated that he has been through this process a number of times and if the city will give him a letter saying the city will not object to six residents it will help expedite the process through the state. Councilmember Krebsbach stated that Haven's legal counsel said that Council had no jurisdiction for six or fewer residents under statute. Now Dr. Boston is saying he needs a letter from Council saying that there can be six residents. Page No. 15 July 10, 2001 Mayor Mertensotto responded that Council cannot object if there are six or fewer residents. Mayor Mertensotto stated that Council is not acting on Haven's license and has not approved anything. The applicants are here for a preliminary discussion and must either work. with Council or be at odds with Council. Council understands it cannot stop a residential treatment facility of six or fewer residents in a residential district. The home is not in a residential district. He stated that the applicants must meet all state and city codes. Dr. Boston stated that in the interim, if the process takes too long, he will open the facility with six residents. Mayor Mertensotto stated that Council has not given the applicants any special licenses. If Dr. Boston is saying he can use statutory authority for six people, he is on his own.. He stated that the applicants must file for a conditional use permit under a new zoning district. Dr. Boston stated that before he gets a license from the health department he needs a letter form the city that it is a proper use for the location. Mayor Mertensotto responded that until an ordinance is adopted, it is an improper use. Councilmember Dwyer asked Dr. Boston if he is saying that the state will not issue him a license and he cannot operate a facility for six people without city approval. Mr. Haven responded yes. Attorney Schleck suggested that Mr. Haven give the state a copy of the meeting minutes. Ms. Karen Tarrant, legal counsel for Haven, stated that the state statute says if there are six or fewer residents, the city has no jurisdiction. Sometimes administrative agencies have placed a gloss over this that they need a letter from the city. That is not required by statute. If Council is not willing to given Haven a letter, their approach must be to go back to the state and tell them what the statute says. Page No. 16 July 10, 2001 Attorney Schleck stated the city should have no problem about writing a letter indicating that the property is zoned R -1, although the letter will probably also say that the land is not guided R -1. CASE NO. 01 -16, Council acknowledged an application from Roseville Properties for a ROSEVILLE PROPERTIES conditional use permit for off -site parking to allow construction of a 78 space parking lot on a vacant parcel adjoining the Centre Pointe V office building. Council also acknowledged associated staff reports. Mr. Hugh Cullen was present on behalf of Roseville Properties. Assistant Hollister reviewed the application and Planning Commission discussion and recommendation for Council. The proposed parking lot would serve the building immediately to the east of it. The building has enough parking according to the ordinance, but Roseville Properties is negotiating with a tenant who needs more parking. Mr. Cullen reviewed the plan for Council. He also reviewed the plan for the balance of the property to give Council an indication of what the parking needs will be for the balance of the site. The parking lot will be constructed in such a way that it will go with a potential new building. The conditional use permit would rani with the lease of the tenant. If the tenant renews his least beyond the seven year lease term, he would subdivide the parcel holding the parking area and add it to Centre Pointe V. He would probably then scale back the size of the new building, and when he builds a new structure, he will have to show Council his parking plan. After brief discussion, Councilmember Schneeman moved adoption of Resolution No. 01 -37, "A RESOLUTION APPROVING A CONDITONAL USE PERMIT FOR OFF -SITE PARKING AT CENTRE POINTE BOULEVARD AND CENTRE POINTE DRIVE." Councilmember Vitelli seconded the motion. Ayes: 5 Nays: 0 MU -PUD Council acknowledged a memo from Assistant Hollister regarding adoption of an ordinance creating an MU -PUD zoning description within the zoning ordinance and scheduling a public hearing for the rezoning of the Town Center parcels. Council also acknowledged a proposed ordinance amendment and staff reports. Page No. 17 July 10, 2001 Mayor Mertensotto stated that the zoning ordinance currently contains HR, MR and LB PUD LANGUAGE. Council would like to add to that the flexibility of a multiple use PUD. Councilmember Dwyer stated that the Planning Commission recommended some steps that would actually give Council less power in working with a PUD, which is inconsistent with the idea of a PUD. Councilmember Vitelli stated that he completely supports the planning staff's initial proposal. Councilmember Dwyer moved adoption of Ordinance No. 361, "AN ORDINANCE AMENDING ORDINANCE NO. 401." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 RECESS Mayor Mertensotto called a recess at 9:45 p.m. The meeting was reconvened at 9:55. Councilmember Vitelli moved to direct the Planning Commission to conduct the appropriate hearing for the rezoning of the Town Center redevelopment property for July 31. