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1993-09-14 SeDtember 14, 1993 MINUTES - MOUND CITY COUNCIL - SEPTEMBER 14, 1993 The City Council of Mound, Hennepin County, Minnesota, met in regular session on Tuesday, September 14, 1993, in the Council Chambers at 5341 Maywood Road, in said City. Those present were: Mayor Skip Johnson, Councilmembers Andrea Ahrens, Liz Jensen, Phyllis Jessen and Ken Smith. Also present were: City Manager Edward J. Shukle, Jr., City Clerk Fran Clark, City Attorney Curt Pearson, City Planner Bruce Chamberlain, and the following interested citizens: Tom Casey, Paul Goshgarian, Neil Weber, John Royer, Greg Keller, Bernard Gaudette, and Tom Reese. The Mayor opened the meeting and welcomed the people in attendance. The Pledge of Allegiance was recited. 1.0 MINUTES MOTION made by Smith, seconded by Jensen to approve the Minutes of the August 24, 1993, Regular Meeting, as submitted. The vote was unanimously in favor. Motion carried. 1.1 PUBLIC HEARING: CASE//93-060 - CONSIDERATION OF A PRELIMINARY AND FINAL PLAT REQUEST FOR "DAKOTA RAIL 2ND ADDITION" BY DAKOTA RAIL, INC,, INVOLVING LANDS SOUTH OF 2281 COMMERCE BLVD, (JOHN'S VARIETY AND PETS) AND NORTH OF THE RAILROAD TRACKS The Planner, Bruce Chamberlain, explained the request. The property consists of approximately 5800 square feet and will be subdivided from Dakota Rail 2nd Addition and subsequently connected to Mr. Royer's property as a single parcel. The Planning Commission recommended approval. The Planning Commission recommended no park dedication fee be charged. The Council needs to address this issue. The Planner contacted the County Assessor, Keith Rennerfeldt, and asked that he put a tax valuation on the property. He has indicated a valuation of $12,000, which would mean that a park dedication fee of $1200 would be in order if the Council chooses. The Mayor opened the public hearing. Paul Goshgarian, 5965 Lakeview Drive - stated he owns the Lynwood Apartments and would like to have the Dakota Rail property behind his property not included in this plat. He asked that the lines be kept straight. Councilmember Jensen stated this was discussed by the Planning Commission at their first meeting. At the second meeting, the Planning Commissioner's who had been to the site stated that the extra property is what Mr. Royer is using now so it was left as it was proposed. 287 September 14, 1993 Greg Keller, representing Mr. Royer. He stated he would like to make comments on the park dedication fee. He stated that this proposed plat is exactly the lot that was proposed in 1990 and is the same lot that Mr. Royer has been using and leasing. Mr. Keller stated that he cannot see that a park dedication fee should be charged because it is not changing in use and is not going to require services. He felt that subdivision 6 of the ordinance granting exceptions should apply, "This section shall not apply to the division of platted lots which are being combined with other existing lots to increase the lot sizes to conform to the larger size lots required by the zoning ordinance. This recognition is in recognition of the need to put undersized lots together to bring them into conformance with zoning requirements adopted after the original subdivision of properties, many of which predate any zoning regulations of the City.' His reasoning is that Mr. Royer's existing lot, which probably predates the lot size requirements, is approximately 7,250 square feet. The new parcel is approximately 5,838 square feet. Both of these are substandard lots, but by combining them and making it a condition of this subdivision, it will now be a conforming lot. Thus, this should take Mr. Royer out of having to pay a park dedication fee. He suggested that perhaps the City would prefer to have Mr. Royer take the money to be charged for park dedication and pave the parking lot next summer. Mr. Keller further stated that he has reviewed the records of the 1990 subdivision of this parcels and several others were contemplated and there was no requirement of any park dedication fee at that time. Finally, Mr. Mills has told Mr. Keller that recently when there was a piece subdivided off for the Norwest Bank property, there was no park dedication fee assessed in that instance. The Mayor closed the public hearing. The City Attorney stated that he is amazed at some of the things being said here. He stated that if you look at the plat which is before you, Mr. Royer is not platting this property, Dakota Rail is. There is one piece of property and it is being divided and there is a second parcel being Lot 1, Block 1 which is being developed. The items that Mr. Keller mentioned have no relevance to the ordinance. It couldn't be any clearer, it says: "In every plat, replat, or subdivision of land allowing development for residential, commercial, industrial, or other uses or combinations ....... there shall be a park dedication fee." This is not an optional item. It is not a variance. It is something that has to be enforced consistently or take it out of the ordinance. It relates to every piece of property. The exception that Mr. Keller is quoting talks