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1994-09-06 Council minutesPage No. 4121 September 6, 1994 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, September 6, 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, 1101 Victoria Curve, Mendota Heights, Minnesota. Acting Mayor Smith 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 late. AGENDA ADOPTION Councilmember Krebsbach moved adoption of the revised agenda for the meeting. Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 APPROVAL OF MINUTES Councilmember Huber moved approval of the minutes of the August 16, 1994 regular meeting. Councilmember Koch seconded the motion. Ayes: 3 Nays: 0 Abstain: 1 Krebsbach CONSENT CALENDAR Councilmember Krebsbach moved approval of the consent calendar for the meeting, revised to move items 5.d, e, k, l and in to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the August 23, 1994 Planning Commission meeting. b. Acknowledgment of the minutes of the August 24, 1994 Airport Relations Commission meeting. c. Acknowledgment of the Code Enforcement monthly report for August. d. Approval to appoint Bret Blaeser to the position of firefighter effective September 7, 1994. e. Approval to appoint David Paton, Michael Brennan and Ronald Katzenmaier as probationary firefighters effective September 6, 1994. -1 Page No. 4122 September 6, 1994 f. Acknowledgment of correspondence from Dakota County and Mn/DOT regarding the city's request for a reduction in the speed limit on Delaware Avenue. g. Acknowledgment of a memo from the City Administrator regarding the 1994 National League of Cities Annual Congress of Cities and Exposition to be held in Minneapolis in December. h. Approval of the Joint Powers Agreement for the Special Assistance Grant program with Dakota County and authorization for its execution by the Mayor and City Clerk. i. Approval of the list of contractor licenses dated September 6, 1994 and attached hereto. j. Approval of the list of claims dated September 6, 1994 and totaling $385,434.52. Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 TRAFFIC SIGNALS Council acknowledged a proposed traffic control signal agreement from Mn/DOT relative to the Dodd Road/Mendota Heights Road traffic signals, along with an associated memo and proposed resolution from the Public Works Director. Acting Mayor Smith stated that while many of the points in the agreement have been preliminarily agreed she would like a revision relating to the timing of the traffic control signal. She stated that while she understands that the state has control of the timing of the signal she remains very concerned that a large portion of the southeast area of the city will be using the intersection and if the timing of the signal is prohibitive she fears that people will use other alternatives that are not designed for heavy traffic. She suggested that the agreement be amended to state that the timing of the traffic control signal shall be in the control of the state in consultation with the city, which would give the city on -going input into the decisions on timing. Councilmember Huber stated that the agreement addresses salvage of the Emergency Vehicle Preemption system but does not address salvage of the entire signal system should it be taken out before it has a zero value. He stated that the city is contributing about $63,000 to the project and should receive an equal share in the Page No. 4123 September 6, 1994 salvage value if for any reason the signal system is removed while it still has value. Councilmember Krebsbach moved adoption of Resolution No. 94- 53, "RESOLUTION APPROVING AGREEMENT NO 72616 BETWEEN THE STATE OF MINNESOTA, DEPARTMENT OF TRANSPORTATION AND THE CITY OF MENDOTA HEIGHTS," contingent on the suggested amendments being approved by the state. Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 SIGN PERMIT - D.D.'S Council acknowledged a memo from Code Enforcement Officer DANCE STUDIO Berg regarding an application for sign permit from D.D.'s Dance Studio for a 21 square foot sign proposed to be installed on the sign band at the Mendota Plaza. Council discussed the desirability of allowing signs to go up the gables of the sign band and how future signage for interior shopping center spaces would occur if the permit is approved. Administrator Lawell stated that the center is under a sign policy adopted by the city in August, 1988, and there is no language in the policy as to whether signage is allowed or prohibited on this part of the band. He informed Council that there is a restriction in the policy that tenant signs must be in the facia band, one foot - six inches from the top and from the bottom. He stated that staff can contact D.D.'s to see if they would like to move the sign somewhere else on the sign band, but that it appears that the policy allows the proposed location if it meets the one foot - six inch criteria. Councilmember Krebsbach stated that she would have no problem with the location of the sign if it were moved over to be one foot six inches from the gable so that it is more centered. Acting Mayor Smith stated that it would be preferable if there is another location for the sign where it would still be close to the studio location yet would not go up the gable. After discussion, Councilmember Krebsbach moved to approve the sign permit to allow a 21 square foot sign on the sign band provided by Paster Enterprises for D.D.'s Dance Studio subject to placement of the sign to meet the Mendota Plaza sign agreement. Councilmember Koch seconded the motion. Ayes: 4 I Nays:0 Page No. 4124 September 6, 1994 COLONY TOWNHOME Council acknowledged a memo from Public Works Director AGREEMENT Danielson regarding the city's share of costs for the Lilydale Colony Townhomes storm water project. Responding to a question from Councilmember Krebsbach, Mr. Danielson stated that the project is an inter- community project which was designed by the Lower Mississippi River WMO's engineer, Barr Engineering, and is a project that would be mandated by the WMO should the city decline to participate. He explained that there is a specific WMO formula by which the financial participation by all agencies are calculated. Councilmember Krebsbach moved to authorize the Mayor and City Clerk to execute a "Joint Powers Agreement Relating to the Construction of a Storm Water Improvement Located in the Area West of Lexington Avenue and Trunk Highway 13 (West Lexington Sewer Project)," all subject to Mn/DOT's participation and receipt of a hold harmless agreement from the Colony Townhomes Association. Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 BUDGET /TAX LEVY Council acknowledged and discussed a memo from Treasurer Shaughnessy regarding the preliminary budget and tax levy for 1995. After brief discussion, Councilmember Krebsbach moved adoption of Resolution No. 94 -54, "RESOLUTION ADOPTING PROPOSED BUDGET," Resolution No. 94 -55, "RESOLUTION APPROVING TENTATIVE 1994 LEVY COLLECTIBLE IN 1995," and Resolution No. 94 -56, "RESOLUTION APPROVING FINAL 1994 TAX LEVY FOR SPECIAL TAXING DISTRICT NO. 1 COLLECTIBLE IN 1995." Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 AIR NOISE Council acknowledged a memo and proposed resolution from Administrator Lawell regarding air noise mitigation and conversion to a "Stage III" quieter aircraft fleet at MSP airport. Administrator Lawell informed Council that Northwest Airlines has indicated it will not request a waiver to allow 85% compliance and will comply with 100% "Stage III" by the year 2000. He explained that the proposed resolution is intended to close the door on the three year exemption period. Page No. 4125 September 6, 1994 Councilmember Krebsbach moved adoption of Resolution No. 94- 57, "A RESOLUTION URGING THE STATE OF MINNESOTA AND THE METROPOLITAN AIRPORTS COMMISSION TO NEGOTIATE A RAPID CONVERSION TO AN ALL STAGE III QUIETER AIRCRAFT FLEET AT MINNEAPOLIS /ST. PAUL INTERNATIONAL AIRPORT." Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 STREET OVERLAY PROJECT Council acknowledged a memo and tabulation of bids received for the 1994 street overlay project. Councilmember Koch moved to award the contract for the 1994 street overlay project to Bituminous Roadways, Inc., for its low bid of $51,790.00. Councilmember Huber seconded the motion. Ayes: 4 Nays: 0 HEARING - MENDOTA Acting Mayor Smith opened the meeting for the purpose of a INTERCHANGE PROJECT public hearing on proposed assessments for the Mendota Interchange Project (Improvement no. 84, Project No. 2C). Council acknowledged receipt of the proposed assessment roll and associated memo from Engineering Technician Kullander. Mr. Mike Weiner, 1027 London Road, stated that he is Jewish and holding the hearing on a Jewish holiday violates his rights because he is not given an opportunity to speak tonight on his proposed assessment (for the London/Downing street reconstruction project). Public Works Director Danielson informed Council that the city must allow 30 days after adoption of an assessment roll for people to pay their assessments without interest, and certifications must occur in early October - therefore the hearings could not be delayed. He explained that anyone could preserve their legal right to object to an assessment and consider a challenge by submitting, this evening or prior to this evening's hearing, a notice that they intend to challenge the assessment. He informed Council that Mr. Weiner has submitted a written objection. Councilmember Krebsbach stated that there was no intent to create a conflict, and suggested that the city should always check religious calendars prior to establishing hearings. Acting Mayor Smith asked if there is any way that something like this could be avoided or if there is any accommodation that could be made. She stated that people have a right to state their views, and Page No. 4126 September 6, 1994 asked if rights are diminished in any way by having a hearing on Christmas as an example. Public Works Director Danielson responded that staff tries to avoid scheduling hearings on holidays and will take care of any future conflicts. He stated that he does not believe there are any legal obligations with respect to this evening's hearings, noting that there are many other public bodies meeting this evening. He explained that in Mr. Weiner's case, he has filed an objection and has followed through with the legal requirements. City Attorney Hart stated that he agrees that there is no impediment to conducting the hearing. He explained that by filing a letter with the city Mr. Weiner has preserved his due process rights. He stated that this is not a hearing to determine whether the work should be done or if it should go further - there have been previous hearings before the project was ordered and before the work was done, and this evening's hearings simply deal with the assessments. Public Works Director Danielson reviewed the project, the project costs and the proposed assessment rates for the Council and audience. Acting Mayor Smith asked for questions and comments from the audience. Mr. Dave Constable, representing the R.L. Johnson property, stated that he has been trying to get a variance for the building because of the Mn/DOT taking of much of the property. He stated that Council did not approve the variance and the building has therefore been devalued, yet the city proposes to assess $22,000. He informed Council that the bituminous entrance to the building which was installed as part of the project has deteriorated and stated that he felt he is receiving poor quality for the assessments. He further stated that he will file an objection to the assessment. Administrator Lawell responded that there have been improvements adjacent to the property, and that is the basis for the assessment. Public Works Director Danielson stated that he is surprised by the quality question, since the project was designed and constructed by Mn/DOT. Council acknowledged letters from Mary Hartz, Jean Franson and Donald Perron requesting assessment deferments. Page No. 4127 September 6, 1994 There being no further questions or comments, Councilmember Krebsbach moved to close the hearing and adopt Resolution No. 94- 58, "RESOLUTION ADOPTING AND CONFIRMING ASSESSMENTS FOR SEWER, WATER, STORM SEWER AND STREET IMPROVEMENTS TO SERVE ST. PETER'S CHURCH AND PILOT KNOB ROAD AND WATERMAINS TO SERVE THE SOUTHEAST FRONTAGE ROAD (IMPROVEMENT NO. 84, PROJECT NO. 2Q.11 Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 Councilmember Huber moved adoption of Resolution No. 94-59, "RESOLUTION DEFERRING PAYMENT OF A PORTION OF ASSESSMENTS (IMPROVEMENT NO. 94-2C)," relative to the Hartz, Franson and Perron properties. Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 HEARING - PILOT KNOB Acting Mayor Smith opened the meeting for the purpose of a public ROAD ASSESSMENTS hearing on proposed assessments for Pilot Knob Road watermain improvements (Garron site). Public Works Director Danielson briefly reviewed the project and proposed assessments. Acting Mayor Smith asked for questions and comments from the audience. There being no questions or comments, Councilmember Koch moved to close the hearing and adopt Resolution No. 94-60, "RESOLUTION ADOPTING AND CONFIRMING ASSESSMENTS FOR WATERMAIN IMPROVEMENTS TO SERVE PILOT KNOB ROAD AND ADJACENT AREAS (IMPROVEMENT NO. 84, PROJECT NO. 2A).11 Councilmember Krebsbach seconded the motion. Ayes: 4 Nays: 0 Mayor Mertensotto arrived at 9:00 p.m. HEARING - IVY KEEP NORTH Acting Mayor Smith opened the meeting for the purpose of a public ASSESSMENTS hearing on proposed assessments for Ivy Keep North public improvements. Public Works Director Danielson briefly reviewed the project and proposed assessments. Acting Mayor Smith asked for questions and comments from the audience. Page No. 4128 September 6, 1994 There being no questions or comments, Councilmember Koch moved to close the hearing and adopt Resolution No. 94 -61, "RESOLUTION ADOPTING AND CONFIRMING ASSESSMENTS FOR SEWER, WATER, STORM SEWER, STREETS AND CURB AND GUTTER IMPROVEMENTS TO SERVE IVY KEEP NORTH ADDITION (IMPROVEMENT NO. 92, PROJECT NO. 1)." Councilmernber Huber seconded the motion. Ayes: 4 Nays: 0 Abstain: Mertensotto HEARING - LONDON/ Acting Mayor Smith opened the meeting for the purpose of a public DOWNING ASSESSMENTS hearing on proposed assessments for the London/Downing street reconstruction improvements. Council acknowledged a letter from Michael L. Weiner, 1027 London Road. Public Works Director Danielson briefly reviewed the project and proposed assessments. Mr. Danielson informed Council that he has discussed Mr. Weiner's concerns, all relating to other utilities such as NSP, with him and believes that Mr. Weiner's only objection at this time is with respect to the date of the hearing. Acting Mayor Smith asked for questions and comments from the audience. Mr. James Conan, 989 Downing, stated that he has no objection to the workmanship that was done but that a Mn/DOT inspector has informed him that drainage will undermine Highway 13 in the next few years. He asked what will happen at that time if his lawn is damaged. Public Works Director Danielson responded that he has visited the site with Mn/DOT and the supervisor of the employee who gave Mr. Conan the information did not agree with the employee's assessment. He stated that there is a one year project guarantee and also that Mn/DOT reviewed the plans and issued a permit to the city and based on that approval they will correct any problems which may occur. Mr. Conan responded that his concern is the angle at which the pipe comes into the ditch, and whether the city will pay the cost for repairing his lot if damage occurs. Mayor Mertensotto responded that the city should address the issue right away to make certain that there are no construction flaws or design flaws. Page No. 4129 September 6, 1994 Public Works Director Danielson responded that if there is a problem with the angle, it would be the city's design and therefore the city's fault. He stated that he will review the design and visit the site. There being no further questions or comments, Mayor Mertensotto moved that the hearing be closed. Councilmember Koch seconded the motion. Ayes: 5 Nays: 0 Mayor Mertensotto moved adoption of Resolution No. 94 -62, "RESOLUTION ADOPTING AND CONFIRMING ASSESSMENTS FOR RECONSTRUCTION /REHABILITATION STREET IMPROVEMENTS TO SERVE LONDON ROAD /DOWNING STREET AND SURROUNDING AREAS (IMPROVEMENT NO. 92, PROJECT NO. 3)." Councilmember Huber seconded the motion. Ayes: 5 Nays: 0 HEARING - MENDOTA Acting Mayor Smith opened the meeting for the purpose of a public HEIGHTS BUSINESS PARK hearing on proposed assessments for the Mendota Heights ASSESSMENTS Business Park 4th Addition improvements. Council acknowledged a letter of objection to the street assessment costs from Northland Land Company. Public Works Director Danielson reviewed the project and proposed assessments. He explained that the project was constructed to serve the Associated Bureaus site and the two remaining MAC lots which are owned by the Northland Land Company. Mr. Danielson informed Council that Mr. George Burkhards, from the Northland Land Company, objects to the assessments for the street portion of the project because he felt that the city should use TIF funds to participate in the street costs. He informed Council that the feasibility study does not address sharing of the street construction costs. He explained that the costs for street construction were greater than had been anticipated because the city understood that the developer would grade the entire site, including the street right - of -way but he did not. The project thus had to be expanded to include the additional work and the project cost increased approximately $10,000. Acting Mayor Smith asked for questions and comments from the audience. Page No. 4130 September 6, 1994 There being no questions or comments, Councilmember Krebsbach moved that the hearing