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1995-01-10 January 10, 1995 MINUTES - MOUND CITY COUNCIL - JANUARY 10, 199~ The City Council of Mound, Hennepin County, Minnesota, met in regular session on Tuesday, January 10, 1995, at 7:30 P.M. in the Council Chambers at 5341 Maywood Road, in said City. Those present were: Mayor Bob Polston, Councilmembers Andrea Ahrens, Mark Hanus, Liz Jensen, and Phyllis Jessen. Also present were: City Manager Edward J. Shukle, Jr., City Clerk Fran Clark, City Attorney Jim Larson, City Engineer John Cameron, City Planner Bruce Chamberlain, Building Official Jon Sutherland, and the following interested citizens: Joan Polston, Braedon Schmidt, Mitchell Hork, Keighla Schmidt, Tom Casey, John Edewaard, Jim Brunzell, Stacy & Mark Goldberg, Mary Smith, Dawn Polston/Hork, Brian Hork, Payton Polston & family, Deena Schmidt, Shelbey Schmidt, Zi Yin Moy, Larry Connolly, Michael Durell, Sara Biermann, Brad Biermann, Todd Rask, Oy Wah Moy, Shirley Hatcher, Randi Saba, Bill Netka, Dorothy Netka, Steve Smith, Cynthia Smith, Julie Lilledahl, Mark Lilledahl, Reub Hartman, Rex Alwin, Buzz Sycks, Orr Fenstad, Phillip & Eva Hasch, Alice Rogers, and Harold Meeker. The City Clerk administered the Oath of Office to Mayor Elect Bob Polston and Council Members Elect Mark Hanus and Liz Jensen. The Mayor opened the meeting and welcomed the people in attendance. The Pledge of Allegiance was recited. 1.0 MINUTES MOTION made by Jessen seconded by Jensen, to approve the minutes of the December 13, 1994, Regular Meeting, as presented. The vote was unanimously in favor. Motion carried. 1.1 CONTINUED PUBLIC HEARING: CASE //92-060, 061, 062 & 063: NEIL WEBER FOR TEAL POINTE DEVELOPMENT CO., BLOCKS 10, 11, 15 & 16, WHIPPLE, PID //25-117-24 12 0225, 0118, 0119, 0120 - REQUEST: PRELIMINARY AND FINAL PLAT FOR PLANNED DEVELOPMENT AREA, & VARIANCE City Planner, Bruce Chamberlain, explained that he would like to go over what has transpired since the Planning Commission Meeting in December. At that meeting the Planning Commission recommended denial of the preliminary and final plat for Teal Pointe. He stated that the preliminary and final plat has two issues: The Shoreland provisions that have been instituted and approved by the City since the initial filing and approval of the Teal Pointe preliminary and final plat. The Shoreland provisions state that no building shall be constructed on slopes over 30%, and Lots 1, 2 & 3 have slopes exceeding that amount. Therefore, a variance would be required if the plat is approved. January 2. 10, 1995 The second issue is the retaining wall on Windsor Road. The developer is proposing two retaining walls on either side of Windsor Road to accommodate the grade differences in that area. The developer is proposing an 8 % grade on the street and a 28 foot street width. An option that the City Attorney has reviewed since the Planning Commission meeting, 'because of the concern about the retaining wall, is adding two variances to 'the project. 1) To steepen the grade of the street to 13 % from the 8 % which would result in a reduction in the height of the wall, and 2) to reduce the width of the. street from 28' to 24', which would allow more space between the wall and the right-of-way line. These two variances combined would have a net effect' of, the wall on the south side of Windsor could be reduced from approximately 11 foot height at its maximum to about 5 to 6 feet, and the wall on the north side could be eliminated entirely. By reducing the street width, and. increasing the maintenance room, there is a possibility that the material used for the wall could be changed from the proposed steel piling to a material that is more aesthetically pleasing such as stone faced block. If the Council approves the project,' staff recommends the inclusion of the recommended variances on the streets and variances to the shoreland management ordinance and findings of fact pertaining to these variances. Councilmember Hanus asked about damage to trees bY the retaining walls. The City Engineer indicated that it would depend on whether the street was narrowed to the 24' width, which might help the trees but without having the exact location of the trees it would be hard to determine if the impact would be less. The City Engineer also explained that currently about the last 100 feet of Windsor Road is at a 13% grade so allowing the variance from 8% to 13% would just make the road grade approximately what it is now. Councilmember Hanus asked if the grade would be a problem for emergency vehicles or winter driving. The City Engineer stated that he did not think it would be a problem because of the area with a cul-de-sac and there are' other areas in town that are worse. He pointed out the end of Windsor Road that meets Tuxedo Blvd. is at a 14% grade and has not been a problem. The Mayor stated that what he read in his packet was that. originally the Planning Commission recommended that the Staff apply the ordinances to the proposed plan, referencing the Shoreland Management Ordinance. He asked what the rationale was for not applying this. Mark Koegler, City Planner, stated that his recollection was that as part of putting together information that was forwarded to the City Council, the Planning Commission asked for a report on compliance of these lots with the proposed