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 PROPERTY ACQUISITION Council acknowledged a memo from Administrator Lindberg regarding authorization for acquisition of Town Center properties by negotiation or eminent domain. Council also acknowledged a letter from Eriksson Commercial Real Estate, Inc. Mayor Mertensotto stated that the Hohenstein property is under contract and the city must acquire the Birch, TC Stores and Tom Thumb properties. Updated appraisals have been received. He asked Council to direct the City Administrator to send a letter to each of the property owners by registered mail, making them an offer based on the appraisals. Council must get going on the acquisitions. It is very important to get the location of the senior facility nailed down, and Council must also determine the location of Freeway Road. He stated that the housing component, including the senior facility, should be built in advance of the commercial component. He stated that the Dakota County CDA has its own architect and successful designs that have been used for its facilities, and the CDA Page No. 18 July 10, 2001 wants to use its architect for the senior element. Council must tell the CDA where the facility will be located, and he felt Council would want to use their architect to do the other residential components. There would be an advantage in that the architect will know what the overall continuity of the design should be. Council must focus on the relocation of Freeway Road and how much land area the senior facility will need. That will determine where the other residential components should be and Council can decide the design for the roads and utilities. First, Council must work on acquiring the properties. Environmental studies are needed on those properties, and the city must make an offer to the property owners and ask for a response back from them. If they do not respond in 30 days, Council will consider that as refusal to voluntarily work with the city, and the city will need to take action to acquire the properties involuntarily. Councilmember Dwyer noted that Mayor Mertensotto is suggesting that the city do the negotiating in lieu of authorizing Mr. Eriksson to do the work. Councilmember Vitelli asked who on staff is a professional acquirer of property. He felt that Council should have Faegre and Benson do the negotiating from the start. Councilmember Dwyer responded that at this point he feels the city can send the owners an offer. If they accept, the city attorney can prepare purchase agreements. Councilmember Vitelli asked who will handle the discussions if the owners do not accept the offers. He asked what the direction to staff will be if the owners counter- offer, and who will make the decision if the owner counters with slightly more. Mayor Mertensotto stated that Council can call a special meeting and that Council makes the decisions. The city must set up a dialogue. Councilmember Dwyer stated that there is a desire to move this along and Council is trying to determine the most efficient use of the city's time and resources. He asked what would happen with counter offers. Mayor Mertensotto responded that Council would call a special meeting to consider them. Page No. 19 July 10, 2001 Mr. Salo Ale, attorney from Faegre Benson, stated that the first issue is how to approach the acquisition requirements. The city would proceeding under MS 469.124. One of the powers authorized to Council is to set up development districts and acquire property by negotiation or eminent domain. If certain property owners desire more compensation, the city will probably end up in condemnation to try to acquire the property. The proposed resolution sets up two proposals. One stage authorizes whoever Council directs to begin negotiation. If that fails, it authorizes the next step for acquisition. If negotiations fail, the city would undertake the quick take process. Under that, the city would be required to deposit with the court the city's approved appraised price. The other component of the proposed resolution that authorizes acquisition spells out the Council determination that this is the public purpose and the acquisition of these properties is necessary for the public purpose. Mayor Mertensotto did not think, Council needs to adopt a resolution to make an offer to a land owner. Council has not authorized quick take and he does not know if they are going to. If Council decides to do the quick take process, it can adopt a resolution that states the public purpose at that time. Attorney Schleck stated that perhaps what Council is struggling with is what to do before going to quick take. The person who will be the point person in the negotiations will need to be given some latitude to move within a certain range. Council could actually send out the quick take notices because Council has 90 days before having to actually acquire the property. Mr. Ale stated that there is no requirement in statute that the city begin negotiations before the quick take process. Mayor Mertensotto stated that the city would be making the owners an offer based on the appraisals. Councilmember Krebsbach directed staff to send a letter of offer for entire rights and title for the property to the property owners by certified mail. Motion failed for lack of a second. Mayor Mertensotto stated that if Council does not hear from the property owners in 30 days, it will be understood that they do not want to negotiate with the city and the city will begin the process of taking the property. Page No. 20 July 10, 2001 Councilmember Dwyer stated that would be the first step, and the