be closed. Councilmember Koch seconded the motion. Ayes: 5 Nays: 0 Mayor Mertensotto moved adoption of Resolution No. 94 -63, "RESOLUTION ADOPTING AND CONFIRMING ASSESSMENTS FOR SEWER, WATER, STORM SEWER, STREETS AND CURB AND GUTTER IMPROVEMENTS TO SERVE MENDOTA HEIGHTS BUSINESS PARK 4TH ADDITION (IMPROVEMENT NO. 92, PROJECT NO. 4)." Councilmember Koch seconded the motion. Ayes: 5 Nays: 0 CASE NO. 94 -17, LENTSCH Council acknowledged an application from Mr. Bill Lentsch for the rezoning of Outlot B, Mendota Woods from HR -PUD to R -1, along with an associated memo from Public Works Director. Mayor Mertensotto stated that the Kensington Manor Home Association will not take a vote on granting access to the site from Brookside Lane until September 23, and suggested that no action on the rezoning should be taken until all questions are resolved. Councilmember Krebsbach moved to table discussion on the matter to October 4. Councilmember Smith seconded the motion. Ayes: 4 Nays: 0 CASE NO. 94 -23, Council acknowledged an application from Metro II for parking METRO II variances to allow four stalls fewer than required by ordinance and to allow a parking stall width of 8'6" for its facility located at 1300 Mendota Heights Road. Council also acknowledged a letter of intent from Metro II with respect to current and future parking needs and preservation of green space, along with reports from the City Planner and Administrative Assistant. Ms. Joanne Chabot, Executive Director of Metro II, was present for the discussion. Mayor Mertensotto stated that he has visited the site and is concerned that the only street access to the site is from the parking lot and to a fenced in play area on the east side of the building is from the parking lot. He asked if the play area can be moved further to the north of the building. He also expressed concern about the ability of school buses to make their turns because of the island projections. Page No. 4131 September 6, 1994 Ms. Chabot responded that it will be located very close to the front entryway sidewalk and cannot be moved any closer because of the sidewalk which runs along the building from east to west. She explained that school buses will drop the children off at the front door. Regarding school buses, she stated that the school district had a bus drive through the lot about a month ago and it had no difficulty getting in and out. She further stated that the islands have been reduced in size since the bus driver tried it even though he indicated that he had no trouble. She informed Council that 12 basement stalls are included within the 116 stalls on the site, but the basement stalls are only available to staff. She explained that if further parking is needed in the future a curb cut can be made along Mendota Heights Road. She stated that this proof of additional parking was done at the request of the Planning Commission. She informed Council that the turn around has already been created - when the Northland expansion began, part of the parking lot was lost so Metro II removed the island that had prevented circulation in the lot. Mayor Mertensotto stated that one troublesome aspect of approving the variance is that Metro II is requesting a parking plan variance for the building. He stated that while Metro II and the school district only utilize 24,000 square feet of the building and they feel that the 116 stalls is adequate, the building contains 40,000 square feet and a change in tenant mix or use of the building could create a higher demand for parking. He stated that Council granted the school district a three year special use permit to run some of its programs, including extended day care, at the Metro II building and it would be foolhardy to grant the variances without knowing the ultimate use of the building. He suggested that Council could grant a conditional use permit based on the use of 24,000 square feet so that if the use or tenant mix changes and there is a greater demand for parking Council could address the matter by informing Metro II that the conditional use permit would be in jeopardy. Ms. Chabot stated that she understands from city staff and from contacting others in the industrial park that the requested variances are not uncommon. She explained that Metro II has only 30 employees, many of whom are part-time, and most will be done working by the time the extended day children are picked up by their parents between four and six o'clock p.m. She stated that the Metro II and school district uses are very consistent with each other. She stated that employees will arrive between 7:00 and 8:00 a.m. and students in the Metro II program arrive at about 8:15 - a maximum of about 36 people - and leave by 3:45. She stated that in concept Page No. 4132 September 6, 1994 she has no problem with a conditional use permit if Metro II is being treated the same as others in the business park. Mayor Mertensotto pointed out that the parking requirement for the building has changed because when Contel owned it they used for parking part of the land Metro II opted not to purchase from Northland, so there has been a change which makes Metro II different from other buildings in the park. Also, the building is not new construction and Metro II is not the first owner, and the Contel parking was predicated on using 24,000 square feet but now the building will not be a single use structure. Councilmember Krebsbach asked if the parking spaces proposed will be wide enough so that car doors will not be damaged. Councilmember Smith stated that the visitor stalls will be 8'6" rather than the required 9' and she is concerned about the proposed width for visitors and parents picking up their children. Ms. Chabot responded that there will provide plenty of room for door opening on the stalls next to the handicapped spaces and those are the ones people will use when picking up their children. She further stated that the 15 minute spaces have not yet been defined but will likely be near the handicapped spaces. She stated that at the time of day when parents come the lot will be so empty that people will not park close to each other if they are concerned about their ability to get in and out of their vehicles or about getting scratches on their car doors. Mayor Mertensotto stated that if the square footage use of the building should expand, the parking could become a problem. He pointed out that there were 120 spaces and Metro II has proposed removing some of them to provide space for a play area. He stated that a conditional use permit would make it known why the parking deviates from all of the other buildings in the business park. He also pointed out that although the plan shows a curb cut, none will be allowed. Ms. Chabot responded that Metro II does not want a curb cut. She stated that she came to Council asking for a variance and the solution now being discussed has not been considered by Metro II's legal counsel. She asked that the matter be continued to that she can discuss it with her counsel. Councilmember Smith stated that she would be much more in favor of the variances if there were not the potential for so much greater Page No. 4133 September 6, 1994 use of the building than what Metro II is using. She pointed out that what Metro II is trying to protect is what Council is trying to guard against. It was the consensus of Council to continue the matter at the request of the applicant. CASE NO. 89 -26, Council acknowledged a letter from Independent School District 197 ISD -197 for continuation of its conditional use permit for two temporary free- standing wood frame classrooms at the Mendota Elementary School. Council also acknowledged an associated report from the Public Works Director. Ms. Lois Rockney, Director of Business Affairs for the school district, stated that the district is requesting continuation of the five year conditional use permit granted by the city in 1989. Responding to a question from Mayor Mertensotto, she stated that the Mendota School was connected to public sewer and water and a sprinkler system was installed. The temporary classrooms were not connected, however they were connected to the school's fire alarm system. She stated that the buildings are intended to be temporary - hopefully for two to three more years. She explained that the children move in and out of the classrooms and use the main building for physical education and lunch, etc. She stated that the rooms are very close to the entrance to the main building and she has received no complaints about them. Counciimember Krebsbach stated that if the permit is extended she feels the school district should make some improvements to the buildings. She further stated that she would not be interested in approving any future permit extensions. Councihnember Smith asked what the expected life of the temporary buildings is. Ms. Rockney responded that it is anticipated that they would not be used for more than 10 years although the expected life for this type of