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1998-12-22MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 The Council returned to the Council Chambers. The Mayor extended a thank you for the years he has been able to serve the community and the recognition that was given him tonight. He wished the new City Council and the City of Mound the best of luck in the coming years. APPROVE AGENDA. At this time items can be added to the Agenda that are not listed and/or items can be removed from the Consent Agenda and voted upon after the Consent Agenda has been approved. Councilmember Hanus asked to have Case #98-66 removed from the Consent Agenda for a correction. *CONSENT AGENDA MOTION made by Ahrens, seconded by Jensen to approve the Consent Agenda, as amended above. A roll call vote was unanimously in favor. Motion carried. *1.0 APPROVE THE MINUTES OF THE DECEMBER 7, 1998, TRUTH IN TAXATION MEETING. MOTION Ahrens, Jensen, unanimously. *1.1 APPROVE THE MINUTES OF THE DECEMBER $, 1998, REGULAR MEETING, MOTION Ahrens, Jensen, unanimously. *1.2 RESOLUTION TO REDUCE LETTER OF CREDIT; SETON BLUFF. RESOLUTION//98-135 RESOLUTION RELEASING A PORTION OF LETTER OF CREDIT - SETON BLUFF SUBDIVISION Ahrens, Jensen, unanimously. *1.3 PAYMENT OF BILLS. MOTION Ahrens, Jensen, unanimously. 639 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 1.4 CASE98-66: VARIANCE, FRONT YARD AND SIDE YARD SETBACK VARIANCF. S, TO CONSTRUCT A CONFORMING ADDITION AND ATTACHED GARAGE. FRANZ BURRIS, 4924 GLEN ELYN ROAD, ...LOTS 5 & 6. BLOCK 23~ SHADYWOOD POINT, PID 13-117-24 11 0081. Councilmember Hanus stated that he believes the intention of the Planning Commission was to approve the conforming addition to the house and allow the attached garage. He felt the proposed resolution did not clearly do this. He recommended the following changes in the proposed resolution to read as follows: NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Mound, Minnesota, as follows: The City does hereby grant a variance for the garage of 16.05 feet for the front yard and 3.8 feet for the side yard and a variance for the dwelling of 4.65 feet for the side yard as recommended by the Planning Commission in order to construct a conforming addition and attached garage with the following conditions: ao do 1.35 feet side yard for the house as requested. The construction of a oroposed attached earage be conforming in all respects, to include hardcover. The detached garage be allowed to remain for a period of two years from the approval of this resolution. At the end of the two years, the garage shall conform to code requirements. An easement or monies to secure its removal, if it is not in conformance with Code shall be provided and be acceptable to and approved by the City Attorney. Associated grading and drainage plans shall be approved prior to building permit issuance. The applicant shall submit a drainage and grading plan to be reviewed and approved by the City Engineer prior to the Building permit issuance. Hanus felt that these changes make it clear that a conforming garage is allowed. Ahrens moved and Hanus seconded the following resolution as amended above: RESOLUTION #98-136 RESOLUTION TO APPROVE A SIDE YARD SETBACK VARIANCE IN ORDER TO ALLOW FOR CONSTRUCTION A CONFORMING ADDITION, AT 4924 GLEN ELYN ROAD, LOTS 5 & 6, BLOCK 23, SHADYWOOD POINT, PID# 13-117-24 11 0081, P & Z CASE//98-66 The vote was unanimously in favor. Motion carried. 640 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 1.5 CONTINUED PUBLIC HEARING: CASE 98-64: CONDITIONAL USE PERMIT. TO REVIEW THE USE TO ALLOW A BUH,DING REMODEL PROJECT TO THE COMMUNITY CENTER TO INCLUDE RENOVATION OF THE GYMNASIUM AND AUDITORIUM. ADDITIONAL PARKING AND CHANGES TO THE SITE ACCESS, INDEPENDENT SCHOOL DISTRICT 277, ~ LYNWOOD BLVD,, PIDS 14-117-24 41 0010, 14-117-24, 41 0011, 14-117-24 41 0052. 14.117-24 41 0058 & 14.117-24 44 0007. Assistant City Planner, Loren Gordon, explained the background. The Planning Commission has reviewed this at three public meetings. At each of those meetings, the item was tabled pending additional information or clarification on issues regarding the Community Center. There is no recommendation from the Planning Commission on the CUP. Gordon then presented his report of findings. The project involves a number of interior improvements and some exterior site improvements. The existing building will keep its current form in many respects. There will be interior improvements including, renovation of the auditorium, meetings rooms and 'the pod areas to better handle the users that are there. Exterior improvements are related to circulation and parking. Parking/Circulation: The proposed parking plan provides for 280 parking spaces including 8 handicapped accessible spaces. These spaces are shown at a 9 feet by 18 feet stall size. As per code, a variances of 185 parking spaces and a stall size variance would be needed to accommodate the request. A parking demand study was prepared for the facility to understand what amount of parking was needed based on interviews with the users. The study shows a peak demand of 260 spaces on the weekend and 280 on weekdays with an auditorium event. Based on these numbers, the applicant provided spaces to meet the projected demand. Staff feels the applicant has a practical difficulty in meeting the code requirements of 465 parking spaces due to available site area. Because the Pond Arena will place some additional demand on the parking lots, it may be wise to designate additional areas for parking. In previous discussions, staff has recommended an additional 40 parking spaces be placed into a parking land bank for future needs. Although stormwater management is now a requirement, there is enough area within the site for these spaces. Hennepin County recommended approval of the access drives to Commerce Blvd. for three lanes to include right and left turn egress lanes, and one ingress lane. Access on Lynwood would include One ingress and one egress lane. The Lynwood access incorporates parking, a drop-off area and a two-way drive. This arrangement allows cars to enter and exit the site without conflicting with drop-offs. Convenient parking adjacent to the entrance for handicapped and elderly is a positive as well. Playground Area: He reported that the playground area will be moved to the northwest comer of the building. The new location will increase safety by preventing the children from crossing the driveway. It will be fenced and landscaped. The current playground area will become parking. 641 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Stormwater Pond: He explained that to control stormwater created from the new. parking lot, the site plan incorporates a ponding facility to retain and treat storm water runoff. The pond would be located north of the parking lot and would require that the hockey rink be moved a short distance to the north. The MCWD has reviewed the facility at a staff level per the newly adopted Rule N requirements. Based on the Planner's conversations with Jim Hafner, MCWD staff, and the applicant, the facility will satisfy new storm water requirements. Staff has suggested that because of the site constraints, an underground facility would provide additional flexibility for site needs, especially parking. As situated, the ponding area is awkward on the site with the baseball field, hockey rink and pond very close to one another. The applicant has indicated that this alternative has not been explored thoroughly enough to know if this may be an option. Landscaping: The proposal is to provide 91 trees which includes existing trees, new over story trees, and conifers. This is a variance of 32 trees as required by code. The 22 indicated in the letter is incorrect. The plan also proposes additional shrubs, bushes,' and ornamental trees located generally at building entry points, around the playground area, and within the courtyards. The plan reflects an updated plantings and screening along the new access drive to Lynwood. To better integrate the site into an overall downtown landscape concept, those trees planted along Commerce, Lynwood and the corner plaza area will be left out. Again, staff is suggesting that the monies that would be spent on these trees be placed in an escrow account until a downtown planting plan can be implemented. The trees would include: 7 Silver Maples, 8 Red Sunset Maples, and 2 Imperial Locusts. Lighting: The lighting plan shows locations exterior luminary locations and intensities. The parking areas will be illuminated with more typical pole mounted lighting. The Lynwood entry and pedestrian entrance from Commerce will use pedestrian scale lighting. Additional wall mounted sconces will be used for building lighting. Soffit lighting is used at building entrances. The lighting plan meets code requirements for intensity at property lines. Minor Subdivision Boundary Adjustment The Westonka Public Schools have submitted an application for boundary adjustment to expand their property to include Lot 18 of Lynwood Park addresses as 5700 Lynwood Blvd. The property is currently zoned R-2, One and Two Family Residential District and has an occupied residence currently. The lot measures 50 feet by 230 feet encompassing approximately 11,500 sf. In the rear of the property is a public alley used for access purposes. The Westonka School District has a signed purchase agreement for the property which is conditioned on approval of the Community Center CUP. As per .the submitted plans for the community center, the existing house will be removed to incorporate the lot into the site. 642 MOUND CITY COUNCIL MINUTES -'DECEMBER 22, 1998 Section 330:20 subd. I(B) Minor BOundary Adjustments states that "The relocation of a boundary line between two abutting, existing' parcels of property; such relocation not causing the creation of a new parcel or parcels and such relocation not violating the Zoning Ordinance." Based on the Community Center proposal, the incorporation of lot 18 will not violate the Zoning Ordinance. Staff has discussed the possibility of replatting the property to create one PID for the property. This is an option to make the property "cleaner", but is not necessary for any approval of the project as proposed. Additionally, rezoning the property to have one district rather than 3 was discussed. This too would make the site "cleaner" from an administrative review standpoint, but is not needed from a use standpoint. RECOMMENDATION: The Planner reported that in Staff's review of the case, they have gone through a number of conditions that they felt the plan could be approved contingent upon. BOth the Conditional Use Permit and with the approval of the minor subdivision/boundary adjustment. The conditions as follow: As per Code, the parking requirements would be 465 parking spaces which is based on the user type and square footage of the building facility. That would require a parking space variance of 185 spaces. Staff has been trying to work with getting to a future demand of 320 spaces because of future needs that could come up for the building, as well as spill over that may occur with the Pond Arena facility. Staff suggested that we get to 320 spaces, 40 of those not be paved at this time, but be used for future parking, if needed. Approve a 9' x 18' parking stall size. We have a 10" x 20" size right now. The applicant is requesting the smaller size to get more spaces in this area. Landscaping. There is a 32 tree over story variance requested from what would be 123 trees, required by Code. That would be on just the school portion of the site. It would not incorporate the ball fields. Stormwater Ponding.' This has been reviewed. The Minnehaha Ci:eek Watershed District has given preliminary approval of the facility. Staff has also reviewed this with Hennepin County as well as the applicant, for access drives from Commerce Blvd. Those are consistent as shown on the plan with their approval. They also need curb-cut variances of 14 feet along Commerce Blvd. for that. We also wanted to condition, the approval of the Conditional Use Permit on the transfer of ownership of Lot 18 to the School District. The last condition would be the approval of the minor subdivision/boundary adjustment. Staff recommends that the Council approve the conditional use permit and minor subdivision minor boundary adjustment as submitted contingent on the following conditions being met: 643 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 Conditional Use Permit: Approve a variance of 185 parking spaces. 2. Approve a variance for a 9 feet by 18 feet parking stall size. Designate an area on-site to land bank an additional 40 parking spaces for future use if necessary. 4 Approve a landscaping variance of 32 over story trees. Allow the 7 Silver Maples, 8 Red Sunset Maples, and 2 Imperial Locusts along the boulevard edge of Commerce and Lynwood to be credited in the landscaping count and plantings to occur in the future. The monies .which would be spent on these trees shall be placed in an escrow account which will be used for future streetscape work on the property. This account could be a joint Community Center/City account. 6. The storm water ponding facility be approved by the MCWD. Approval from Hennepin County for driveway access from the parking lot to Commerce Boulevard. Approval of a 14 foot driveway curbcut width variance along Commerce Blvd. to accommodate three lanes as recommended by Hennepin County. Approval be conditioned on ownership transfer of lot 18 to the Westonka Community Schools. 10. Approval be conditioned on approval of the minor subdivision boundary adjustment. Minor Subdivision Minor Boundary Adjustment: 1. Approval be conditioned on ownership transfer of lot 18 to the Westonka Community Schools. 2. Approval be conditioned on approval of the conditional use permit and variances for the Westonka Community Center, case//98-64. The Mayor opened the public heating. Mike Mueller, 5910 Ridgewood Road and Planning Commission Vice Chair. "I appreciate the opportunity to speak today. The Planning Commission Chair was unable to attend because of a previous commitment. The reason that the Planning Commission tabled this is because of a lack of information. What must ethically preface any consideration of the Conditional Use Permit, by the Council, before a recommendation comes from the Planning Commission, is: Are we trying to do the best job possible? In the Council packet, pages 4759 and 4760, there is a letter from the City Attorney, Mr. Dean, regarding a very valid question raised by the Planning Commission, regarding the lack of a vacation requirement for the public access alley. Without benefit of legal counsel at the Planning Commission, it is incumbent upon Staff to anticipate as best as possible, 644 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 what the concerns of the Commission will be. At our last meeting, Mr. Gordon stated that he had a 3 hour conversation with the City Attorney regarding this issue. Yet we had nothing in our packet regarding his conversation and also no letter from our attorney, to understand the grounds for not requiting a vacation. Information helps. At both the November 23rd and December 14th meetings, the Planning Commission heard expert testimony regarding the portion of the building referred to as the pods. Further, many of the Commissioners, myself included, have spoken with people who worked and utilized this portion of the building. When it was asked of the applicant, both in a letter to the editor, and at the Planning Commission hearings, if the pods had to be a part of the redevelopment process, no answer was forthcoming. I had a conversation with the City Manager, this past week, where he stated that he had a conversation with the City Attorney, who said that if the pods were not a part of the development, then the bonding company would have to review and possibly change language or rewrite the bonds. This is information that the Commission was not privy to and would have made the concern over the pods a moot point and we could have moved it along quicker." "In the packet for our last meeting, which we received from Staff, by delivery, at our. individual homes from our Police Dept. at around 9:00 P.M. on Friday evening, we had a large survey of the property without the inclusion of Lot 18. On that survey were Parcel A and Parcel B. They were labeled. Language in the packet led me and other members of the Commission to believe that the square footage stated on the survey was for the property which the CUP was to cover and that which it wasn't. Hardcover calculations and division lines were assumed to be from that survey. Upon questioning Staff, we found out that the survey did not apply to the Conditional. Use Permit, and is only a perimeter boundary survey. Nowhere in our packet was there information on a lot size or location of the proposed Conditional Use Permit site. The applicant then provided a fax, which Staff copied, and faxed out, showing a proposed boundary line that was used to calculate the hardcover percentage, as stated in our packet. It was also stated that the property line may change in the future and is only a possible representation of what the lot subdivision may look like. At the very first meeting, we requested this information. We got it as a handout, without a legal description, in the middle of our third hearing/meeting. A lot of this issue, including the subdivision of land, has been brought before you by the City Manager without a written report from the Planning Commission. The City Manager, a member of the applicant's board, has taken this upon himself, to skirt the process of checks and balances laid out in the city charter. Not only once, but twice, and spent our city tax dollars for an attorneY's opinion, to determine its legality. I consider this spending of taxpayer dollars as having the look of impropriety. The ethics went out on the first resolution and I would hope it also does tonight on the question of whether or not to proceed with this permitting process without the Commission's recommendations. We are still within the time frame, as established by the Council, at your last meeting. We were asking legitimate questions as evidenced by the statement in the letter from the attorney, as "very valid", not just valid, very valid on the vacation question and as evidence by the City Manager speaking to the attorney regarding the pods issue. Let's maintain high ethics, in the City, and continue to do what is right." Mr. Mueller then asked if he could direct a question to the City Attorney? The Mayor stated, yes. 645 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Mueller. "With regard to the lack of the vacation of the alley, to summarize your letter, what you are saying is that it is similar to what will happen with County Road 15 when it is rerouted over Lynwood Blvd. in that it was a road, it will still be a road, and therefore, there is not reason to vacate that portion east of County Road 15 now?" City Attorney. "I'm not familiar with legal details of that activity. What I said in my letter was that if you vacate the right-of-way easement here, you lose the fight to use that area for public right-of-way. I was referring to the alley-way." Mueller. "So the alley-way is being maintained as a public access and, therefore, it continues its use and doesn't need a vacation?" City Attorney. "If you vacate it, you lose the fight to use it for access purposes. Maybe I should clarify just one point here. The School District is not buying Lot 18. They are buying the south 220 feet of Lot 18. The north 30 feet of Lot 18 is the portion of Lot 18 that's covered by this alley. The fee title to the north 30 feet of Lot 18, it would be my opinion, without going back into the ancient records on that parcel, are owned by someone who probably last had title to that property in the 1920's. It would now be owned by the person or their estate. My reason for suggesting that the public fight-of-way not be vacated, is that at that point in time, as I said in the letter, both the City and the School District would lose control over the ability to utilize that particular area." Mueller. "So the applicant is not considered a public entity?" City Attorney. "Yes it is." Mueller. "O.K. So the Conditional Use Permit being for the joint body of the City and the School District, the alley is still maintaining it's public status and use?" City Attorney. "That would be my view, yes. Much like the driveway at your house that goes across public right-of-way and into the street. It's kind of a quasi-use by some other entity of that fight-of-way for driveway purposes. This would be pretty similar to that." Mueiler. "If that is the case, then I would like you all to turn to Page 4751 in your packet which is the researched opinion of our attorney which supposedly gives the Council the legal right to hear this Conditional Use Permit without a recommendation from the Commission. The third full paragraph reads as follows: "The Act" (which is State Statute),' also contains a number of provisions in which a planning commission recommendation is a prerequisite to council action. For example, in a city that has adopted a. comprehensive plan, no "publicly owned interest in real property within the municipality shall be acquired or disposed of" without the planning commission first providing a written report on such action to the council." If the alley does not need to be vacated because of the joint venture and the School District and City keeps it as a public access, then the acquisition of that portion of Lot 18 falls under this statute as acquiring public land and a written report from the planning commission is required before the council proceeds." 