second would be to authorize Faegre and Benson to be available to do the condemnation order. Mr. Ale stated that in connection with this Council has received a proposal to authorize Mr. Eriksson to do the negotiations. Mayor Mertensotto stated that he rejects the proposal. Councilmember Vitelli stated that he thinks it would be a good idea to have a professional negotiator and if it were his own money being spent, he would turn it over to Faegre and Benson right away. Council cannot negotiate this and if Council wants the project to move ahead, that would be his recommendation. He felt that Faegre and Benson should send the offer letter and that Council should give them parameters rather than having special meetings and negotiating. Councilmember Krebsbach stated that Council has a common interest in starting the purchases. It seems that there is agreement to have staff send the letters. Councilmember Vitelli stated that the project will be delayed for 30 days. Any project that takes 30 days longer will cost more money. If it costs the city $2,000 to have Faegre and Benson send the letters out, so be it. If Faegre and Benson do the work, there will be progress made in two to four weeks. Mayor Mertensotto stated that Council engaged Faegre and Benson at least six months ago and the project has not been moving quickly. He pointed out that the city is paying fees of $5,000 to $9,000 a month to consultants. Councilmember Schneeman agreed with Coimcilmember Vitelli. She stated that she did not think Council should necessarily get involved in negotiations. She did not feel qualified to negotiate, and stated she would rather hire a professional to do it. Mr. Ale responded that he would be looking at timing that would begin condemnation in August and acquiring fee title to the property some time in December. The city acquires the title by submitting the appraised price to the court, and it will be possible to acquire all of the properties by December. In order for the process to move, it is imperative that Council give authorization to proceed with negotiations and the eventuality of condemnation. He stated that Mr. Page No. 21 July 10, 2001 Eriksson is well known for working with these types of projects and is very effective and a fair person to deal with. Councilmember Dwyer stated that when a city decides to enter into the process of negotiations, the city must decide the top price it would pay. Council would not make that determination public. Once Council makes the top offer public, its hands are tied. He asked whether a special meeting would be required to be public. Attorney Schleck stated that if more than two Council members meet to discuss prices, the meeting must be public. If Council hires a negotiator to be a consultant, attorney- client privilege applies, and Council can beet with its consultant in closes session. Council cannot do that if it does the negotiating. Councilmember Dwyer stated that it appears that hiring a consultant would give Council more flexibility. Councilmember Krebsbach asked if Council must engage the consultant through Faegre and Benson. Mr. Ale responded that there are two proposals before Council. One is to authorize negotiations and the other is to authorize Faegre and Benson for quick take. Administrator Lindberg stated that Council would be entering into a second agreement with Mr. Eriksson that would be separate from the Faegre and Benson authorization. Councilmember Vitelli stated that if Council engages Faegre and Benson from the beginning, Council can sit down with them in private and discuss the latitude in negotiations and Mr. Eriksson would be there and Council would tell him to proceed. Councilmember Krebsbach stated that she feels a way to break the impasse is to begin with the letter process. Council would then consider what its next step would be based on the responses. Mayor Mertensotto suggested sending the letter and seeing what the response is in 30 days and then decide what to do. Council must ultimately make the decision. Councilmember Schneeman stated that her concern is that she has no experience in negotiating. Also, she wants to make sure Council is not suspect and that it be done professionally. If the city hires Mr. Page No. 22 July 10, 2001 Eriksson, Council's hands will be tied if it has already talked to the property owners. Councilmember Dwyer suggested giving the property owners two weeks to respond. Mr. Ale stated that if Council authorizes Mr. Eriksson today, he could immediately start the process of negotiating to acquire the property interest. If those negotiations fail, he would target some time in August to begin the condemnation. The goal would be to have all the properties by December. There are a number of parcels that are subject to MnDOT easements and either the fee owners have passed on or are not around. He would have to file public notices of the interest being acquired, and that process will add time for condemnations. Councilmember Schneeman asked Mayor Mertensotto if he thinks that Council would have all of that done by August. Mayor Mertensotto responded that Council could follow Mr. Ale's recommendation and still not be anywhere by spring. The city has to take an overt step. Attorney Schleck stated that to truly speed things up, there have already been negotiations with property owners, and Council should remember that just because Council initiates condemnation does not mean the property is being taken that day. Council has 90 days to negotiate, and