about, "This section shall not apply to the division of platted lots .... ". This is not platted property. It has been in the railroad since the time of the Indians. The government gave this as a patent. There is no abstract on this property. Nobody has ever owned it except the railroads. The exception was written into the ordinance to encourage people with 4 or 6 lots, that were 30, 40 or 50 foot lots, to put them together and bring them into conformance with the current day ordinance. The argument that it relates to what Mr. Royer is going to spend on the parking lot or that it will not take utilities is not relevant. This has nothing to do with the ordinance or park dedication. The City Attorney stated that in the earlier years (1960's), the idea of the development of land and asking people to make a park dedication was something that was very controversial. Every property owner in the United States said, "If you require that, you are taking my land, under 288 September 14, 1993 the constitution you have to pay me for it." This has gone to the United States Supreme Court, California Supreme Court, Wisconsin Supreme Court and eventually got to the Minnesota Supreme Court, and they have all uniformly held that requiting, in the development of land, an extraction or a dedication to the public as the Commons are, is within the power and purview of government. It serves a community purpose. The arguments that the Planning Commission uses, i.e. they're not going to use a park, etc. don't hold water. After the 1960's, there came a time when the planners and urban developers said, the only people you are hanging this particular extraction or dedication on are the people who live in the houses, but you have commercial and industrial property and they are all part of the community. The City Attorney used the Mayor's example a few weeks ago. The Mayor has his business in another community, when there's a bond issue for parks, you pay, when there's a school, you pay. It's the same argument people use with the IRS, I don't believe in bullets therefore, I'm not going to pay my taxes. In this case you have a park dedication fee in the ordinance and if you don't like the ordinance then change it. People who are going to develop property in the community for the first time, and in Mound that is practically nothing, there is so little left. We have the railroad and one other property that is over 5 acres in size. In most developing communities, the State Legislature has recognized this as something that is very legitiment. You could ask for 10 percent of this land, but what good would that do, it would make no sense, so you ask for a cash contribution which will go into the park fund which can be used to buy a neighborhood park, to assist in developing a park, or whatever it is. That money is dedicated for that purpose. That is for the benefit of the community. The properties that are platted already are not being asked to make a dedication, i.e. Mr. Royer and other downtown properties. So what is being asked is that the railroad, which is dividing off and selling it property pay a small portion to the City park fund. You did exactly the same thing (it was discussed and voted on i0 when Balboa came through here a couple of weeks ago. The City Attorney stated that Mr. Keller has made reference to the bank building. He stated that it is his understanding that there has been an admission that there was a clerical error. The thing you have to remember about 1990 is that it was the City that was subdividing the land. The City bought it and was the one that was dividing off the parcels from the railroad and we would have been in exactly the same position that Mr. Royer and Balboa are in. Instead of paying $235,000, if the railroad thought he was going to pay a park dedication he would have said that we would have to pay that on top of the $235,000. When we bought the land from the railroad, it was a part of the purchase agreement that it was a responsibility, as it is with Mr. Royer. Apparently, it was with Balboa that they have to divide it and they have to pay the fees. Mr. Mills is an excellent negotiator and as a result of that he has put the onus on Balboa and Welsh Companies and now he is putting it on Mr. Royer and three years ago he put it on the City. In the City Attorney's judgement, there is not one thing that was argued before the Planning Commission which has any relationship to the ordinance. It is the argument that somehow or another, people who are in government whether they are the Planning Commission or the Council can make these arbitrary decisions. This is what has gotten us in trouble with the Commons. It has gotten us in trouble in a hundred places where people said, "Well, what's the difference if Joe does this, we'll let him do it." Then there are people who come behind them, like yourselves, who spend the next fifty, hundred years trying to clean it up. If the Council does not want to charge a park fee here, don't approve the plat, go back and change the 289 September 14, 1993 park dedication ordinance, saying you don't want to charge anything to commercial and industial