646 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 City Attorney. "You more or less have that right. I guess what I would say would be that the thrust of your argument doesn't relate to the alley portion of Lot 18, but relates to the rest of the lot 18, the 220 feet, which is that part that the School District is buying from a private party. That's where your argument,. I think, has merit. But, the point is, that the statute says that no interest shall be acquired or disposed of. That's what statute says, so what the statute provides for there, is that they can neither buy or sell that property until the planning commission has had a chance to take a look at that. That's a matter somewhat different than the question that is before the City Council .and that's looking at whether or not a Conditional Use Permit should be granted. I agree it's an item of unfinished business which may bare on the question of a Conditional Use Permit but, I think its different than the specific provision that you just referenced in the statutes." Mueller. "So, by granting a Conditional Use Permit over a piece of property that includes the south 220 feet of Lot 18, you're giving the School District the right to purchase that without having a recommendation in written form from the planning commission." City Attorney. "No, you've already got a provision in the proposed Conditional Use Permit that makes the Conditional Use Permit conditioned upon the approval of the minor subdivision. O.K. So that's step number one. The minor subdivision has to do with Lot 18. LOt 18, before a final minor subdivision can be approved, my office has to look at the legal title to that to determine whether the procedure for the School District acquiring title to that property was regular and according to law. Until the Planning Commission has had the opportunity to report on the question of conformity with the comprehensive plan as required by the statute that's referenced here, we would not give an opinion that they have met all the legal requirements of the law. It's not a direct response but, there are checks built in to the process, that would be put in place here, that would cover that issue and they've always been there." Mueller. "So even if a Conditional Use Permit were passed this evening for the property, which includes this plan which shows a two lane street over Lot 18 and that portion of the alley, even if it were approved tonight, there would still be a delay before it could be fully approved because of the fact that Lot 18 has not been presented to the .Council or to the Planning Commission, or the Planning Commission has not made a recommendation to the Council." City Attorney. "Again, I think you're pretty much there. The comment I would make would be, again, and I'm not saying what should be done tonight, but my point is that the City Council could approve the Conditional Use Permit but, delay the issuance of the permit, and this happens fairly frequently, I think you've seen this before. Delay the issuance, on the .need for certain preconditions to the issuance taking place. One of them would be, as is already indicated, in the proposed Conditional Use Permit, the subdivision being approved and recorded." Mueller. "As you can see, it's a difficult question, we've had to deal with and we struggled hard and worked long hours to try and determine if this Conditional Use Permit is the best thing for the City. I've also heard that if the decision is delayed any further, that a reissuance or rewriting of the bonds is required, at an exceptional cost to the School District. The School District, putting the cart before the horse and getting the bonds does not give the Council the ethical right to bend the process that all citizens must follow in obtaining a Conditional Use Permit. If this were any other applicant, say John's Variety 647 MOUND CITY COUNCIL MINUTES-'DECEMBER 22, 1998 and Pets requesting a permit, I believe the Council would not take this issue up without a recommendation from the Planning Commission. Thank you for your time." Dr. Pam Myers, Supt. of Westonka Schools. "Mr. Mayor, City Councilmembers, I'm pleased to be representing the applicant tonight in our planning together between the School District and the City Council for a community center in downtown Mound. I would introduce to you, members of the audience who are present, representing a variety of folk who are interested in this project, as I know you are." Dr. Myers then introduced the Westonka School Board members, Ned Dow, Bill Hultgren, Diane McCurry, Bruce Charon, Bob Bittle, Bill Pinegar. Mike Looby, Chair of the Building Committee introduced the members of that committee who were in attendance tonight. One of 4 citizens, Jim Regan, City Manager Ed Shukle, City Councilmember ~ Weycker, School Supt. Dr. Pam Myers, School Board member Bob Bitfle, and 4 consultants, 2 from E & V Construction and 2 from TSP/EOS. Dr. Myers. "Knowing that some of the City. Councilmembers are much more familiar With the 'project, than others, we've asked the architect to give some background information to the City Council about where we've been since we went to the public for a vote, December, a year ago and the voters voted in favor of this project." She then introduced, Mr. Bert Haglund. Bert Haglund. · "This project began as a jOint study that was done between the City and the School District. The study was done as to the concept that's before you tonight which is the renovation of the existing building. Some time was spent, there was a joint committee, that many people participated in, and time was spent to look at the renovation of this facility coming up with the concept which is embodied in the proposal tonight." "That, then was taken before the'voters in December .of 1997. The voters then did pass that referendum. After which, time was then spent ....... forming the Westonka Community Center Board under a formal Joint Powers Agreement between the City and the School District. That Board was in place about the middle of 1998, after which real planning began on the design of the project. We have been involved since about mid year, putting together the design, working with all of the different users, working wi. th the Community Center Board, and working with the Building Committee. We are now bringing forward the proposal that you see tonight. We have done our best to respond to the different requirements that the users have; that the Building Committee has put before us; that the Community Center Board has put before us; that the Planning Staff has put before us; and that the Planning Commission has put before us. I believe that we have answered, in a very responsible way to, I feel, all of those concerns that have been raised. We provided information, through the Planning Staff. At each step of the way, we've been in touch with them closely and have provided them information at each step along the way as we and they have understood it. So, I guess, in short, that is how we got to where we are today. I think the technical aspects of the project are pretty well answered. Mr. Gordon did a good job of presenting that." 648 MOUND CITY COUNCIL MINUTES; DECEMBER 22, 1995 Tom Reese, 5641 Barrett Blvd. "What, I'll have to say tonight is familiar to many of you here. When Bert talks about how we got here, he omitted a very important part of how we got here. What I have to say has nothing to do with the Planning Commission's reservations on this project.. It's my own reservations and those' of many citizens that have worked very hard on this and have now been ignored. I was part of a two and a half year study that arose out of the original bond issue because part of that bond issue was to do something with the old school. No thought had been given, at the time, it was just an assigned amount of money without really assessing if it would be adequate .or not, $1.9 million dollars. As we completed, successfully, the rest of the project, we got to the last $1.9 million and did an assessment and found that it wouldn't begin to scratch the surface of what needed to be done. Then a study team was commissioned and we spent more than two years exhaustively studying what the best outcome would be for the City. The outcome of that study was that the building should be torn down and replaced with one about half its size for about $9.2 million dollars.. The building, one half its size, would have in it those things that people want, like a zero depth pool; like family lockers; like a fitness room;, like a double gymnasium; like a walking area for winter walkers; like congregate dining. The things that will bring people to town and yes, the things that will cause people to buy memberships in it and help pay for the operation of it. That was the recommendation of the study team. We wrote it up but, there was nobody to give it to. Nobody wanted it. Then, Mr. Mayor, you came up with your bond issue and you said the only option was to repair the old building and not have the community center. You said that at meetings and I was there. I stood up in a meeting and said, Bob, that is not correct, there's another option. The question to the voters should have been: Do you want a community center or not? Yes. No. Do you want to fix the old building for $9.2 or do you want to have a brand new building, half its size for $9.2?" "That would have been a proper question. This whole process is flawed. It's unethical and it might even be dishonest. You're tearing this City in half with what you've done. It's not a good way to leave office. The people should have a chance to vote on the real option. You never gave it to us." Mayor Polston. "Well Tom, you remember history a lot different than I remember the history of this whole building and you're entitled to the way you remember it but, I must tell you and I must tell you publicly, that what you're remembering is what's flawed. Tom Reese. "I have an excellent memory, Bob." Bob Dorfner, Upper Tonka Little League, and girls softball. "I am also a loss control engineer for three major insurance companies. I've had the experience of visiting a lot of the other community centers, Shoreview, Woodbury, and such. Some of the other domed fields and stuff. I know the one off of 94 they put up for $1.5 million dollars. It's basically a football size domed stadium. They paid for it within one year just on rentals for the off time that the college wasn't using it. They put one out at Woodbury. They put one out on Rice Street in St. Paul. They use it a lot for wheel chair access and people with walkers and stuff, all winter long so that gives them a facilities without having to drive to one of the Dales or something like that. I know the public voted to redo community center but, I think we've changed some things that were originally drafted in that. Part of that was acquiring additional property to meet parking spaces and stuff like 649 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 19~8 that. I think some of the things that'were originally sold to the public for redoing the building was gymnasiums and stuff like that. Right now the girls are suffering drastically for the gymnastics program. We need more additional gym space so even if we do remodel the building I think one of the top priorities that you do there is eliminate the rental space and provide the community with the space that they need for the programs that are supposed to be there. This was a ..... my understanding a CUP, location that was supposed to be used for school functions and stuff like that and then with the bending and the building for specific, because of the classrooms and that, that we opened it up for community rental and dental offices and such. But, if we are going to be remodeling the building, we should be remodeling with the thought in mind, that all the space that is available in that building should be used for community functions, not for rental space. In that capacity, we would be Competing with the private sector and that's not the job of the City. We are supposed to be providing gym space for girls gymnastics, gym time for basketball and volleyball and whatever else, not office space for businesses. I think even if we scrap the building and it costs us a million dollars to tear the whole building down and build a smaller building that's got a community kitchen and dining room, whatever, and build a dome, we could probably still put up twice the space for 2/3 of that $9 million dollars. The way we're going now, we're losing a gym and a ballfielct for additional parking. In my opinion, the theater was originally designed to go up to the high school. You could build the boys wrestling room on the ground floor adjacent to the boys locker room. You could build the district offices on the main level where you've already got the parking. You could build the theater above that and two more floors. It's a lot cheaper to build up than build out and you don't have to put any parking in because it's already there." Mayor Polston. "We need to tell you, that one part of your presentation we absolutely agree with and that's the part about not providing rental space for businesses that will be competing against downtown businesses. Early on, the task force addressed that issue and the community center is, in fact, going to be a community center that will serve only community purposes. There will be no rental space to commercial enterprises to compete with downtown businesses." Councilmember Weycker stated that she had referred to the Senior Center and WECAN as tenants and this may have confused the issue, but they are not commercial renters. Bob Dorfner. So with all that floor space, we still can't provide gymnastics floor space for them? From what all I see, we see one gym there and it's going to be a basketball court and I know from past experience, the girls are going to lose out. This is not a selfish conflict on my part. I don't have any daughters in the program. Mayor Polston. I don't want to belabor this thing and drag it out all that long but, I just would like to tell you, from the beginning of this process which, I think it was 3 or 4 years ago when we originally started with the planning part that Mr. Reese was referring to. Then we got into the joint venture between the City and the School District and I have to tell you, in all honesty, that both from the City's standpoint and from the School Board's standpoint, we realize and know beyond any shadow of a doubt, that there is not going be less pressure for recreational facilities; for more ballfields; for more gym space. We know that as this community and the surrounding communities within the School District, develops, there is going to be even more .pressure for recreational activities and space. We have had preliminary discussions and talked about what we could do, not only 650 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 as the City of Mound, but the City of Minnetrista and Spring Park and those other cities that are involved within the School District to work together, collectively, with the School District to do what we can and use all the resources that we have available to try and respond to those recreational needs that there will be pressure for. We sat here as a Council over the past few years and felt extreme pressure for more Babe Ruth baseball fields and more recreational facilities. It's never going to end and we should respond to that as a City and as a School District but, we can't solve all of the issues with a single project." Bob Dorfner, "Well, I think maybe we can. We've already put this big, beautiful parking lot up there by Shirley Hills. We can build up on top of Shirley Hills and provide some additional space there. We can build up at the high school. We can build on additional space at Grandview without building any more parking lots and using up space for ponds and what you end up doing is tearing down the old high school and the pods and put a bubble in there and then you don't lose any ballfields. You don't have to waste any money on parking lots, cause it's already there. That's where I'm at." Jim Funk, 2949 Oaklawn Lane. "I guess I agree with you Bob that we're probably not going to be able to solve all the needs of our community. There is going'to continue to be more pressure there and the recreational needs, are going to grow. I think the community, in general, agrees with that. I also think, that it behooves us even more to make sure this $9.3 million dollars is spent in the most efficient way. A lot of things I hear concern me that maybe we are heading down a path where we are not going to get the most bang for our buck.' I think it's possible but, there are a