structure is 15 years. After discussion, Councilmember Krebsbach moved to grant a five year extension to allow Independent School District 197 to utilize their existing temporary classrooms at Mendota Elementary School as per City Resolution No. 89 -87, "RESOLUTION APPROVING CONDITIONAL USE PERMIT FOR TEMPORARY CLASSROOMS." Councilmember Huber seconded the motion. Page No. 4134 September 6, 1994 Ayes: 5 Nays: 0 PENTEL ANTENNA Council acknowledged a memorandum from the city's legal counsel, VARIANCE APPLICATION Eric Nystrom, and reports from consultants Goeffrey Jillson, P.E., from Guy Engineering Corporation, and Dr. John DuBois, Registered Professional Communications Engineer, with respect to the Pentel variance application for a 72 foot retractable, nesting tower with horizontal directional antenna on top that has a 22 foot turning radius. Mr. John Bellows, legal counsel for Ms. Pentel, stated that the application for variance to allow an amateur radio tower and antenna was before the council in 1991 and the matter made its way to the circuit court of appeals. As he understood the court ruling, the federal regulation PRB -1 requires that municipalities use the minimum regulation necessary to accomplish their purposes in regulating these types of antennas. He stated that the court said that in the past a balancing approach has been taken and the balancing Council had taken is not the correct approach. Further, that the court said PRB -1 specifically requires the city to accommodate reasonably amateur operators. He felt that the distinction between accommodating reasonably and balancing is important because accommodating reasonably is more rigorous than balancing local and federal interests when deciding whether to approve an antenna. He informed Council that he and Ms. Pentel stand ready to achieve an acceptable solution. Referencing Dr. DuBois' report, he stated that while Dr. DuBois refers (on page 4) to optimum performance and antenna heights on pages 17 -4 and 17 -15 of the 1993 ARRL Handbook, no where on either page does it state that the optimum height is one wave length or 66 feet. He further stated that he is not seeking optimum height but is seeking reasonable accommodation. Mr. Bellows read a portion of the executive summary from a paper titled Antenna Height and Communication Effectiveness, which compared the performance of a beam type antenna at a height of 70 to the same antenna at 35 feet. He stated that to a distant receiving station, a transmitting antenna at 70 feet would provide 3 to 4 times more transmitter power than the same antenna at 35 feet, and depending on the level of noise and interference, the performance disparity is often the difference between making distant radio contact with fairly reliable signals and being unable to make contact at all. He stated that his only purpose in making this explanation is to put into question the reference to 66 feet being the optimum height. Mr. Bellows took exception with Dr. DuBois reference to compromise because he does not think the term compromise appears in Page No. 4135 September 6, 1994 significant portions of the 8th Circuit Court case on the issue, and also took exception to Dr. DuBois recommended height of 50 feet being a compromise from the optimum. He stated that 66 feet is not the optimum and that 70 feet is a reasonable accommodation. He stated that PRB -1 does not say Ms. Pentel is entitled to the optimum, it says reasonable accommodation. He further stated that he is attempting to be accommodating, and that it is significant that the antenna tower that has been chosen nests and does not need to be at 70 feet at all times. With respect to the Jillson report, he stated that it indicates that the antenna that Ms. Pentel is currently talking about has a turning radius of 22 feet and the original proposal for placement of the tower was 19 feet from the lot line so that the antenna would actually extend over the edge of the lot. He stated that there are two ways of dealing with it: first, the Pentel lot is 60 feet wide, so moving it 2 feet should not be a problem to keep it from the lot line; and, second would be to possibly look at a smaller antenna or stack antennas so there would be a smaller turning radius. He stated that the tower has a rating of 6.3 sf at 70 miles per hour which means the antenna at the top is the equivalent of anything vertical that is 6.3 feet square - that's the opposition to wind. The Jillson report says that an 80 mile per hour rating should be used. Mr. Bellows stated that it is not and never has been or will be Ms. Pentel's intention to have the tower extended to its full height in an 80 mph wind. In any storm situation, the intention would be to retract it. He stated that according to the manufacturer, the rating of the tower when retracted in 50 mph wind is 30 sf, 2.5 times the wind load of the current antenna. He stated that he is present to work with council and while it is difficult to reach an agreement he is ready to do so, but the indication of the court was that the burden to accommodate falls on the city. Mayor Mertensotto stated that the currently proposed tower is a US Towers HDX 572, and the antenna is Telex Hy -Gain model 11DX. He further stated that if he understands the court order correctly, the court found that the Pentel pending application seeking a variance for a 68 foot tower is not moot, and although she no longer owns a 68 foot tower nothing can prevent her from seeking a variance for a 68 foot tower. He stated that the court ordered city to rule on the pending application for a 68 foot tower. Mr. Bellows responded that in speaking to the city's legal counsel it was agreed that Ms. Pentel would proceed on the basis of applying for a 72 foot tower, and the only reports provided at this point are for the 72 foot tower. Referring to the memorandum from attorney Page No. 4136 September 6, 1994 Nystrom, Mr. Bellows stated that even though there is now a different tower configuration, the city is obligated to review what is currently requested. He informed Council that he spoke to Attorney Nystrom last week and asked whether he wanted Mr. Bellows to proceed on the 68 foot or 72 foot tower and was told 72 foot. He stated that the order of the court preceded the conversation and if Council wants to proceed with the 68 foot tower he would do so, but no one has presented any information on this from the city's experts. Mayor Mertensotto responded that he wants to be sure that everyone is talking about the same tower. He stated that Mr. Jillson's report talks about the structural design aspects of the tower and the antenna. He informed the audience on the qualifications of Mr. Jillson and Dr. DuBois and stated that Mr. Bellows has been given copies of both reports. He explained that Council must rely on what the experts have said in their reports since the Council members are not experts in the field. Mrs. Elizabeth Plummer, 605 Garden Lane, presented a petition containing the signatures of 50 neighbors who object to the proposed tower, 20 of whom were present for the discussion. She also submitted a letter from Gail Hazledine, Certified Residential Real Property Appraiser, regarding the potential affect of the tower /antenna on surrounding properties. Mr. Jim Plummer stated that his understanding was that council was being asked to rule only on the original application for the 68 foot tower. Mayor Mertensotto responded that based on communication from the city's counsel and from Mr. Bellows, it appears that it has been agreed that the application before Council is for the U.S. Towers 72 foot tower. Mr. Plummer stated that he does not understand how Council can be asked to make a decision when Ms. Pentel keeps changing what she wants. He stated that as he understands the consultant's report, the 72 foot tower is structurally unsafe. Mr. Tony Postiglione, 562 Fremont Avenue, stated that there has been no discussion on aesthetics. He stated that many of the home owners in the neighborhood have spent considerable money to upgrade their homes and the antenna tower will devalue their properties because no one will want to buy a home near a 72 foot tower. He informed Council that he has have two small children and would not have bought his home if he thought there would be a Page No. 4137 September 6, 1994 tower next to it. He asked that Council be reasonable to everyone, not just Ms. Pentel, and further asked if it reasonable for someone to put up a relay tower. Mayor Mertensotto introduced Mr. Goeffrey Jillson. Mr. Jillson informed the audience that he is a registered civil, structural and mechanical engineer in Minnesota and other states. He explained that his firm practices largely in the area of failure analysis and evaluation of structures and does about 200 investigations and analyses each year, some of which involve over 100 structures per evaluation. He stated that he has done much with high structures and that his firm evaluated the cause of