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1996-12-17 Council minutesPage No. 1 December 17, 1996 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, December 17, 1996 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, was held at 7:30 o'clock P.M. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. Mayor Mertensotto called the meeting to order at 7:30 o'clock P.M. The following members were present: Acting Mayor Smith, Councilmembers Huber, Koch and Krebsbach. Mayor Mertensotto had notified the Council that he would be absent. AGENDA ADOPTION Councilmember Huber moved adoption of the revised agenda for the meeting. Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 APPROVAL OF Councilmember Koch moved approval of the minutes of the MINUTES November 19, 1996 Council meeting as amended. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 CONSENT CALENDAR Councilmember Krebsbach moved approval of the consent calendar for the meeting, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the December 10, 1996 Parks and Recreation Commission meeting. b. Acknowledgment of the Treasurer's monthly report for November. c. Adoption of Resolution No. 96-95, "A RESOLUTION AMENDING PAY CLASSIFICATION SCHEDULE FOR NON-ORGANIZED EMPLOYEES TO REFLECT A THREE PERCENT ANNUAL ADJUSTMENT FOR 1997," and Resolution No. 96-95k,"A RESOLUTION ADOPTING A SCHEDULE OF COMPENSATION FOR CERTAIN EMPLOYEES FOR 1997 AND ESTABLISHING CERTAIN OTHER BENEFITS." Page No. 2 December 17, 1996 d. Acknowledgment of a memo from staff regarding the proposed Mn/DOT T.H. 110 overlay project, and direction to staff to forward a letter to Mn/DOT requesting that the four median cross-overs proposed to be closed as part of the project remain open, and further direction to staff to request the installation of a deceleration westbound turn lane into Crown Point and that the project be coordinated with the city and state cooperative agreement project. e. Authorization for the City Attorney to make application to the Dakota County Court for an administrative inspection order allowing for the inspection of the McNeil site. f. Approval of the issuance of payment to Greenworks, Inc., to compensate them for the 65 trees installed in accordance with the bid prices submitted by the contractor at the contract specified percentage for the work progress to date and denial of a request from Greenworks for an additional $1,710.00 for extra labor. g. Approval for the Fire Department to order six sets of turn-out gear at $731.00 per set, the equipment to be delivered in 1997 and funded from the 1997 budget. h. Approval to retain Inspec, Inc. to manage and inspect the installation of the Fire Station roof, for its low bid of $1,200.00. i. Acknowledgment of notification of the agenda for the joint Council/Parks and Recreation Commission workshop on January 14, 1997. j. Authorization for participation with Dakota County in adding a right turn lane for south bound traffic entering on to Huber Drive from Delaware Avenue, and direction that the city share of the costs be funded by MSA funds. k. Acknowledgment of an update on North Kensington Park improvements. 1. Acknowledgment of and approval of a request from Mr. John Bellows, on behalf of Mr. Paul Beckman, for an extension of Mr. Beckman's application for antenna tower height variance to February 20, 1997. Page No. 3 December 17, 1996 m. Acknowledgment of bids for a dump box and 1997 truck chassis for the Street Department and authorization for issuance of purchase orders to J. Craft for the dump box for its low bid of $11,226.37 and to Arrow Pontiac GMC for the track chassis for its low bid of $16,246.58. n. Adoption of Resolution No. 96-96, "A RESOLUTION ADOPTING A COMMUNICATIONS ANTENNAE AND APPARATUS MORATORIUM." o. Acknowledgment of a memo from Administrative Assistant Hollister regarding a request from Independent School District 197 for payment for the 1996 Summer Under the Sun Program and authorization for payment of $2,930.20 to ISD 197 Community Education for the 1996 program, along with direction to notify the school district representatives that only $1,500 is budgeted in 1997 and they must therefor return to the Parks and Recreation Commission early in 1997 to discuss the future of the program. p. Adoption of Resolution No. 96-97, "A RESOLUTION GRANTING A CONDITIONAL USE PERMIT TO SBA FOR PCS APPARATUS ON HENRY SIBLEY HIGH SCHOOL." q. Acknowledgment of a memo and proposed amendment to Minnesota Statute Chapter 473.858 and an oral presentation by Planning Commissioner Friel, along with direction to staff to pursue the proposed language revisions to the Minnesota Land Planning Act (M.S. 473.858). r. Approval of the List of Claims dated December 17, 1996 and totaling $261,001.22. s. Approval of the list of contractor licenses dated December 17, 1996 and attached hereto. Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 HEARING - LEXINGTON Acting Mayor Smith opened the meeting for the purpose of a public HEIGHTS APARTMENTS hearing on an application for refunding of the Lexington Heights FINANCING Apartments housing revenue bonds. Council acknowledged receipt of a memo from Treasurer Shaughnessy. Page No. 4 December 17, 1996 Treasurer Shaughnessy informed Council that although Council had granted approval to the refunding some time ago, there was a technicality on maturity dates which necessitated a new hearing. There being no questions or comments from the audience, Councilmember Koch moved adoption of Resolution No. 96 -98, "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENDOTA HEIGHTS, MINNESOTA AUTHORIZING THE EXECUTION AND DELIVERY OF SECOND SUPPLEMENTAL INDENTURES WITH RESPECT TO THE CITY'S MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (LEXINGTON HEIGHTS APARTMENTS PROJECT) SERIES 1991A AND SERIES 1991B." Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 MANNA FREIGHT Council acknowledged a memo from Administrative Assistant Hollister regarding a request from Manna Freight for a revision to its building permit to allow the addition of a second story to the office portion of the building. Mr. Al Meehan, owner of Manna Freight, and Mr. Don Starks, project architect, were present for the discussion. Mr. Starks briefly reviewed drawings of the proposed structure for Council. Responding to a question from Acting Mayor Smith, he stated that the interior ladder and door to the roof are no longer necessary, as there will be an interior stair to the second story. He further stated that twelve more parking spaces are required by the Zoning Ordinance and will be provided. He stated that the final drawings have not yet been submitted to United Properties for review, but that United Properties has approved the concept and have been provided with the drawings which are being presented to Council this evening. Councilmember Krebsbach moved to authorize staff to issue a building permit to Manna Freight to amend its building plans in accordance with the plans presented this evening, subject to city receipt of a letter of approval from United Properties. Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 CDBG FUNDS Council acknowledged a memo from Administrator Batchelder regarding a draft CDBG Funding Application. Page No. 5 December 17, 1996 Acting Mayor Smith briefly reviewed the memo and draft application, which would allocate the city's 1997 funding to a senior citizen center. She stated that the city has been discussing the need for a senior citizen center for some time but has not fully discussed the issue. Councilmember Krebsbach suggested that the anticipated $44,000 in funding for 1997 could be designated to the housing rehabilitation loan program. She stated that there are homes in the city that are in need of help, but that she was not sure what the requirements there are for the loan program. Administrator Batchelder responded that while neighborhoods need to qualify for assessment abatements associated with an improvement project, he believes that qualification for housing rehabilitation loans would be on an individual basis. Responding to a Council question, he stated that allocation of funding to the rehabilitation loan program would qualify for the city's affordable and life cycle housing goals. Acting Mayor Smith stated that she would be reluctant to give up an opportunity to use this source of funding to meet the city's goals under the livable communities act and upgrade the city's housing stock where people need it. She further stated that she feels the senior center proposal needs further discussion. Councilmember Koch, Council's representative on the District 2 CDBG Review Committee, stated that the city may have a better chance of getting the CDBG funds if Council plans to use it for rehabilitation than if it were proposed to be used for a seniors/community center. She felt that it would benefit the city to allocate the funding to rehabilitation. Councilmember Huber stated that the city has not funded much rehabilitation for the past four or five years because all of the funds have been dedicated to the senior housing facility. It was the consensus of Council to direct the city's entire CDBG allocation for 1997 to the housing rehabilitation loan program. Councilmember Huber moved adoption of Resolution No. 96-99, "A RESOLUTION APPROVING THE APPLICATION OF THE CITY OF MENDOTA HEIGHTS FOR FISCAL YEAR 1997 DAKOTA COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT FUNDING," allocating the 1997 CDBG funds for housing rehabilitation loans. Page No. 6 December 17, 1996 Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 MAC CONTRACT Council acknowledged a memo from Administrator Batchelder regarding a recommended draft of the Third Parallel Runway Contract with the Metropolitan Airports Commission. Acting Mayor Smith informed the audience that she, Mayor Mertensotto and Administrator Batchelder have been the Mendota Heights negotiating team who have met with the MAC representatives and representatives of Minneapolis and Eagan