Shoreland Management Ordinance. So that the report that was generated went forward to the Council rather than being referred back to the Planning Commission. Then the decision ' to allow building on Lots 1, 2 and 3 was made by the City Council. The Council was aware that the Shoreland Management Ordinance was. pending (approved by the City but not yet submitted and approved by the DNR). The Council seemed to feel that the ordinance was not in effect at the time .or the Council may have felt that the development was appropriate because of the construction methods that were proposed. The Planner stated that he was not sure how well this was articulated in the minutes. · January 10, 1995 The Mayor then .stated that there was some question as to whether or not the hardshell copies were filed within, the 60 day time period. §omewhe;e in the report it was stated that the hardshells were not filed because they were not signed by the Mayor and Council. The Mayor asked for clarification on this. Also when the Planning Commission reviewed Teal Pointe in December, they stated it was their first introduction to the retaining walls or easement problems. The Mayor asked what was shoWn on the final plat as being approved? Mark Koegler stated that he would answer the retaining wall/easement question and deferred the signing of the hardshells to the City Attorney. Mr. Koegler stated that when Teal Pointe was presented 'to the Planning Commission, the packet of information that was required for submittal was the typical preliminary plat, site plan information, etc. At that time, the grading plan that the developer had, showed the road being graded in with the compliance and assistance of the surrounding property owners. In other words, it would have required grading outside the right-of-way lines and outside of the property owned by the developer. The Planning Commissioti did approve that-. In between that time and the Council seeing the plat, the developer made inquiries, and came back to the City and said they were not certain that was going to worl~ out because all parties did not want to be involved in this and have grading dOne on their property. The. action that was approved by the Council and the plans that were approved as part of the preliminary and final plat, were for one of two options. 1)Either at the developer's discretion, if they were able to work the road construction in a means which did not require retaining walls, or 2)the sheet piling retaining wall as an alternative that would allow construction of the roadway without any disruption to the adjacent property. Those were the two options, left to 'the developer on that issue. The City Attorney, Jim Larson, stated that the reason the hardshells were not signed by the Mayor and City Manager during the first 60 day window was because they were-not filed with the City. There are two provisiOns to that 'subdivision 9, and the second provision says that unless the hardshells are recorded with the County Recorder within 60 days after final approval by the Council, that the plat becomes null and void. When this issue was brought up at the November Council Meeting, it was Mr. pearson's opinion that neither one of those provisions had been met and therefore it was necessary before the City Council could give final approval to the plat that it go back through the process again. Mr. Pearson recommended that both .the preliminary and final plat be run through the 'process together, simultaneously, and that it go back to the Planning Commission and come back to the Council for reapprov-al. The Mayor opened the public hearing. Tom Casey, representing the opposition to the project, asked to hear from the developer as to what his justifications are at this time so that he can adequately respond to that. He stated that they he would have additional comments to make. Mr. Nell Weber, Teal Pointe developer, commented that they agree with the report given by Planner Bruce Chamberlain. This is the same exact project and the same exact conditions and shoreland issues that'were explained and it is all the same discussion that they already had regarding the alternatives on the access road. He stated they are willing to accept any or all of those options that the Council chooses. It is the same project. January . 10, 1995 Mr. Casey, 'representing. the neighbors who have concerns about this project. Just as background, he emphasized the following points: ." 1)The plat is null and void. You are not looking for a reapproval, it should start all over again. If you have a null and void plat, you have to begin from the preliminary plat, and go to the final plat stage. Because it is a new deal, the City does have the right to impose additional conditions or to deny this plat. There 'seems to be an inertia running to, we did it once before, we have to do it again. That is not true,' it starts over, again and new ordinances apply~ Because we are a nation of laws, that we all agree to abide by, the laws that are applicable to this project need to be followed very carefully and that's what did not happen'here and that's why we are back here tonight because the laws were not followed. In order to follow them, you need to go back. and look at this project afresh and decide what to do applying the ordinances that are now in effect." Mr. Casey - then stated he would be