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1994-10-04 Council minutesPage No. 4161 October 4, 1994 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, October 4, 1994 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, 1 101 Victoria Curve, Mendota Heights, Minnesota. Mayor Mertensotto called the meeting to order at 7:30 o'clock P.M. The following members were present: Mayor Mertensotto, Councilmembers Huber, and Krebsbach. Councilmember Smith was attending a MAC/MASAC meeting and had notified the Council that she would be late. Councilmember Koch had notified Council that she would be absent. AGENDA ADOPTION Councilmember Krebsbach moved adoption of the revised agenda for the meeting. Councilmember Huber seconded the motion. Ayes: 3 Nays: 0 APPROVAL OF MINUTES Councilmember Huber moved approval of the minutes of the September 6, 1994 regular meeting. Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 CONSENT CALENDAR Councilmember Krebsbach moved approval of the consent calendar for the meeting, revised to move items c, f, g, and i to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the Fire Department monthly report for August. b. Adoption of Resolution No. 94 -67, "RESOLUTION ACCEPTING WORK AND APPROVING FINAL PAYMENT FOR ASSOCIATED BUREAUS ( MENDOTA HEIGHTS BUSINESS PARK 4TH ADDITION)," improvements. c. Approval of a variance to allow St. Thomas Academy to operate a motorized pontoon on Rogers Lake for the purpose of conducting tests and obtaining lake samples, subject to the times and dates specified in the St. Thomas Academy request dated September 12, 1994 and subject to the class presenting the results of the tests to the City Council. Page No. 4162 October 4, 1994 d. Acknowledgment of the Code Enforcement monthly report for September. e. Authorization for the Mayor and City Clerk to execute a "Contract for Water Service Between the Board of Water Commissioners of St. Paul, Minnesota, the City of Mendota Heights and the City of Mendota." f. Authorization for Russell Wahl to conduct the annual Halloween Bonfire along with authorization for a city contribution of $350 for expenses for the activity and authorization for local businesses to participate subject to approval by Russell Wahl. g. Acknowledgment of the minutes of the September 27, 1994 Planning Commission meeting. h. Authorization to issue a purchase order to Grossman Chevrolet for $10,621.75 to purchase a 1993 Pontiac Grand Prix for the Code Enforcement Department. i. Approval of the list of contractor licenses dated October 4, 1994 and attached hereto. j. Approval of the list of claims dated October 4, 1994 and totaling $333,504.83. Councilmember Huber seconded the motion. Ayes: 3 Nays: 0 METRO II FENCE PERMIT Council acknowledged a memo from Code Enforcement Officer Berg regarding an application from Metro II for a permit to construct a 48" high chain link fence around the play area at its facility at 1300 Mendota Heights Road. Councilmember Krebsbach asked whether businesses in the area are aware of the proposal for a plain chain link fence. She stated that she wants to be sure that Northland Insurance has no objection to it. Administrator Lawell responded that the owners of Northland Insurance are aware that the School District will occupy part of the building and the play structure has already been installed. Mayor Mertensotto stated that he has spoken to Dale Glowa, who is aware of the fence. He pointed out that the School District has a three year lease and Council gave them approval to conduct classes Page No. 4163 October 4, 1994 and extended day care in the building. He stated that if Council has no objection to whether it is a galvanized chain link fence or black clad vinyl, Council can direct the City Administrator to contact United Properties to see what they prefer and then contact the School District. Councilmember Huber moved to approve the issuance of a fence permit at Metro II consistent with the direction to contact the School District, Northland Insurance and Dale Glowa with respect to the fence coating. Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 CASE NO. CAO 94 -03, Council acknowledged a memo from Public Works Director WERTHAUSER Danielson regarding modified critical area site plan approval for Mr. Art Werthauser for a single family home proposed to be constructed at 1024 Sibley Memorial Highway. Councilmember Krebsbach felt that all critical area requests should go through the Planning Commission even if they do not require variances because the critical area needs to be developed as carefully as possible. She did not feel that it is appropriate to place critical area requests on the consent calendar. Mayor Mertensotto stated that the Critical Area Ordinance does not require Planning Commission review of modified site plans and an ordinance amendment would be required. Councilmember Krebsbach stated that she feels the ordinance should be amended since there have been issues in the community over structures that were approved without going through Planning Commission. She felt the city should be as careful as possible in the development of the critical area and that each property impacts another. Mr. Werthauser gave Council an overview on his request, stating that when he applied for a building permit he was advised that the lot is in the Mississippi River corridor and he would need plan review by city staff. The plan was reviewed by Public Works Director Danielson and as a result he was told that he must design the home so it complies with the Critical Area Ordinance. He explained that the plan was revised to meet the conditions recommended by Mr. Danielson and stated that the structure, set back 200 feet, will blend in well with the corridor. He informed Council that he hopes to install two retaining walls four feet from each other, a five foot wall and a three foot wall, and has been Page No. 4164 October 4, 1994 advised that a variance is required for the shorter wall. He stated that he will apply to the Planning Commission for the variance and will construct a 55 foot long, five foot tall cast in place modular retaining wall along the west property line. He explained that the three foot wall is not necessary for the construction of the home but he would like to have a flat area through which he can get to his back yard instead of having to go through the garage. Councilmember Huber moved to authorize the issuance of a building permit to construct a single family home at 1024 Sibley Memorial Highway, along with waiver of the hearing and critical area application fee, with the understanding that the applicant is only authorized to build one retaining wall and no guarantee is given that there will be any approval of a variance for a second wall. Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 CASE NO. CAO 94 -04, Council acknowledged a memo from the Public Works Director BJORKLUND regarding an application for critical area site plan review for a home proposed to be constructed by Richard Bjorklund, Jr., at 1147 Orchard Place. Mr. Bjorklund informed Council that he is not asking for any variances from the zoning or critical area ordinances and understands that as long as a 40 foot setback from the bluffline is maintained he is not required to appear before the Planning Commission. Public Works Director Danielson informed Council that Mr. Bjorklund will install silt fences to protect the bluff from erosion. He explained that there has been the opportunity within the Critical Area Ordinance that developments which totally complies with. the ordinance to come directly to Council for approval. Councilmember Krebsbach stated that she feels the neighbors should have an opportunity to see what is proposed. Councilmember Huber moved to authorize the issuance of a building permit to construct a single family home at 1147 Orchard Place, to waive the public hearing and to authorize refund of the critical area application fee. Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 Councilmember Krebsbach stated that her concern over the critical area site plan review process is that adjacent property owners do not Page No. 4165 October 4, 1994 have the opportunity to comment and be informed and that all of the homes in the critical area impact each other differently that they would on a standard lot. Mayor Mertensotto directed to review the matter and to make a report and recommendation to Council as to under what conditions Council should refer these matters to the Planning Commission. He stated a change in the procedure would require modifying the ordinance and if a hearing were required, applicants would need to submit abstractors' certificates to identify properties within 350 feet. UNIFORM CURFEW Council acknowledged and discussed a memo and proposed resolution from Police Chief Delmont regarding a request from the Dakota County Attorney for support for a county -wide curfew. After discussion, Councilmember Huber moved adoption of Resolution No. 94 -68, "A RESOLUTION SUPPORTING DAKOTA COUNTY JUVENILE CURFEW ORDINANCE." Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 PLANNING COMMISSION Council acknowledged a letter from Dr. Stephen Hunter informing APPOINTMENT Council of his desire to resign from the Planning Commission. Council also acknowledged a memo from Administrator Lawell and background information from candidates who had been interviewed for appointment in July. Ayes: 3 Nays: 0 Councilmember Huber moved to accept Dr. Hunter's resignation with regret and to direct staff to send him a letter of appreciation for his dedicated service to the city. Councilmember Krebsbach seconded the motion. Mayor Mertensotto stated that at the time that interviews were conducted, Council had indicated that because of the quality of the applications, the candidates would be considered for the next Commission opening. He recommended that one of the candidates, Sally Lorberbaum, be appointed to serve the unexpired term of Dr. Hunter. Councilmember Krebsbach moved to appoint Sally Lorberbaum to the Planning Commission, effective immediately, to complete Dr. Hunter's unexpired term. Ayes: 3 Councilmember Huber seconded the motion. Nays: 0 Page No. 4166 October 4, 1994 PUBLIC COMMENTS Mr. Dan Rostratter, 2483 Stockbridge Road, and Mr. Roy Diehl, 2501 Stockbridge Road, presented the Council with a petition opposing construction of a picnic shelter /structure in the North Kensington Park. Mr. Rostratter summarized the reasons why the home owners object to the shelter and informed Council that the owners of 65 of the 74 occupied homes in the Brentwood and Kensington neighborhoods signed the petition and five of the owners were not available to sign. The Council accepted the petition and directed staff to prepare an investigation, report and recommendation on how to handle the petition (referral to Park Commission, etc.). PENTEL VARIANCE Council acknowledged a memo from the City Administrator regarding consideration of the Pentel antenna variance application. Council also acknowledged a memorandum from Eric Nystrom, the city's legal counsel in the Pentel matter. Mayor Mertensotto asked Mr. Nystrom to speak on the procedural history of the variance application. Mr. Nystrom informed the audience that he is one of the attorneys involved in the matter on behalf of the city, and has been representing the city in litigation in connection with this variance application. He informed the audience that in 1991, when Ms. Pentel made application for the variance, she had an existing beam antenna that was up illegally. Council was award of the FCC regulatory order, PRB -1, which required the minimum practicable regulation of antennas and reasonable accommodation of ham radio operators. Under those circumstances, Council looked at the issue and determined that there were a lot of safety concerns associated with the antenna that was requested and granted a conditional use permit for the existing antenna. The matter went into litigation at that point. The federal district court accepted the city's position that what it had done in considering the variance application, in terms of considering the safety issues and being award of the requirements of the federal regulation, had reasonably accommodated Ms. Pentel by giving her a conditional use permit to allow her to keep her existing structure which was at that time illegal. The matter was taken up to the Eighth Circuit Court of Appeals which reversed the judgment that the city had obtained in its favor at the district court level. He explained that the current status is that the city is obligated under the circuit court order to consider Ms. Pentel's variance application, is required to make factual findings, and following that some absent some sort of approval, Council is required by the terms of the order to negotiate and explore a comprise that occurred when the matter was last taken up with Council and that Council has engaged Dr. Page No. 4167 October 4, 1994 Dubois and Mr. Jillson to provide expertise so that Council can be fully informed as a factual matter as to the engineering and communication issues. Mayor Mertensotto stated that neighborhood residents have asked him why the applicant is asking for a 72 high foot tower now when the original application was for 68 feet. Mr. Nystrom responded that he understands that the tower she is asking for has a maximum height of 72 feet. Under the existing variance application, regardless of what the practical capability of extending the tower to 72 feet is, she has asked Council to consider 68 feet. He stated that it is not his understanding, given what is on file with the city right now, that she is seeking to go above 68 feet even though the tower she has purchased would do that. Mayor Mertensotto asked Mr. John Bellows, legal counsel for Ms. Pentel to state for the audience what Ms. Pentel is asking the city to do. Mr. Bellows responded that Ms. Pentel's existing antenna is a vertical antenna, a single mono pole of aluminum, and what she is asking council to do is approve an application to permit her to erect a tower with a horizontal, beam, directional antenna that would markedly improve her capability to communicate as an amateur radio operator. He informed Council that Ms. Pentel is a federally licensed amateur radio operator and as such falls within the umbrella of federal regulation PRB -I. He stated that the general nature of her amateur radio activities is for recreational purpose but she also spends the majority of time as an amateur radio operator in public service activities where she works with various groups, mostly the National Disaster Medical System. He informed the audience that this group is a purely volunteer operation which provides the capability of radio communications in disaster situations as a matter of public service. Mayor Mertensotto asked if there are other facilities available in the twin cities area. Mr. Bellows responded that there are but there are none available at her place of residence. Mayor Mertensotto stated that he has been asked by a neighbor if it would be possible for her, rather than have a free - standing tower, to have the type of antenna that she is seeking mounted right on the house. Page No. 4168 October 4, 1994 Mr. Bellows responded that is possible but she would still be looking for some type of extension above the roof line. He stated that this would be getting into the engineering issues that Mr. Jillson or people with his qualifications are much better able to answer, but that it is his general understanding that it probably would not be as sturdy on the roof as it would be if it were mounted and appropriately engineered. Mayor Mertensotto asked if there are antennas available that could be mounted on the roof and that would serve Ms. Pentel's needs. Mr. Bellows stated he is talking about two different things - which is the support structure of the antenna to get it to a certain elevation, and the antenna on top of that, which is the device which actually sends out and receives the radio signals. He states that it is a two part questions, the structural integrity of a roof - mounted tower, the height to which that roof mounted tower would reach. He stated that from what he knows of the market there are substantially fewer roof mounted towers and they don't appear to be as sturdy as the ground mounted structures. Mayor Mertensotto asked what maximum height Ms. Pentel could get by with given the expression of her intent of what she wants to do. Mr. Bellows responded that he believes that a reasonable accommodation height, is the 68 foot height that has been requested - approximately one wave length at 20 meters. He stated that this is significant in that it effects the ability of the signal to be sent in a way that it would permit radio signals, to permit her communication at