lot of unforeseen issues hanging out there and those are the kind of things that can come and bite you later and end up costing overruns and you end up having to compromise later on down the road. I hear stories, I don't know if it's true or not, about insidious mold in the pods that you can never get rid of. If that's an issue, you can end up redoing that and then they detect mold. We've heard of public buildings that have that problem in the past and they spent hundreds of thousands of dollars or millions to try to correct that. I'd hate to see us facing that a couple of years down the road, cause the mold returns. These are the kinds of things I think should be looked at closely before going ahead with a Conditional Use Permit. Seems like a lot of good work's been done up to this point and I don't think that has to all be thrown out but, to evaluate some of these concerns in a little more depth to make sure that we aren't throwing some money away and not getting the most bang for the buck, I think is prudent and responsible, at this point." Mayor Polston. "I appreciate that generally~ I guess I just have to say, if you listen to all the negative comments that anybody would ever make over any public project, you would never get anything done if you didn't work diligently and hard like the members of the School Board and the City Council have with the professionals that we've worked with to advise us. Let me assure you that this is a good project and it will serve this community well and I appreciate your concerns but, this is not a process that we took lightly nor 'that we jumped into. There have been excruciating hours of planning and talking and reviewing the possible problems that you bring up and we appreciate being able to respond to you. We went for over a two year period where we conducted public hearings and meetings and public information meetings and we tried to make all of the information as we assimilated it, available to the public and it was certainly there for anyone who would have wanted to attend the meetings of the task force and later the WCCB. You raised some valid points and you should be able to be assured that this, in 651 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 fact, is a good project for the community and it will, in fact, serve the needs of the community for a long time." Jim Funk. "The Planning Commission brings up a lot of issues that they said they didn't have information on. I'm not sure if those have been addressed or will be or if those are all valid concerns but, I think they are all things that need to be looked at." Dave Halbmaier. "I own Lots 19 & 20, Lynwold development, adjacent to Lot 18. I'm not really that familiar with this format. All I have is questions and I don't know if this is the appropriate place for me to ask those questions." The Mayor asked what questions. Dave Halbnmier. "What's the status for the purchase of Lot 187 What's going to happen to the grade there? What's the status of the alley? They said the technical information has been presented but, I don't understand. Dr. Myers stated that they currently have a purchase agreement with the owner of LOt 18, contingent upon a Conditional Use Permit from the City Council. The project starting date for the parking lot and the driveway area is about May 1, 1999. Bert Haglund explained that the grade of Mr. Haibmaier's property should not be affected by the project. Mr. Halbmaier then asked about the trees that are close to the property line. Mr. Haglund stated that he will be in contact with Mr. Halbmaier and work with him to minimize any effect on his property. Mayor Polston. "If you have concerns about specific trees or items that are on your property, that would be something that you would negotiate directly with the project engineer and as a City, we would assist you in any way we could. I think that they are going to be very cognizant of a neighbor, if you have concerns about a tree or loss of a tree, etc. The Conditional Use Permit is what's before the City Council tonight." Dave Halbmaier. "So my questions are merely before, they're germane to this conversation but they would still have a chance to be addressed even if we go forward with the Conditional Use Permit?" Mayor Polston. "As a property, owner that's adjacent to the property, you're concerns or any riffs that you're going to have as a result of the project is certainly a concern of the City and of the School District. We're happy to answer your questions but, we're here tonight to discuss whether or not to issue a Conditional Use Permit, without which, the project does not proceed, period." Councilmember Hanus. "I have to take issue with what was said here. I don't at all believe that an agreement, after the fact, with the project manager or the project people is the appropriate place. The CUP is exactly the appropriate place to deal with it. That's the very reason we do CUPs. That's the very reason we advertise to 350 feet." 652 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Mayor Poiston. "Mark, you can't write everything' into Conditional Use Permits, that you're going to pay for damaged trees." Councilmember Hanus. "If you'd like me to dig the code out, I can show you where the code specifically talks about dealing with abutting owners concerns. That is what the CUP is-for. If there's concerns here, they should be included. Now, that could be done in perhaps some stretchy method. For instance, make that a condition of the CUP, that an agreement is reached with the neighbor prior to the CUP becoming active. There are different ways to do it and still pass the CUP but, that's the very reason for the CUP or one of the primary- purposes of it." Dave Halbmaier. "I'm neutral actually, on the project. I'm not pro and I'm not against but, I would like to have those concerns addressed and I'd like to make sure that my property value isn't negatively affected as it relates to this project. So, I'm not being obstinate. I just want to make sure that those things are addressed. If this is not the appropriate time, then you as the City Council tell me that. If it is the appropriate time, then I want those things on the record." Councilmember Ahrens asked if she could ask the City Attorney a question. Councilmember Ahrens. "If protecting the adjacent property owner's rights is not dealt with as a condition of the CUP and the adjacent property owner's rights are infringed on, his property is negatively affected, his value goes down, whatever the case, is his only recourse then through the legal system if it's not addressed in the Conditional Use Permit? Is a civil action the only recourse he has?" City Attorney. "Probably so and I'm using civil action in the broadest sense there. In other words anybody can sue somebody at that point." Dave Haibmaier. "I would like to avoid that." City Attorney. "So, I guess that would be recourse if it were not addressed in the Conditional Use Permit." Mayor Polston. "By the same token, you can take all the precautions. You can write anything that you want to write into a Conditional Use Permit and if he still sustains damage to his trees or to some property and the project coordinator or the owner or the developer of a project doesn't respond and take care of the problems that they have created, the only appropriate place that anybody has to go is, of course, to court. But, we don't, historically, sit here on projects that we have dealt with where we issue Conditional Use Permits and start writing into Conditional Use Permits that every tree and tree root has to be protected. That is expected of a project that is carried out within the City of Mound." Councilmember Hanus. "That is correct but, as an example, Seton Bluff was a recent project that was done. We heard a lot of testimony from folks sitting out here that were real worried about silt and runoff and things of that sort and we changed, I can't specifically name what the changes were, but we changed things in that plan in order to appease the people that were concerned, the neighbors. So it is done." 653 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 The Mayor asked Mr. Halbmaier if he got the any answer to his question? Dave Halbmaier. "I'm more concerned now than I was before. I have a couple other questions. 1. I don't understand what' s going on with the alley. Is the alley changing? Is how the alley's being used changing? How? Mayor Polston. Maybe, you should, Bert, talk about the alley and point out what it is because, I think he may have a misconception of what alley you're talking about." Dave Halbmaier. "I'm talking about the alley which is in the north 30 feet of Lots 19 and 20. That's what I'm referring to. The existing alley. Is that alley's use and is it changing?" Bert Haglund. "No. It's changing only to the extent that Lot 18 is being acquired and so that portion of the alley that is abutting Lot 18 will now become part of this project. However, the alley as it extends to that point, will be unchanged." Dave Haibmaier. "So it will terminate at the end of my lot or the 30 feet that who knows who owns it. That's not part of the plans to make that a thru alley way, is that correct? There's no plans for that, at this point?" The Council stated, not at this point. "I'm still uncertain, as to where that leaves me, related to the details. I understand the tree roots, but it's more than that. If there's a fence, where the fence going? How's the grade going to be? Those are some of the details I would like to have a better understanding of. Councilmember Hanus. "This may not help you, but if I could, I'd like to read the one little subsection of the code and it's relative to Conditional Use Permits. It's our Code Section 350:525, Subdivision 1. A., criteria for granting Conditional Use Permits. 'That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the immediate vicinity.' That's the point I was addressing earlier." Dave Halbmaier. "So what do I do?" Mayor Polston. "Are you more concerned about where the fence and the, I'm not sure I understand exactly what ..... " Dave Halbmaier. "No, I know where the fence is going to go. I'm talking about, is there going to be a fence which I heard there is going to be a fence? Where does it start? Where does it stop? There are trees planted in that area, in fact, I think the property actually runs right through the middle of another tree. There's another tree adjacent. I'm concerned about those trees being lost. I'm concerned about how it affects my property. So I see that there will be trees planted, which I'm happy about but, I guess I want details and where to get those details?" 654 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Mayor Polston. "The details would be available from the plans that the architect has prepared, as to where the fence is. going or approximately how far from your property line that it's going to be. The detail I would have.to refer to Bert, to go into with you, to show you where the fence and answers to the questions that you have." Bert Haglund. "I don't know that I can give you a dimension fight now. It's close. I think that what I should mention is, that these drawings that you're looking at are not construction drawings. They don't give particular detail of some of the things that you're asking about. Some of those details still need to be developed in their final form. We'd be happy to sit with you and discuss, with you, what our intention is and to do it in a way that we can best respond to your concerns. I guess I would ...... in working that out because you are abutting the property and you have concerns and I think it's only fair that we would ....... you and work through those details so that you fully understand them as they're being developed." Dave Halbmaier. "I want to be totally reasonable. For example, maybe the fence starts ten feet into that 50 foot lot, I don't know. Maybe that fence starts 1 foot in, I don't know what the plans are. On a 50 foot lot, how much do you plan to remove to make that roadway?" Bert Haglund. "I can answer that. We're trying to maximize the use of that 50 feet, the width of that lot. So, we're trying to come as close as we can to that property line. So that is our intent. We're trying to maximize the use of that. It would be fight at the property line, as close as we can." Dave Halbmaier. "So what do I do to make sure my concerns are a part of this and that we will reach an agreement on that?" The Mayor asked the City Attorney to respond. City Attorney. "That's one of the issues that the Council looks at. The impact on adjacent and surrounding properties by the proposed use." Councilmember Jensen. "Would it be inconceivable for us to include as one of the conditions or to add another condition that simply says something to the effect that the design/construction plans for work affecting Lot 19 be reviewed and reflect the owner's concerns as just a condition for the Conditional Use Permit?" City Attorney. "I think that sounds like pretty good language to me. You might want to add to that, that absent that owner consent, they cannot enter onto his property and in anyway affect the grade or slope of his property, either. In other words, they can't do anything on your property." Councilmember Ahrens. "Or the growth of trees?" City Attorney. "Well, that's an issue because if you stay on your property and grade your land and by doing so, damage a neighbors tree roots that happens to be growing on your property, you may by doing that, damage the neighbors tree. The question is, to what extent does the City want to exercise some sort of restriction over the fight of the School District to use land it's buying in order to protect a tree on a neighbor's land. I 655 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 don't have an answer for you but, I think that you have competing property interests there and maybe not an easy answer as to how to balance them. I think that Councilmember Jensen's language is an excellent solution." Councilmember Hanus asked for the language to be read again. Councilmember Jensen. "I made a few adjustments. It goes something to the effect: (Design/construction plans for work on Lot 18 be reviewed and reflect Lot 19 owner's concerns). WCCB cannot impact greater slope of Lot 19." Dave Halbmaier. "I would like to have something about negatively affect my property and I don't see anything about damaging of something else. A greater slope, I don't see anything about damaging any trees that are on my lot. How do we address that part of it? I believe one of the trees is on the property line, so that's going to go. I know the other one is maybe within 10 feet of the property line. I don't think it will survive it." Councilmember Jensen. "We've got plenty of time to continue to negotiate this. The design/construction plans for work on LOt 18 can be reviewed and reflect Lot 19 owners concerns regarding, grading, trees, runoff, erosion, etc. Language can be added." Councilmember Ahrens. "My problem with the language is that reflecting your concerns doesn't necessarily mcan you have veto power or that they have to do anything that you agree to. They can say, they considered your concerns, under that language and it's a matter of whose got more priority. Whose rights are bigger. That's how I read that language." Counciimember Jensen. "Yes, do we want to give the owner of LOt 19 the ability to veto and control the entire project?" Councilmember Ahrens. "Or do we want to have the project control the adjacent property owner?" Mayor Polston. "I think that we're fighting a battle here that we want to protect the rights of the property owner, while protecting the rights of the people who are going to do the project and I think that's what this gentlemen is looking for." Dave Halbmaier. "I think we can do that." The Council all agreed that this can be accomplished. Mayor Poiston. "I don't think we need to do anything other than perhaps what Councilmember Jensen has suggested, if, in fact, that satisfies your concern and the intent is to protect your property fights and I'm sure that the School District and the City is just as interested in protecting your property rights as they are in proceeding with the project." Dave Haibmaier. "It does go to the matter of intent and I don't know. I guess if they truly are interested in that then I think we can reach something. I'll be totally reasonable about it. 656 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 Mayor Polston. "I would not be in favor of writing into the Conditional Use Permit that a lot owner has veto power over a complete project because you would be opening yourself up to never having a project ever being completed, ever again." Dave Halbmaier. "Can't there be something about mutual agreement as to how the adjacent property line is addressed?" Mayor Poiston. "I don't feel comfortable sitting here negotiating .Parameters for committing the applicant to something unless they're in agreement with. it also." City Attorney. "What if the language were to say something like: "As a condition that the City is satisfied that the applicant has taken all steps reasonably available to it to address the concerns of the adjacent property owner regarding: grading, trees, runoff and erosion". That way the City remains the arbitrator of whether or not all has been done." The Mayor asked if the applicant had any objection to this? Bill Pinegar, Westonka Community Center Board as well as the School District. "I would like this gentleman to have reasonable assurance that we aren't going to trample on him in any way, shape, or form. We're going to be neighbors for a long time. For as long as you choose to live in this community. We've worked with some other adjacent property owners and I think they would attest we've shown appropriate respect and restraint in dealing with them in a very appropriate manner, under very difficult circumstances. I believe it would be mutually agreed, both would be concerned about a veto power. That can be that when you're dealing with your property. These sensitive issues that are, perhaps, difficult to deal with. I think we've shown in the past, that we can deal with that in a very respectful way." Dave Halbmaier. "Then my final question is. I need to figure out how and who I make contact with or who contacts me regarding some of those details? Dr. Pam Myers, Supt. of Schools introduced herself and gave Mr. Halbmaier her card as a contact. Mayor Polston. "There is a citizens committee that is involved with the Building Committee. You can get the dates and times that that committee is meeting and you can certainly attend the meetings if you want to keep abreast of the project's progression. I would encourage you to do that as a person who is in the neighborhood." Mr. Halbmaier thanked the Council for their time. Marshall Anderson, 5736 Lynwood Blvd. "I live a couple of houses down from Dave's property. I just had a couple a real quick questions. I see that we're still going to have our dead end alley. I appreciate that because our kids go down there and play. The only concern that I see is that the parking lot is all the way down against the alley and I think that the original plans were to have the overflow pond against the alley. Can I ask why that was reversed?" The Mayor asked Mr. Haglund to respond. 