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1990-08-07 Council minutesPage No. 2870 August 7, 1990 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, August 7, 1990 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, was held at 7:30 o'clock P.M. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. Mayor Mertensotto called the meeting to order at 7:30 o'clock P.M. The following members were present: Mayor Mertensotto, Councilmembers Anderson, Blesener, Cummins and Hartmann. AGENDA ADOPTION Councilmember Anderson moved adoption of the revised agenda for the meeting. Councilmember Hartmann seconded the motion. Ayes: 5 Nays: 0 APPROVAL OF MINUTES Councilmember Hartmann moved approval of the minutes of the July 10th regular meeting with corrections. Councilmember Blesener seconded the motion. Ayes: 5 Nays: 0 CONSENT CALENDAR Councilmember Cummins moved approval of the consent calendar for the meeting along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the July 24th Planning Commission meeting. b. Acknowledgment of the Fire Department monthly reports for June and July. c. Acknowledgment of the Code Enforcement monthly report for July. d. Approval of a 32 hour per week permanent part -time status for Police Secretary Carol Bakka on the following conditions: that she remain available to work on her day off if needed, without overtime, to a maximum of 40 hours per week; that she provide coverage during the Police Receptionist's vacation time; that all employment benefits and conditions be proportionately adjusted; that the Page No. 2871 August 7, 1990 arrangement be reviewed on a regular basis to determine that the needs of the department are met. e. Acknowledgment of a report from the Police Chief regarding the results of the sale of surplus police vehicles. f. Approval of the issuance of a two-day on- sale 3.2 malt beverage license to St. Peter's Church for September 15th and 16th, from 6:00 P.M. to 12:30. A.M., in conjunction with Father Galtier Days. g. Approval of a modified critical area site plan for Brett Larson (Monty Girard Homes) to allow construction of a family room and deck addition at 985 Caren Road, along with waiver of the Critical Area fee. h. Acknowledgement of the proposed assessment rolls for the following improvement projects: Big Wheel Auto site and adjacent areas (Improvement No 88, Project No. 3); Alice Lane improvements (Improvement No. 89, Project No. 3); North Ivy Hills 2nd Addition (Improvement No. 88, Project No. 6); Ivy Falls Creek Addition (Improvement No. 87, Project No. 2). i. Acknowledgment of a memo regarding a proposed increase in AMM dues. j. Approval of a 30 foot front yard setback variance for Midway sign company (case No. 90-29), to allow installation of a pylon sign at 750 South Plaza Drive. k. Approval of a front yard setback variance at 1065 Wagon Wheel, to allow construction of a porch addition 25 feet from the property line along Wagon Wheel. 1. Approval of an 8 foot front yard setback variance to allow installation of a new directional sign at the Center Pointe Medical Clinic and a variance to the one sign per building requirement of the approved Yorkton sign policy, all contingent upon removal of two existing non-conforming signs. Page No. 2872 August 7, 1990 m. Approval of the list of contractor licenses dated August 7, 1990 and attached hereto. n. Approval of the list of claims dated August 7, 1990 and totalling $413,883.85. o. Authorization for City staff to work with Legal System Services Corporation to develop and establish a Flexible Benefit Plan for City employees. p. Approval of permanent appointment status on the Fire Department to Tom Shields and Tim Oster. Councilmember Anderson seconded the motion. Ayes: 5 Nays: 0 PUBLIC COMMENTS Mr. Mel Swanson was present regarding his concern over the potential that drainage problems might result from construction of the Sibley Park. He felt that the project does not comply with the Lower Mississippi WMO plans and will cause a greatly increased rate of surface water runoff. Mr. Swanson stated that a retention pond which existed on the property has been eliminated and that City should install more retention ponds to reduce runoff. He expressed concern that his property will be flooded and that the drainage problem will be passed all the way down the creek unless it is corrected now. Public Works Director Danielson responded that the engineering department has received a letter from Mr. Swanson and has reviewed it but does not have a written report this evening. Staff was directed to mail a copy of the report to Mr. Swanson and Mr. & Mrs Donald Bauer, 1759 Ridgewood Drive, upon its completion. PUBLIC COMMENTS Mr. Tom Fahey, 979 Caren Road, informed Council that he and some of his neighbors have a concern about the speed of traffic on Caren Road and asked that the City install signs or speed bumps. The matter was referred to the Police Department for response. Page No. 2873 August 7, 1990 MENDOTA WOODS Council acknowledged a memo from Engineer BID REJECTION Klayton Eckles recommending that the bids received for the Mendota Woods project be rejected and informing Council that only three bids were received and all exceeded the engineer's estimate. Councilmember Cummins moved adoption of Resolution No. 90-51, "RESOLUTION RECEIVING AND REJECTING BIDS FOR IMPROVEMENTS TO SERVE MENDOTA WOODS SUBDIVISION (IMPROVEMENT NO. 89, PROJECT NO. 7).11 Councilmember Hartmann seconded the motion. Ayes: 5 Nays: 0 HEARING: EAGLE Mayor Mertensotto opened the meeting for the RIDGE APPEAL purpose of a public hearing on an appeal from the owners of the Eagle Ridge Condominium to two orders issued by the Fire Marshal. Fire Marshal Paul Kaiser reviewed his memo to Council dated July 31 regarding his issuance of orders to install standpipes in the building and to provide corridor protection doors on the first floor of the building. ng. Fire Marshal Kaiser explained that the corridor protection provides an escape tunnel for occupants of the building and that three areas of the first floor, the party room, the exercise room and the storage/custodial area do not have this protection. He explained that corridor protection was a requirement of the building code at the time the building was constructed and is still a requirement of the code. With respect to the standpipe matter, he compared a standpipe to a