to discuss entering into a contract with the MAC. She explained that a contract between the affected cities and MAC has been legislated by the current legislature as part of the dual track process and plan, which also includes a north/south runway. She stated that part of the city's concern is that a third north parallel runway not be constructed. She explained that the negotiating team's initial goal was to enter into one contract with all of the affected cities , but after discussion it became apparent that the Mendota Heights issues were not completely compatible with those presented by Minneapolis. She stated that a contract has been drafted with the MAC that would give some rights to property owners if a future legislature reversed the current legislation and tried to build a third north parallel runway. Administrator Batchelder reviewed what the contract encompasses. He stated that the negotiating team has been discussing the contract with MAC since September in a number of lengthy meetings with representatives and legal counsel from the MAC and Minneapolis and, recently, with Eagan representatives. He reviewed a number of definitions contained in the contract, and informed Council that the contract gives Mendota Heights the authority to approve, until the year 2020, construction of the north parallel runway with three additional automatic ten year extensions after 2020. He stated that the agreement binds the MAC from constructing a third parallel runway or advocating for one until the year 2021. He then reviewed the terms of the contract. Administrator Batchelder stated that the City of Minneapolis cannot agree to some of the terms of the contract, in particular support of the third parallel runway, but the contract allows any affected city to enter into the agreement until July 1, 1997. Acting Mayor Smith pointed out that this a contract only with the MAC and only binds the MAC and not the legislature. She stated Page No. 7 December 17, 1996 that the contract gives rights to property owners until the end of the year 2020. Councilmember Krebsbach stated that the city would be signing off the rights of its residents to any kind of legal action or settlement after 2020. City Attorney Hart responded that he has not seen any language in the contract that would preempt a resident from seeking legal recourse. He explained that the city cannot by contract defeat the rights of its citizens with respect to nuisance claims or other claims for legal recourse. He stated that the agreement deals with the north/south runway and says that the city cannot oppose that runway but does not restrict the city from pursuing other rights and remedies from the MAC, FAA, etc., to the extent that a legal violation can be determined with respect to the existing north/south runway. He explained that it was the intent of the legislation to give some level of comfort to the affected cities. Councilmember Krebsbach stated that she wants to be sure that Paragraph 4 of the Terms section is not saying that after the agreement is no longer in affect the city's residents do not have the right to suit and compensation. Acting Mayor Smith responded that the legislature tried to give extended comfort to affected properties and affected cities, and in this case they are trying to extend the impact of the legislation by having the MAC and affected cities enter into a binding contract that gives rights to property owners through the year 2020. Attorney Hart stated that the agreement is a positive thing for the city and its residents because it protects their rights through the year 2020. He stated that after that time, everyone is back in the same position they are in today and citizens could not then sue on the basis of this contract. Councilmember Krebsbach asked if a definition of the north/south runway could be added to be clear that it will be parallel to Cedar Avenue. Acting Mayor Smith responded that she believes the city could support any north/south runway at the existing airport. Councilmember Krebsbach stated that the term is used but not defined and she would like it clarified in the definition section. And defined as parallel to Cedar Avenue. Page No. 8 December 17, 1996 Administrator Batchelder stated that perhaps the solution to Councilmember Krebsbach's concern is as simple as referring to the MAC's current comprehensive plan. He stated that the city could make the recommendation to N C to include a definition, but its board approved the agreement yesterday and is not anticipating any amendments to the contract. He stated that Section III, Paragraph 3 refers to the north/south runway as being described in the Airport's 2010 long term comprehensive plan. Councilmember Krebsbach stated that she would be more comfortable if it were defined in the definition section. Attorney Hart stated that to the extent that MAC alters its proposal for a north/south runway in its comprehensive plan, the city is not prevented from objecting to an alteration. He pointed out that