657 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Bert Haglund. "You are correct that in the early concept plans that we had looked at, we were looking at having the parking lot a little further to the north and then on the south edge of the parking lot, having a stormwater pond and we also had shown the playground to be there as well. As we started to actually develop the project and work with the Building Committee, we were looking at some pros and cons for that arrangement and one of them was the playground, of course, and we moved that closer to the building for a safety reason which was a very good move. Then when it came to the parking lot itself, the relationship of the parking lot to the building and where people would enter the building, there was a real concern about having parking at a distance froTM where you might enter the building. One of the concerns of the Building Committee for the project was to try to put parking as close as we could to where people would be entering the building. There was a question at one time of whether we would need to have a pond, perse, and ultimately we are having a pond, but there was a period of time where we were thinking we might be able to negotiate with the watershed district." Marshall Anderson. "Is the pond going where the outdoor ice rink is now? Bert Haglund. "Yes." Marshall Anderson. "O.K., here's my next question. I understand about moving the playground. I agree that the kids should be close to the building but, to put the pond on our side, we still have our open space that we're now losing because ..... One of the concerns we have is that unless this is done right, we feel that our property values could go down. So maybe the green space being on the south side of the parking lot rather than the north, may help our property values maintain, rather then detract from them." Bert Haglund. "I really can't respond to property values and the effect of having a screened parking area across the alley, compared to having some additional gr~en space. I really don't feel qualified to know if that would have an effect or not." Marshall Anderson. "Well, I don't know if it would have an effect either, at this point but, depending upon what types of trees they are, in winter that parking lot may be perfectly open and certainly detracting from the property values on that side, depending on traffic and other situations like that. So, all I'm suggesting is that, in my mind, having the pond on the south side of the lot is a better alternative." Mayor Polston. "I really have to honestly tell you that having the pond closer to or adjacent to would be more detrimental to property values than having it ........ If a stormwater management nurp pond." There were some comments about the pond being a mosquito breeding ground. Mayor Polston. "You could refer to Lake Minnetonka as a mosquito breeding ground if you don't do something to control the mosquito larva, which is done. But, I have to tell you in all honesty that I believe that having a stormwater management pond closer to your property would be more detrimental as far as reducing the property values than having a parking lot there." 658 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Marshall Anderson. "Perhaps that's true, I can't disagree with that. I guess what I'm mostly concerned about is having asphalt right across the alley way without the green space, which is what we have now and feel that we're losing that appeal." Bert Haglund. "We're not completely insensitive to that and when we were working with the Planning Staff on this issue, we did not put the ...... there's a certain setback that is required off of a property line for paving. We've set this back a little further then what we could by ordinance and we've provided some additional plantings there. Those are conifers so that at any time of the year you are going have an effective screening. So it's not like the leaves are going to fall and then you just simply see the asphalt." Bob Brown, 5453 Three Points Blvd. "What you're going through tonight is what the Planning Commission's been going through quite a bit. Dealing with a lot of different problems. One thing Bert mentioned tonight was that these are not construction drawings. This is one of the things the Planning Commission has been asking for is actual drawings of where things are going to be. Lot 18, I have some concerns. They're asking for a simple boundary, movement. When I owned 5700 Bush Road, I had to acquire Judge Wolner's property, twenty-five feet. I came before the Council and asked for a simple boundary movement just to acquire the property and make it all one piece. At that time, I was told that doesn't happen. We go through ..... I had to have Eagan, Field and Novak come in, resurvey the whole property and then I had to come before the Council with a new plan showing the new boundaries and it had to be a complete incorporation of one property. So I have some concerns about that. It's been a new plan brought up with ..... Also in November when I was elected, I was elected as a public official, and sometimes I think the good of the many seems to out weigh the needs of a few. Those are some things we need to concern ourselves with." Mayor Polston. "Just one comment to your question about preparing construction plans and specifications. I don't know of any project that does that. Expends the money to do absolute construction plans prior to a whether they know whether the project is going to move forward. It's normally done when they have some assurance that they are going to be able to do a project." Bill Pinegar. "I have nothing new to add to the information tonight but, we've worked together for two years now on this project and I'm pleased we're at the point where we're maybe making a decision on being able to move forward and selling some bonds. I was here for other questions that you may have regarding what we've worked on so far." Dan Iverson, 4640 North Arm Drive. "Throughout the whole process of the community center, I saw this like Tom did as maybe an ill thought out project. Taking an old .building, trying to remodel it. I know you can give all the assurances you want that, take my word for it, it's going to work, it's a good project, we won't have mold, it won't come back on us. We won't have to put up do not touch or remove asbestos signg, you're still going to have that, I mentioned it before, an old building with wide hallways, high ceilings, basic square block constructiOn of the late 30's. It's not really a functional facility and it never will be. I have serious questions, too. In addition to the cost that you're looking at and in regard to that cost, you say it will cost us a million dollars to knock it down and we can't afford to do that, it sets the project back regardless if it's a new or old one.. But, if you've been watching the news in the last few years, one 659 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 community, one county, one city, one state after another is suffering huge miscalculations or losses due to unexpected recurrences of health problems due to mold and asbestos, asbestos abatement. Now if you think this million dollars now is exorbitant, take a look at the most recent articles in the paper, such as LuVerne - $3 million dollars. In five years, if a problem is discovered, and believe me the legal system will be right behind it and will clamp you down like right now, and force you to evacuate or remedial the situation. If you think the cost is expensive now, you wait five or ten years or less and see what the cost is going to be as environmental issues soar and the cost of removing this debris (hazardous material) becomes much more costly.' "The advantages of a new building, like Tom said, are obvious. You know what you've got. The layout can be cost effective, efficient. You can utilize.planning and architectural design that's suited to your building. Another thing, you've got WECAN, you've got the city offices; maybe your school offices; you're targeting also some of the elderly functions. But, you have a large, large, somewhat irresponsible, looking for something to do segment of this community and that's your teenage, young youth. All the way from 7, 8 up to 16, 18, 20 and they have nothing to do in this town. I don't care what you're going to say. I've got kids in that age and they're going to go to malls, to Waconia, they go anywhere else, but Mound. There is nothing to do in Mound. Now, you're planning to spend a huge sum of money, and I'm a little ticked with the school district for allowing it to happen, for that large a sum of money targeting the very kids that they're supposed resources. All throughout this project, as I've to be tied up in a project that isn't more to be providing resources for, important been following it, following the meetings, there's been issues, one issue after another as they try to take this square peg and put it in a round hole and this is just the superficial concerns. Now, and I've also addressed a little bit of my concerns about the interior of the building and what's going to happen. Now, it's easy to say, believe me it's a good project, take my word for it but, that's a ten million dollar word and it could be real expensive in the future. When you say it's expensive, we can't level it now, just think about the potential costs in the future. Not just financial. We've got a lot of young people in this community and you've got a lot of professionals who would like to come to this community just based on the lake and the rolling hills. It's a nice community. It deserves, we deserve, and it's been my stand from the beginning, and it will be my stand til the day you finally complete that albatross." Mike Mueller. "Earlier I spoke with regard to items I felt were important to whether or not this Council should be having this meeting tonight without a written report from the Planning Commission. But, I do have, and if you are going to proceed with it, there are questions that need to be addressed with regard to the project itself, from a planning standpoint. Is this plan, the one that was presented by the school district, to the public, prior to the vote on the bond issuance with the west entrance away from downtown, removal of the east entrance, a large pond, variances for numbers and size of parking stalls, the acquisition of more property at inflated terms and price, and the largest question, is there enough money to do all which was stated in the plan, if unforeseen costs include scrubbing the pods for the proliferation of mold spores caused by the extensive leakage of the roof?. Does this plan meet with the comprehensive plan standards set forth by the City's Economic Development Commission, Planning Commission and Council? Should we approve it, if the back of the building is facing the busiest corner of downtown? If the property, as a whole, is that which receives a CUP, what is the hardship preventing the parking stall size variance when we have reports that the largest selling vehicles in the midwest are trucks and sports utility vehicles which need more room and therefore, in 660 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 practice and reality, will take up more space than what will be stripped? Where do buses park. on nights of football games when the lot will be utilized to its maximum capacity? If the Conditional Use Permit covers the whole of the property, the football field is part of the property. Football teams come on buses, fans come on buses.. You need to deal with th~tt." "Should cost alone be the 'hardship for not having investigated the 'possibility of underground treatment of stormwater, as was reCOmmended by staff and which will be a required part of our downtown redevelopment and also was utilized by Norwest Bank when they built their new building? We didn't even have them investigate that and yet it was staff's recommendation. Without the pond, the need for parking stall size variances and number of parking stall variances loses the hardship. There's plenty of property. If we take the pond and put it underneath in a stormwater management process that utilizes underground areas." · "One of the things that you stated Bob, was that construction drawings aren't required as part of a Conditional Use Permit. Yet, I've been sitting 6 plus years on the Planning Commission,. maybe it's 7, and I look at the most recent one that I know of a Conditional Use Permit, where we required construction drawings, was on the Amoco Station car wash on the comer of Three Points and Commerce. We changed where the access drives would be. We made sure the signage wouldn't interfere with the visual aspect of turning in and out of the property. We've done drainage, we've looked at... In all cases, I don't know of a single case where we haven't had at least some kind of construction drawings with regard to entrance, exit, and how close the building sits to the property lines, where the driveway will be located incorporated with the property lines, those kinds of things. I don't remember one. Yet, you're going ahead tonight without that." "The access driv$, turning radius for buses from Lynwood onto the old alley way, Lot 18, whatever you want to call it, we normally look at that kind of stuff. We look at the radius for fire engines to go in that area. We don't have those kind of drawings tonight. We haven't talked about those. The school district hasn't provided them. I would hope they would be reviewed before you go ahead and give them carte blanche to go ahead. Can this plan include a two-way street and be constructed without regrading Lot 19, I remember Lot 19 going up pretty quick off of the street. There might even be a retaining wall next to the sidewalk. If that's the case, how are you going to have two-way traffic going in and out if you can't see? We don't have grading plans that show what the driveway will be to see whether or not this makes sense to put a driveway in there? What is the legal description of the property which gets the CUP? We've been told by the applicant, that there will be a subdivision in the future and that's when a Conditional Use Permit will apply. That's not the way to give a Conditional Use Permit, carte blanche, over a large area which we know, and the applicant has stated, and staff has stated, that there will be a subdivision in the future but, we don't know where that is yet." "We know the hardcover calculation if this is where the line goes. If this is not where the line goes, we don't really know what the hardcover calculation is but, we'll give them approval based on what they tell us. I'm a certified and real estate appraiser of residential property and I will beg to differ with you Mr. Mayor, a parking lot versus a pond, you're wrong. ". 661 MOUND CITY COUNCIL MINUTES DECEMBER 22, 1998 Jim Regan. ':Mike, you have a short memory. You were on the other side of the fence when we built Commerce Square. All we had were conceptual plans when they were all approved. I don'.t know of any large project where they have the construction plans before the project is approved. It would be a waste of money to do all the construction plans for this and then have it turned down. We had to go to many agencies to get permits before this is approved. Why would you do the construction plans before you had all the permits? Now I'm sure thatin the construction of this, they're not going to break any city codes. They would be foolish to. They will follow the codes as they axe. Why are we concerned about it? I think that the man living next door does have some concerns and that can be put in there that they'll negotiate those concerns but, it should not stop the project." The Mayor closed the .public hearing. Councilmember Jensen. "Several people brought up concerns regarding mold in the building. I would like to ask someone involved in the construction, what the plans are regarding addressing that issue?" Cheryl Badinger, E & V, the construction and consultant management. "The school district has hired a consultant to come in and do a survey of the mold and the asbestos in the building at this point in time. They are conducting that survey right now. The project has budgeted for asbestos and mold removal, if required. Councilmember Jensen. "What would be involved, if it were required?" Cheryl Badinger. "There are several different processes but, usually it's bleaching the surface that has the mold in it, is what I"ve seen in the past." Councilmember Ahrens. "Does that. always solve the problem?" Cheryl Badinger. "We go through air monitoring and testing after the process to see. You have to stop the water which grows the mold, from my understanding. We would have to bring a consultant in to access." Councilmember Ahrens. "If the water is stopped and you use that process, it's a 100% cure?" Cheryl Badinger. "What I've seen in the past. I couldn't swear to that. That's why we hire the consultants that are environmental consultants to deal with the mold and the asbestos, to review and write up specifications to rid the mold, if necessary." Councilmember Jensen. "With the elimination of the east entrance, how many entrances will there be to the building and where are they?" Loren Gordon. "There are several entrances to the building. The existing entrance on the south will remain. The entrance on the north, which is an existing entrance will be extended and provide on grade access into the building and access to an elevator. That will function as a primary entrance to the building, especially off that parking lot. The entrance to the north in the pod area will remain. The existing south entrance, in the pod area, off of Lynwood will remain. Along the east side of the building, there are several 662 MOUND CITY COUNCIL MINUTES-DECEMBER 22, 1998 points where you can exit the building. In essence, all the main entrances, that are on the building today, will remain, with the exception of the one off of. Commerce Blvd." Bob Brown.' "I owned an insulation contracting business and approximately 10 years ago, we had a City Building Inspector, Jan Bertrand, and I owned Dependable Insulation Contracting Services. I worked with Ms. Bertrand when she was concerned about the asbestos and mold in the school. We did go to the building, including the boiler rooms and I believe the company at the time was Safe Air Systems but the city should have a report on that asbestos and mold from that company. There was quite a bit of mold and the boiler room was completely filled with asbestos and was a real concern." Councilmember Hanus. "I have three areas of concern that I would like to address. These are more procedural in nature than they are specific site issues. It's difficult sometimes to separate the subdivision issues from the CUP issues. That's the next item on the Agenda, since one is so pivotal on the other one. I will try and keep it on the CUP issues. The project, as described, includes, with the legal description that we have, the entire building site that we see here including the parking lot area but, it also includes the football field and the baseball field. It is the entire