those frequencies with some reliability internationally as well as nationally. Mayor Mertensotto asked if Ms. Pentel is primarily interested in sending rather than receiving. He also asked what would happen if Ms. Pentel were to sell her property. He stated that at the last meeting Mr. Bellows stated that the operator must have a license to operate it but that doesn't necessarily mean that the tower has to come down if a new owner is not licensed. Responding to the first question, Mr. Bellows stated that Ms. Pentel is interested in two party communication. With respect to the second question, he stated that what he intended to say was that the rational for the exception to the zoning ordinance that permits the existence of a tower is the fact that Ms. Pentel has an amateur radio license and that without her possession of that amateur radio license Page No. 4169 October 4, 1994 Council wouldn't be dealing with PRB -I. He stated that PRB -I is a federal regulation that preempts the local zoning ordinance and would require some compromise with respect to the installation of an amateur tower and antenna above the 20 foot height limitation. He stated that if she were to sell the premises and someone who did not have a license were to buy the premises, there would be no basis for them to have a tower. Even if they had a variance the variance could be conditioned upon the owner holding a valid amateur radio license. Mayor Mertensotto asked what if the city could require that the tower be removed if the new owner does not have a license. Mr. Bellows stated that he assumes Ms. Pentel would take the tower with her since the tower attached to a foundation that can be removed. He further stated that generally when ham radio operators move from place to place they take the towers with them, since there would be no reason for a subsequent buyer to have any use for them. Mayor Mertensotto stated that another question which has been asked by the neighbors and other people throughout the community who are concerned about this issue the liability for property damage. He stated that he does not deal with property insurance to any extent, but some of the neighbors have told him that if something were to happen to the tower they could not collect from Ms. Pentel's insurer because generally it would be an Act of God. The tower could come down in a wind storm as an example. He asked how Council can tell the people next door that they are protected because Council can require her to carry insurance. Mr. Bellows responded that the answer it two -fold. One, should she fail to maintain the tower in the proper fashion and there was any negligence on her part that resulted in injury to her neighbors, then, as he understands her liability insurance, her insurance would cover it. Two, in terms of the casualty loss, presumably it would be just as if a tree were blown during a wind storm and damaged property. If the tower were blown down and there was no negligence, the casualty coverage of the homeowner would cover it as it would cover damage done by a tree falling. Mayor Mertensotto responded that what Mr. Bellows is apparently saying is that there would be no insurance coverage if the tower came down unless negligence could be proven on the part of Ms. Pentel, and while the city could require her to carry insurance the neighbors couldn't collect. Page No. 4170 October 4, 1994 �. Mr. Bellows responded that he cannot answer whether her casualty coverage would provide compensation for them but just as if a tree came down a neighbor's property during a wind storm, that would be a casualty loss covered by their casualty insurance. The same would seemingly apply to the tower if that came down during a wind storm and there was no negligence. Unless there was negligence, there would be no liability on Ms. Pentel's part. Mayor Mertensotto stated that the Mr. Bellows is saying is that the neighbor's own insurance has to protect them. He stated that the neighbors are concerned and have told him that they have checked with their insurers and have been told Ms. Pentel is not responsible unless they can prove negligence. Mayor Mertensotto asked if Ms. Pentel would be willing to look into what is available for mounting an antenna on her house. He stated that residents who spoke to him today say that if the city is forced to approve a tower they would rather that an antenna be mounted on her home rather than free - standing. Mr. Bellows responded that he would ask Ms. Pentel to look into it but that he is not aware of any roof mounted tower that would reach the 68 foot height. He stated that he is also concerned about the structural integrity but that he would be willing to explore it. Mayor Mertensotto stated that the structural engineering expert who was retained on the city's behalf, Geoffrey Jillson, gave Council his findings and recommendations at the September 6 meeting. At the September 6 discussion, Council asked Mr. Nystrom to address five questions relating to the recommendations. Mr. Bellows stated that he understands that Mr. Jillson's report specifies an EIA standard dated March, 91 which provides an 80 mph wind load capability and also that the report recommends that the EIA standards with respect to radial ice. Mr. Jillson stated that the EIA standards; Appendix H addresses ice and ice accumulations on towers. The Appendix H commentary speaks to how to go about analyzing for ice accumulations on towers. He explained that the information is rather comprehensive, describes various types of icing and recommends to the designer of towers or installations that they obtain specific site related information from authorities on the subject including the U.S. government. National Oceanic Atmospheric Administration, to make determinations on what type of ice loading should be applied to each specific installation. He stated that selecting of the criteria Page No. 4171 October 4, 1994 of using 1/2 inch radial ice is an exemplar, and is a commonly used number but the EIA/TIA standard does specify that it should be researched by the designer for each local application. Mayor Mertensotto asked if Mr. Jillson recommends that if Council were to adopt a standard that Council would impose the ice accumulation factor as far as the antenna is concerned. Mr. Jillson responded yes, the standard states that each different type of structure based on height, location and type of construction needs to be evaluated specific to the type of structure, tall and very all structures are subject to different types of accumulations than shorter towers. Mayor Mertensotto asked if the EIA standards in 1991 are current. Mr. Jillson responded that the standard may have been superseded, but that the ice accumulation aspect of it does not appear to have changed very significantly. The standard does not change dramatically form edition to edition. Mayor Mertensotto asked Mr. Jillson to check the latest revision of the standard and give Council a written report to verify that there has -- not been any significant change in that standard. Mr. Bellows stated that he is fine with the standard and would recommend it to Ms. Pentel as a reasonable compromise. Regarding the radial ice, he asked that to the extent that the Council considers imposing an 80 mph wind capability and a radial ice requirement on this tower that it not be any different or any more onerous than is imposed on any other structure or tower within the community in the reasonable past or in the future. To the extent that Council imposes a more stringent standard on this type of an installation as opposed to other towers or structures then there may be a questions as to whether or not it is reasonable or unreasonable. Mayor Mertensotto stated that the most recent structures he can recall are the four light standards requested by St. Thomas Academy for its stadium and it was his recollection that Council directed the design and mechanical engineers who were advising the architects, in regard to the light standards, to determine that they were designed to an 80 mph wind. Mr. Bellows stated that all he is asking is that to the extent that j Council are imposes standards to this installation it should apply those standards to any other standard installation. He stated he does Page No. 4172 October 4, 1994 not quarrel with it but to the extent that a more onerous set of standards is being applied here, Council would not