that is a quick way to move things forward. Councilmember Dwyer sated that he has always had reservations , about the ability of the city as currently staffed to run with this. He has said from the beginning that Council should look outside for guidance. The next step is that Faegre and Benson is recommending that Council have a point person. As hard as it is to pay the fees, he felt Council must do so. Councilmember Dwyer moved adoption of Resolution No. 01 -38, "RESOLUTION AUTHORIZING ACQUISITION OF FEE TITLE, PERMANENT AND TEMPORARY EASEMENTS, MENDOTA HEIGHTS TOWN CENTER DEVELOPMENT PROJECT." Councilmember Schneeman seconded the motion. Councilmember Krebsbach stated that with adoption of the resolution, would the first communication to the property owners be a notice of quick take. Page No. 23 July 10, 2001 Mr. Ale responded that quick take is only if negotiation fails. Council must place a time period on negotiation or it can be worded that condemnation and negotiation take place at the same time. Councilmember Krebsbach stated that in her term on Council, the city has only taken property by condemnation once. She asked if it is considered a hostile process by the city to the property owners. Mr. Ale responded that condemnation is where Council exercises its sovereign power to acquire property. Attorney Schleck stated that the end result is that the city wants to acquire the property and the window for negotiations within the quick take process is 90 days. He explained the quick take process. Councilmember Vitelli stated that the resolution should be modified so that the second clause states that Council directs Faegre and Benson to negotiate the purchase of the property under the direction of Council. Administrator Lindberg responded that perhaps it should say that Steve Eriksson would be directed to negotiate. Councilmember Vitelli stated that he feels Mr. Eriksson needs the direction of an attorney and it seems like the legal counsel the city retains should be directing him. Councilmember Dwyer stated that he would not change the language in the resolution. Representation is Faegre and Benson, and staff is the city staff. Councilmember Krebsbach asked how Council could stop the process if they do not think the city is being adequately represented. Councilmember Dwyer responded that Council can fire Faegre and Benson. Attorney Schleck stated that Council can also withdraw from the quick take action. He stated that Council should decide some parameters to give Mr. Eriksson and then tell him to come back and tell Council what he has done. Council will then have to make a decision. Council does not need to be engaged in the direct negotiations. Page No. 24 July 10, 2001 Councilmember Krebsbach commented that Council has never said that it was going to be involved in any point by point negotiation. One of Council's concerns is the cost for the process by turning it over to Faegre and Benson and Steve Eriksson. She stated that she is looking at the monitoring function, and part of that is watching how much it costs the city. Councilmember Dwyer responded that Faegre and Benson has provided a budget. Attorney Schleck suggested that perhaps Council would decide on a fee that they would pay Mr. Eriksson and for every dollar over the appraised value of the property, he would get a reduced fee, or some way to moderate him to negotiate in the city's best interest. Once the condemnation process starts, everything is regimented and there is not much need for negotiation with Faegre and Benson. Councilmember Vitelli stated that Council is talking about several million dollars, and it has been his experience both in business and his personal life that the city will save money by using professionals. Attorney Schleck stated that in most real estate transactions, the real estate agent gets a percentage of the value of the property. He suggested that Council set a percentage of the value as the maximum Mr. Eriksson could offer. Councilmember Vitelli agreed. He suggested that Council should go into closed session with Mr. Eriksson after the Town Center workshop on July 17 to discuss it with him COUNCIL COMMENTS Councilmember Dwyer expressed Council's appreciation to Mendakota Country Club for the Fourth of July fireworks. Mr. Ale informed Council on the various scenarios that would affect cost. VOTE ON MOTION: Ayes: 4 Nays: 1 Mertensotto Councilmember Dwyer moved to retain Steve Eriksson at the rate of $200 per hour to negotiate with the Town Center property owners. Councilmember Vitelli seconded the motion. Ayes: 4 Nays: 1 Mertensotto Councilmember Krebsbach stated that it is critical that Council monitor the process for accountability. Attorney Schleck stated that in most real estate transactions, the real estate agent gets a percentage of the value of the property. He suggested that Council set a percentage of the value as the maximum Mr. Eriksson could offer. Councilmember Vitelli agreed. He suggested that Council should go into closed session with Mr. Eriksson after the Town Center workshop on July 17 to discuss it with him COUNCIL COMMENTS Councilmember Dwyer expressed Council's appreciation to Mendakota Country Club for the Fourth of July fireworks. Page No. 25 July 10, 2001 ADJOURN There being no further business to come before Council, Councilmember Dwyer moved that the meeting be adjourned. Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 11:10 p.m. KAleen M. Swanson City Clerk ATTEST: Charles E. Mertensotto Mayor