vertical water line with Fire Department connections at each level of the building. He explained that without standpipes the department would have to drag fire hose into the building from the roadway in order to get water to a fire scene. He pointed out that there is very little access to the building - there are no access roads to two sides of the building and the department could not get access from the front of the building. Responding to a question from Mayor Mertensotto, Mr. Kaiser stated that the connection could be reduced from 2 1/2 inches to 1 1/2 inches but that the larger size reflects a "worse-scene" scenario. Fire Marshal Kaiser explained that corridor protection is designed to reduce the smoke Page No. 2874 August 7, 1990 inhalation danger and showed Council a lower level floor plan, pointing out the areas j. needing protection. He stated that his concern involves the party room, exercise room, two saunas, guest room and manager's quarters. He informed Council that the best way to provide protection at the least expense is to provide self-closing devices on two existing doors and to protect the hallway with a fire door. Mr. Kaiser stated that the occupancy load for this area of the building is 59 according to the building code. He informed Council that the orders relate to building code issues and that he does not have the power to grant a variance from the building code, that any variance must be granted by the Council, and that the building was not constructed according to code. Mr. Rollin Crawford was present as legal counsel for the condominium owners at 1850 and 1860 Eagle Ridge Drive, along with several of the condominium owners. Mr. Crawford stated that the owners are concerned about safety and fire protection but that they are also concerned about circumstances surrounding the orders. He felt that the orders which have been issued amount to harassment, and read excerpts from several letters from the Fire Marshal to the Association since 1985 addressing various orders, all of which have been complied with except the standpipe and corridor protection orders being appealed. Referencing portions of the letters, Mr. Crawford stated that in one letter standpipes were ordered, that the order was superseded in a letter dated May 25, 1989 which stated that the fire code did not require standpipes, and in January of 1989 the standpipe issue was again raised. He stated that in total 25 orders were issued and 23 have been complied with. He further stated that the City did not adopt a Fire Code amendment which requires standpipes until June of 1990. He felt that it is clear that the standpipe order which was issued in January of 1989 is invalid because the fire code did not require standpipes. Mr. Crawford s does speak., to since the Fire January, 1989, safety issue. interpretation fated that the Uniform Fire Code doors on corridors but that Marshal missed the issue until he feels it is not a life He stated that the technical of the Fire Code does require Page No. 2875 August 7, 1990 what is being ordered but that the practical question is occupancy load. Mr. Crawford stated that the two buildings are somewhat separate and that in the area where each of the buildings approach the common area there is a fire door. All of the people in the building have other exits and a fire door that protects them, and egress from the building is separate from the central (common) area. He informed Council that the center part of the building constitutes a caretaker unit and a guest room which is generally vacant. The caretaker apartment has a six foot sliding glass door to the outside and the guest room does not but it has a very large window that could be used to get outside safely. He stated that, with respect to occupancy load, from a practical standpoint if there is a fire in the subject portion of the building occupants of the caretaker and guest units would be the first people out. There is also a center corridor available which provides a straight corridor out to the swimming pool. The party room is seldom used except for board meetings and occasional small groups, and there are two large sliding exits out to the ground in addition to the corridor. He suggested that if the corridor is closed with a door, the chance of it being a corridor of escape is unlikely. He further stated that there is access from the exercise room to the ground and there are two very adequate exits in addition to the one on the corridor. He stated that he doubts there have ever been 17 people in the exercise room at the same time. It was his opinion that if a fire door were installed in the corridor it would increase the risk to whoever wanted to get out of the building and although the order may be for compliance with an interpretation of the code it is not practical. Mayor Mertensotto pointed out that Mr. Kaiser has been retained by the City as Fire Marshal that he has all of the necessary qualifi- cations for the position, and that as amendments are made to the fire code he must correlate what he finds during inspections with what the code requires. He stated that in the judgment of the Fire Marshal there is a life safety factor involved and he feels there is a hazard. He asked Mr. Crawford what costs area involved. Page No. 2876 August 7, 1990 Mr. Crawford stated that the variance being requested is based on four positions: he does not believe the owners are technically required to comply; he does not think the orders are required from a safety standpoint; he does not believe there is risk to the inhabitants. He further stated that the owners are interested in a stop to the harassment and to that end the board has indicated that they will put in the standpipes knowing full well that they are not legally required to do so. He stated that they feel the fire door question in the pool area is bogus, the door closes on the party room and exercise room. He felt installing a fire door would pose a risk and increase the danger to the caretaker and guest if they had to use that as an exit. He asked for a variance to forget the extra fire door, which would require framing and considerable redecorating. Mayor Mertensotto stated that there is no question that Council hearing is the proper place for appeals. Council has the right to sustain the Fire Marshal's orders or grant variances. He further stated that the City