lot area, as I understand it. The project, as described has no hardship or practical difficulty for two of the variances, one of which is parking and the other is the planting issues. With that huge lot, there is no hardship. There's all kinds of land to do what's being discussed. I strongly believe that the subdivision behind the parking lot, in other words, 'what's been referred to as the future subdivision needs to take place now. I, as a Planning Commissioner, or as a City Councilmember, feel we cannot issue a variance for, or declare findings of fact, on conditions that don't yet exist. We can't do it. If the land were subdivided as described, at a later time, then in fact the conditions exist and then variances are valid. In this particular case, I don't think they are. This is a future unknown. We have a site drawing that shows roughly where it's kind of proposed to go but, nobody knows exactly where it would go yet. In other words, that's going to place a future Council in the position of, now you've spent $9 million dollars on this thing, now are you going to subdivide? Well, how are you going to turn it down. You've locked a future Council in. If you don't approve the subdivision and there will be all kinds of reasons not to. If the future Council does not approve it, the school district could lose the football field and baseball fields because it has to, by agreement, transfer this property to the WCCB ownership at the completion of the project. If the subdivision doesn't go, either the entire property goes or we're in a legal battle. That is something to look at in the future. Another issue I want to talk about is I am of the belief, that it would be illegal for us to act on this tonight. Let me explain why. This CUP, as proposed, is acquiring private land for public use. There's a Minnesota Statute that's mentioned in the City Attorney's letter and I dug it up. I have it right here. The Planning Commission must see that type of land acquisition before the Council sees it with two exceptions: If it's been sitting on it for 45 days and it is considered the time has run out, and it is considered approved. Now, we've got in out packet, that request for that acquisition of that property and it's dated December 10th. 45 days from December 10th is January 24th. So the 45 days has not even come close to have expired yet. That's one condition. Once it runs out, it leaves 663 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1~8 the Planning Commission. The other condition is one where the Council can take it from the planning Commission and act on it, under a couple of situations but, it can act on it if it deems the acquisition of the property is not relative to the comprehensive plan. The City has a comprehensive plan. I've looked back in that and I don't see how we consider it not relative because this specific site is mentioned numerous times in that comp plan. If the Council does deem that non-relative, it has to take it from the Planning Commission by resolution and it must be by 2/3 (4/5) vote. Those are the two conditions under which it can leave the Planning Commission. Otherwise, according to my interpretation, and perhaps the City Attorney's got another read on it, that's my read on it. No such resolution has been passed and under those conditions, I don't think it's legal for us to act on it. The third issue, I wanted tO talk about, is a little less concerning but, it is relative to the alley way that was discussed earlier. Until today, I was not aware, that the alley was not under City ownership. Evidently it is under private ownership and the city has some fights to public use of that alley way. If, in fact, that's true and we're going to be consistent with how we've dealt with these types of use on city controlled property, it would be appropriate, I believe, to have it at least a public lands permit issued on that alley way to allow this construction to go on. 'It, more or less, would convey the city's rights for the school district to use that property for the purpose. It's public and public and public but~ if the city has fights to that land and the school district maybe does, maybe doesn't, I don't know, but, I think we need to cover our bases and probably issue a public lands permit for that construction." City Attorney. "I think I already gave a partial answer to Mr. Mueller earlier who raised that question first. Just to reiterate, my answer to him was that the statute that you're referring to talks about the actual act of acquiring or disposing of land, rather then the issue of granting a Conditional Use Permit. As a result, it would not be illegal, in my judgment, or inappropriate, for the City Council, if it were to approve the Conditional Use Permit, to put in as a condition to that approval, that the applicant comply with all of the provisions of 471.345. It could be dealt with in that fashion." "The only other comment I would make, and this is really picky and I don't mean to do that but, that statute doesn't contemplate a two step process between Planning Commission and City Council. The statute only talks about Planning Commission review of it. It doesn't get reported from the Planning Commission to the City Council. The City Council's role, in that statute, only is that if it doesn't want the Planning Commission to look at. it at all, it can make that determination that there is no relevance to the comprehensive plan, in which case, the Planning Commission does not look at it at all. The statute is honored more in the breach than is recognized, ordinarily, by cities. I bet you can't even remember a time that we've ever used that statute here in Mound. Most cities never use it.' Councilmember Hanus. "Yes, I can, many, many times. I can only think of one that we didn't and that was a slip." City Attorney. "In any event, there is no remedy for a failure to apply the statute. In fact, there is some case law that suggests that it may not even be appropriate for a Planning Commission to suggest to a school district, how to use its land. Be that as it may, I guess my reaction, and bear in mind that I prefaced my comment before in saying that the City Council, in my judgment, if it chooses to go forward with the Conditional Use Permit, can pass this issue forward by saying that the permit is granted but issuance 664 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 is subject to compliance with this statutory requirement. The Council can, in my judgment, do that and be fully in compliance with the provisions of that statute. But, by the same token, it can take the position that it would really rather wait until the Planning Commission has the full 45 days to take a look at this and then only after the full 45 days has passed, take a look at the Conditional Use Permit. I would agree with you, that I can't find a way to count this that suggests that 45 days has already passed'." Counciimember Hanus. "It's not my intention to enter into a legal debate with a lawyer but, again, reading the statute, you mentioned that, you believed that the Planning Commission as referenced in the statute probably would be the deciding authority. Is that what you were eluding to?" City Attorney. "Well to the extent that a determination is made as to the consistency with the comprehensive plan unless the City Council waives it, yes, that would be my view of the statute." Councilmember Hanus. "The reason that I raised that is, again, they talk about the separation between the governing body and the planning agency, which is defined as the Planning Commission. It's recommended, clearly, by the planning agency and a copy filed with the governing body and then go on to talk about no publicly owned interest.., etc ...... or capital improvement ....... There is separation of those bodies. I suppose you could interpret it more than one way but ..... I only saw it one way. I stated my opinion and that's what it is. The subdivision does provide a way for the City Council to act on it before the Planning Commission does. It has those provisions in there. So, why would it do that? If, in fact, it were interpreted the way you were talking about where the Planning Commission doesn't really need to do that. In your letter, you reference, and it's a very good point, the theme in here that the overall idea between the statutes is that the Council's authority is not intended to be overruled by the Planning Commission and that they are advisory, etc. That's why I believe that the statute provides that ability to take it away, if, in fact, the circumstances are such that it requires that. That's why I think that the last half of that subdivision tends to provide the out for the prior portion of it, which is, it needs to go to the Planning Commission." City Attorney. "Well, it's not my role to engage in legal arguments with the City Councilmember, especially one who pays my salary either. There is merit to what you say. The only comment I would make is that the (and again, even the Attorney General, when he's looked at this statute, has said it is not entirely clear what the point of the statute is but, it's really clear that the Planning Commission, unless the City Council says it can't, should be notified of something going on in town and should have 45 days to opine as to whether that's consistent with the city's land use regulations). The typical notion is, and the reason for the statute was, that it was viewed to be inappropriate to have one unit 'of government come into town and do things which may or may not be consistent with the land use regulations in place without, at least, letting the unit of government that controls zoning, know that that's going on. That was really the point of the statute. Typically, it doesn't make a great deal of sense, in situations such as this, where not only are we being informed of what is being proposed but, in fact, we have to agree to it and permit it for it to occur at all. So there's at least an argument that this statute be fully important in this case, anyway. But, it still is a statute. The Planning Commission has 45 days to look at these things and they still have time left to do that. They still have time left to opine as to whether or not they think there is consistency here. But, my only point 665 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 is, that, that does not necessarily preclude the City Council from acting on the Conditional Use Permit. But, conditioning that action on the Planning Commission finishing up its work." Councilmember Hanus. "O.K., if I accept that; let's see what 'the next thing is then. So what happens then? You're saying that you could pass a CUP subject to the review to the Planning Commission. So you approve the CUP. Now, it goes back to the Planning Commission at some point and the CUP is not approved until they act. Does it then go from'them back to the Council?" City Attorney. "The typical action you would take would be to grant the Conditional Use Permit but, delay the issuance of the permit', pending this action by the Planning Commission.. That's why it's a goofy statute. There is no provision, what if?." Councilmember Ahrens. "So the Planning Commission just has to look at it and decide if it's in compliance or not in compliance with the comp plan, and regardless of which one it is, it's O.K., because they did their job, they looked at it and they made a determination?" City Attorney. "That's what the statute says. It is a strange statute." Councilmember Ahrens. "That's bizarre." City Attorney. "And again, I think that part of that is the reason that one unit of government shouldn't be able to sashay into town and do something unknown tO another unit of government. So this is kind of a notification statute." Counciimember Jensen. Asked if she could ask a question of a fellow Councilmember. "I do hesitate to ask this question. However, Mark's first point, he went on at length about a subdivision and then he went on to say there's lots of reasons not to allow this subdivision and quite frankly, I don't know of any of them, so maybe you could shed some light on that." Councilmember Hanus. "I mistakenly went into that because that's part of the subdivision discussion, not the CUP discussion. But, I will answer that. You've been on the Planning Commission. You know this as well as anybody. Put yourself in the position of the Planning Commission and now you've got a request-to come in for a subdivision. And, you've got all of these variances required but, only required, if you grant the subdivision. In other words, the variances don't exist but, you're going to do a subdivision that will create all of those nonconformities and you don't have to do that. There's no reason for you to do that. I think, not only this Planning Commission but, the Council would struggle deeply with that. The only reason we don't see it from that perspective right now, is because we've been following this project from the start. We know what the plan is and we know what the progression is but, that's where we get tripped up because the progression right now, is wrong. We're granting variances to non- existing conditions. They don't exist." Councilmember Weycker. "I have a point to clarify there and maybe John Dean can help me out. It is a legal document, the joint powers agreement, that talks about this subdivision. So the fact that it's not taking place now, I think it's clear that it is going to 666 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 take place." Councilmember Hanus. "Where? What are the measurements of the lines? We don't know." Councilmember Weycker. "Well, I think they want to be in conformance with our hardcover calculations. So wherever that line needs to be drawn, at the point, including the ponding. So the hardcover has never been asked for a variance." CounCilmember Hanus. regulations?" "What about parking regulations? What about planting Councilmember Weycker. "Those are asked for variances. Is there any bearing on the fact that we have agreed to a subdivision in a different legal document?" City Attorney. "This is getting pretty complicated. I don't have a good answer for you on that. ~ I think, among other points that I would mention is, that I believe that that document, and correct me if I'm wrong, is terminable by the parties but, I don't know whether it could be terminated in advance of the need to actually finish up the subdivision or not. Even though there may be an agreement, if the document's terminable and can be terminated before a subdivision would take place, then I guess that the provision in the document that there will be a subdivision would probably be kind of meaningless. Councilmember Hanus. "This is analogous to this situation. A homeowner with a big lot comes in and tells Jon Sutherland that he wants a building permit to build a house. Jon says, you've already got a-house on that lot. He's says, well I'm going to subdivide but, I going to do it in a couple of years, three years, or somewhere down the road. Jon says, well, where's the line going to be? Well, I don't know exactly, yet. I'll tell you that later. Well, is it going to be in a conforming location? Well, we'll figure that out later. The point is. Would we grant, and not only that, but we're going to require variances when we do the subdivision. I can tell you that much right now. But, I can't tell you exactly what they are. That's very analogous to' the situation we're facing right now. Would we do that? Not in a, absolutely not." Councilmember Jensen. "Excuse me, your analogy is close but, it's flawed, and you don't have a homeowner asking for a Conditional Use Permit. But you certainly are correct. There have been times where we have hesitated to grant changes in lot lines if they ended up creating a need for a variance. That is true. This is truly, a unique situation that we have here and I don't know how we go about getting around that. I can say, that quite honesty, I don't hesitate when it comes to a variance on the parking spaces, for a couple of reasons. One, has to do with, we are re-looking at our entire parking program for downtown Mound anyway. So, to suggest that this site has to have all its parking spaces in one place, suggests to me, that we really do need to re-look at what we have in place for parking. We have an entirely different development or some additional development that's going on that is going to create some additional parking and there's no reason why people who are attending or participating in activities at this center, can't use this other parking that's going to be available to them. So, again, we're already aware of the need to re-look our parking ordinance. That one doesn't concern me. To suggest that we need to plant as many trees as has been suggested, in this development also suggests to me that we need to re-look at that aspect of our ordinance. I'm comfortable saying that, 667 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 given that we're re-looking at ordinances for both houses, based on the fact that somebody wants to keep one. We're re-looking at our ordinance on fences because somebody put up a fence and we're concerned about, is it a trellis or is it a fence? We're re-looking at ordinances all the time. This suggests to me that there might be something out of whack. We've looked at the ordinance that we put in place for the telecommunication~ towers and we're re-looking at that one because the first time we attempted to use it, we ran into a fairly sturdy wall on that. So, it suggests to me that there is a need to re-look and I'm not concerned about parking or a variation from some of the trees for a project of this nature." Councilmember Hanus.."I don't disagree with what you said. I really don't. The variances being asked for in the future, I don't have a problem with either, My big problem is that, first of all, there are no variances required right now as the project is described. And the second thing is, the subdivision that I'm talking about around that parking lot, there is absolutely no reason why it can't happen right now. There is no reason why it can't be done now. The subdivision could happen now and everything would be fine." Councilmember Weycker. "So~ can we condition it on that then?" Mayor Poiston. "I think the attorney has... We can argue this thing, pros and cons, back and forth. You can find some ordinance, or some part of an ordinance, or something that is not palatable or is subject to interpretation, and we even have some ordinances that have been discussed that it has been pointed out, whether or not is even a legal need for. What we have before us is, in fact, a request for a Conditional Use Permit for the Westonka Community Center. We have, in our packet, a resolution that has been prepared, that is subject to, some modifications. I would like to, at some point, have us either put a motion on the table to grant the Conditional Use Permit, grant it with certain conditions, or, in fact, deny it. The applicant has a right to have it either voted for or against. I think all of the applicants have made their case for what they think is fair and equitable and we've heard the opposing views. Now, dear friends, and ladies and gentlemen of the Council, it's time, I think, that we move toward making some decision so that the applicant can plan what their next step may be." Councilmember Hanus. "Loren, there are variances being asked for on this project. What's the hardship?" Loren Gordon. "Well, the applicant, has requested the variances that you outlined: parking; trees; and curbcut, were the major ones. The parking, they have tried to address with their parking demand study that was reviewed at the Planning Commission level. They've tried to look at the building users and the amount of people who will be there at any given time during the week day, and all hours of operation, as well as in the evenings at an auditorium event and on the weekends with uses that are operating in the building and' auditorium type of usc. Their basis for the hardship was, at any given time, with the amount of people that will be occupying the building from ..... including the people that work there or people that would be coming to use the services, would be 280." Counciimember Hanus. "But, everything you're getting into here, is a reason why they shouldn't need it. I want to know why do they have. to have the variance? What's the hardship? Not the argument for why we don't need it." 668 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Loren Gordon. ~Well, the. argument that you would maybe want to uphold the 465 that would be required is to look at future use of the building with different users there. I can't present you hardship for why we should do that.