the MAC cannot alter its comprehensive plan without allowing the city full and fair opportunity to comment. Administrator Batchelder stated that the runway is parallel in the referenced plans and in the legislation. He further stated that in the when the legislature made the decision on the dual track a year ago it was very clear to them that MAC was proposing Plan 6, which defines the north/south runway at a high level of specificity including noise impact and safety zones for the runway. He explained that it is a specific and well defined runway location and is actually in the EIS process at this time. He stated that the MAC is anticipating completion of the EIS for that runway in mid -1997 and hopes to begin construction of the runway in 1998. Councilmember Krebsbach stated that Section III, Paragraph 4 refers back to Paragraph 1. She asked whether it should instead refer just to the first sentence. She stated that she wants to be sure about termination of statutory enactments and questioned whether referencing the entire paragraph allows for legislative unraveling. Attorney Hart responded that keeping in mind what a third party benefit right is, the third party benefits are effective as long as the amendment is effective. He stated that the term of the contract is defined as 2021, and if it is terminated by legislative action, the thirty party rights expire as well. He stated that what the contract is saying is that even though each citizen is not party to the agreement, each individual party can enforce the rights of the city, but if the agreement goes away for any reason, those third party rights terminate as well. After 2021, the legislature can terminate the agreement by making specific findings. Page No. 9 December 17, 1996 Administrator Batchelder stated that the city cannot bind the legislature and the cities and MAC only have the authority given by the legislature. He further stated that the legislature can do anything it wants, however the agreement makes it as difficult as possible for the legislature to do something. He pointed out that the legislation was adopted last year as a contract situation to bind future legislatures as much as possible. Attorney Hart stated that the contract is an agreement with MAC and MAC is bound by the agreement until 2021. He questioned whether the legislation can terminate the agreement at any time before January of 2021. He stated that the contract would be between the city and MAC, supported by legislation that has a term, and the city has the right to enforce that agreement. Councihmember Krebsbach wanted to be sure that referencing the entire paragraph is not saying that the city and MAC have an agreement until the legislature changes its mind. Attorney Hart responded referencing the full paragraph does not j give the legislature any rights not set forth in Section III. It was his opinion that the city can rely on the agreement until January of 2021. Councihnember Huber asked if there was any discussion or if there is anything in the contract that would give the city comfort if the governing body of the airport is not the MAC until 2021. He asked what would happen if the form of governance of the airport changes. Attorney Hart responded that the agreement stipulates that it is binding upon the MAC and its successors and assigns. Referring to Section III, Paragraph 4, Planning Commissioner Friel stated that the contract gives third party benefit rights to affected property owners even if state law changes, but the last sentence of the paragraph, referring back to III -1, says that the legislative termination of the agreement would cease third party rights, which seams to be inconsistent at least after 2020. Acting Mayor Smith responded that it is intended by the MAC and city that during the period of the agreement the property owners shall have third party rights, and it was the intent of the MAC and the cities that Paragraph 4 refer to Ill. 1. Attorney Hart stated that he thinks the city can rely on the agreement through 2020. He agreed with Mr. Friel that there could be more Page No. 10 December 17, 1996 clear language, but referring to III.1 as a specific provision would anticipate that if a state law tried to abrogate the agreement prior to 2021 the individuals would have those rights. Councilmember Krebsbach stated that she would like to be on record that the city does have concerns. She further stated that she would like Attorney Hart to prepare a statement in that regard. She stated that she is concerned that the citizens have rights beyond 2020 and if the last sentence of Paragraph 4 referred only to the first sentence of III.1 she would be more comfortable. Acting Mayor Smith stated that Council must keep in mind that the agreement is a contract with MAC. She stated that the negotiating team was fully award of the areas the contract does not and cannot cover. She stated that Council can safely say that no matter what the legislature does, the affected property owners in the city