property, then the City Attorney has no argument with it. This ordinance as it stands is as clear as it is going to be, it is similar to 95 % of the ordinances in the State of Minnesota, as it relates to developing communities. Mr. Keller stated that he prepared both the 1990 purchase agreement and the current purchase agreement and there were no park dedication fees involved then. The City Attorney stated that in 1990 Mr. Royer's parcel came in as a complete afterthought in late November and it was at that time that Mr. Mills, reluctantly agreed to pay the City $3500 to assist in the platting of this particular property, which he has never paid. Mr. Mills has additional property behind the Coast to Coast store which is going to have to be divided off. There are other properties, if he wants to sell them, he is going to have to divide them. He has known this from day one. Even with us, in the purchase agreement, he made it very clear that if there was going to be a division of property it was a part of our contmctural agreement that the City would have to do that. The City paid him $235,000, plus we had to subdivide the property. The parcel came in because Mr. Mills made a deal with Mr. Royer sometime in the middle of our subdividing process. It had nothing to do with the City's contract with Mr. Mills. It would not make any difference if God was dividing this, if you follow the ordinance, he would have to pay. The Council discussed the Planning Commission's recommendation and how they somehow decided that they did not have to apply the ordinance. The Council decided that it has nothing to do with who's involved or what's involved, the City has an ordinance on the books and if they are not going to apply it, it should be removed. They stated that they have to be consistent with everyone and treat all people the same. The Council then discussed the amount that should be charged. The County Assessor stated that $12,000 would be a fair market value for the property and 10% of that is $1200. The City Attorney pointed out that this is not a charge to Mr. Royer, it is a charge to the developer, Dakota Rail. The Council agreed that $1200 is a fair number to charge for park dedication. Smith moved and Jessen seconded the following resolution: RESOLUTION//93-121 RESOLUTION TO APPROVE A PRELIMINARY AND FINAL PLAT FOR "DAKOTA RAIL 2ND ADDITION" INVOLVING LANDS OWNED BY DAKOTA RAIL, INC. LOCATED SOUTH OF 2281 COMMERCE BLVD. (JOHN'S VARIETY AND PETS), AND NORTH OF THE RAILROAD TRACKS, P & Z CASE g93-040 The vote was unanimously in favor. Motion carried. 290 1.2 SeDtember 14, 1993 APPROVAL OF RESOLUTION MODIFYING THE ENVIRONMENTAL ASSESSMENT WORKSHEET (EAW) AND RESOLUTION #93-20, TEAL POINTE DEVELOPMENT Planner, Bruce Chamberlain, explained them are 3 pieces of information for the Council to consider tonight: A resolution determining thru further conditions are warranted to the Teal Pointe residential development based on the public comment to the EAW; and A resolution that amends Resolution 93-20, the Preliminary Plat approval, adding 6 items; A conservation easement that was drafted by Tom Casey to assist City Staff in drafting the final conservation easements that will be put forth on this project. The Planner reviewed the items in the 2 resolutions. The Council changed the following: Resolution #1 - Items B. 1 and 3 shall read as follows: "Prior to issuing a building permit for Lots 1, 2, and 3, the developer shall submit a set of plans, prepared by a registered Landscape Architect for review and approval by the City Staff. The plans shall contain a master plan, tree inventory, erosion mitigation plan and a landscaping plan which details tree and ground cover replacement." "There shall be no public or private docks on the shoreline of the adjacent wetland nor shall them be any dredging of the wetland to accommodate this development. Resolution//2 - Items A. 20, 22 and 23 shall read as follows: 20. "Prior to issuing a building permit for Lots 1, 2, and 3, the developer shall submit a set of plans, prepared by a registered Landscape Architect for review and approval by the City Staff. The plans shall contain a master plan, tree inventory, erosion mitigation plan and a landscaping plan which details tree and ground cover replacement." 22. "There shall be no public or private docks on the shoreline of the adjacent wetland nor shall there be any dredging of the wetland to accommodate this development. 23. "Conservation easements shall be established to guide development of the property. The City Staff shall work with the developer and representatives of the neighborhood preparing the easement. Said easement shall, at at minimum, preserve a buffer zone adjacent to the wetland consisting of existing, predominantly unaltered vegetation. Removal of vegetation other than dead, dying or diseased plants shall be prohibited. Alteration to the terrain through grading activities shall be prohibited. 