Attorney advises that the Council must be careful that it is acting in good faith and that there is the possibility that if someone were injured after a variance was granted they might claim the City was negligent in granting a variance. He asked whether Mr. Crawford has found case law. Mr. Crawford responded that he is not aware of any Minnesota cases and that Minnesota Statute specifically states that a board of appeals acting in this capacity has no liability as a body or as individuals. Fire Marshal Kaiser stated that he would like to have Mr. Crawford check his records - the letter represented as being dated January 24, 1989 was in fact prepared on January 24, 1990 and the code section that requires standpipes was adopted in October of 1989. Fire Chief Maczko, present for the discussion, stated that fire codes are very complicated and there has been no intention of harassment. Further, he stated that when Mr. Kaiser was appointed in 1985 he had a big task - doing fire inspections on all 192 multi-family and commercial buildings in the City, and that not Page No. 2877 August 7, 1990 all problems could be caught in the initial inspection. The initial inspections were completed in 1987; more time was spent on second inspections, which began in 1987. He pointed out that the code stipulates that standpipes either are or are not required in buildings of certain types and that if there are special hazards, such as not being able to go around all sides of a building, etc., the Fire Chief can declare a hazard. In this case, there is access to only two sides of the building, and he told the Fire Marshal to consider it a special hazard. He informed Council that Mr. Crawford's compromise offer was first made yesterday even though he and the Fire Marshal had made numerous telephone attempts to arrange a meeting. City representatives made the offer to reduce the requirement for three fire doors to one fire door and installation of closures on two of the existing doors. The estimated cost of $3,000 for the three doors compares to an estimate of $1,000 for the single door. Mayor Mertensotto asked for questions and comments from the audience. Councilmember Cummins stated that the compromise on the doors seems very reasonable since there are numerous exits in the common area. Councilmember Cummins compromise and approve fire door order. Councilmember Blesener moved to adopt the the variance from the seconded the motion. Mayor Mertensotto proposed that the matter be deferred to the next meeting and informed Mr. Crawford that he would like Mr. Crawford to place in writing what has been proposed and would also like him to address the absence of good faith provision, telling Council in writing what he knows on the issue. Councilmember Anderson stated that if Council defers the matter and gets a written statement he would also like to see the Fire Chief or Fire Marshal come up with a written statement of what they feel would be the minimum standards so that Council can compare the two statements and see what is involved. He also stated that he has heard the term "harassment" used a number of times this evening and Page No. 2878 August 7, 1990 pointed out that it is impossible for Council to equate health and safety issues to being harassment, and that if Mr. Crawford has a factual basis for harassment other than the orders propounded, Council should see them. Council cannot order the Fire Marshal to stop making inspections. Councilmember Cummins moved that a vote on the main motion be tabled to the August 21st meeting pending receipt of the memorandum from Rollin Crawford. Councilmember Hartmann seconded the motion. Ayes: 5 Nays: 0 RECESS Mayor Mertensotto called a recess at 9:05 P.M. The meeting was reconvened at 9:14 P.M. HEARING: CASE NO. Mayor Mertensotto opened the meeting for the 90-25, HEAVER purpose of a public hearing on an application from Keith Heaver for a conditional use permit for fill to create landscaped berms along the rear lot lines of Lots 1 through 9 of Block 3, Mendakota Estates. Mr. Heaver explained that he originally proposed to install a landscaped berm using 4,000 square yards of fill. The City Engineering Department was concerned over drainage, and he has since developed a new proposal to make sure there is no drainage problem, reducing the fill to 2,000 square yards. He informed Council that 1,000 square yards of fill was placed on the site before he was aware a conditional use permit is necessary. Mayor Mertensotto pointed out that the Planning Commission recommended three conditions to approval of the permit, and asked Mr. Heaver if he accepts those conditions. Mr. Heaver responded that he cannot, that the Commission recommendation was for removal of all of the fill on the site. Councilmember Anderson stated that the Commission Chair did not agree with the condition because he felt that it was an excessive requirement. He asked Mr. Heaver to clarify what is the problem with the existing Page No. 2879 August 7, 1990 fill and whether it is entirely made up of bituminous, concrete, etc. Mr. Heaver responded that in the last two weeks he met with City engineering staff with respect to what is acceptable under City ordinance and that the City Engineer had recommended removal of any chunks of concrete and rocks over 6 inches. After meeting with Code Enforcement officer Paul Berg, according to the UBC, which is the construction code contractors follow, any material larger than 12 inches is unacceptable. He stated that since what he plans is a berm which will be covered with landscaping, the code places no standards on it. Mayor Mertensotto stated that if Mr. Heaver leaves all the concrete and metal in the fill and must remove the berm at some time, Council will have to deal with it: someone in the future could ask how it was ever allowed. He reminded Mr. Heaver that the project requires a conditional use permit and the Planning Commission has referred the application to Council recommending that all bituminous, concrete and metals be removed to a recycling facility. He pointed out that there will be a problem if Mr. Heaver does not agree to the conditions. Councilmember Blesener stated that the recommendation is that all concrete and metal be disposed of and felt that requiring disposal of all the material is excessive, that the berm will last forever and trees and landscaping will be