the failure of the KNOW radio tower that collapsed at the airport two years ago. With respect to the matter before council, he stated that the evaluation was straight forward - he reviewed 16 pages of structural engineering calculations that were prepared by a registered engineer in California for the manufacturer of the tower. He stated that the upshot of that review is that the proposed tower at the 72 foot heights is in the range of less than 1/2 of the strength required to carry the proposed antenna and it also does not address any ice loading. He explained that ice loading is recommended under the EIA standards, and the EIA standards along with the building code are the governing standards. He stated that he found one error in the structural engineer's calculations that were prepared by the manufacturer - the selection of the basic wind speed that is used, 70 miles per hour. He stated that the EIA. standards specify 80 mph and explained that the effect of wind on structures is extremely non - linear, 80 mph does not push on it twice as hard as 40, but roughly pushes on it four times as hard, and the higher you get from the ground has a dramatic effect. Mr. Jillson stated that the basic wind speed of 70 mph is not the correct selection for here, nevertheless even with the selected lower wind speed the proposed tower is half the strength necessary to carry the proposed antenna with no ice. He stated that he believes it should be considered with ice loading and at 80 mph, so in his opinion the tower is substantially under capacity. Councilmember Smith stated that it has been suggested this evening that the owner would not extend the tower when it is windy out. She asked if it is appropriate to do an analysis on a promise to keep it nested if it is windy or if the evaluation should be done on the potential full extension of the tower. Mr. Jillson responded that in his professional opinion it is completely inappropriate to rely in any way on human or proactive measures in the event of storms. He stated that micro bursts, down bursts, straight line winds, thunderstorms and blizzards are all Page No. 4138 September 6, 1994 unpredictable in nature, and the wind loading that would take down j a tower like the one proposed could literally occur in a matter of seconds. He stated that to rely on proactive measures to be taken by someone to protect a tower is unreasonable and in his view it would be unsafe. With respect to taking the position that it would be nested and not elevated during periods of high wind, he stated that periods of high wind around here are extremely unpredictable and can happen in very short periods of time. He explained that the normal conservative approach to engineering of structures would be that you would design for the maximum conditions that the tower can take, fully extended under the basic wind speed rules. Councilmember Smith stated that just a couple of weeks ago there were reports of gusts of 80 mph. She asked if there are any statistics on how often this occurs or what high wind speeds in this area can be. Mr. Jillson responded that there are extensive writings on the matter and it has empirically found its way into the building code. He explained that the State of Minnesota adopts almost in total the UBC plus adds about 1000 more pages of amendments, to form the State Building Code. The UBC basic wind speed chart in development of the loads, about 25 pages of the code, starts with a map of the US with nomographic charts on it. The standards in this area are 80 miles per hour. He further stated that the governing document, the EIA/TIA standards for radio towers expressly, county by county in the US, sets the basic wind speed, and it is 80 mph for here. He stated that there is no question of interpretation, 80 mph for this type of structure is the correct speed. Counciimember Krebsbach asked Mr. Jillson to comment on the appropriateness of the proposed tower for its hobby use, with the conditions Mr. Jillson has described, in an area with small lots and adjacent homes and children. Mr. Jillson responded that from the perspective of a professional engineer, it is not appropriate for him to comment on those issues. With respect to safety issues, he stated that because of the nature of the structures, the towers are very easy to climb and the issue of protecting tower bases is very complex. He stated that something could perhaps be added to make it less ladder like, but then the surface area would be increased and the loading would change. Page No. 4139 September 6, 1994 Mayor Mertensotto stated that the report has not had general distribution and asked Mr. Jillson to summarize the report for the audience. Mr. Jillson gave the following summary. 1.) It is his firm's opinion that the antenna tower is structurally inadequate to carry the anticipated loads proposed; 2.) It is his opinion that ice accumulation on the antenna and tower have not been considered by the structural engineer for the installation and that the loading both due to wind and weight of ice would further degrade the capacity of the tower to carry the loads. 3.) It is his opinion that the proposed tower does not comply with the EIA/TIA standard 222 -E March 1991 which is the governing standard for installation of antennas and towers used in the United States, and the specific criteria which are not met by the proposed installation are structural adequacy to resist wind loading and consideration of ice accumulation on the tower and the antenna system. 4) He has not been provided with the foundation design or calculations for the proposed antenna and tower installation for review (the cast in place concrete foundation for the tower). 5. It is his finding that the proposed antenna with general dimensions of approximately 24 by 37 feet will, on the subject tower at the proposed location, extend when rotated approximately 2 to 3 feet over the property line of the adjacent property to the west. Councilmember Smith asked if, when Mr. Jillson studies towers, there is a recommended clear area that is often proposed for safety, for instance in case of structural failure. Mr. Jillson responded that there is not. He stated that the Building Code and EIA standards address the structural adequacy of the systems and they are aimed in the direction of designing structures that will not fall down under normal loads. He stated that tornadoes are not normal loads, and that the basic wind speed loadings in the UBC have evolved and developed from observations and experience over a long period of time. Councilmember Krebsbach asked who would be at fault if the tower fails. Mr. Jillson responded that this is a legal question, but based on his experience in various litigation support roles that he would typically look at all of the parties who may have had an involvement, installation contractor, manufacturer, engineers, etc. He would first have to look at what the actual mechanics of the failure was - it would be specific to the incident. Page No. 4140 September 6, 1994 Mayor Mertensotto asked Mr. Bellows if he would like the opportunity to respond. He stated that it would certainly appear that there is some hazard to Ms. Pentel and her neighbors. Mr. Bellows stated that with respect to the foundation, the materials he provided to Mr. Nystrom include information as to concrete footing requirements for this tower. He stated that, with respect to concern about the antenna, the antenna has a 99 mph wind rating. With regard to the question of children trying to climb the tower, he stated that in 1991 he indicated he would be willing to install anti - climb devices at the base of the tower. He stated that the wind load factor is an insignificant issue when one is talking about the bottom 8 feet of the antenna. Mr. Bellows stated that the antenna itself has a greater rating than the tower specifications Mr. Jillson provided. He explained that there are no guy wires on the antenna - it is a self - supporting tower. With respect to the issue of city liability, he stated that Ms. Pentel would agree to provide an indemnification agreement as well as insurance in the event of failure of the tower. He stated that more important is the contention that the tower has rating of 6.3 sf at 70 feet and there is no reason to believe that dropping or nesting, or retracting the tower in times of windy conditions or when not in use is not a reasonable proposition. He stated that the rating Mr. Jillson came up with for the antenna on top of the tower at 80 mph was something like 6 square feet. He asked if he came back with an antenna that had 6 square feet of loading, whether Council would be satisfied if Council is concerned that the proposed antenna is too much of a load. Mayor Mertensotto stated that based on what Mr. Jillson is saying, he feels that Council can make a finding that any antenna tower configuration must comply with the EIA/TIA 222 E standard. Mr. Bellows responded that what he is saying is that the