are protected under thirty party beneficiary rights until 2021. She pointed out that those rights would only be impacted if the legislature made some sort of change in the legislation to allow a north parallel runway. She stated that the legislature can do whatever it wants at any time, but the contract gives the city's residents additional rights. She informed Council that the cities of Minneapolis and Eagan are still negotiating with the MAC. She stated under the contract, Mendota Heights gives its support to the north/south runway, but within the City of Minneapolis the north/south runway is a completely different issue since that city would be affected by the runway. She explained that the Mendota Heights committee feels it is beneficial to Mendota Heights to have a contract and the deadline for entering into a contract under the legislation is the end of 1996. She stated that the committee feels there are a number of other benefits that could be had by entering into a contract in spite of some of the limitations the committee would prefer did not exist. Acting Mayor Smith stated that when the contract negotiations began, the committee was just dealing with a model that included people who would be brought into the 60 LDN contour and very few households were included. The committee informed MAC that that was not good enough, therefore the expanded definition IIA.b was included in the contract. She suggested that if the contract is approved this evening, its approval should be subject to approval of the MAC model showing exactly what households would be affected. She explained that MAC has guaranteed that the number of households will be greater than the 60 LDN contour, but the model (diagram) is not yet available. Page No. 11 December 17, 1996 i Councilmember Huber asked if Council makes a contingency, whether that could be construed as not signing the contract. Attorney Hart responded that he believes it would be a contract even though there is a contingency, but MAC must approve the contingency and that contingency would have to be in the contract. He did not think Council could submit the contract to MAC signed but subject to a contingency not set forth in the contract. Councilmember Huber pointed out that the agreement does stipulate that the diagram is subject to city review and approval. He stated that agreement gives the MAC 90 days to develop the model, and Council must weigh the risk of getting a diagram it approves against not having the contract by the end of the year. Acting Mayor Smith responded that the legislation authorizing the contract stipulates that there is a penalty to MAC if a contract is not executed by the end of the year. Attorney Hart stated that there are two different references to January 1 in the statute and each appears to have different meanings. One subdivision indicates that the corporation must enter into a contract by January 1, 1997, which would indicate that MAC has no authority to do so after that date, and the other subdivision stipulates that if MAC does not enter into a contract as a result of acting in good faith it must pay a prescribed penalty. He explained that for the penalty to be imposed there would have to be a judicial opinion that MAC has not acted in good faith. Acting Mayor Smith stated that it was her interpretation of the legislation that future legislatures are not bound to any action, and that the legislation does not limit the third party beneficiary rights to the year 2021. She further stated that the Mendota Heights representatives had originally talked about ending the contract in the year 2050 because something would have to be done to the airport before that time, but in terms of negotiating with MAC, they would not go beyond 2021 because that is the end of the MAC's planning horizon. She pointed out that the contract does not guarantee third party benefit rights to Mendota Heights residents after 2021, and that is a major concern. She stated that the contract just states that those particular benefits go away after 2021 if the legislature passes new legislation, and the MAC itself cannot invalidate the contract but the legislature could and MAC's rights apply only if a state law invalidates the contract. If the legislature found that a north parallel runway was the only way to go in the year 2025, the next step would be to terminate the contract.. Page No. 12 December 17, 1996 Attorney Hart stated that the contract sets forth different provisions with respect to third party rights and the contract has a sunset of 2021, and therefor an effectiveness on the third party rights as well. He stated that the law indicates that property owners have those rights at any time, but he was unsure whether there is a chance of additional pressure on MAC to amend the contract in the future with respect to the 2021 sunset. He pointed out that Mendota Heights residents have no contract rights today because there is no contract, but once the contract does exist, the citizens will have