be following what appears to be the precepts that were set forth both in case law and the circuit court decision. Mayor Mertensotto asked Dr. Dubois if Mr. Bellow's comments that Ms. Pentel needs a tower at least 68 feet in height in order to accomplish whatever band she is operating for receiving and sending correlate with the research Dr. Dubois did for the city. Dr. Dubois stated that he is a registered professional engineer, a communications engineer, and has done over 200 communication systems both in Mendota Heights and throughout the county and his 30 years, expertise in is in the area of communication systems. He stated that this is primarily not a communications problem. It is most certainly a structural engineering problem which is not his expertise but rather Mr. Jillson's. The other part is the fact that this has progressed beyond Council to the 8th Circuit Court of Appeals and the result is that they directed Council to compromise with Ms. Pentel to come up with a reasonable accommodation. He stated that the documentation he provided Council with since the last meeting shows that the optimum antenna for Ms. Pentel's dual role of long range communications (DX) and local communication is about a wave length at the lowest frequency of interest that Ms. Pentel has is about 20 meters, which means about 66 feet. If Council considers that to be the optimum height for the lowest frequency, as Ms. Pentel goes up in frequency she needs a shorter and shorter tower. In his original report he defined, from Webster Dictionary, what compromise means (something less than optimum). If the optimum frequency requires a 66 foot beam antenna, in his recommendation perhaps 50 foot would be an optimum compromise. Today Council raises something else, asking about mounting on top of the roof. He stated there is a 55 foot antenna on top of the roof and it would seem that if you could achieve a 55 foot antenna vertical radiator type antenna it is conceivable, that a beam antenna could be put on top of the structure, providing there is structural strength to do it. He stated that if Council agrees with his philosophy that 50 feet is a compromise as the courts have directed, there is a potential solution. He stated that his recommendation is, that 50 feet will be a compromise at the shortest frequency, the longest wavelength she would use, and at the other frequencies, the 50 foot would be optimum. Mayor Mertensotto asked if what Dr. Dubois is saying is that for the most of the band widths that Ms. Pentel would be using she could get by with a 50 foot antenna. Page No. 4173 October 4, 1994 Dr. Dubois responded that it would be optimum at many of the frequencies and at the worst case scenarios it would be usable at the other frequencies. Mayor Mertensotto asked is if under most conditions an antenna at a 50 foot height would probably serve. Dr. Dubois responded that it is a compromise at her lowest frequency of operation and at her highest frequency it is optimum. Councilmember Krebsbach stated that Mr. Bellows said two structures are actually being discussed, a tower which is a supporting structure and the antenna. She asked if it is clearly understood within engineering circles that these are two different structures. De Dubois responded that it is. Councihmember Krebsbach stated that here reading of the case is that Council is required to make a reasonable accommodation to the antenna, but there is no reference to the tower. l Dr. Dubois stated that they are one in the same in this case - the accommodation in the antenna means the accommodation of antenna height. Ms. Pentel has already selected an antenna type and the nature of the antenna, there is an optimum, and the optimum is about one wave length for the combined utilization she wants to make. All the tower does in this case is hold up the antenna. Dr. Dubois stated that in his 30 years of experience in the field, aesthetics have no interest in the part of the Federal Government or courts and are not even in the City Council domain, but where Council has total control is safety. He believes not only is the city by granting this variance taking legal responsibility for putting in an unsafe structure but if a safe structure is put in Dr. Dubois thinks the residents would be a little more willing to put up with it - if we follow the EIA rules and I urge you to do that. He stated that as Mr. Jillson has recommended that Council must require a safe tower, and would be taking legal responsibility if it grants a variance for an unsafe tower. He urged Council to follow the EIA rules and felt that if safety is required the neighbors may be more willing to put up with it. Mayor Mertensotto asked for questions and comments for the audience. Page No. 4174 October 4, 1994 Mr. Jim Plummer, asked if a 40 to 50 foot tower would work to get all the signals, and if a 40 -50 foot safe tower can be designed on top of the house. Mr. Jillson stated that it is possible, but the choice of it being available is small although it can be designed and built. Mr. Plummer asked as a compromise if Ms. Pentel would be willing to pay to have such a design - to get her signals out and be sure that is safe rather than have the city try to design a tower. Mayor Mertensotto stated that the city would not be designing the tower. It is still the applicant's and the design in no Council's concern. Council is charged with responsibility for not only the safety of Ms. Pentel but also the neighbors in the area - to make sure from all the evidence that is available that it is a safe tower. Mr. Bellows stated that it is unlikely such a roof - mounted tower is available. He thought to the question of whether she would be willing to have such a tower designed and pay for the design, when there are commercially available ground mounted towers that can be determined to qualify and meet the standards that Mr. Jillson has specified as being the appropriate standards, is no. If there are commercially available towers that will meet those standards there would seem to be no reason to go to the extraordinary expense of constructing a single tower and having all of that expense plus all the expense of having an engineering on that tower when there are commercially available towers with engineering studies available and acceptable to Ms. Pentel. Also, he felt it is a false assumption on De. Dubois' part that one wave length, 66 feet as 20 meters, would be the optimum height for an antenna. He stated he is unaware of any support for the position and unaware of any support in the ARRL Handbook he uses as a basis for that premise. He directed Council's attention to the paper "Antenna Height'and Communications Effectiveness" which was in the packet, and in 1991 was utilized as an exhibit in both the District Court and Appellate Court record. He stated the first page executive summary speaks about communication effectiveness of a 35 foot and 70 foot antennas and the difference between antennas - An antenna at 35 feet is unsatisfactory while the same at 70 is quite satisfactory. The 70 foot height is used purely for comparison, however, and should not be construed as the optimum height. Heights above 100 feet would give significantly better performance than one at 70. He stated his only purpose for reading this is to challenge Dr. Dubois that 66 feet is the optimum. He stated he has seen no support for it in Dr. Page No. 4175 October 4, 1994 Dubois' report or in his reference to the ARRL Handbook. He stated that 68 feet is not the optimum heights, it is a compromise. Mr. Plummer stated that then the Council is back to the tall tower again, which Mr. Jillson said is unsafe. The tower is apparently the only thing Ms. Pentel will go along with, there should not be any question. If council then approves it they are approving an unsafe tower and the city accepts the responsibility for damages when the tower falls down. Mayor Mertensotto stated that Mr. Bellows said they will meet all of the requirements of the EIA standards and would also undergo the ice accumulation analysis to determine that the square footage under the ice loading would not be a hazard. He asked if Ms. Pentel would meet all the requirements Mr. Jillson has recommended. Mr. Bellows responded that they will meet them as long as Council will also enforce those requirements for other structures. Mayor Mertensotto stated that he does not think that they would apply