- When really, we're responding to their application on why they.., and they've stated why they needed the hardship, so. That's their reason. If you can find that you agree with their parking demand study, you would have reason to approve the variance. If you don't find that's reasonable, that's reason to deny it, as well." . "The trees, I think, you look at the landscaping plan there and if you wouldn't look at what the code would require, I probably would say, that's a pretty decent landscaping plan, given the number of plantings there. However, our code says we've got more plantings that's required based on the square footage of the building. So, again, the applicant is requesting 30 trees from the code requirement. Those are over storys. There are other ornamental trees and shrubs that are being provided as landscaping type materials that aren"t in that count so..M Councilmember Hanus. "Everything, so far, you're talking about is the reason why they shouldn't have to do it. Tell me the hardship. Tell me what about this site will not allow them to do what the code says." Mayor Polston. "Mark, I'm going to jump in and stop you there because the outline that's been placed in the packet, I think, spells out what the practical difficulty is and if you remember, Mark, over a ~ear ago, when we were talking about downtown redevelopment, and you were one of the people that agreed with many of us, who, I asked the Planning Commission to address the parking issue because we realized that with our downtown redevelopment project, that's going to take place, the parking requirements are overly stringent and need to be addressed. We. have asked the Planning Commission to address that issue. The Planning Commission has a work schedule and a time schedule. They can't do everything, immediately. As the liaison to the Planning Commission, I think that you took that to the Planning Commission, that we were going to be in deep trouble with our overall downtown development plan if we didn't look at reducing the parking requirements. I heard you say that you were in agreement with that." Councilmember Hanus. "Yes. Mayor Polston. "O.K. We can sit here and we can banter back and forth but, every applicant that's come before us, who has asked for a Conditional Use Permit when there were things that we could do to assist them and help them, whether it was the Planning Commission or the City Council, we have tried to do that. Particularly with individual homeowners, where we have tried to help homeowners and help applicants, particularly for the overall public good. We are making an attempt, and God help us, as Bill Pinegar and I said at a public meeting one time, 'It is not, by any stretch of the imagination, a perfect plan.' "There are many things that we wish we could have. Twenty five million dollars to build a Shakopee type community center. We wish that Mound had...we had bigger space to build it on, so that there were no variances required.. We wish that we could do our downtown redevelopment with no variances or no stormwater ponding, or no problems would exist. With all the battles that we fought, over the downtown redevelopment, and the dredge of the channel, we are sitting here tonight debating semantics over a project that is for the public good. We can sit here and we can nit pick it to death and we can look for little ways to try and stop it, or hang it up, or put it off, 669 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 or kill it, and that's what I think is trying to be done. I think this project is trying to be killed. I won't permit it, as long as I'm Mayor, and I draw a breath, I'm going to try to protect the public good, and the people who voted for this project and to see it go forward. So let's, please, stop debating semantics and either vote for issuing this Conditional Use Permit, or vote against it and be fair to the people who are here, who have expended time, money and effort and are expecting a decision from this City Council." Councilmember Hanus. "I have to state that I am not trying to delay the project and I not trying to stop the project. Mayor Polston. "Well, then vote against it." Councilmember Hanus. "I am trying to do things lawfully. If we approve this thing, we are doing it without hardship. We are doing it without practical difficulty and the law does not allow us to do that." Mayor Polston. "That's your opinion." Councilmember Hanus. '"Yes it is, absolutely." Mayor Polston. "And your certainly entitled to vote against the project. So can we put some kind of motion on the floor. Either to approve the Conditional Use Permit or deny the Conditional Use Permit." Councilmember Weycker. "I would move to approve, with conditions." Weycker then withdrew her motion. Councilmember Jensen. "I would like to move the resolution approving a Conditional Use Permit and associated variances for the Westonka Community Center. I would like to refer the Council to page 4748 where I would suggest the following changes on item 8 to read as follows: 8. Approval of a 14 foot driveway curbcut width variance along Commerce Blvd. to accommodate three lanes as recommended by Hennepin County." "Add Item 11. to read as follows: The City is satisfied that the applicant has taken all steps reasonably available to it to address the concerns of the adjacent property owner of Lot 19, regarding: grading, trees, runoff and erosion. The applicant will consult with the owner of Lot 19, as the applicant formulates its plans for construction of improvements adjacent to Lot 19." "Add Item 12. to read as follows: Comply with state statutes regarding acquisition of land and Planning Commission recommendation consistent with land use regulations." "Add Item 13. to read as follows: If needed, a public lands permit be applied for regarding work in the alley way." Councilmember Weycker. "I will second." 670 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 RESOL~ION g98-137 RESOLUTION APPROVING A CONDITIONAL USE PERMIT AND ASSOCIATED VARIANCES FOR THE WESTONKA COMMUNITY CENTER AS APPLIED FR BY THE WESTONKA SCHOOL DISTRICT //277, 5600 LYNWOOD BLVD.,'PID'S #14.117-24 41 0010, #14-117-24 41 0011, #14.117-24 41 0052, #14.117-24 41 0058, & #14-1177-24 44 0007, P & Z CASE g98-64. Councilmember Hanus asked the following questions: 1. "All the areas, in all the 'Whereas' that refer to this site, as described in the legal description as being 'limited green space', 'limited site area', all of those references are to remain. Is that correct? Councilmember Jensen. "I'm not removing them from my motion." Councilmember Hanus. "O.K. So those are going to stand in this resolution." "Also the statement or Whereas at the bottom of page 4747 which re. ads as follows: 'WHEREAS, the following are findings for granting a conditional use permit: I. The use will improve the property and not be of any detriment to the adjacent uses.'" "Now, that's, of course, to protect the third parties. Is that also going to stand? Is that making a statement or is it not?" Councilmember Jensen. "I'm not suggesting it be removed." Councilmember Hanus. "O.K. So you're declaring that that's not a problem with the neighbor then." Councilmember Jensen. 'I've put a condition in place that addressed that." Councilmember Hanus. "I talked to John Dean earlier. Last night we had a WCCB Meeting and we approved the sale of Lot 18 with three conditions: 1. The CUP be approved; 2. The subdivision be approved; and 3. There is a hold harmless agreement that the City Attorney drafted today." "I just have a draft copy. None of the Council has seen it. None of the applicants have seen it but, it is to protect the City and WCCB from some of the conditions in the purchase agreement. If you want me to go into that, I'm willing to go into that. Otherwise, I would like to have this, also, as a condition of the CUP." Councilmember Weycker. "Actually, in the CUP, number 9. approval be conditioned on ownership ......... and I believe we conditioned that earlier on the ownership. So doesn't that just tag along?" Councilmember Jensen. "I'm trying to understand why, the resolution for a Conditional Use Permit from the City, and associated variances needs have that document as part of it?" Mayor Polston. "I object to it because I don't consider Hold Harmless Clauses worth the paper they're written on. If there's a lawsuit, there's going to be a lawsuit." 671 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 City Attorney. "In response to your question, I think, that at least paragraph number 9 on page 4746, deals with the question of transfer of ownership to the Westonka Community Schools and I think the notion there was that in that process there might be some thought about having the Hold Harmless Agreement that would ultimately protect the City. Mark's concern, when he discussed it with me today, was that the City may well want such an agreement when it ultimately or when the Joint Powers Entity ultimately receives ownership of the property, .once the improvements are constructed. But, there is no obligation, on the part of the school district, at that point in time, in any existing document to provide the City wi,th such a Hold Harmless Agreement. It seemed that this was maybe not the only opportunity but, at least, an appropriate opportunity for providing for such a document." Councilmember Hanus. "The reason I wanted something now, rather than later is, there are some conditions in the addendum of the purchase agreement that have terrible liability issues tied to them. Because there is a Joint Powers Agreement and because the City is a parmer in the project,, although it is a limited partner, at this stage of the game, none the less, there is a link. I'm just trying to put some other stop gap in here, in the event that there's a claim and the school district's insurance company comes chasing our insurance company. Like you said, they're probably going to come chasing us anyway but, it's just one more stop gap. If you don't want to do it, you don't do it." Councilmember Weycker. "I find it already contingent on number nine. I feel like it docs come along with that. I don't think it's a concern for this document to have it." Councilmember Jensen. "Loren, in some recent discussion, you mentioned that the numbers of trees was based on square footage of the building. So when we're calculating the numbers of trees that we have to put on a site, we are counting the square footage on the second and third floor? Loren Gordon. "Yes. It's the 120 some odd thousand square feet, I believe is the total square footage. That includes both the floors in the old school as well as the pod area. There's two ways to compute it, one on the square footage of the floor area of the building; the other's on the perimeter of the site and the greater of those two needs to be used to get trees. So you're going to get the most trees out of looking at it either way." Councilmember Jensen. "So the bottom line is, our calculation for this site includes square footage on various storys within the structure?" Loren Gordon. "Yes. That's correct." Councilmember Weycker. "I would like to add something about the trees, as well. I find a definite hardship in having the amount of trees that were required. There were issues brought up at the Building Committee of safety, in creating a forest. It's just really inappropriate to put that many trees. We are trying to put as many trees as we could in every little square inch and I don't think that is what the ordinance is meant to say. I think the ordinance is meant to say, we want it aesthetically pleasing, tree scaped. In order to fit as many over story trees as the code would require, they would be, literally, hanging over the roofs all around the building because that's how crammed in we would have to put them. It's really a hardship.' 672 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Counciimember Jensen. "I don't want to argue Mark's position on this because I tend to disagree with it but, his position would be, until you subdivide it, you've got plenty of rOOm for trees." Councilmember Hanus. "Exactly. Councilmember Jensen. "But, I'm going to suggest that part of the practical difficulty of this site has to do with the complexities that are associated with it. We know that there's going to be a change in lot lines and that the requirement for the trees is going to have to be somehow accommodated on, as near as 'we can determine, what those lines are. For purposes of moving forward on a project that the community has approved, there is a practical difficulty that will ultimately arise and we have an ordinance in place that appears to place an inordinate number of trees on that site. Trees based on second and third story square fOOtage, seems ridiculous." Counciimember Hanus. "Do you. have an opinion as to why the subdivision can't happen now?" Councilmember Jensen. "No." Councilmember Weycker. "I just have something to add to that. I feel like it was part of the Joint Powers Agreement. I think we knew that from day one and had that been an issue, we should have addressed that then." Councilmember Hanus. "I don't understand." Councilmember Weycker. "In the Joint Powers Agreement, we talk about subdividing the property after the project is completed." Councilmember Hanus. "No, no, no, no. Transfer of ownership after the project has been completed. I'm not suggesting that the property change ownership. Just subdivide it. So it's a clean, clear project." Councilmember Weycker. "I don't see it as an issue, I really don't." Councilmember Ahrens asked to make some comments before the vote. Counciimember Ahrens. "I think I should preface my comments by saying, to this point, I have never been on record as for this project. Right now, before me I have a Conditional Use Permit request and I Understand that what I'm voting on is the merits of the Conditional Use Permit request and I'm grateful that there are no hardships or practical difficulties and so I have no problem voting against the Conditional Use Permit and I intend to. What I want to say is. I only wish I could say that: 13% of the electorate in this district voted for this project. That of those 13%, 7% voted yes and 6% voted no. I wish I cOUld say that I sat in on the meeting where the recommendation from the experts was, if you have trouble passing referendums in your district, run them in the middle of the holiday season. I wish I could say that the flaws of the existing building don't have a high likelihood that they won't be solved by this project. 673 MOUND' CITY COUNCIL MINUTES - DECEMBER 22, 1998 I wish I could say that I was not voting for this project because it's not a mistake that's going to be perpetuated. I wish I could say that I was not voting for this project because Mound taxpayers are going to pay twice. Once to the school, district and once to the city. The fact that the operational costs attributed to the City of Mound, at this point, are about 25 % of our current levy, which sickens me. I wish I could say that: no this project isn't being rammed through. We are having a meeting on the 22nd of December, which we never have." City Attorney. "There was reference to a public lands permit and I just would suggest that that language be amended to say, 'or other license or permit'. The reason I'm saying that is that typically public lands permits have been for lakeshore type activities." The Mayor asked if there was any objection to the City Attorney's suggestion. There was none. The Mayor asked if there was any more discussion. Councilmember Jensen. "Yes, I've got all kinds of things that I want to say about it but, I don't have a well thought out or prepared speech on it. I've certainly been watching this thing for a long time. And granted we're looking at the Conditional Use Permit and not the project, perse. I think that the people who have been involved in this project, as we see it right now, worked fairly hard to get information out to the public so that people would know what was being proposed; what the costs would be; when the election would be. 