291 September 14, 1993 The City Attorney recommended that the developer have his attorney draft the conservation easement using the easement provided by Mr. Casey, which is in great detail, what the Planner has suggested and some information the City Attorney has. The City Attorney told Mr. Casey that it is not the intent of the Staff to recommend the nine page easement, which is over broad, and could create title problems for the developer and anyone who would buy the lots. The City Attorney stated that the developer's attorney is going to draw the covenants. These need to be presented to the City Staff for review and recommendation. The City Attorney stated the City would like to have an easement which the Council and anyone else who reads it can understand, but the City does not want to impede or encroach on the developer's property or emcumber it in such a way that the developer cannot sell it. Mr. Casey stated he would like to see//20 reviewed by the City Council because it brings it back into the public process. He then asked about the park dedication fees for this project. The Council stated that in addition to the wetlands that is being dedicated, there is a $500 per lot park dedication fee requirement which is item//6 in Resolution//93-20. Mr. Weber stated that the assessor's fair market value is under $45,000. The Council asked that plans prepared by the registered Landscape Architect be brought to the Council after review by the City Staff as an educational item. The Council discussed the requirement to have one representative from outside the development in the Homeowner's Association. The City Attorney stated he thinks the responsibility to making the appointment should be on the City Council and should be done in a general way so that the Council can find someone. There should also be escape language developed because it could happen that there is no one willing to be the representative from outside the development. Smith moved and Jensen seconded the following resolution as corrected tonight: RESOLUTION//93-122 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOUND AMENDING RESOLUTION 93-20; THE PRELIMINARY PLAT APPROVAL, APPROVAL OF A PLANNED DEVELOPMENT AREA, AND LOT AND STREET DESIGN VARIANCES FOR TEAL POINTE The vote was unanimously in favor. Smith moved and Ahrens seconded the following resolution as corrected tonight: RESOLUTION//93-123 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOUND DETERMINING THAT FURTHER CONDITIONS ARE WARRANTED TO THE TEAL POINTE RESIDENTIAL DEVELOPMENT BASED ON PUBLIC COMMENT TO AN ENVIRONMENTAL 292 September 14, 1993 ASSESSMENT WORKSHEET The vote was unanimously in favor. 1.3 PRESENTATION OF PROPOSED 1994 BUDGET The City Manager presented the proposed 1994 Budget, the preliminary levy and the suggested dates for the public hearings. The Council changed the hearing dates for December 9 and December 14 at 7:30 P.M. Smith moved and Ahrens seconded the following resolution: RESOLUTION//93-124 RESOLUTION APPROVING THE 1994 PRELIMINARY GENERAL FUND BUDGET IN THE AMOUNT OF $2,366,950; SETTING THE PRELIMINARY LEVY $1,783,620 LESS T H E HOMESTEAD AGRICULTURAL CREDIT AID (HACA) OF $494,800, RESULTING IN A PRELIMINARY CERTIFIED LEVY OF $1,288,820; APPROVING THE PRELIMINARY OVERALL BUDGET FOR 1994; AND SETTING PUBLIC HEARING DATES The vote was unanimously in favor. Motion carried. 1.4 HRA LEVY Jessen moved and Jensen seconded the following resolution: RESOLUTION #93-125 RESOLUTION APPROVING A LEVY NOT TO EXCEED $24,000 FOR THE PURPOSE OF DEFRAYING THE COST OF OPERATIONS, PURSUANT TO THE PROVISIONS OF MSA 469, OF THE HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF MOUND FOR THE YEAR 1994 The vote was unanimously in favor. Motion carried. COMMENTS AND SUGGESTIONS FROM CITIZENS PRESENT Bem~d Gaudette commented that the Mayor and Councilmember Jessen have stated before that the Commons belong to the City of Mound, all Mound residents. The Mayor stated that is correct. 293 September 14, 1993 1.S pAYMENT OF BILLS MOTION made by Johnson, seconded by Jensen to authorize the payment of bills as presented on the pre-list in the amount of $577,528.81, when funds are available. A roll call vote was unanimously in favor. Motion carried. INFORMATIQN/MISCELLANEQU$ A. Department Head Monthly Reports for August 1993. LMCD Representative's Monthly Report for August 1993. Tom Reese was present and spoke to the Council regarding the LMCD's current organization and operation and possible changes therein. A subcommittee was formed and their findings and conclusions are in the report. The principal criticisms are summarized as follows: (1) the board is too large to efficiently and effectively conduct its business; (2) members of the board too often reflect narrow interests of their member cities or other interest groups; (3) the board has failed to aggresively address the major environmental and other issues raised in the management plan; (4) the board is not sufficiently accountable or sensitive to the various lake constituencies; and (5) the funding mechanism used by the LMCD does not fairly allocate the cost of management to all users of the lake. The following were the conclusions of the committee: 2. 3. 4. 