quoting code citations 'for the record. Section 330:00. Subdivision Code ... "Few activities have a more lasting effect upon its appearance and environment." .... "all subdivisions .... shall fully comply, in all respects, to the regulations set forth ..." The developer had constructive notice of this particular code provision voiding the plat. You cannot rely.on promises indicated by the City Staff, if in fact those were done, and I'm not sure they were. Section 330:25. states "The subdivider is urged to. seek the advice and assistanc~ of the City staff in order to facilitate the approval of the I~reliminary or final plat. However, such advice should not be construed to predict approval by the Planning Commission or final action by the City Council." Mr. Casey stated, "So there's some provision in the notes regarding that, which I say need to be disregarded, if, in fact, they did occur." Mr. Casey stated that he heard some discussio~i about the City having a duty to warn the developer about this voiding of the plat, if they don~t do it right. "It would be stretching a legal precedent to say that the City has to notify everybody of their legal responsibilities. The City would be spending already overburdened staff time advising them what they are supposed to do, So it's up to the developer. The Developer has legal counsel and if they did not comply with the law, they have to abide by it now and go back and do it again." Section 330:90, Subd. 1. "The Planning Commission and the City Council in their review of the preliminary plat will take into consideration the requirements of the community and the best use of the land being subdivided." Mr. Casey stated, "In other words, the citizens who will speak next, have a real right to have an influence on this plat. They are not just outside neighbo.rs trying to put on political'pressure. They have a legal right to have input on this plat.'- Also, there is nothing in the code that I have ever read, that says that the City has to maximize the devel°per's profits. We're not here to insure that he gets everything he-wants. All we have to do is. apply the ordinances correctly." Mr. Casey then presented the issues that he stated are grounds for denial: Bluff Setbacks - "There is an indication that the bluff setbacks must be 30 feet. Lots 1, 2 and 3 are primarily within the bluff impact Zones. He referenced the letter to the City January 10, 1995 from the DNR, dated January 10, 1995, which recommended that ihe City deny the Plat and associated variance requests. That letter ~ refers to a letter from the l)lqg, dated July 18, 1993, which stated that, -"The suitability of this site for any residential form of development is highly questionable ....." 'ALSO as a response to the EAW done in 1993, the Met Council indicated that,. "The Council staff recommends that Lots 1-3 be considered unbuildable." Mr. Casey then quOted from the Zoning Code proc'edure~: Section 350:530, Subd. 1, "All the conditiOns haye to exist and that's exceptional extraordinary circumstances which don't apply to other property in the zone." Mr. Casey. "Are there exceptional circumstances? No. This property is bluff land property abutting a wetland. There are a lot of bluffs in the City of 'Mound.. There's a lot of steep topography. There's nothing' unique about the parcel in that way that requires you to be granting a variance. So it fails from that point. The second point of that is the literal interpretation of the ordinance would deprive the applicant of rights commonly enjoyed by other properties in the Shme district. Well, everybody is required to abide by the zoning-code and everybody is required to go back 30 feet from .the bluff zone undei the current zoning ordinance. Pelican Point had to have that applied to them too. So there is not any deprivation of rights.' commonly enjoyed by other properties. Also, the code refers to hardship." Section 350:310, Subd. 61, "gets into what hardship is and it indicates that property cannot be reasonably used if the Zoning code is' applied." Mr. Casey. "Well, there is reasonable use. There has been no evidence here that it would be unreasonable to justify the code without the variances. Now, the developer has the burden-of showing that. We don't have to be the Planning Commission..The neighbors don't have to say, well, here's what you can do without the variances. The developer has to say and he hasn't said, that I (the developer) cannot reasonably use the.property without the variances. He intended to buy the property for his home which is a matter of record. There is no reason that he cannot put a one family home there. Again, hack to the hardship definition. The plight of the landowners, has to be unique to the property not created by the landowner. There is nothing unique about the bluffs. The Variant6 will not alter the essential character of the Community..The essential character of the area is that we have bluffs around .the whole wetland and there isn't one'house with stilts in'that bluff impact zone. So for that reason, the variance would fail. Economic .hardship is not an excuse under the zoning code." Mr. Casey. "Back to point number 2, about the private street. Section 330:95, Subd. 11, indicates that private street should not be permitted unless approved as part of Conditional Use Permit for an 0retail development plan. So