to such structures as a water tower. Mr. Jillson stated that the issue he is talking about in these types of - structures relates to the very unique type of structures. These are very high performance structures, which means they are highly stressed small, high performance where a lot of height can be gotten out of very few building components. As the result of that compared with other structures like big Neagele signs or water towers or buildings or houses, one: they accumulate ice because they are metal and they have a tendency to accumulate ice, but secondly, the effect of that amount of ice on them has a dramatic affect on the strength of the tower which can be cut in half very quickly. He stated that there may be a couple of percentage points difference in the affect of the same amount of ice on some of those larger structures, which is why it's not even addressed in the UBC typically. Councilmember Krebsbach asked if the antenna overlaps on the adjacent property when fully extended. Mr. Bellows stated that this issued was raised September 6 and he would have no problem with either getting a different antenna that would not overlap or moving the tower to a point where it would not overlap the property. He further stated that if the tower is moved 6 to 8 feet towards the center of the lot the antenna would be well within the property lines. Page No. 4176 October 4, 1994 Councilmember Krebsbach asked if the neighbors would be precluded from erecting their own antennas, and if her transmission would be interrupted. Mr. Bellows stated that this is not an issue this Council can deal with, it is under the jurisdiction of the FCC, but there could be some interference with reception if all the neighbors had them and were operating them at the same time. He stated that Ms. Pentel's tower does not impinge on their rights to be a ham radio operator. Mayor Mertensotto asked Attorney Nystrom, if the citizens who live in the area of the applicants address have a right to vote on this issue. Mr. Nystrom stated that residents should not be disappointed with Council. The Federal Government has made a decision to step into this area and take away the power of cities and counties to regulate this issue. He suggested that people should talk to their congressmen. He stated that the ultimate concern the Council has, and responsibility it has to the citizens, is the safety issue. Council has retained Mr. Jillson and is relying on his expertise to guide in that area letting Council know what the standards are that have been developed in terms of engineering. When Council gets into issues with respect to particular placement, rooftop versus ground level, its discretion is somewhat limited. Ms. Pentel certainly cannot impinge on her neighbor's property. Council has an obligation to look at the safety aspect and rely on Mr. Jillson's analysis of the tower that is being proposed. It was his opinion that quite clearly the Council is not required under PRB -1 to comprise the safety issue - this is well defined in the standards and Council is well within its rights to protect Ms. Pentel and her neighbors. Mayor Mertensotto stated that the questions to him by the neighbor was why Council does not give the residents the opportunity to vote on the issue, he tells them that his not a referendum issue where they would have an opportunity to vote on a ballot, but must be a Council decision. He stated that certainly the residents should give their input to Councilmembers as their representatives on the Council but the decision must be made by the Council. Mr. Nystrom responded that what everyone must understand is that the Federal Government has taken a lot of Council's discretion away and said that outside of very specific instances, such as safety, the considerations are going to be overridden by a federal policy. Page No. 4177 October 4, 1994 Mayor Mertensotto asked Mr. Bellows if he would be willing to investigate whether the applicant would consider a structure to be mounted on her home rather than free - standing. Mr. Bellows stated that he will but does not want there to be a misunderstanding as he thinks the probability of finding something commercially available that would meet the requirements Mr. Jillson says are appropriate is very low. Mayor Mertensotto stated that it becomes a question of the relativeness of cost. He stated that there are many residents who are vehemently opposed to think it is beyond reason for the applicant to put this type of tower on a 60 foot lot, and what he is looking for is getting into the merits of that assertion and asking if this is an area where compromise can be found. Mr. Bellows asked why there is a belief that a roof - mounted tower would be more palatable than a ground- mounted tower. Ms. Sarah Postiglione, 562 Fremont Avenue, responded that if it were to be mounted on the roof and she was sitting in her park like back yard she would not be able to see the tower as well because it would be blocked by the trees in Ms. Pentel's back yard. Those trees would have to be removed if she had the tower put on the ground and it would be in plain sight. Mrs. Patricia Kasheimer, neighbor to Mrs. Postiglione, stated that a child is not as apt to try to climb a tower if it is put on the roof as they would but if it were in the back yard, it would be appealing to kids and is part of the safety issue. Mrs. Liz Plummer stated that when this started in 1991 Ms. Pentel has two antennas on her home, one 45 feet one 56 feet and they were put up without a variance. Then she asked to have a 68 foot one and now its 72 feet. She stated that compromise, means meeting half way. She stated the neighbors have suggested that she put her antenna/tower on top of the roof which will be past the 65 feet she wants and if it collapses in the wind or the sleet, it would fall on her roof and not on little children in the neighborhood. She felt that Ms. Pentel should bear any damage since, if it fell on someone else's yard she would not be responsible. Mayor Mertensotto stated that he can see that there is merit in the suggestion since it wouldn't be at eye level if it were mount on top of the structure and from a safety standpoint. Page No. 4178 October 4, 1994 Councilmember Huber cited Dr. Dubois in his October 12 letter were he refutes comments of Mr. Bellows. He stated that on the second page Dr. Dubois talks about figure 32b on page 15 -17, and they talk about 15% lobes vs. 30% lobes which goes to Dr. Dubois assertion that the 66 feet is optimum which is contrary to what Mr. Bellows says. Dr. Dubois stated that Council hired him because he has a Ph.D. in electrical engineering, with many years of experience, and Council is seeking his opinion versus the opinion of Mr. Bellows, an attorney who also happens to be a ham operator. He stated that if one were to take the two curves 32 a and b and run a computer study one would find that the lower part of the antenna is the 15 degree lobe. This is the lobe that does the DX because the lower you take off into the horizon the farther you are going to go because you reflect off the ionosphere and go to an adjacent continent. The worst case is where at 45 degrees you would simply go up and come done in Florida, but if you take the 30 degree lobe you have the best of both worlds. He stated that this is why he says it is optimum, because you are getting the 45 degree lobe to get into Florida and at the same time, 15 degree lobe to get to Romania, and everything in between. He stated that the high angle radiation exists for short skip but Ms. Pentel wants DX so then she wants to use the lower skip, roughly 50 degrees, and the higher antenna is a little bit more favorable for DX direct long distance. Councilmember Huber asked Dr. Dubois if he is arguing that the 66 foot is in fact optimal. Dr. Dubois responded yes, for her lowest frequency, which is the worst case, the optimum is 66 feet. Optimum is one wave length, which at 20 meters happens to be 66 feet, but if she went to a 50 foot height, which is a compromise, the curves blend so there is a little bit of DX and a little bit of shorter range. Councilmember Huber asked if she would have international capability at 50 feet. Dr. Dubois responded that on certain bands it would be optimum for long distance, at certain frequencies, not at 20 meters, but it would be suitable. Councilmember Huber asked Mr. Bellows if he is saying he does not