5. This report will be reviewed at the 3rd quarter mayor's meeting to be held at 7:00 a.m., Friday, September 24 at the Lafayette Club. It is essential that the LMCD or an entity similar to the LMCD be preserved. There is no consensus on the committee as to whether the LMCD should be reorganized. They concluded that direct elections were not necessary nor desirable. They developed two reorganization scenarios for the board's consideration. a. The new board would consist of seven members selected from seven districts. Each district would consist of one or more member cities. The districts would be created giving consideration to four factors - miles of lakeshore, proximity of the member cities within a district, population, and tax capacity. The board member from each district would be selected by the councils of the cities therein. Scenario 1: District 1, District 2 District 3 District 4 District 5 District 6 District 7 Deephaven, Excelsior, Greenwood & Woodland. Minnetonka. Minnetonka Beach, Minnetrista & Victoria. Mound. Orono. Shorewood. Spring Park, Tonka Bay & Wayzata. 294 Co September 14, 1993 Scenario 2: District 1, District 2, District 3, District 4, District 5, District 6, District 7, Deephaven & Greenwood. Excelsior & Shorewood. Minnetonka & Woodland. Orono & Minnetonka Beach. Victoria & Minnetrista. Mound & Spring Park. Tonka Bay & Wayzata. Mr. Reese stated he favors scenario number 1 because it really doesn't change anything in Mound. His objection to Scenario 2 is you have one horse and one rabbit, how to you allocate the council vote between Minnetonka and Woodland. He explained that nothing else would really change because they would have to go to the Legislature to make this change. There was a lot of discussion in the report about the financing, with some conclusions that perhaps a boat sticker could be sold on a regional basis. There was some talk that the 14 cities are financing the LMCD but realistically the Water Patrol is financed by Hennepin County as are all of the marker buoys and the maintenance of the shorelines and things similar. There is no major change but it does address the fact that it gets the LMCD closer to 1 person - 1 vote which has been somewhat of an irritation when you have a 600 population cities that have the same vote as 10,000 population cities giving the same impact on the ordinances, etc. that the LMCD promulgate. Mr. Reese stated that the smaller communities are against either scenario because they feel they will lose out. Memo dated August 27, 1993 from Dave Cochran, Chair, LMCD, re: Issues before LMCD Board. LMCD Mailings. Letter dated August 24, 1993 from Governor Arne Carlson, RE: budget restraint - holding the line on salary increases. Planning Commission Minutes of August 23, 1993. Announcement from League of Minnesota Cities (LMC) RE: 1993 Regional Meetings. REMINDER; Household Hazardous Waste Days are scheduled for Friday, September 17 and Saturday, September 18th at the Hennepin County Public Works site - Orono. REMINDER: No C.O.W. meeting Tuesday, September 21, 1993. Next C.O.W. meeting is scheduled for Tuesday, October 19, 1993. 295 September 14, 1993 Jon Sutherland, Building Official, has done a cursory review of the Our Lady of the Lake convent building per City Council direction. He indicated that the building is structurally sound but there are a number of code items to address: egress windows in all bedrooms, new electric smoke detectors, plumbing and electrical update to current code, handrails and guardrails to code, 6" - 8" headroom to basement, new stairs to code, heating contractors to evaluate boiler system and certify to current codes, etc. Jon Sutherland, Building Official has scheduled an open forum on a proposed Truth in the Sale of Housing Ordinance for Monday, September 27, 1993 during the Planning Commission's regular meeting, 7:30 PM, at City Hall. He has invited a group of housing evaluators experienced with this type of ordinance as it has been used in other cities. Please check your calendar to see if you can attend to hear from these people who have worked with this type of ordinance. Letter to the Editor of the Laker and Sailor News from Bill Clark, 5549 Bartlett Blvd., RE: House of Moy. LOST LAKE STORAGE SITE The City Manager explained that even with the current negotiations going on with Minnetrista to combine storage areas, the Staff felt that rather than spend extra money to haul away and dump unclean material at Lost lake, that moving the material at the site and berming it made sense. Greg Skinner was present and explained that this was done just to make more room for more material and snow that will be dumped at the site this winter. It would have cost the City $2200 just for dumping fees for the material (not counting the hauling) that is in the berm. LAWSUIT UPDATE The City Attorney stated that the City was served last week with a Summons & Complaint brought by Mr. Flack of Bluebird Lane and 5 of his neighbors. The City is in the process of responding at this time. MOTION made by Smith, seconded by Jensen to adjourn at 10:45 P.M. The vote was unanimously in favor. Motion carried. g~l~ard J. Shtttde, Jr., City Manager Attest: City Clerk 296 BILLS SEPTEMBER 14, 1993 Batch 3083 Batch 3084 Total Bills $164,400.86 413,127.95 $577,528.81