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.
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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
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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
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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.
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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.
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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
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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.
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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.
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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.
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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