the rights that are set forth in the contract and they will benefit very substantially during the term of the contract. Councilmember Koch stated that if Acting Mayor Smith and Administrator Batchelder, because they have been negotiating for the city, feel the draft contract is the best contract the city will get, then Council should approve it. Acting Mayor Smith stated that this is a contract only with Mendota Heights. She pointed out that Council does not know whether Minneapolis and Eagan will be able to enter into a contract with MAC, and if they do not do so, Mendota Heights will still have had some benefit from this contract. She stated that the contract with Mendota Heights gives MAC leverage with respect to construction of the north/south runway, which means the runway would be built before a north parallel runway could ever be built, and would really delay any future construction of a north parallel. She felt that Council approval of the contract this evening, even if it has imperfections, would benefit the city. She stated that if Council is not comfortable with the agreement, a special meeting could be conducted before the end of the year to give Council members finther time for study of the agreement. She informed Council that the effectiveness of the contract really depends on the City of Minneapolis entering into an agreement. Councilmember Huber pointed out that scheduling a special meeting would assume that the city could meet with MAC before the end of the year. Administrator Batchelder stated that there are some other benefits that Mendota Heights would receive from signing the contract. He stated that the contract gives MAC a tool with which to pursue the north/south runway construction. He stated that there are a number of cities that are opposed to the runway and would like to see a north parallel runway, and the MAC could say that it is contractually bound to building a north/south runway. He further sated that if Page No. 13 December 17, 1996 Minneapolis is able to get a better contract, Mendota Heights would benefit because Minneapolis is the city that would have the resources to sustain a lawsuit against MAC. Acting Mayor Smith agreed, stating in addition that the expense of the third party rights to Minneapolis property owners would be so onerous that the legislature would not be likely to take them on. She stated that the MAC would also be bound under this agreement not to even advocate for a north parallel runway before the year 2021. Councilmember Koch stated that the city has come a very long way and those who have represented Council have done an excellent job. She did not see any benefit in looking the contract over any longer or that there would be anything Council could do that would make a real difference. She pointed out that the MAC is now willing to sign something for the first time, and the contract is beneficial to the city. Councilmember Huber agreed, stating that there is no point in delaying approval for further review not knowing whether MAC will hold a special meeting before year's end. Councilmember Krebsbach stated that she would like the City Attorney to prepare a letter to MAC covering what she considers to be deficiencies in the contract, including: a definition of the north/south runway; discussion on understanding of third party rights to legal recourse after 2021 and the point about having a definition of who is affected. She stated that she is also interested in revising the last sentence of IIIA to refer only to the first sentence of 111. 1, because the remainder of the paragraph talks about the legislature. Attorney Hart responded that referencing only the first sentence is a distinction without a difference. He stated that the only discussion in the remainder of the paragraph that speaks to abrogation by the legislature speaks only to the time after the year 2020 and he did not think there is any inconsistency. Councilmember Huber moved to approve the third parallel runway contract with the Metropolitan Airports Commission and to authorize the Mayor and City Clerk to execute the agreement. Councilmember Koch seconded the motion. Councilmember Krebsbach offered a friendly amendment that a letter be drafted to accompany the contract to MAC addressing the following: that the north/south runway is defined as running parallel to Cedar Avenue; that Council understands that the noise contour Page No. 14 December 17, 1996 model addressed in Section 11.4 will be available to the city for review within ninety days; and that it is Council's understanding that the third party benefit rights extend beyond 2020 and the contract does not limit the residents' ordinary rights. Vote on Motion as amended: Ayes: 4 Nays: 0 ADJOURN There being no further business to come before the Council, Councilmember Koch moved that the meeting be adjourned. Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 TIME OF ADJOURNMENT: 10:01 o'clock P.M. ATTEST: Charles E. Mertensotto Mayor I6thleen M. Swanson, City Clerk