'We put together brochures. We had information in the local newspaper. We had public hearings on the topic. The majority of the voters voted in a certain fashion and the way our country seems to operate, is that the majority who vote, win or how the majority vote comes out are the people who win. So, even when only 25% of the population votes, the person that's elected still gets elected. There may have been some jesting as to when one would hold the referendum but, there was also some very sincere and concerned discussion regarding the need for a referendum. That's a concern that the people who were involved with the project had, was one of not ramming something through to the public. Really exercising due diligence and making sure that people were well informed. We were advised that we could not promote the project and so we didn't promote the project. We simply put the facts out there as to what the project was going to entail and we had to let the electorate make their decision. Absentee voting has been available to us for a long time. ' So, if you were out of town because of the holidays in early December, you had alternatives for voting. So the public spoke on this. The history of the project suggests to me that we looked at a number of alternatives. We did surveys. I remember a survey where, in fact I got involved in the project, because there was a proposal that came to the City Council that we want to do a whole bunch of stuff (and I forget what the number was - 17 million dollars or something like that), and I said, Well if you're going to conduct a survey about this, I want to make sure that you don't just find out what people want. Because they're going to want lots. I want to know what their willingness to pay is and I got put on the task force and that's how I got involved in this thing. Because I wanted to make sure that survey identified what would people pay for this thing and what we found out was, they wanted a lot of stuff and didn't want to pay for any of it. And that went by the wayside. And we looked at a number of other ways of providing something to the community. We looked for public/private partnership and we had a fellow that we thought was fairly knowledgeable in this area of fitness centers. He came out and looked at what we had out here and he said, rule of thumb, you need to 674 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 have so many people within a certain radius of you fitness center and you don't have it. That's what the guy told us. He said, even if we did have it, he wouldn't work with another citY because he was having such a wonderful time with the City of Plymouth in the project that he had gone into with them. So finally, the school district decided to take some action and they got a long ways down that road before we decided that we needed to take another look at that. Take another look, we did and we were advised, by our Mayor, that people were calling him saying you've got to save that old high school and I've got to tell you, I've got no emotional attachment'to the building at all. I said to the Mayor, just because people are calling you, telling you that we should keep this thing, doesn't convince me that, that's what the people in this community really want. I want a survey. So we went around about that one for a couple of meetings and we did a survey and you know what? I was wrong. The survey suggested that,.that's what the people wanted. I didn't agree with it, but that's what the survey suggested. In that survey, I think we also looked at what were people willing to pay for that thing. Actually, I've forgotten that now. But, if I recall correctly, there is a tendency for people to express desires for stuff that far exceeds their willingness to pay for that stuff. It is my opinion, that we are doing the best we can to meet the wishes of the people who voted in the election." Councilmember Ahrens. "I would like to make two quick points. Two things that I forgot to say and that was. I hope that you've sufficiently satisfied your conscience cause that's what I heard as to why you're going to vote for this. But, we did have, many, many, I'm talking numerous requests, from Mayor Elect Meisel and Councilmember Elect Brown to delay the final approval because their terms fall into the majority of this project, and I think is it incredibly unfair that we're not going to give them the opportunity to have any part of this project." "The second thing was, you're right, people didn't want to pay. They wanted everything and they didn't want to pay anything and instead they're getting nothing and they're paying a pile of money. This facility has nothing in it for most of the taxpayers in this city." Councilmember Weycker. "I have a few things. I agree Pat and Bob have to come on board and deal with this. By no means is this project over. It's not done till 2000." Mayor Elect Meisel. "No, but you just opened a big can of worms for us to settle over the next two years." Councilmember Weycker. "I disagree. My concern is, if we continue to look at every two years having a new council which is possible. But, when does it stop? The voters did ...... " The Mayor gaveled for silence and pronounced someone out of order. Councilmember Weycker. "The voters voted for this. My ultimate bottom line is to do what the voters told me that they wanted me to do on December 4th. Whoever didn't show up to vote or if you didn't get your vote in, or if it was just voted the opposite way, that's just the way our democracy goes. I feel strongly. This, by no means, is the ultimate project, or the big Taj Mahall but I don't think our voters would pay for it and I think this is the best project we could possibly get." 675 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Mayor Polston. "I certainly hope that the incoming Mayor, Pat, and Councilmember Bob I~rown don't consider this a personal affront to them. But, this project, and the public good is not about Bob Polston or Pat Meisel or Liz Jensen, or Mark Hanus. It's about.the overall good of this community. We have a legitimate election, that took place, whether you agree with the number of people that voted in it or whether it should have been conducted at another time, or whatever our hangups are, or whether we think that we should be getting another building or some other type of facility. We have to work with what we have to work with. When Bill Pineger and I were asked at the last public meeting, before the referendum took place, "What happens, if this fails? and we said, we start over tomorrow from square one to move forward to try to bring to the community what they want. This whole process has been an open, above the board, directly trying to solicit public input and a legitimate election occurred and we're, I hope, voting on issuing this Conditional Use Permit tonight to go ahead and start this project and take care of the community needs. That's all I have to say." Bob Dorfner. "Everybody keeps mentioning the election. This is what the people wanted. The diagrams that are up there is not what I voted on. We weren't addressing any purchase of property, destroying a ball field, or open space for the youth and that. So as far as getting what the people voted on, we're not getting what we voted on, we're getting additional stuff that we didn't have an opportunity to vote on. I think it's in the best interest to this community, to put it back before the people and vote on what you're presenting to us tonight". The vote on Resolution g98-137 was 3 in favor with Ahrens and Hanus voting nay. Motion carried. 1.6 CASE98-67: MINOR SUBDIVISIQN; TO INCORPORATE ADJACENT RESIDENTIAL LOT 18 TO THE COMMUNITY CENTER PROJECT AT 5700 LYNWOQD BLVD,, INDEPENDENT SCHOOL DISTRICT 277, 5600 LYNWOOD BLVD,, PID 14-117-24 44 0007. Loren Gordon explained that this is the minor subdiVision/minor boundary adjustment to address Lot 18, which is going to be incorporated within the Community Center site. The lot is currently has a residential property on it. The proposal would incorporate this into the school site. The lot is approximately 11,500 square feet. It is approximately 50 x 230 feet, and is zoned R-2. In the subdivision ordinance, a minor boundary adjustment requires that whenever any property is going to be incorporated within a site, that this is one way to handle that boundary adjustment. He reported that staff has gone through some of the issues with the boundary adjustment, in terms of looking at the zoning ordinance and would a driveway type use and plantings be consistent with the R-2 Zoning Code. Staff finds, it is consistent. Staff also looked at rezoning and concluded there would not need to be a rezoning. Staff also talked about the alley on the back side of the property and because of the use of the alley and the underlying ownership, it was concluded to leave it as it is. Staff recommended approval with two conditions. 1. Upon ownership transfer of the lot to the Westonka School District; 2. Upon approval of the Conditional Use Permit and variances, along with the site 676 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 plan for the Westonka School District. Counciimember Hanus made the following comments. "I stated earlier the scenario for the School District that I haven't heard any comments about it so evidently they're O.K. with accepting the risk of the potential loss of that property from the school districts hands. Again, I'll state, relative to the subdivision, that we have to have this site subdivided and we have to have it now." "Some specifics about this particular subdivision. There are utilities that run approximately along the property line between Lot 18 and the community center project. There is a couple of power poles and those actually are sited on the survey.. There is also some buried telephone cable that runs along the property line. That's going to be approximately down the center of the new road that's running through there. Those will have to be removed. I don't know what other utilities are running through there. I don't know if there are city utilities. I don't know what might be in there or gas lines. I'm assuming there is a current utility easement running through there for those power poles and telephone lines to be in. I question where is the request for vacation of that easement and I also am asking for the drawing of the easement for the new parcel. The drafting of the documents for the new easement where those power lines and telephone lines are going to have to go. Those are requirements of a subdivision. They have not been yet submitted. I'm still waiting to see those. New drainage easements, which are required. Those are required in a subdivision, to be drawn. They have not yet been drawn. Are there any unknown utilities under there? I want to argue that this is not a minor realignment. I did this at the Planning Commission Meeting. Staff has argued that their position is that this is a minor realignment and those of us that were here, not very long ago, two years, maybe three years ago, that provision for a minor realignment is a new provision in our code. And if you recall, that provision was put in for the purpose of minor shifting of lot lines in the event .... we've used it a couple of times..:. In the event the neighbor has a retaining wall that encroaches on your property or a house that encroaches on your property, or some other structure. It gives you the ability, without going through a full blown subdivision to shift that line just a little bit to alleviate the encroachments. In this particular case, we're removing a lot line, we are eliminating an entire parcel from existence, and combining it with another one. It adds a third zone to this site. We are now going to have R-2, B-1 and R-l, I think, all on this community center site. It's not illegal. It's not very clean. It probably should be rezoned. That doesn't have to be done now. It can be done in the future but, it's not a real clean deal. The subdivision requires new easements, like I just stated. Does that make it a minor subdivision, or a major subdivision, or a minor realignment? Really that's the issue at hand here. We're changing the use of this parcel from residential to public. Is this still just a minor realignment of a lot line? The use is changing on this property. It just does not follow to me at all, that this is a minor realignment. It's either a minor subdivision .... actually there's only two provisions under minor subdivisions.., one is for residential, which this isn't ....... and the other is for a minor realignment. The only thing left is a major subdivision and there's all kinds of requirements with that. Again, both major and minor subdivisions, require easements to be drawn, both utility and drainage easements to be drawn on the survey for approval. Again, the future possible, and I say possible, position for the new subdivision on the northwest side, actually I think it's roughly where the dotted line is on this particular drawing is referred to but, we don't know where it is exactly', we don't have the dimensions, we don't have all of the calculations that the City 677 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 Council just granted variances for. We doh't know what they are because we don't know where that line is going to be. There is no City Engineer's report on this parcel. His report was dated, I think, November 2nd, and it was on the site before this was part of the plan. There is no reference at all to this. Is there storm sewer in Lynwood? If there are, are there any catch basins in front of Lot 187 If there is, that's storm sewer work that's got to be done. There is no engineer's report on it. Are there any City utilities in that lot? Are there any other rights-of-way? None of this stuff, to my knowledge, has been looked at. This is all missing information, we would never, I can't imagine we would grant, a subdivision with all of these unanswered...answers and all of these missing reports. It boggles my mind but~ I suspect, we're probably going to pass this one, too." Mayor Polston. Well Mark, I agree with you to the extent that the utilities should be on ... The.intent of having the utilities written and described on a right-of-way is for, I think, new construction. I do agree with you, that the utilities should be an intregal part of the subdivision. They should be plotted on the plot and whether or not there are any existing other utilities, such as, water, sewer, and storm sewer, which I'm almost certain that they aren't there but, we should have it delineated on the documents so if this passes, I would like to see us require that the utility alignment plan be given before the permit ... or before the final subdivision is granted." Councilmember Hanus. "Just delineated or reviewed? Mayor Polston. "Well, delineated and reviewed. I mean you have to review it to delineate it. I mean you can't say.., you have to verify whether there are, in fact, storm sewer, water, sanitary sewer, which there isn't. Which is just a matter of looking, really, at the plans to verify whether or not they're there. There are, as you indicated, phone lines and gas and those normally ..... those normally are not always required to be moved." Councilmember Hanus. "In this case, it runs right down the middle of the driveway." Mayor Polston. "Well, if they're underground, it doesn't make any difference, if it's on the right-of-way. Power poles would have to be moved." Councilmember Jensen. "What is the advantage here of doing this as a minor boundary adjustment versus some other method? Why are we doing it this way?" Loren Gordon. "There's two ways that land can be subdivided. One with a minor subdivision and one with a major subdivision. Usually, the difference between the two being the major subdivision has public infrastructure improvements planned within it (streets, utility lines, water, sewer, that types of things). This project does not have public street, does not have new public infrastructure, water, sewer plans, with it and so our recommendation was to use the minor boundary adjustment portion of the subdivision code to handle incorporation of this new land, because there are no utility issues involved." Councilmember Ahrens. "Except for all the ones that he just mentioned." Mayor Polston. "Well, the only utility issue is moving the phone poles really and verifying that there, are, really no, water and storm sewer and sanitary sewer there and then delineating where the underground gas and electric, or gas and telephone lines are and if they are, in fact, on right-of-way. That's really all there is to it." 678 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Loren Gordon; "The existing utilities are services to that property, Lot 18, the current residence. Those aren'.t public improvements as would be like a public watermain, to serve within a fight-of-way. So, you don't want to confuse those." Counci'lmember Jensen. "It would just seem to me that before approving, there ought to be some additional conditions then, relative to addressing utilities to some extent." Mayor Poiston. "What I suggested, Liz, was some verbiage to say that a utility site plan verifying the public water, sewer, sanitary and storm, and whether or not there are existing gas and phone lines there, in fact, on the public fight-of-way and that the phone poles be moved to public fight-of-way, if they are not on public fight-of-way." Councilmember Hanus. "It was suggested earlier, that there are some people that may be trying to delay this project. There are people, I believe, that are trying to ram this thing through before the end of the year. Before the next Council gets seated. I'm trying to be somewhat neutral in this thing. But, after some of the documents have been presented. Some of the letters that have been written, have been presented, it has become evident to me that there are people that are trying to ram this thing through before the end of the year. Now, it's beyond belief, what is being suggested to be approved, with almost no information, subject to some review down the road, after the fact. After the approval. This is, absolutely, contrary to everything we have been trying to uphold. It is gutting our ordinances. It's gutting our codes and it means now that people are going to be coming in and asking to be treated the same. And they are going to be asking for subdivisions without surveys. They're going to be asking for subdivisions, without easements. They're going to be asking for all kinds of things, of the very things that I just listed, with missing information and I for one, after this kind of activity, am going to have a hard time denying them." Counciimember Weycker. "I have a questiOn of Staff. I was at the Planning Commission Meeting when there was a lengthy discussion on whether this should be a minor subdivision, minor boundary adjustment and you said you had already talked to John Dean 'about the issue and it was Staff's determination that it be treated as such. Do we require anything different from anyone else coming in for this? Loren Gordon. "Well, we've got the necessary information to handle this request. We've got the property legal description and it's included within the boundary for the community center property. 