planted on it. She further stated that as long as there is no toxic waste or hazardous material in the fill she would have no objection. Councilmember Anderson asked what size of material Mr. Heaver is willing to remove. Mr. Heaver responded that he would be willing to remove material 12 inches in size in accordance with the code and further that the fill will be covered with black dirt suitable for plants, trees and sod. Councilmember Anderson stated that his major concern is that metals might stick up out of the berm. He asked what it is about the fill that prompted the commission to recommend that it be removed and not relocated within the Page No. 2880 August 7, 1990 City. Mr. Heaver responded that he does not know, that he talked to the County public health department and all of the material is acceptable according to their standards. Councilmember Cummins pointed out that the fill is full of bricks, rock, etc., and asked where it came from. Mr. Heaver responded that to the best of his knowledge it came from an area of street repairs on West Seventh Street and that it was supposed to be clean fill. He stated that a rock is clean fill, asphalt is not, according to the public health department. The asphalt will be removed, along with some of the larger pieces of concrete. He further stated that he plans to meet the requirements of the UBC. Responding to a question from Mayor Mertensotto, Mr. Heaver stated that the Planning Commission recommendation would require removal of over 100 loads of material. He informed Council that the City engineering staff would like to review his plan for drainage, etc., and have him remove any large rocks, etc. Public Works Director Danielson stated that he has not been involved in the matter but that the engineering staff have taken a view similar to Councilmember Blesener's, that provided some of the large pieces of objectionable material, including metal, are removed, it would be satisfactory for back yard berming. Administrative Assistant Batchelder recommended that all asphalt, bituminous, metals and other appropriate materials be required to be taken to a recycling facility and that anything that has been treated with creosote be required to be taken to a demolition disposal facility. Council acknowledged receipt of a letter from Mr. and Mrs. Louis Leichter, 909 Mendakota Court. Mayor Mertensotto asked for questions and comments from the audience. Mayor Mertensotto felt that the developer must pay all city costs, and that City staff should Page No. 2881 August 7, 1990 be directed to shut down the project if it is not in compliance with stipulated conditions. He suggested that Mr. Heaver submit a $500 inspection fee. Councilmember Blesener did not support the fee requirement, pointing out that Mr. Heaver has done much work in the City and is a reputable builder. There being no questions or comments, Councilmember Blesener moved to close the public hearing and to adopt Resolution No. 90- 52, "RESOLUTION APPROVING A CONDITIONAL USE PERMIT FOR FILL AT MENDAKOTA ESTATES," subject to the conditions that all existing fill and any future fill be brought into compliance with the standards of the Uniform Building Code, that City staff review and approve the berm design and drainage plan, and that all materials appropriately disposed of at a recycling facility shall be removed to such a facility, all with the full understanding that City staff has the right to shut down the project if all conditions are not adhered to. Councilmember Cummins seconded the motion. Ayes: 4 Nays: 1 Mertensotto HEARING: CASE NO. Mayor Mertensotto opened the meeting for the 90-26, M.I.S.T. purpose of a public hearing on an application from the M.I.S.T. for a conditional use permit for participative athletics. The audience was informed that the applicants have requested that the hearing be continued to September 4th. Mayor Mertensotto asked for questions and comments from the audience. There being no questions or comments, Councilmember Cummins moved that the hearing be continued to 8:00 P.M. on September 4th. Councilmember Blesener seconded the motion. Ayes: 5 Nays: 0 WEED CUTTING Council acknowledged a report from Code Enforcement Officer/Weed Inspector Dick Gill regarding weed cutting requirements and potential exemptions from the weed ordinance. Mayor Mertensotto informed the audience that at the July 7th meeting Mr. and Mrs. Joseph Nelson asked for reconsideration of the weed cutting ordinance. He pointed out that State Page No. 2882 August 7, 1990 Statute addresses noxious weeds and requires their cutting. He pointed out that the issue before Council is how to balance two situations - natural areas providing wildlife habitat and erosion control versus propagation of noxious weeds. He informed the audience that Mr. Gill has recommended that Council authorize him to test the potential exemptions for this season on an experimental basis to see how the exemption program would work and what its pitfalls might be. Councilmember Anderson pointed out that one problem is that what one person sees as a natural habitat another sees as a vexation. Mayor Mertensotto agreed, but suggested that the suggested experiment would give Council an opportunity to see how the two concerns can be balanced. Councilmember Blesener stated that Council would like staff to pursue putting together an amendment to the ordinance after such time as the test is completed, and also to provide some type of appeal process. Mrs. Margie Johnson stated that her only concern about the recommendation is that when the Council talks about a weed inspector, she envisions someone checking weed height. She asked if he will have specialist with him who knows how to tell noxious weeds from other growth. She did not want the weed inspector to be the sole decider of what is noxious. Mayor Mertensotto responded that Mr. Gill is the Weed Inspector, that there will always be people calling him with complaints about hayfever, etc. He stated that the County has an extension office which provides assistance. Responding to an audience question on when residents will be informed on the results of the text, Mayor Mertensotto stated that Mr. Gill will report back to Council at the end of the year with respect to the number of requests for exemption, etc. He informed Mrs. Johnson that her exemption request has already been placed on