it gives an exception there. But the Planning Commission Minutes indicate that the Planner, Mr. Koegler stated that he does not recall any private roads in the last ten years being approved and that was part of the Planning Commission timings. So there is no' precedent for private roads. This private road supposedly will exceed the zoning cOde requirement of 8 % grade. That was also referred to in the Planning Commission Minutes.. Zoning 'Code Section 350:440, Subd. 8, states that, "No building permit shall be issued for any lot ..... which does not abut a dedicated, improved public street." No exceptions to that. So a building permit 5 January 10, 199-5 cannot be granted" unless you have a.public street-for Lots 1 and 2. -Also, Section 350:445, Subd..'5, states'that all .lots .shall have direct adequate physical access for emergency vehicles along the .frontage of the lot 'from an existing dedicated improved public roadway. Lots 1 & 2 will not have a dedicated improved public roadway. There is really no reason to allow these variances. Tliere is the cul-de-sac length that they want to extend on Windsor Road an additional 50% beyond the code length of 500 feet to about 720'feet.. No showing of why. Wtiy can't you just have a normal length of road there. There is a cul-de-sac radius shrinkage from 50 feet to' 10 feet. The end results in a paved right-of-way width along the road from 50 feet a variance down 'to 40 feet, a paved area of the cul-de-sac bubble with a variance going down from 40 feet to 35 feet. Also there's discussion of a street g?adient variances for Windsor Road going from 8% up to 13%. Also a street width variance from 28 feet to 24 feet. All these vfi. riances fall within the subdivision code and if there is a. littl~ confusion about what part of the variance section, you use, you use the most. rekricfive. So if, you are looking at other parts of the code, you always apply the most restrictive part of the code and this is COntained id Section 330:170. Againl it talks about other special-Circumstances or conditions affecting a property that would deprive the landowner of reasonable use of the land. Are there special circumstances? No. Not the bluffs. There is nothing special about the topography. That area is 'like' the other side of the lake, .steep, erosional problems, etc. Is there reasonable use of the land? There's nO allegations that there can't be. There is nothing in the record that says that there can't be reasonable use without the variances." Mr. Casey. "The subdivision variances fail for that reason. Tt~ey fail for the other reason, Section 330:170" ...... granting the variance will not have an adverse effect upon traffic or traffic safety." Mr. Casey. "If you shrink the road and increase the gradients, I think one would have to conclude that it's going to have a safety problem or at least raise safety issues." Mr. Casey. "Finally, the granting of the variances will not be detrimental to the public welfare or injurious to other property in the vicinity. We have talked about this before and other people will again, the impact of the Windsor Road retaining walls on their property and the variances needed -for that. The record is loaded with reasons why not to approve the subdivision variances." Mr. Casey then addressed the retaining wall issue. He stated, "I am not going to get into the facts too much but just talk about the legal part of this. Section 330:95, Subd. 12 says, the street arrangements shall not be such as to cause hardship to owners of adjoining property in platting their own land and providing convenient access to their' land. I would say a 6 foot wall on the south side of the property would make inconvenient access. The other part of that is there was a vacation attempt about 3 years ago. The developer'came and asked to vacate Cobden Lane. That was denied because there was a lack of public interest. There was no showing that there was any public good. Now ·we're coming back here and doing it the other way. They are saying we are not going to get our way through vacation so we're going to take Cobden Lane.. That retaining wall goes righf.down the old Cobden Lane, depriving the public the rights of reasonable Use of that right-of-way or street. In Minnesota Case 6 January 10, 1995 Law,~ the Minneapolis Athletic Club Ys. KOhler, 177 N.W. 2nd, 786, 1970 Supreme Court Case talks about reasonable use. of public right-of-waj and that would be to have a retaining wall at an .unequal levgl on:: that parti6ular parcel going down toWard the wetland, "I would say this is not progiding reasonable use of the property. Also, if there is going to be additional landscaping or fill or slopes on adjoining property, that would need a fill permit under Section 350:1225, Subd. ·4,. B., if there is 10 yards or more." ' Mr. Casey then spoke about park dedication 'fees. He stated, "It is a new deal now. You're starting over again arid under the Mound building.plat, you have to issue' park dedication fees. The citizens'of Mound were robbed, the last time. The ordinance is very.clea/r. 10% of the market value of the property is how .you set the park dedication feeS. The developer has said in letters that the property is worth somewhere between $263,000 and $290,000. 