capability of this tower and the intent of the tower to be retracted at 30 or 40 or 50 feet, the tower will, in an 80 mph wind, easily handle the wind load. Mr. Jillson responded that his review consisted of the review of the standards, checking the calculations of the structural engineer for the manufacturer for this particular tower. He explained that if he finds something is under capacity by half, it would be a pointless exercise for him to run the necessary 16 pages of calculations at 80 when it already fails at 70. Secondly, he did not review calculations for the foundation as he was not aware they were available. He stated that Page No. 4141 September 6, 1994 the normal procedure is to design the tower and antenna system first - that's necessary to determine the loads in overturning moment which is what the foundation needs to resist. If those are substantially under capacity, it is probable that the proposed foundation dimensions would be under capacity as well. He stated that with respect to the 72 foot height and the 99 mph wind rating of the antenna proper , he stresses that this is without ice loading. He informed Council that there is no doubt in his mind that with ice loading of 1/2 inch as recommended by EIA/TIA, etc., the antenna itself would not make 70 or 80 mph wind speed. That ice loading would substantially increase the weight and cross section of the antenna. He stated that the 6.3 square feet of antenna capacity for the tower at 70 mph is the calculation of the manufacturer's engineer. - their own engineer has determined it is half as strong as it needs to be, and that's without ice. He explained that ice adds a lot of surface to the tower. With respect to anti- climbing devices, he did not think the manufacturer could provide them, but that the differences in wind loading would probably be minor. Mayor Mertensotto stated that the major issue is whether or not it complies with EIA/TIA standard 222E dated March 1991 and the state building code. Councilmember Smith stated that a question has been asked of Mr. Jillson as to whether he has done calculations on what the square footage of an acceptable antenna on the tower would be. She stated that she is confused as to what Council's role is, and asked Attorney Hart whether Council's role is to evaluate the proposal or to solve the question of designing a system for Ms. Pentel. Mayor Mertensotto stated that Council is not here to design but to inform the applicant based on what Council adopts. He stated that if Council, based on the credibility of the testimony the city's expert has made, finds that this tower represents a hazard to the health, safety and welfare of Ms. Pentel and her adjacent neighbors then it is time for Council to take some action accordingly. He stated that Mr. Jillson has stated the five items of the summary, which is his opinion as to the particular tower and the antenna that is offered by the applicant and that it does not meet the standards. Mr. Jillson also has given his professional opinion that it is very appropriate for Council to evaluate the tower in its fully extended position, 72 feet. He stated that Council must evaluate the variance application based on the material that is presented to Council on whether or not the tower presents a hazard to the safety, health and welfare of the neighborhood and Ms. Pentel. Page No. 4142 September 6, 1994 City Attorney Hart stated that Council's first concern must be the safety of the residents of Mendota Heights. He further stated that Council does have an obligation however to reasonably accommodate Ms. Pentel, and that Council is in the process of doing that by advising her what standards and criteria Council will be applying and utilizing in evaluating any system she proposes. He did not think Council is here nor is it Council's obligation to design a system. He stated that Council has advised Ms. Pentel through her counsel of the standards that are being applied and if the antenna fails to meet the standards, so be it - other antennas may very well comply with those standards and still meet her broadcasting or transmission objectives. Mr. Bellows stated that he believes that the cases that the 8th Circuit Court relied on - Boulder and Williams vs. the City of Columbia - both dealt with issues where the accommodation or the compromise of the city involved having a tower lowered. He stated that he thinks the city is wrong if it fails to include that - the city was wrong in 1991 in its evaluation of what the law is and is wrong now. He felt that the city mis- characterized the evidence then and is doing it now. He stated that he cannot work the matter out with the city he will be back in court again. Mayor Mertensotto asked Mr. Bellows if he felt it would be inappropriate to ask his client to meet the EIA/TIA Standards 22E dated March 1991. Mr. Bellows responded that it would be if Council is talking about it being fully extended at all times with a retractable tower. He stated that what the Council seems to be telling him is that it's all or nothing - there is no accommodation or reasonableness. Mayor Mertensotto asked if it is unreasonable for the city to require that the antenna tower configuration meet the standard that Mr. Jillson has stated would be appropriate for Council to consider as far as the safety of the tower both Mr. Bellows' client and her neighbors. Mr. Bellows responded that he understands what Mayor Mertensotto is stating but that Council is not considering the capability to retract the tower. He did not feel it is a matter of expert testimony but a matter of common sense and being reasonable and that when he talks of "in use ", he is talking about when someone is on the premises. Councilmember Krebsbach stated that she does not think it is reasonable to expect Ms. Pentel to be alert to the wind conditions 24 Page No. 4143 September 6, 1994 hours day 365 days year, which would be putting a tremendous burden on her. Mr. Bellows responded that this presumes Ms. Pentel will be on the air 24 hours a day, 365 days a year and that is not the case. He stated that if it is a condition of the permit (that she be alert to wind conditions), she will take on the responsibility. Councilmember Smith stated that to protect the safety of the surrounding residents Council would have to rely on Ms. Pentel's assertion that this is what she would do. She stated that very likely this would be Ms. Pentel's intention but intentions are not always translated into action and that Council has expert testimony that it would not be appropriate in this case to rely on intentions. Councilmember Huber pointed out that it is very frequent in this part of the country that threatening conditions occur three or four nights in any given week and can come up very quickly. Council would have to rely on Ms. Pentel to always nest the tower whenever there are threatening conditions. In the early days she might do that, but after continuing lowering the tower whenever threatening conditions present themselves but nothing occurs, she might leave the tower up. He stated that although the city's expert is saying Council should not rely on this Mr. Bellows is saying she would never make a mistake on when she should lower the tower and when she can leave it up and that is unreasonable. Mr. Bellows responded that he does not think anything Council does is based on perfection all the time and that he suggests that there is another possibility of extending the tower only when it is in use. Councilmember Huber responded that when Council makes decisions if they make a mistake generally the risk is somewhat low, but the risk in this case is substantially greater. He pointed out that if the tower comes down there is human life involved, so the threshold of a mistake in this case is significantly higher than the threshold Council can put on other decisions it makes. He stated that if a neighbor is outside and the tower comes down, for instance if he's running out to gather his children in a storm, and the thing starts to come down the threshold is substantially greater. Councilmember Smith pointed out that the proposal is for a 72 foot tower on a 60 foot lot and even if it were placed it in the center of the lot it is very likely that the tower could land on someone else's house. Page No. 4144 September 6, 1994 Mr. Bellows responded that a 22 foot tower in its nested condition if placed in the center of the lot would fall 8 feet inside the lot. Councilmember Smith stated that it is less likely that it would fall in its nested condition but it could fall in the 72 foot condition. She stated that Council is talking about 80 mph standards but that she suggests that winds get over 80 mph as well. She pointed out that Council is not guarding against that potential but is only going up to 80 mph, which seems a reasonable standard. Mr. Jillson stated that the structural engineer for the manufacturer's calculations show the tower at full height and select a 70 mph wind