record. Mr. Tom Fahey, 979 Caren Road, asked for an exemption for the property bounded by Lilac Lane, Caren Road and James Road (four City owned lots), and Mr. John Campbell, 2348 Apache, asked for an exemption for his Page No. 2883 August 7, 1990 property. The requests were referred to Mr. Gill. A member of the audience stated that she is the parent of two children who are asthmatic and that they are as allergic to lawn grass as weeds. She felt that people do not recognize that people can react to good grass as well as noxious weeds. Councilmember Anderson moved to direct staff and Code Enforcement Officer Dick Gill in particular to perform the variance issuing function on a case by case basis this year and to prepare a written report to Council at the end of the year as to the requests received and exemptions granted, using the criteria set forth in the memo, and further to direct a recommended ordinance amendment after results of the test have been determined. Councilmember Hartmann seconded the motion. Ayes: 5 Nays: 0 Councilmember Cummins noted that the lots which back up to Huber Drive between Apache and Decorah will receive an exemption. CASE NO. 90-28, Mr. Keith Heaver briefly reviewed his HEAVER WETLANDS application for wetlands permits for seven lots in the Ivy Falls Creek Addition. Mr. Heaver informed Council that he agrees to meet the conditions recommended by the Planning Commission. Councilmember Hartmann moved adoption of Resolution No. 90-53, "A RESOLUTION GRANTING WETLANDS PERMITS IN IVY FALLS CREEK ADDITION," subject to the conditions recommended by the Planning commission and that the site plan submitted with the application be made a part of the resolution. Councilmember Anderson seconded the motion. Ayes: 5 Nays: 0 CASE NO. 90-21, Representatives of Kiesland Development BATESVILLE company, including John Houpt, Architect Bruce Jones and Attorney Tom Owens were present for continued discussion on applications from Batesville Casket Company for parking lot setback variance, lot division and building permit. Page No. 2884 August 7, 1990 Mr. Houpt reviewed revised plans, informing Council that it is now proposed to build the proposed structure on Lot 3 of Northland Plaza. He explained that parking will be in the front of the building, off the common drive between Lots 3 and 4, and that the required number of parking spaces will be provided. Mayor Mertensotto pointed out that the plan shows potential future parking and that the loading docks are along the common area. Councilmember Blesener asked about the height of the berm as it relates to the grade elevation of the truck parking area. Mr. Houpt responded that they have tried to maintain a berm 10 to 12 feet higher along the T.H. 55 side than the height of the docks. Along 1-494 they propose berming to its practical limit between the property line and the setback line. Councilmember Blesener stated that as she reads the plan, there is a berm on the west but there really is no berm directly south of the parking area. Mr. Jones responded that that elevation is 910 and the building floor elevation is 894 and that they are creating the berm from the top of the hill as far as they can go west. He further stated that at the very top of the hill there is no berm, but the building is set down 12 feet, and that the developers did not want to disturb the heavy vegetation and trees. Mayor Mertensotto asked whether the applicants are still going to have the proposed landscaping on the east and what exterior materials area proposed. Mr. Houpt responded that the landscaping will be according to the proposed landscaping plan and that the exterior material is precast tilt-up panels with a textured finish. They have changed the exterior by facing the docks south and the architect has added an articulation with banding over the docks to make it a more interesting elevation. He added that the applicants feel that the proposed berm will significantly screen the truck area of the building. Page No. 2885 August 7, 1990 Councilmember Blesener stated that she would like the City to have more control and discretion on exterior materials used in the industrial districts but that the Zoning Ordinance is not set up that way and Council has little latitude to upgrade the exterior of the building. Mayor Mertensotto pointed out to the applicants that landscaping will be very important. Mr. Houpt stated that they will do an excellent job of landscaping, and that if the project is approved construction will start this fall. Councilmember Blesener moved approval of 10 foot parking lot setback variances for Lots 3 and 4, Northland Plaza and approval of a lot division subject to the completion of a Certificate of Survey accurately identifying the new lot boundary and authorization for staff to issue the building permit for the Batesville Casket Company facility. Councilmember Hartmann seconded the motion. Ayes: 5 Nays: 0 WILLOW SPRINGS, Council acknowledged a memo from Public Works RIGHT-OF-WAY Director Danielson regarding a request from Dr. David Rischall, 610 Callahan Place, that the City release 60 by 105 feet of right-of- way located at the northeast corner of his property, Lot 35, Willow Springs Addition. Dr. Rischall, present for the discussion, stated that he would like to sell his home and was not originally aware that they did not own the subject property. He stated that the right-of-way is in front of the house, right at the driveway. Mayor Mertensotto stated that he is always cautious about declaring city-owned property to be excess because every time the City releases property and finds that easements are needed in the future, the City must pay for the easements. He pointed out that staff has recommended retaining easterly 40 feet of the right-of-way. Councilmember Blesener asked Dr. Rischall to react to the staff recommendation that he compensate the City at the rate of 75 cents per square foot. Page No. 2886 August 7, 1990 Dr. Rischall responded that he feels there is really a difference between this property and the property on the west side of the lot because there is a real City need for the property it purchased on the west side. He stated that he has maintained the property and if it is released to him it will go back on the tax rolls. He further stated that he feels 75 cents per square foot is excessive. In response to a Council comment