'The park dedication fees that were imposed before were about $21,000 too low. You imposed $4,500 instead of the minimum of $26,300 to $29,000. We are losing $20,000 if you don't do it right and I think the public needs to see that the park dedication fees are properly charged, if this Council looks at it again and applies those-fees correctly. Mr. Cas6y then spoke on miscellaneous procedural issues. ;'Section 350:460, Subd. 2, B. says, the application for the preliminary plat. shall also be submitted with all variances detailed and explained. I looked at the new preliminary plat application and there is no explanation of variances. It goes on to say that all variances must be so noted' on the preliminary plat at the time of application. There is no notation of variances on there. Pretty hard to even decipher what the reasons are for the variance request when'it's not part of the application." Mr. Casey then spoke about open spaces. "Section 350:1235, Subd. 5 says, .i.."before final approval of a PDA, planned development area, adequate provisiOns must. be developed, for preservation and maintenance in perpetuity of open spaces." Mr. Casey. "They are not jus.t talking about hardcover. They are talking about additional protections to that land. in the code it talks about protecting the land from vegetative and topographical alterations and the storage of vehicles and materials. How much? 50% of the total project .must be pre~rved as open space, not by zoning regulations but actually by, and the code suggests, restrictions, conservation easements, thi.ngs of that nature, be adopted in a permanent'natUre. I would request that the Planning Department sit down and calculate out the 50% open spaces and see if it complies. I don't think it does and it is not 'protected if it is because the conservation easements only cover the bluff impact area right now. 70% of the shore impact zone must be preserved as open space with the appropriate language in the zoning code on those easements, which I haven't seen yet and I suspect are not there. So you need to look'back and apply the zoning code to the open space provisions." Mr. Casey. "Another provision of the new zoning code is that the PDA dwelling units must be clustered into one or more groups. That is Section 350:1235, Subd. 5, D. 1. January 10, 1995 The code says !n 'a PDA 'on a shoreline, those have to be clustered in one or more groups. I maintain that they are not clustered. They are in' normal property arrangements.. So I'd go back to the planning stage and see how that is all going to all work out. Thorough review of the documents are necessary.." '. - Mr. caSey. "Another part is the storm water disposal plan. There was an application in that regard and the watershed district has tabled, that. Section 330.130, Subd. 7, says, "In an area not having mu. nicipal storm trunk service, (this area does 'not have storm sewer-service), there has to be a storm water disposal plan approved by the City Council before you approve the final plat." Mr..Casey. "The EAW was done several years ago with extensive comments to it. I think those comments are very important to look at and should be part of the Council packet because I think they will give you a perspective on deciding what to do with this par. eel of. property." Mr. Casey further stated, "that an EAW'petition was filed with the EQB today and faxed to City Hall about 4:15 P.M. That Petition for the EAW is not asking the City Council to redo it, but just that in the event that the project changes substantially and has a potential for significantly affecting the environment that you look at doing a new EAW first. So that petition has been filed with the EQB and tinder the rules it states that if a petition is filed for an EAW, a final government decision 'may not be made until a petition for an EAW is dismissed and a declaration on the need,for an EIS is issued, etc. This petition needs to be dealt with before going forward. If it is the Council's desire to deny the plat tonight, we 'would withdraTM that petition." Mr. Casey stated, "that there are numerous reasons to deny the plat and hoped the Council agreed." Harold Meeker, 5132 Waterbury Road - stated, "that he has Power of Attorney for the Rogers family Over Lots 1 & 2, Block 17, because Mr. Rogers is home to pass away." Also he requested that City Staff and developers leave tlxe Rogers alone on Lots 1 and 2. He asked that the property be left alone so that everyone can enjoy it. John Edewaard, 5125 Hanoi, er Road - "There are a lot of ordinances and standards, policies by the Metropolitan Council and the Department of Natural Resources that have commented on this project. Just today the DNR apparently sent a letter to the City indicating that this project should be denied citing environmental issues. They state in the letter that, at the time .the city originally approved the Teal Pointe development, the city had not yet adopted their shoreland management regulations. The City-has subsequently adopted the shoreland management regulations and the DNR has approved the City's regulations. The DNR felt. it was not advisable to approve the plat in 1993 and now they believe it is directly contrary to existing city regulations to approve the plat as it'is currently proposed. DNR Hydrologist, Ceil Strauss, was recommending that the plat be denied. The DNR questioned whether development should occur in the bluff area at all. The Hennepin County Soils