have the material Dr. Dubois has referred to. Page No. 4179 October 4, 1994 Mr. Bellows responded that what he is saying is that the terms optimum and favorable are not synonymous and that the document Dr. Dubois is relying on does not ever suggest that this is the optimum frequency. Dr. Dubois stated that for all the various applications Ms. Pentel has indicated, short range to take care of her emergency medical care and DX, the 50 foot height is a compromise. Councilmember Huber stated that leaving the words optimum and favorable out of it, Dr. Dubois is suggesting that at the 50 foot height, Ms. Pentel has international capability. He asked Mr. Bellows if he contends that this is false. Mr. Bellows responded that Ms. Pentel has the capability for international communication but not on a reasonably frequent basis, which is what the cases are suggesting is the standard. He stated that she has the right to reasonably reliable communications and 50 feet will going to provide reasonably reliable communications. He further stated that above 66 feet the angle of radiation will go down and with the higher antenna, the lobe will be substantially lower. He stated that the process was described specifically in a document he presented to Council. An additional factor is that the signal bounces off the ionosphere 80 miles up and sun spots radically affect how solid the ionized layer is. On an eleven year basis, as sun spots increase and decrease, the level of ionization changes and that affects what is called the maximum usable frequency. He stated that much of what Dr. Dubois has talked about is frequencies that are not usable on an international basis half of the time or more. Dr. Dubois responded that everything Mr. Bellows has said is true but extremely misleading. He stated that the norm is not what is being discussed. Mayor Mertensotto stated that Mr. Bellows has stated he would make a determination on the cost difference and availability of an antenna mounted on the house versus a free - standing structure, and whether it is reasonable to ask the applicant to go roof mounted as a compromise for the residents who are objecting to it. He further stated that Mr. Bellows has indicated that he would do research and give a response to Council. At the same time, Council will ask its experts, primarily Mr. Jillson, to provide information on what is available and the apparent cost factor, so information is presented by both sides. Page No. 4180 October 4, 1994 Mr. Jillson stated that there has been discussion from the residents about where the tower would land if it fell. He stated that given the size of the lot and height of the tower, it could fall half way across an adjacent lot. He further stated that if a total height antenna of 50 feet, for example, were centrally mounted on the roof, which is about 20 feet above ground, it would land entirely on the Pentel lot. Mr. Ted Tholey asked Council to consider that if the present standards are loosened and a permit is granted for a 68 foot tower, Council would not be able to refuse a permit for other similar towers and they would be scattered throughout the city. Mayor Mertensotto responded that Council could not treat any applicant differently but that he would guess there would not be a proliferation of towers. He stated that over the years other residents have asked him if they could have ham radio antennas in their back yards and his first response was to suggest that they check with their neighbors. The requests were subsequently withdrawn. He did not think there would be many Mendota Heights residents who would think about installing a tower if there were objections from neighbors. Mrs. Plummer stated that over 50 residents have given written objection to the antenna and tower. Mayor Mertensotto responded that he is aware of the objections and knows that the residents are wondering why Council does not deny the request, but Council cannot do so because the court of appeals has said that Council must try to arrive at a compromise. He stated that if Council arbitrarily denied the variance it would not be fulfilling the court mandate. Mrs. Plummer asked if the city cannot tell the court that the tower /antenna is dangerous. Mr. Nystrom responded that the safety concerns were expressed to both trial court and the court of appeals when the matter was litigated. The trial court agreed with the city, but the court of appeals has disagreed with the way in which the issue was treated in the manner of the record that was before the court at the time. Those concerns have been raised, and the issue of Ms. Pentel's current whip antenna as something of a compromise has already been litigated and the court has disapproved that as a compromise. He stated that he cannot emphasize enough that the Council has some well defined obligations under the Eighth Circuit Court order - they have to consider the application and must make certain factual findings Page No. 4181 October 4, 1994 based on recommendations and evidence as placed before it and is obligated under the court order to enter into negotiations to attempt a compromise solution. He stated that if the city does not fulfill its obligations it can be exposed to some type of contempt citation or other type of sanction. The court has made it clear as to what the city's obligations are and, in Mr. Nystrom's opinion, unless the city deals with the request in the manner the court has suggested there are some risks. Mayor Mertensotto asked Mr. Bellows how much time he would need to prepare his response. Mr. Bellows responded that he should have an answer by the October 18 meeting and would be present if Council feels a decision will be made at that meeting. Mayor Mertensotto stated that Council would not want to make a decision unless Mr. Bellows is present. He asked Mr. Bellows and Mr. Jillson to prepare their information and submit it by October 18 and stated that Council will set November 1 as the target date for a decision to be made. RECESS Mayor Mertensotto called a recess at 10:00 p.m. The meeting was reconvened at 10:11 p.m. CASE NO. 94 -24, KERN Council acknowledged an application from Mr. Kerry Kern for wetlands permit and front yard setback variance to allow construction of a single family home at 531 Marie Avenue, 23 feet from the wetlands and 40 feet from the front property line. Council also acknowledged an associated staff memo and letters of consent from neighboring property owners. Mr. Kern, present for the discussion, acknowledged that he has withdrawn his original request for a variance for an accessory structure and stated that he will not do any filling in the wetlands. He also stated that he agrees to the conditions recommended by the Planning Commission, has corrected his site plan to show that there will be no wetland filling, and will install a silt fence where the boundary lines are shown on the site plan. Councilmember Krebsbach noted Planning Commissioner Friel's comments that the lot existed prior to current zoning regulations and would not have been platted under current wetland regulations. Page No. 4182 October 4, 1994 Councilmember Krebsbach moved to approve a ten foot front yard setback variance in the R- l A district and a wetlands permit to allow construction of a single family home at 531 Marie Avenue to within twenty three feet of the wetlands, as proposed on revised plans dated September 27, 1994, with the condition that a silt fence be required for erosion control and with the understanding that under no circumstances will any filling be allowed in the wetland area. Councilmember Huber seconded the motion. Ayes: 3 Nays: 0 CASE NO. 94 -22, LENTSCH Council acknowledged an application from Mr. William Lentsch (OLSON) for Mr. David Olson for a wetlands permit to allow construction of a single family home 51 feet from the wetlands at Lot 6, Block 1, Mendota Woods. Council also acknowledged associated staff reports and letters of consent from neighboring property owners. Mayor Mertensotto asked Mr. Olson if his site plan shows a future deck and if it shows which trees will be removed. He also asked if a grading plan has been submitted. Mr. Olson responded that he has submitted a drainage plan and that the site plan shows a future deck and which trees, several dead trees ( and approximately 9 or 10 live oaks, which will have to be removed. He informed Council that, after meeting with Public Works