that the City paid $1.50 per square foot for a recent easement purchase, Dr. Rischall stated that the easement negotiation involved both he and his neighbor and that the neighbor negotiated the price. Mayor Mertensotto stated that he is also concerned that there is a 70 foot slope easement which Dr. Rischall has requested and for which a vacation hearing is scheduled on September 4th, and that a portion of the area requested for release is within the slope easement area. Public Works Director Danielson confirmed that a portion of the slope easement area is included within the requested 6,780 square foot right-of-way release area but that the portion within the slope easement would remain in place. Mayor Mertensotto suggested that the matter be tabled to allow Council an opportunity to consider the request at the time of the public hearing on the slope easement vacation request. Councilmember Anderson moved to table action on the request for right-of-way release to September 4th. Councilmember Hartmann seconded the motion. Ayes: 5 Nays: 0 CASE NO. 90-03, Council acknowledged a memo from the Public CENTEX Works Director and Administrative Assistant regarding the Centex planning applications along with a letter from Centex regarding changes to the proposed Kensington PUD made since the July 10th Council discussion on the matter. Dick Putnam, from Tandem Development, Tom Boyce and Kevin Clark from Centex, and their legal representative, John Bannigan, were present for the discussion. Page No. 2887 August 7, 1990 Mayor Mertensotto informed the audience that a number of concerns were raised by Council at the last discussion and that the letter from Centex lists changes made in response to the concerns. Mayor Mertensotto read the letter for the audience. He also stated that some reference has been made to him with respect to the exterior stairways, and asked for a response. Councilmember Cummins stated that the stairways are not required in other communities where Centex has built similar structures but that the City's Code Enforcement staff have strictly interpreted the code. He felt that the exterior stairs are extremely unattractive on the existing townhomes in Kensington, and stated that the developer agrees. He informed Council and the audience that he has toured the Devonwood development in Bloomington and feels that they have a far more attractive deck and porch area without the stairways. He felt that it is the case of very stringent code enforcement on the part of the City's building inspectors to require the stairways but that it is beyond the control of the developers to eliminate the stairways. He stated that one of the adverse impacts of the stairways is that the developer has had to eliminate walkout lots or walkout units in some townhomes or manor homes. He felt that creating walkouts would add value to several of the units and that Council should work with staff to try to address the concern, with respect both to the existing project and the proposed project. He stated that if it is not a matter of a too-stringent application of the code there may be some other options, such as redesigning the buildings to incorporate internal stairways. Mr. Bannigan stated that the only thing the applicants want to do this evening is to respond to the questions of parking and quality. He further stated that the applicants feel they have addressed those issues and would like to proceed. Councilmember Blesener informed Council that all of her concerns about parking have been addressed - the 39 additional garages and reorientation of the driveways and reconfiguration of some of the parking. Page No. 2888 August 7, 1990 Mr. Putnam informed Council that the number of units are the same as proposed at the last meeting. Mayor Mertensotto asked Councilmember Cummins if he has had an opportunity to address all of his questions on quality. Councilmember Cummins responded that he has, and stated that he has raised a number of quality issues and the developers have dealt with all of them. He further stated that he has had only one phone call from the residents who had concerns with the project, but that with what he was able to generate through touring other Centex facilities and those in Kensington, his questions have been answered. Mayor Mertensotto asked if any members of the audience wished to speak. Ms. Carol Bjorklund, 2506 Concord Way, stated that she lives in the Kensington development and that she was present to inform the Council of some of the problems of quality and workmanship she has observed since she moved into her home. She described a number of problems, including water leaks, missing roof shingles, difference in room sizes between the floor plan and the constructed unit, insufficient space for the dishwasher, footings missing under the outside stairway, and installation of carpeting six weeks before closing and before sheetrocking, ceiling spraying and other interior finishing was completed. She stated that she constantly had to put pressure on Centex to make corrections and that although Centex ultimately rectified the problems, she believes that if she had not put pressure on them and if her father and brothers, who are builders, had not put pressure on Centex, they would have taken their time fixing the problems or might not have fixed them. She stated that she wanted Council to be aware of the construction problems and that the quality of the work needs to be looked at as far as other projects which might be built in the future. Ms. Cathy Connolly, legal representative for neighborhood residents, stated that she wanted to comment regarding Councilmember Cummins' remark that he only had one phone call Page No. 2889 August 7, 1990 development. She stated that for the record, residents of Centex homes have come to the microphone many times over the last several months to voice their concerns and raised the issue of the quality of their homes in Hampshire. Councilmember Cummins responded that most of the people he has talked to who live in Hampshire Estates have said that they are very satisfied with the quality of their homes and that they are most concerned about the density. The one phone call he received was from someone thanking him for raising the issues, who told him they were very satisfied with their home and were not terribly concerned about the quality issue. Ms. Connolly