speed, which Mr. Jillson has identified as in error and should be 80. He stated that the reason the manufacturer evaluated it at full height is precisely because of the fact that the code requires that the calculations be developed at full height. He explained that this is whole point of the analysis and unless the owner has advanced weather gathering capability at his house, there is no way that one can reasonably anticipate winds from thunderstorms, down bursts and micro bursts. He did not see how that would be a reasonable thing to do. He further stated that it must be borne in mind that in the first chapter of the building codes it states that the state building code supersedes any and all other local codes, so it may not be in the purview of the city to adopt a lesser standard than the state puts forth. Mayor Mertensotto pointed out that the Uniform Building Code has been adopted by reference in the State of Minnesota and in the City of Mendota Heights. He stated that Mr. Bellows is an advocate for Ms. Pentel but Council must take a look at it as Ms. Pentel owning that property today. He asked what would happen if she sells the property. Mr. Bellows responded that there is no authority, permission, basis or reason for there to be a tower on that premises unless the person there is a licensed amateur operator. He stated that the whole basis and authority for the existence of the tower is PRB -1 which is premised on the owner of the property being an amateur radio operator. Councilmember Smith expressed confusion over some statements that have been made - one, that it would be ludicrous to put the tower up in high wind conditions and, two, previous suggestions that this tower would be used for communication during a crisis situation. Page No. 4145 September 6, 1994 Mr. Bellows responded that this is a misunderstanding that arose during the last meeting before Council. The type of communication Ms. Pentel is dealing with occurs after the disaster has struck. He stated that she does not operate during the height of those types of situations - tornadoes, floods etc. - and it is only after the incident occurs that emergency communications take place. Councilmember Krebsbach asked what if she was using it when the incident occurred - the antenna would be up. Mr. Bellows responded that the problem is that Council is looking at worst case scenario and he did not feel that falls within reasonable accommodation. He stated that he came before Council today to try to deal with some of these issues and to express his interest in working with Council. He further stated that apparently it is the feeling that he must come with a complete plan that is satisfactory to Council and Council will say yes or no to it, and it is not a matter of accommodating or trying to work together. Mayor Mertensotto responded that based on the presentation and representation made to Council by its expert, it is not unreasonable for the safety of Ms. Pentel and the neighbors that the tower meet that standard. He stated that he does not think Council has to go further now - the expert who testified reviewed his report and analysis. He stated that he believes the expert's background and credentials certainly are appropriate and he is telling Council that the design is not adequate for this locale. Mr. Bellows responded that Mr. Jillson is saying that this tower and the 12 square foot antenna are inappropriate. He further stated that he has indicated to Council a willingness to discuss and work with them regarding the size of the antenna and has had no response. Councilmember Smith stated that Council has not even discussed what would be an appropriate accommodation for height and has only discussed the 72 foot tower. She felt that Council cannot really talk about any kind of height until the technical issues with transmitting are discussed and Council has not discussed that with its experts. Attorney Hart stated that Council must keep in mind that Mr. Jillson was hired not just to evaluate this particular antenna but also in furtherance of Council's obligation to reasonably accommodate Ms. Pentel's desires to tell and advise Council on what kind of criteria it should apply in evaluating her application, which is what he has done. He did not think that reasonable accommodation means that Page No. 4146 September 6, 1994 Council has to compromise one iota on a legitimate safety issue. If there are human safety concerns based on a particular application, a particular antenna, he did not believe the city has to compromise on that but must identify reasonable criteria for Mr. Bellows and Ms. Pentel and work with them to find an accommodation that best meets her goal and is the minimum regulation that the city will require. He pointed out that Mr. Jillson is not just evaluating a particular proposal but also advising the city on what kind of criteria to apply and Council is informing the applicant on what criteria they have to meet. Mr. Bellows responded that he agreed with Attorney Hart in 1991 and does to an extent now. Part of the obligation is that Council must work with Ms. Pentel, and that is what he is asking Council to do. He stated that the city has spent much money on this matter and that he has spent much time and will keep coming back until there is something appropriate. Councilmember Krebsbach asked what Ms. Pentel's accommodation is. Mr. Bellows stated that he has offered to work with Council on the size of the antenna on the top and retracting the tower. He further stated that in the two court cases that have dealt with this issue, both indicated that reasonable accommodation, compromise accommodation, involved retracting the antenna. He stated that it is no less icy in Boulder than it is here. Mayor Mertensotto pointed out that the city's expert is telling Council that the standard should be met and asked if Mr. Bellows is saying it is unreasonable for us to ask him to meet the standard. Mr. Bellows responded that he made a proposal and has given some alternatives: Council said no to the original proposal and he is trying to indicate that he is trying to work with Council. Councilmember Smith stated that she would be happy to accept the accommodation that the tower will be lowered when not in use but would also have to accept Mr. Jillson's suggestion that this standard would be used in evaluating the tower itself at the 72 feet height - part of the accommodation in any approval would perhaps be that it would be lowered when not in use - that is a reasonable expectation. She stated that Mr. Jillson defined a standard and she feels it is reasonable. She further stated that Council never interferes with the UBC and cannot interfere with the standards for a tower. She felt Page No. 4147 September 6, 1994 that by accepting a standard that is less than what is recommended would be interfering with the UBC. Mayor Mertensotto pointed out that Council has no authority to do that. Mr. Jillson stated that the tower does not meet the 6.3 square feet antenna loading, probably 5 square feet, and that is not with ice, and that is not addressed in the calculations. He stated that it is his opinion that ice must be considered on this tower. Mr. Bellows responded that he appreciates what Mr. Jillson is saying, but when the tower is retracted there is no ice problem because ice doesn't build up that fast. Councilmember Smith responded that Mr. Bellows is the lawyer for Ms. Pentel and the city's expert is an engineer and Council must rely on an expert in the filed. Mrs. Patricia Kasheimer stated that she does not care to have to depend on Ms. Pentel or any other neighbor about her safety in her home, which is what she would be doing if Ms. Pentel had a tower. She further stated that the other part of what she is hearing is that the court told Council it must provide reasonable accommodation. She stated that she was present at one of the first meetings on the issue in 1991 and it became evident that Ms. Pentel had an antenna at that time that was in violation of city codes and standards. She still has that antenna because Council at that time granted her permission to continue to have it. Ms. Kasheimer stated that to her that is reasonable accommodation and Council has already met that measure. She stated that she cannot believe the neighbors have no rights and that only Ms. Pentel and her attorney have rights. Attorney Hart responded that the entire case is based on a preemption issue - which laws take priority over other laws - and PRB -1 is a federal law evidencing a federal policy in favor of accommodating amateur radio communications. He further stated that although the federal district court upheld the city's earlier position taken in 1991, that decision was appealed and the federal circuit court disagreed. The upshot is that federal law pre -emts local laws in that situation and that allowing Ms. Pentel to maintain her existing antenna is not a reasonable accommodation. Mr. Bellows responded that it is