Director Danielson, the plan was revised to save as many trees as possible. Responding to a question about a five foot snow storage easement which had been requested by Mr. Lentsch for Lot 7, Mr. Olson stated that he has said no to the request because he is fearful of potential damage to live oaks on the property line. Public Works Director Danielson stated that Mr. Lentsch has moved his driveway so he does not need the easement for snow storage. He explained that everyone is concerned about saving oak trees and the Olson plan has been revised to minimize the loss. Responding to a question, Mr. Olson stated that there will be a retaining wall on the side of the house, a retaining wall to save an eighteen inch oak, and one on the Lot 5 side for drainage purposes. Councilmember Huber moved to approve a wetlands permit for Lot 6, Block 1, Mendota Woods, to allow construction of a single family home to within 51 feet of the wetlands, as proposed on the revised grading /site plan dated September 14, 1994. Councilmember Krebsbach seconded the motion. Ayes:3 Page No. 4183 October 4, 1994 I, Nays: 0 CASE NO. 94 -29, Council acknowledged an application from Mr. Charles Bangasser BANGASSER for a two foot sideyard setback variance to allow construction of a third garage stall addition to his home at 2223 Copperfield Drive. Council also acknowledged a letter from Mr. Bangasser explaining his request, associated staff reports and letters of consent from neighboring property owners. Mr. Bangasser explained that the variance is only for a small triangle of his lot. He explained that he moved the garage addition as far back as it can go and still retain a good appearance. He stated that the proposed addition will be identical to the home in all materials and that the addition is necessary to keep his third vehicle off the street and driveway. After brief discussion, Councilmember Krebsbach moved to approve a two foot side yard setback variance to allow construction of the garage addition as proposed, eight feet from the property line at its closest point. Councilmember Huber seconded the motion. Ayes: 3 Nays: 0 CASE NO. 94 -27, MARCHIO Council acknowledged an application from Mr. Anthony Marchio for a variance to allow a four foot wood fence on his through lot at 2477 Stockbridge Road, in his front yard along Mendota Heights Road. Council also acknowledged associated staff reports and letters of consent from neighboring property owners. Mr. Marchio informed Council that the setback recommended by city engineering, eight feet from the trail, is acceptable to him. He stated that the Planning Commission had recommended that he install landscape screening along Mendota Heights Road fence and asked how much landscaping is needed. Mayor Mertensotto responded that Council will not place a dollar amount on the landscaping nor will it require a certain spacing, but rather will ask Mr. Marchio to, in good faith, do landscaping which he feels looks good. He pointed out that the fence will be setting a precedent along Mendota Heights Road and asked what kind of board spacing Mr. Marchio is considering. Mr. Marchio responded that he will space the boards as close as possible since he has small children. He, acknowledged that the Planning Commission would like the fence to be as open as possible and informed Council that he will not install a solid board fence but rather is considering a picket fence. Page No. 4184 October 4, 1994 Councilmember Krebsbach moved to grant a fence height variance to allow a four foot wood fence, as proposed, at a setback of eight feet from the trail, with appropriate landscape screening along Mendota Heights Road. Councilmember Huber seconded the motion. Ayes: 3 Nays: 0 CASE NO. 94 -28, MICKENS Council acknowledged an application from Mr. David Mickens for a variance from the established front yard setback to allow construction of a garage, three season porch, deck, front entry and dining room addition to his existing home 38 feet from the front property line at 1875 South Lexington. Council also acknowledged associated staff reports and letters of consent from the neighboring property owners. After brief discussion, Councilmember Huber moved to approve a front yard setback variance to allow construction of a proposed garage addition 38 feet from the front property line at 1875 South Lexington Avenue as proposed. Councilmember Krebsbach seconded the motion. Ayes: 3 Nays: 0 CASE NO. 94 -30, FISCHER Council acknowledged an application from Mr. & Mrs. James Fischer for a wetlands permit to allow construction of a single family home 58 feet from the wetlands at 1830 Rolling Green Curve. Council also acknowledged associated staff reports and letters of consent from adjoining property owners. Mr. Fischer stated that the house he proposed lines up with the neighbors on both sides, four to five feet behind one of the houses and three to four feet in front of the other. He explained that the lot is on a curve. Responding to a question, he stated that this is the last lot in the Rolling Green Addition and he is not going to change the grades of the lot. Public Works Director Danielson stated that Mr. Fischer has agreed to install silt fencing during construction. He informed Council that the Planning Commission was concerned that the fence be located uphill of the storm water inlet. Mayor Mertensotto asked the proposed basement elevation. Mr. Fischer stated that there is a deed restriction requiring the elevation to be two feet above the high water mark of the pond. He explained that this is the same elevation as the neighboring homes and any higher would place the house above the street. Page No. 4185 October 4, 1994 Councilmember Smith arrived at 10:35 p.m. Councilmember Krebsbach moved to approve a wetlands permit to allow construction of a single family home to within fifty eight feet of the wetlands, as proposed, with the condition that the silt fence be located uphill of the inlet and closer to the drainage and utility easement line. Councilmember Huber seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 Smith CASE NO. 94 -26, CROMBIE Council acknowledged an application from Mr. Brian Crombie for a lot split at 1575 Wachtler Avenue. Council also acknowledged associated staff reports, signatures of consent from neighboring property owners, and a letter from Mr. & Mrs. Mike Evenson expressing concern over development of the property. Mr. Bruce Folz, land surveyor for the Crombies was present for the discussion. Mayor Mertensotto stated that the major concern is that the Planning Commission recommended the lot split with the condition that the city acquire a drainage and utility easement on the Evenson property where the storm water outlot has been extended from its original location. Mr. Folz stated that the easement is on the Evenson Lot, about 20 feet west of the west property line. He stated that the Evensons extended the pipe 80 feet, apparently with city permission, and has filled and landscaped over the pipe. The entrance to the pipe which drains four or five lots, is now about 70 to 80 feet beyond the easement which had been granted to the city. He suggested that the city require the easement and stated that if the owner does not agree, the only other option would be for the city to remove the pipe and relocate it to its original location. Public Works Director Danielson informed Council that he has spoken to Mr. Evenson and feels that Mr. Evenson will agree to grant the easement. Mayor Mertensotto stated that the city currently does not even have an easement to unplug the drainage line if needed. He stated that staff will need to communicate promptly to the property owners that the easement is needed and if it is not granted Council will have to order that the pipe be removed. He informed Mr. Folz that a park contribution will also be required from the applicants. Page No. 4186 October 4, 1994 Mr. Folz informed Council that because of the requirement that a fifty foot roadway easement be dedicated along Wachtler Avenue (17 feet is needed in addition to the existing 33 foot easement) a five foot front yard setback is also needed for the existing home. Public Works Director Danielson informed Council that the property is currently unplatted and the plat for the division will show the easements. Mr. Folz responded that he does not propose subdivision platting but rather a simple lot split with metes and