responded that she thinks if the record is examined Council would find quite a number of people raised issues with the quality of their homes in Hampshire Estates. With respect to the Centex letter, she asked if all of the 39 additional garage spaces are formerly blacktopped spaces or if they have been added. Mr. Putnam stated that they are new. Ms. Connolly asked if there has been a redistribution or shift of any of the buildings or garages and stated that she imagines that this would add 11 feet to some of the existing garages and that there was not enough room as it was. To add 39 more garage spaces would mean there has to be some redistribution. She asked whether calculations have been done to make certain that the setbacks that everyone labored so long to ensure were maintained between the garages and the buildings or whether the garage spaces were just slipped in without doing setback calculations. Mr. Putnam responded that in many cases were there was a two -car garage, for example, one additional space has been added to create a three -car garage, in some cases where there was a single car garage there is now proposed a two -car garage, in some cases where there was no garage, a garage has been added. He reviewed the proposed plan showing where the changes were made. He stated that there has always been a 30 foot setback for the Page No. 2890 August 7, 1990 buildings from the right-of-way, there were instances where a garage was more than or less than 20 feet from a building, and the same standards were used in adding garage spaces that were used in the first place. He stated that where they have been reconfigured, it was at the request of the City to make it work better and to add garage spaces. Ms. Connolly stated that the neighbors appreciate the value the additional garage spaces have added to the development overall but expressed concern about the fact that the project was congested to begin with. At Council's advise it was "loosened up", which was a wonderful effort, but she was concerned that because of adding 39 garage spaces some of the earlier effort has been lost. She asked a for a clarification of the neighborhood's understanding that the continuance of the discussion to this evening was that there would be quality standards proposed. She stated that the neighbors appreciate the effort regarding their concerns but felt that the Centex letter is sketchy and perhaps just a gesture towards any kind of quality assurance plan. She did not feel that it addresses the neighborhood concerns about Centex' past performance in Mendota Heights and that Ms. Bjorklund's statements are exemplary of those concerns. She stated that the eighth point in the letter provides.some comfort provided the City has someone with the forcefulness and background of Ms. Bjorklund who will assure that when the new property owners come in they will not be met with pre- existing conditions that will be passed on to subsequent owners, thereby devaluing the development. Ms. Bjorklund described garage problems to the Council, and informed Council that Centex is making it an extra expense to a homeowner to have two garages side by side. Mr. Thomas Smith stated that quality is an issue but there is another cause for concern that has not been raised which should be considered. He cited an article in New Yorker Magazine regarding a possible correlation between living in close proximity to power lines and the incidence of brain tumors. He stated that the studies done date back over two decades and that one conclusion from one Page No. 2891 August 7, 1990 study states that exposure to low energy fields such as those emanating from power lines affect the part of the immune system which is responsible for killing cancer promoting cells. He stated that there are substations and high current wires already situated dangerously close to proposed units and that they will have to be relocated or rerouted, or if necessary buried in a fashion to prevent hazardous magnetic field emissions. He further stated that there are at least 16 units located within 100 feet of the power lines and that he hardly needs to point out that the exposure is a direct consequence of the developer's intent to build high density development rather than lower density. He suggested that as a matter of public responsibility and public interest Council should work with the developer to have magnetic field strength readings taken along the lines and the areas where units will be located in close proximity to the lines. He further felt that the Council should possibly insist that the developer indemnify the City from future litigation which may arise in health problems shown to occur where people are asked to live in close proximity to power lines. He felt that this is another indication of the quality problem that the development presents. He stated that although he agrees with the right of(bouncilmembers to change their position on the ,.,p .Luality issue and reach some satisfaction, he cannot see why any of the Council could be satisfied with the development. Mr. James Losleben, 815 Hazel Court, stated that the project does not benefit the City other than to drive up the cost of services. He presented the Council with a copy of a new article from City Business magazine regarding zoning problems in the City of Eagan and the increase in police statistics for apartments as compared to single family units. Referencing historical information regarding the original Comprehensive Plan, he stated that as he interprets the Metropolitan Council review, there is no law requiring the Council to rezone the property. Mr. Ultan Duggan, 2331 Copperfield Drive, asked Council to consider the concessions that have been made step by step that should have been done by Centex initially. He stated that Page No. 2892 August 7, 1990 as an example, there is a requirement for tree plans showing which trees are to be removed and which will stay - and this has never been done. He stated that the neighbors have constantly had to challenge the developers to do things, and should not have had to do so. He stated there are no drawings or designs showing the concessions, and asked how Council can vote on the requests without seeing drawings. He further stated that Ms. Bjorklund came before Council to tell them things which were not done in a safe and timely manner and asked