'So, in terms of that, that's been provided. We've gone through, we think, the issues with the boundary adjustment and we feel there is nothing that would hold it up, that's different then how we may treat somebody else. We're trying to apply the same rules." Counciimember Hanus. "Loren, how may times have we gone back and required applicants to go back and get easements, to have the engineer, look at, review these things? We don't act on them until we have that information." Mayor Polston. "Put it in context of, not just saying how many times that we've required it. Under what specific conditions, are you talking about? I'm sure we've .... I know we have but, if your talking about ...... I know we've required developers to go back when they are going to put in significant public infrastrUcture, such as, water sewer and streets. Under what other conditions, have we ...... " 679 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 Counciimember Hanus. "Mr. Mayor. I know you don't sit at the Planning Commission and I've been there for about 7 or g years. I can't remember a time, that we didn't insist that the documents required in our code, exist and are presented to the City. I don't remember that happening. I don't even know how to answer that. Everybody is required to provide that information, except this applicant." Mayor Poiston. "I don't agree with that," Councilmember Ahrens. "Can I ask a question of Staff?. Loren, did you say that the reason that this isn't a major subdivision is because it doesn't have any utility infrastructure on it?" Loren Gordon. "There are no planned utilities." Councilmember Ahrens. "Oh, now it's planned. It has to be planned utilities." Loren Gordon. "There's no public watermains or sewer lines. Councilmember Ahrens. "Well, what about the power poles? Councilmember Hanus. "They're existing and they will be moved. Loren Gordon. "They're existing and they will be moved so the driveway can go in, in some fashion." Councilmember Hanus. "Where are they going to go?" Loren Gordon. "We can require those easements be looked at." ' Councilmember Hanus. "Let's vote. It's not going to change. I don't think we're changing anybody's mind." Councilmember Jensen. "Well, unfortunately, my mind's not made up on this. I'm real uncomfortable with this part of it. Only because, it's missing some information." Mayor Polston. "Is it the prerogative of the Council to table it; send it back to the Planning Commission; request additional information; or make a motion to approve it; or deny it?" Councilmember Ahrens. "I'll make a motion to deny it." Councilmember Hanus. "I'll second. The Mayor asked if there was further discussion. Councilmember Hanus. "Yes..I just want to explain my position, again. I'm not opposed to the subdivision, perse. I want more information and .I also am... absolutely, wholeheartedly of the opinion that the other subdivision, as well, has to take place as part of this. SO, I'll just leave it at that." 680 MOUND CITY COUNC~ MINUTES- DECEMBER 22, 1998 Councilmember Jensen. "I'm a little concerned about voting to deny this. What are the implications of that, in terms of its ability to come back? We've got certain things that can't come back for a year apd I don't know if this is one of them." City Attorney. "I don't think it is." Councilmember Jensen. "Since he's looking that one up, I would be far more interested in tabling it and letting this additional information, be gathered." Councilmember Hanus. "And I could live with that, as well." Counciimember Ahrens withdrew her motion. Councilmember Hanus withdrew his second. Mayor Poiston. "Are you talking about tabling it or are you talking about sending it for ... to a specific review and specific information because, if we're going to just table it, I think we need to. give the Staff and the applicant some indication of what we're looking for or where it's going so they have ..... in fairness, that they have, the Staff and the applicant know what it is that they're going to be requested to provide." Councilmember Hanus. "And I stated the issues that I happen to think of. There could, very well, be more. Really, the point is, that all the information that we require of all the other applicants. I want no more, no less." Counciimember Weycker. "I think Staff just said, they thought they did have all that and that this would be what was required. Am I correct, in assuming, that this is another, somewhat new code, in the.way we're applying this? Loren Gordon. "Mark indicated at the Planning Commission, to me, that this was adopted in 1995 or 6 or 7. It's a fairly new provision." Councilmember Hanus. "Two or three years old. But, my point on that, is that the intention of that provision, was nothing like what we're using it for here and I think most of the Council would remember when we did that. Remember what the intention was. Leah, I'm not sure if you were here yet or not. It was two to three years. I'm not sure." Councilmember Jensen. "I'm just sufficiently uncomfortable with the data that I have to more forward with this and that's not to say that I'm opposed to it. This one is too light for me." Mayor Polston. "Is there a motion to direct it back to Staff with specific requirements?" Councilmember Jensen moved that we take this thing and send it back to Staff to gather additional data and document that data. Councilmember Hanus seconded. The vote was 4 in favor with Mayor Poiston voting nay. Motion carried. 681 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 COMMENTS AND SUGGESTIONS FROM CITIZENS PRESENT. Mike Mueller, 5910 Ridgewood ROad. "I'm appalled with your vote tonight and the lack of concern you have for the Planning Commission members who have worked. I've been on the commission a long time. Frank's been on the commission longer. Almost as long as I've been in the City of Mound. We were diligently working. I have no problems with the project. I just wanted all the stuff there that we would require of any other applicant. You under handed us. You told us we don't matter and you sat on that committee. I'm appalled. I don't know where your ethics went." Geoff Michael, 1713 Avocet. "It's easy to see'why countries go to war. My God, I have in my hands, a letter from a person by the name of Dan Cunningham. I don't even know who in the hell he is. He lives at Eden Prairie. The letter refers to some serious situations here. He didn't contact me ...................................................... What in God's name happened?" Frank Weiland. "Are you going to comment to Geoff, or not? Or are you just going to sit there and just go right on with your meeting? Why aren't you going to answer, or at least make a statement. For the last month, we have not heard one word from any one on that there thing, except that one guy, and that's all. We had forces here tonight like you've never seen before. We had only seen one or two of them and when do they come? Just when the meetings going on. Do they bring us stuff?. No, they don't. I think you've got to definitely look at some of this stuff and make answers, not just let a guy up here making a statement. If you don't like his statement, tell him about it. But, just don't sit there and don't do nothing till the time comes where we vote and say, the voters voted for this here. They did but, have they voted in the last two or three months when we find out what is going on. That's the whole ....... look you get. I'll bet you've got more percentage of voters out here now than you had when we first started. That's wrong, too. But don't go and sit there, not heating what's going on and don't have them come in at the last minute and oh, we've got this here. We got introduced to this one here. That's wrong guys, wrong. Let's get with the program." Councilmember Jensen. "There was a reference to a Dan Cunningham, and I don't think this is a privileged communication so it can be talked about. I didn't receive it until this evening. It appears as though there's a question as to what happened at the Planning Commission Meeting, December 14th, relative to action that was or was not taken at that meeting and the challenge is one of whether there was a violation of the Open Meeting Law. The facts that are in the letter suggest that something occurred which leaves a whole lot of question as to, why didn't we get a recommendation from the Planning Commission. Supposedly, the meeting was adjourned on a vote of something like, six to two and then after sufficient time had passed for people to depart, the meeting was readjourned and an action was taken to table the item before the Planning Commission. The meeting was adjourned and the action that was taken was such that the City Council could then take action on the item that was before the Planning Commission and that's what the City Council did. My worst fear, in dealing with this community center, has been that we're going to have a boarded up building in the middle of our downtown and we have spent an awful lot of time with the school district, dealing with this particular issue. A tremendous amount of effort has gone into it and if I were the school district, after the numbers of meetings that they have had, I would present the City with a bill for the amount of money that has been spent on this project and then go somewhere else. And then my worst fear is realized because we have a boarded up building in town and I think that would be a real travesty to this particular community. So, in terms of, I'm sorry I forgot what your challenge was, and maybe it was something like, Where did you ethic go? 682 MOUND CITY COUNCIL'MINUTES- DECEMBER 22, 1998 GeoffMichael." ........ for sanction as the gentleman says~ He's not sure what happened. I'm not sure that Mr. Cunningham was there. I'm asking, is the City Council going to stand up and put on some round things and say Gcoff and Planning Commission members, you are sanctioned? You are censured. You have done wrong ...... " The Mayor asked the City Attorney to respond. City Attorney. "The answer is no, we are not going to do that. The City Council will not do that. Again, I'm not even dealing with the merits. That's not for us. As you might expect, the Legislature didn't entrust the City Council with the right to determine how it's committees are performing. They haveleft other forums to do that but, it would not be appropriate for the City Council to wade in and to try to make a determination as to the accuracy or inaccuracy of the comments made in that letter." Geoff Michael. "If it were addressed to me, I would call the gentleman and ask him what his problem is? It's not addressed to me. What is the City Council going to do just leave this thing hanging and ignore it?" City Attorney. "First of all. I can't speak for the City Council." Geoff Michael. "Then have someone from the City speak." City Attorney. "I am someone from the City and I can speak for the City. My response to the individual would be that if he wishes to pursue his concern here, that the Open Meeting Law Statute very clearly spells out the procedure and the remedies for trying to redress a claim of a violation of the Open Meeting Law. They have nothing to do with the City Council and it would not be appropriate for the City Council to be involved in trying to resolve that issue. My comment would be, to tell him that he should read the statute. Geoff Michael. "This will be ignored." City Attorney. "I can certainly. Again, we can talk to the City Council about that. If they want me to provide a response of that sort, it may well be provided." Mayor Polston. '.'If you want a member of the City Council to respond, I will, as the Mayor in saying that we don't respond to, particularly if someone is accusing somebody, which, it sounds to me, that there's an accusatory tone to this, especially of something that is in violation of the law. We don't respond to it, as a City Council, either defending or censuring or trying to censure a public body. We, of course, would let the law take its course. If there is some type of a litigation, they, the City, would be involved in defending, to the extent they are required to, although, I do understand, and it is my personal understanding, and correct me if I'm wrong, that violations of the Open Meeting Law are independent. That those members of a public body, who stand accused of violation of the Open Meeting Law, must defend, or must pay for their own defense." City Attorney. "No, that's not correct. The only thing the City can't do, is there is a civil fine if there is a willful violation of $300.00 per violation, which the City cannot, by Statute pay, .but we can defend. Again, it's silly to be talking about penalties when there hasn't even been any review of whether there was a violation." 683 MOUND CITY COUNCIL MINUTES - DECEMBER 22, 1998 Geoff Michael. no one had the Your the Chair. "I am truly disheartened that after 16 years of service to this City, that courtesy to Call me and say: What in the world was going on, Geoff?. That doesn't speak to well for how we're getting along here." Councilmember Hanus. "Oeoff, the date of this letter is the 21st. I suspect the City just got it today. · I know I saw it for the first time when I sat down here tonight. So, as far as I'm concerned, there was no opportunity to call you." Councilmember Ahrens. "Can I just ask a question? I read the last sentence of Mr. Cunningham's letter and as a Councilmember, I will respond to you. I have no intention of sanctioning the Planning Commission. I do have two questions. He asked at the very end of his letter, to be notified of our actions, to sanction the Planning Commission, Are we going to tell him to go fly a kite? Second of all, the paragraph right above that. Was Mr. Cunningham in attendance at this meeting because it appears .to me that he got information from the Superintendent with respect to the meeting which is what initiated the letter? If we do intend to respond, I want to go on record, that I have no intention of sanctioning the Planning Commission." Councilmember Weycker. "I would think this should be taken up. by Staff, with the Planning Commission and at least discussed. I know at the Park Commission, I'm the Council Liaison and we do talk about open meeting laws and how we have to comply to them." Geoff Michael. "Leah, you're assuming something, ......... in which case, please get your facts straight, before you require us or direct us to talk to Staff to clear up an issue that may or may not have happened." Counciimember' Weycker. "I didn't mean to clear up an issue. No. I mean to discuss the letter. You asked if anyone was going to talk to you about it or anything. I would think that it should be." Geoff Michael. "You referred to open meeting laws. I quite specifically heard you say that. And I'm only asking that you be very specific what you ask us to discuss with Staff. I would discuss the letter with them, by all means. Councilmember Weycker. "I think it's Staffs duty and I think we all received letters, like I said at the Park Commission, that I sit on, we received a letter from John Dean explaining the open meeting law, just not too long ago. I don't know if your commission got that information." City Attorney. "I received one of these letters today, too, addressed to me, so if the Council has no objection, I can provide a response along the lines I just indicated and certainly copy anyone who might be interested in that response, if the Council wishes me to do that." Councilmember Ahrens. "It is unfortunate. I personally had this exact situation occur, where this City Council got a letter based on someone else's recollection of the facts and I asked the City to respond to this person and the City Manager did not think it was appropriate for us to respond and say you didn't have all of your facts right. So, I can understand exactly where the Planning Commission is coming from. If Mr. Cunningham 684 MOUND CITY COUNCIL MINUTES- DECEMBER 22, 1998 doesn't have the facts right, because they were reported to him in a careless-fashion, and I understand how hurtful it is to get this letter and say, City Council sanction the Planning 'Commission. We murdered somebody. That's about how silly this is." Mayor Polston. "Without objection, the City Attorney will respond in a fashion that he described." Councilmember Ahrens then moved to adjourn. The motion died for lack of a second. The City Manager pointed out that we should acknoWledge that there are two Councilmembers here and another person who are leaving the City of Mound. Liz Jensen has been on the Council for 12 years. Mayor Polston has served 2 terms as Mayor, this time. Sally Koenecke has been with Triax, working with public television who is leaving the City after 15 years. She is moving on to the lake Minnetonka Cable T.V. Commission. Also, Joel Knudson, who normally does our meetings, is quitting at the end of January. He acknowledged all the above for all their hard work. Councilmember Jensen stated it has been an interesting 12 years. "There have been some great times, when we all agree on a topic or item. Those are just wonderful fun times. Then there have been some truly difficult times when we have not agreed on something that has come before us. Life would certainly be more pleasant if we could agree on everything, but that would be kind of dull. I really believe that when we disagree with a position that someone has taken, that disagreement, for the most part, if not all the time, is based on an individual's perception of what is best for their community. There may be a rare few exceptions to that. But, I don't think there has been, that I've experienced, self-serving people, in our commissions or on the City Council and to know that we can have healthy debate and disagree and move on, is probably a good sign. I wish the incoming Mayor and Councilmember a wonderful time. I hope they are always guided by what they perceive is best for the community and it's not something that's done for serving their ego. Thirteen years ago when I ran for City Council, when Fran cornered me at the polls, at the church, and she said come on down here and sign up to run, I didn't know if I wanted to do that or not. I didn't have an axe to grind. I didn't have an agenda to run and when asked, several years later, why I did it, I couldn't even come up with a good reason. I tend to say it was altruism. Somehow it was a desire to give back to the community that I lived in and I'm sorry that I.couldn't please all of the people, all of the time. That's just an impossible thing to do. I wish that we could but, it's just not going to happen. I do hope that the City can continue to move forward in the direction that it's headed. There's going to be some challenges and it's not going to be cheap. It's going to take money. It's going to take emotion. It's going to take hard work. But, it's like we're on the brink of something great that could happen and it's been frustrating to be looking at that for 12 years, and now to be stepping away. In many respects, it's hard to step away from that. I hope that this Council, the incoming Council, and the commissions that will advise that Council are able to, and I quote my Mend, Tom Reese on this one, who said this a long time ago. 'That we can disagree, without being disagreeable.' I thank my fellow Councilmembers and the community for their confidence and trust for the last 12 years." 685 MOUND CITY COUNCIT., MINUTES- DECEMBER 22, 1998 Mayor Polston. "I would like to say a special thank you to the City Staff who have worked very hard over the past years. We didn't always agree and there were always times when I might like to knuckle a head or two or scream at somebody but, they've done a good job and they deserve all the credit really. Because we public officials figure out, very quickly I believe, that we need them more than they need us in order to get everything put together. I'd like to say thank you to the people that have done the cable T.V. and to my fellow members on the Council. 14 years, whatever it is, I did it because I enjoyed it. I hope I served the people somewhat, in between." INFORMATION/MISCELLANEOUS; A. November 1998 Financial Report as prepared by Gino Businaro, Finance Director. Memorandum from Gino Businaro, Finance Director, regarding cash balances by fund. Letter from a Mound resident regarding recycling. REMINDER: CITY OFFICES WILL BE CLOSED FOR THE HOLIDAYS AS FOLLOWS: THURSDAY, DECEMBER 24, 1998, 12:00 NOON FRIDAY, DECEMBER 25, 1998' THURSDAY, DECEMBER 31, 1998, 12:00 NOON FRIDAY, JANUARY 1, 1999 MERRY CHRISTMAS AND HAPPY NEW YEAR! MOTION made by Jensen, seconded by Hanus to adjourn at 11:20 P.M. The vote was unanimously in favor. Motion carried. Attest: City Clerk 686 THIS PAGE LEFF BLANK INTENTIONALLY, 687 Bills December 22, 1998 Batch 8102 121,349.35 TOTAL BILLS $ 121,349.35