his position that the Council is constricted by the federal law and cannot do what it might want to do. Council is limited in what it can do and the residents should not Page No. 4148 September 6, 1994 hold that against the Council. He stated that reading from the case, "application of the reasonable accommodation standard does not require the city to allow her to erect any antenna that she desires. Instead it requires only that the city consider the application, make factual findings and attempt to negotiate a satisfactory settlement, compromise, with the applicant." Councilmember Smith stated that although she cannot find the reference, she can recall reading that Council must make a reasonable accommodation and impose the minimum restriction to fulfill its role, which is the health, welfare and safety of the community. Mayor Mertensotto recommended that the matter be continued so that Council can ask its legal counsel, Eric Nystrom, to specifically address 1.) if it is appropriate for the Council to make findings in respect to the opinions rendered by Mr. Jillson; 2.) whether it is appropriate for Council to adopt items 1 through 4 of the report summary as findings; 3.) if Council can require that whatever accommodation or change which must be made in the tower must comply with EIA/TIA- 222E and the state building code which Mr. Jillson said Council should require in order to protect the health, safety and welfare of Ms. Pentel and adjacent neighbors; 4.) if it is appropriate that the antenna/tower configuration be engineered to withstand forces imposed by ice accumulation as set forth in the EIA Standards Appendix A, Section 2.3.1.2A. Sub - paragraph C; and 5) whether it is unreasonable for Council to ask the applicant to meet the standards recommended by Mr. Jillson. Attorney Hart responded that his firm can give Council its best opinion on the issue. He stated that although Mr. Nystrom is not an engineer it will difficult to evaluate the standards but that Mr. Jillson's qualifications certainly seem to meet the standard for an expert in the field. Mayor Mertensotto stated that he would also like Mr. Nystrom to give an opinion on whether the standards recommended to Council are inappropriate or unreasonable under the purview of the court order and that Council has not given away the authority to evaluate from a safety standpoint. He stated that he wants the city's legal counsel to tell Council whether it can adopt the standards recommended by Mr. Jillson so that Council can inform Mr. Bellows that those are the standards that will be required. Attorney Hart responded that Mr. Nystrom is on vacation and asked if Council desires the report back by September 20. Page No. 4149 September 6, 1994 Mr. Bellows stated that he has a prior conflict on September 20 and indicated that he will be available for the October 4 Council meeting. Mr. Scott Patrick, 536 Fremont, stated that he occasionally receives Ms. Pentel's mail by mistake and it is always addressed to her as Emergency Management Director. He did not think the matter is a ham operator issue but rather than she is using the radio as a business. He felt that Ms. Pentel is running a business out of her home and the matter should be looked at as a zoning issue. He further stated that Mr. Bellows has referred to the antenna being up only during use, but the antenna must be up in order to receive a signal so it will constantly be up and Ms. Pentel will say it is in use. Mr. Bellows responded that Ms. Pentel is not running a business but is a member of an amateur radio organization. Mrs. Plummer stated that Ms. Pentel and Mr. Bellows had agreed that if the city hired two experts they would agree with what the experts said. She informed Council that there is a tower on Deerwood Court in South St. Paul in a wooded area. The neighbors said it interfered with their television reception, and the city required the owner to pay for filters for all of the neighborhood and all of the materials that were being damaged. Mayor Mertensotto responded that if there is any interference it must be corrected in order for her to keep her license. Mr. Ken Kasheimer. asked who will have access to the antenna, just Ms. Pentel or any ham operator in the state. He pointed out that her lot is a really good location on the bluff and others will be using it - that's why Ms. Pentel is fighting so hard. Mr. Bellows stated that the antenna/tower will be Ms. Pentel's and he cannot say she will never let someone else come over. It is her own private antenna and she is a member of a club. There being no further discussion, it was the consensus of Council, with consent of Mr. Bellows, to continue the matter to October 4. ST. THOMAS PLAN Council acknowledged a memo from Assistant Batchelder regarding MODIFICATION a request from St. Thomas Academy for two minor changes to its conditional use permit and fence height variance which was approved on June 21. Council also acknowledged a letter from Gary Turpening, the project architect. Page No. 4150 September 6, 1994 Mr. Turpening reviewed the landscape plan for the entire campus for Council and a detail plan of the improvements. Responding to a Council question, he stated that the school is in the process of evaluating its needs for the future and has reserved two areas for future improvement. He informed Council that he had originally placed the fence at the 35 foot setback because he understood that the city owned some of the land and the fence had to be kept away from the city's pump station. It was subsequently discovered that city only owns a 20 foot easement and it was determined that placing the fence so close to the track area could be hazardous should there be an errant discus throw. He asked that the conditional use permit be amended to allow the fence at the 20 foot setback line. Mr. Turpening stated that the second requested change is to allow construction of a wall and roof connecting a ticket booth with the concession stand to provide an enclosure for pop machines. He informed Council that while his original request had been for a brick wall between the buildings, which would have required footings, he is now requesting permission to link the buildings with a wood fence and roof structure. Councilmember Krebsbach was excused at 11:50 p.m. Mayor Mertensotto asked about a reference in the plans to the installation of a septic system that was added in August. Mr. Turpening responded that about 100 feet of septic line was installed for health purposes to handle the sink and floor drain in the concession building. Councilmember Smith asked if it is intended that the fence will always remain chain link. Mr. Turpening responded that it is the intention to keep it black vinyl chain link. The reason that black vinyl was selected is to hat the fence disappears into the terrain. He stated that there will be landscaping and contouring and terracing behind the fence and it will never have slats or an opaque covering. Councilmember Huber moved to approve an amendment to the conditional use permit for St. Thomas Academy to allow relocation of the fence along Mendota Heights Road from a thirty-five foot setback to a twenty foot setback and to allow the addition of a wooden fence and roof to link the concession stand and tick booth to provide a pop machine enclosure, all in accordance with plans submitted to Council this evening. Page No. 4151 September 6, 1994 Councilmember Koch seconded the motion. I Ayes:4 Nays: 0 FRIENDLY HILLS TASK Council acknowledged a memo from Public Works Director FORCE Danielson regarding prospective appointments to the Friendly Hills task force. After discussion, Councilmember Smith moved to appoint Mike Blake, Robert Gilbert, Don Harrington, Fred Lambrecht, John Maczko, Ralph Myhrman and Doug Wenzel as members of the Friendly Hills Task Force and Debbie Evenson and Bernard Friel as alternate members, and to implement the time schedule as set forth in the Public Works Director's memo. Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 MENDOTA INTERCHANGE Council acknowledged a memo from the City Administrator NOISE regarding Mendota Interchange road noise concerns, along with a draft letter to Mn/DOT. It was the consensus to approve changes to the letter suggested by Councilmember Smith, to authorize the Mayor to sign the letter and to direct staff to forward the letter to Mn/DOT. 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: 12:35 o'clock a.m. thleen M. Swanson City Clerk ATTEST: r Charles E. Mertensotto Mayor September 6, 1994 Concrete Contractor License Viking Concrete & Masonry, Inc. Excavation Contractor License A. Kamish & Sons Inc. Kuehn Excavating Glen Rehbein Excavating, Inc. Virgo Contracting General Contractors License National Home Framers Gas Piping Contractor License LaFond Plumbing Pride Mechanical Ryan Plumbing & Heating HVAC Contractors License C.O. Carlson Air Conditioning Co. Managed Services Inc. Master Mechanical Inc. Suburban Air Conditioning Co.