who will be the Bjorklund who inspects each of the proposed units for the new residents and who will protect their interests. He asked what the feeling of those people will be when they come to live in the community, what will their regard be for the Council and others if they do not protect their interest. He stated that Council is not looking at designs and not providing new citizens of Mendota Heights with Bjorklunds to look at their concerns, but that Council should keep these issues in the back of their minds when they vote. Mayor Mertensotto informed the audience that before the Council this evening are rezoning of the property from R-1, R-1A and R-1B to MR- PUD and HR-PUD. He explained that Planned Unit Development (PUD) is a planning tool, issued as a conditional use.permit, which allows variations from the strict rules of a zoning district, and that the density for the total number of allowable units is calculated for the total land within the development area. Rezoning and PUD's must receive a 4/5 vote of the Council. He also stated that the applicants are requesting preliminary plat and wetlands permit approvals, and described the permits being requested. The conditional use permit for planned unit development would stipulate that the development must be built subject to all of the terms and conditions stipulated by the City. The developer's agreement would embody all of the conditions, including the amount of land the developer is to donate to the City park system and would cover such things as the eight items in the letter received from Centex this evening and a myriad of other items, like the specifications for the structure and list of building materials, etc., quality items and setbacks. The final plan would show which streets are Page No. 2893 August 7, 1990 public and which are private as well as the park area. Mayor Mertensotto asked Mr. Putnam whether it is a condition that the play fields be lighted. Mr. Putnam stated that it is not his requirement, although it may be a City requirement. Councilmember Blesener stated that the matter has been discussed and that lighting is not a condition made by either party but that the developer had stated a preference long ago that the fields not be lighted. Mayor Mertensotto stated that the question is open and could be addressed in the developer's agreement. Councilmember Blesener moved that the area of the Kensington project be rezoned to MR-PUD and HR-PUD consistent with the Comprehensive Guide Plan. Councilmember Hartmann seconded the motion. Councilmember Hartmann asked City Attorney Hart whether, if the development meets all of the requirements of a PUD it is incumbent on Council to rezone the property to the Comprehensive Plan designation. Attorney Hart responded that the question is whether the plan meets all of the PUD requirements. He explained the Council's two levels of discretion, legislative and quasi- judicial and that the City exercised its legislative discretion in 1985 when it adopted the Comprehensive Plan Amendment. He further stated that case law indicates that the City's failure to rezone in a manner consistent with the Comprehensive Plan when faced with an application to do so is evidence of arbitrar- ness, and that if Council decision were to deny the rezoning they would need a rational basis relating to the standards of the PUD Ordinance or relating to the public health, safety or welfare backed up by factual evidence. Mayor Mertensotto pointed out that the statute also states that if there is a conflict between zoning and the Comprehensive Plan, the zoning supersedes the Plan. Ayes: 3 Blesener Hartmann Anderson Nays: 1 Mertensotto Pass: 1 Cummins Page No. 2894 August 7, 1990 Attorney Hart indicated that the key is that the City cannot act in a manner inconsistent with the Comprehensive Plan, it cannot take affirmative action which is inconsistent with the Comprehensive Plan unless substantiated with factual evidence. Mayor Mertensotto stated that he thinks that the additional units would be burdensome for the area, it would add much traffic into Mendota Heights, and the City already knows the traffic problems created by the Northwest Airlines campus in Eagan. The additional homes in the area would compound the problems. He stated that he also thinks it is improper to add this many units under the flight path, and that although it might be stated from a planning standpoint that owners of the units would stay inside more than owners of single family home, he does not feel this is true and that people try to enjoy time outside as much as possible. He felt that regardless of noise attenuation in the units Council would be subjecting the homeowners to air noise. He further stated that putting that many units in the area would be totally inconsistent with the character of the City: the City has always maintained 15,000 square foot spacing for residential lots and there is a minimum number of multi-family units in the community. He pointed out that multi-family has not been the pattern of development of the City, but that all of a sudden it is proposed that 13% of the land increase the population by 10%. Mayor Mertensotto called for a vote on the motion. The motion failed for lack of the required four-fifths affirmative vote. BUDGET WORKSHOP It was the consensus of the Council to conduct a budget workshop on August 21st at 6:00 P.M. ADJOURN There being no further business to come before the Council, Councilmember Hartmann moved that the meeting be adjourned. Councilmember Cummins seconded the motion. Page No. 2895 August 7, 1990 Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 11:30 o'clock P.M. thleen M. Swanson City Clerk ATTEST: A-& 11? , Ao.�,Ztt- Charles E. Mertensotto Mayor OP LIST OF CONTRACTORS TO BE APPROVED BY CITY COUNCIL AUGUST 7, 1990 General Contractors Licenses Damont Designers & Builders, Inc. Garlock French Roofing Greger Construction, Inc. John-David Contracting, Inc. Nahring Construction Welter & Blaylock, Inc. Nahring Construction Excavating Licenses D & M Excavating Erwin Montgomery Construction Co. Plaster/Stucco Licenses Brisson Stucco & Plaster Inc. Masonry Licenses Ron Freimuth Suburban Masonry, Inc. Heating & Air Conditioning Licenses Conway Mechanical Erickson Plumbing, Heating & cooling Palmer Service Gas Piping Licenses Conway Mechanical Erickson Plumbing, Heating & cooling