bounds descriptions of the two lots. He stated that the utility and drainage easements will be shown on the deeds. He further stated that the certificate of survey has been revised to show utility and drainage easements and the Wachtler right -of -way. Mayor Mertensotto informed Mr. Folz that city staff will not certify documentation on city approval of the lot split until city engineering has received and reviewed the survey, easements and deeds. Councilmember Krebsbach asked if the house construction on the newly created lot will meet the Park Place covenants. Mr. Folz responded that the house will be consistent with those in Park Place. After discussion, Councilmember Huber moved to approve the division of 1575 Wachtler Avenue as proposed along with a five foot front yard setback variance for the existing home on Parcel A, with the conditions that drainage and utility easements be provided, that a fifty foot roadway easement be provided along Wachtler Avenue, that the property owner submit the required $750 park contribution, and that a storm sewer easement be obtained for the storm water outlet on the adjacent property, and that all existing accessory out - buildings be removed, all subject to engineering staff review of the certificate of survey to determine that everything is in compliance. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 Mayor Mertensotto recommended that staff contact the adjacent land owner to advise him of Council's concern that the city acquire an easement to provide access for maintenance of the drainage pipe. He stated that if the easement is not granted by November 15, the public works staff will be directed to remove the pipe. Councilmember Huber moved to direct the engineering staff to notify the land owner accordingly. Page No. 4187 October 4, 1994 Councilmember Smith seconded the motion. . Ayes: 4 Nays: 0 CASE NO. 94 -17, LENTSCH Council acknowledged a memo from the Public Works Director relative to access issues related to William Lentsch's application for rezoning for Outlot B of the Mendota Woods Addition. Council also acknowledged a letter from the Kensington Manor Homes Condominium Association informing Council on the Association's decision not to grant an access easement onto Brookfield Lane for Outlot B. Mayor Mertensotto asked Public Works Director what the potential cost of condemning easement rights to Brookfield Lane would be. Mr. Danielson responded that the city already owns utility and drainage easements and appraiser Blake Davis has informed him that he feels acquisition would be about one -third of the cost of normal street right -of -way. Mayor Mertensotto stated that he feels the owner of Outlot B should be an Association member so that he contributes in the Association's cost of maintaining the road - condemning the right -of -way will make Brookfield a public street. Mr. Lentsch informed Council that he had offered to pay for watermain and a proportionate share of the road maintenance. He stated that he would be willing to pay the cost of obtaining an easement and that he is empowered to speak for Irving Clark, the owner of the outlot. Mayor Mertensotto stated that Council can authorize condemnation, with the cost of acquisition to be negotiated between the city and the property owner. He felt that it is appropriate to authorize condemnation rather than imposing a joint driveway to serve the lot, and also that action on the rezoning request should be withheld until the Association submits its reaction to potential condemnation proceedings. Councilmember Smith moved to authorize retaining Blake Davis to perform an appraisal, to direct staff to prepare an appropriate resolution for adoption on October 18 to officially commence a quick take proceeding relative to acquisition of a publicly dedicated easement on Brookfield Lane for the purpose of gaining access to Outlot B of Mendota Woods and to direct staff to notify the Kensington Manor Home Association of Council's action. Councilmember Huber seconded the motion. Page No. 4188 October 4, 1994 Ayes: 3 Nays: 1 Krebsbach Mayor Mertensotto stated that it is vital that access is gained in via Brookfield rather than impacting the wetlands. He pointed out that the outlot was originally planned to become part of the manor home development. Councilmember Smith stated that she supports condemnation pointing out that access was always envisioned to come from Brookfield and all other options were cut off. CASE NO. 94 -16, Council acknowledged an application from Mr. William Lentsch for LENTSCH a wetlands permit and driveway setback variance to allow construction of a single family home on Lot 7, Mendota Woods (Arbor Court). Council also acknowledged associated staff reports. Mayor Mertensotto asked about the Planning Commission's concerns over the grading plan with respect to the location of the structure on the lot. Public Works Director Danielson responded that the four concerns the Commission had raised have been resolved in a revised grading plan dated September 26, 1994. Mayor Mertensotto read a list of eight concerns which were contained in a staff report dated September 22. Mr. Lentsch stated that all of the concerns except the slope easement on Lot 6 have been addressed. He informed Council that the driveway has been moved so that no variance is needed and there is now enough room to do the proper grading along Lot 6. He stated that a slope easement on Lot 6 is no longer needed and the grade has been softened. He explained that the only thing left undone is that he must draft a drainage easement. Public Works Director Danielson informed Council that the easement is necessary to allow the surface water from Lot 6 to drain across Lot 7. Mayor Mertensotto pointed out that the driveway location is predicated on Outlot B having access from Brookfield Lane. Councilmember Huber moved to approve a wetlands permit for Lot 7, Mendota Woods to allow construction of a single family home as proposed on the revised grading plan dated September 26, 1994. Councilmember Smith seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 Krebsbach Page No. 4189 October 4, 1994 PART 150 PROGRAM Administrator Lawell briefly reviewed his report regarding FAA adoption of a 1996 Ldn 65 noise contour map which includes a greater number of Mendota Heights homes within the contour and 25 additional homes are now eligible to participate in the Part 150 sound insulation program. St. Thomas Academy and Visitation Convent and School are also within the contour, although schools currently fall outside of the regulations. After discussion, Councilmember Huber moved to authorize the participation of those Mendota Heights residential properties included within the FAA's 1996 Ldn 65 noise contour in the Part 150 aircraft noise sound insulation program and to direct staff to work with the MAC to notify property owners of the program and their eligibility to voluntarily participate. Councilmember Smith seconded the motion. Ayes: 4 Nays 0 WORKSHOPS Council acknowledged a memo from Administrator Lawell regarding proposed Council workshop topics and dates. It was the consensus to workshop for the purpose of discussing labor contract demands and acceptable settlement terms after adjournment of the regular meeting on October 18. Staff was directed to research and prepare a report on the critical area ordinance prior to the workshop. Councilmember Krebsbach moved to conduct a joint Council/Planning Commission workshop on Monday, October 24, from 7:00 to 9:00 p.m. Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 Councilmember Krebsbach stated that she would like to discuss critical area ordinance changes at the proposed joint Council/Planning Commission workshop. COUNCIL COMMENTS Councilmember Smith briefly reported on this evening's joint MAC/ MASAC meeting. Page No. 4190 October 4, 1994 ADJOURN There being no further business to come before the Council, Councilmember Huber moved that the meeting be adjourned. Councilmember Smith seconded the motion. Ayes: 4 Nays: 0 TIME OF ADJOURNMENT: 11:28 o'clock P.M. KA—leen M. Swanson City Clerk ATTEST: Charles E. Mertensotto Mayor LIST OF CONTRACTORS TO BE APPROVED BY CITY COUNCIL October 5, 1994 Excavation Contractor License Trentroy Corporation General Contractors License Jalco Construction Co., Inc. Petroleum Maintenance Gas Pipina Contractor License Dick Lind Co. HVAC Contractors License Palen- Kimball Co.