Survey recommends against any construction on slopes exceeding 19%. The slopes of Lots 1, 2, and 3 and possibly Lot 4 are pretty steep. I think they reach in some areas 45% to 50%. These'slopes would have the January 10, 1995 characteristics of becoming highly erodible once they are disturbed. There is no way to minimize the effect that heavy equip~hent would.have on the bluff area itself'. Any way you -look at it yOU are going to have-a, significant amount of runoff. The Metropolitan Council comments on the EAW that the conclusion by the C~ty was ~ncorrect ~n that' the development wouldn't have any effect on the wetland. I can't see how it wouldn't have an impact on the wetland just by'increasing the .erosion. '.If. you look at the water management plan/Lots 1, 2, 3, 4, and back of 5 may wash directly into the wetland. The only water that is captured by the detention basin are the front yards of Lots 5, 6, 7,: 8 and 91 Just by increasing the slOpe-of the road to 13%, y. ou will be increasing the runoff which' Will exceed the threshold by Minnehaha Watershed District Rule B which states there is no net increase in wetland for' the project." Mr. Edewaard. "The developers, Mr. Bessesson, Mr. Weber ~nd Mr..Bame, have failed to substantiate that they have a hardship here. I think Mr. Weber sold the property to the Teal Pointe Development 'ComPany with-constructive notice as to what the shoreland standards were. Mr. Weber stated at One of the first Planning Commission meetings that. they needed to build homes on Lots 1, 2, and 3 in order to maintain profitability for their project. ~Economic considerations alone, are reasons to deny this plat." · Mr; Edewaard. "The supplemental planning.'report, dated January 5, 1995, indicates that you have three alternatives. I don:t think that alternative #1 is reasonable because you place the burden of this development on the adjoining property owners. I think that the developer has a responsibility.to the Council and the people here to demonstrate that he has-done the necessary things to insure that his project can go ahead by obtaining easements or. whatever from the neighbors. I don't think he has been genuine in obtaining those.'t Mr. Edewaard. "The DNR policy recommends that all runoff leaving the site should be treated with retention ponds prior to discharge into the neighboring wetland. The proper treatment of storm water will help retain the existing water _quality in nearby basins. All these are serious issues. In terms of runoff, imagine in a 10'year period lets say 200 cubic yards of soil eroding from your property at the foundation, for example." Mr. Edewaard. "The Metropolitan Council in their examination of the EAW, in a letter to Mr. Koegler, indicated that there is no way to prevent erosion in the bluff area. Teal Pointe's surveyor even indicated to the Minnehaha Creek Watershed District that it is impossible to capture the runoff in the bluff area." Mr. Edewaard. "Regarding the retaining wall. The subdivision ordinance states that you cannot design roads that would be injurious to adjoining property owners. Looking at a line on a drawing does not show exactly where the retaining wall will be placed. A 13 % grade on the road is pretty steep and I would question whether anyone would be able to get,out of there in the winter in the Conditions that we had this last weekend. The retaining wail would be injurious to the Rogers' property and I think it would affect some other adjoining property owners also. I think in one of the first sketch plans in 1985, the developer, proposed to get access to the site from Drummond Road, but that again was too steep and he couldn't navigate a road there either. This really has to go back 9 January 10, 1995 to the Planning Commission and I think there is a real need for some reconsideration here." Mr. Edewaa'rd. "The City Code states that hardships u.sed in connection with granting a variance means the property in questio'n cannot be put to a reasonable use. Mr. Casey stated, pretty plainly, that there, are quite a few other things that Mr. Weber, Mr. Bame, Mr. Besseson could do with the property. He has come befOre the Council before threatening to increase density and all kinds of other things, so he, himself has admitted ther6 are other options other than the One he is proposing here' tonight.'" Mr. Edewhard.. "Some additional donsiderafions are, Mat the City of Mound has in the past denied application for variances, both minor and major subdivisions; through the application of the code ordinances. I don't think the City should contradict these rulings by offering Teal Pointe variances to build on the bluff. I think that is in direct conflict with some of the attempts the City' has made'over the last couple of years iff adopting its new zoning ordinances. I think ~e likelihood is pretty high that in the future you are going to need to grant some variances for a lot'of this property. ' I see in the Teal Pointe Homeowners Association documents there is some restriction regarding building but I believe that with the erosion impacts up in the higher area, that you wouldn't have a choice but to come back to 'the' Counci.1 and ask for variances for other things." Mr.' Edewaard. "I personally don't think this is a very well Conceived project." Mr. Edewaard'further complained about the timing of receiving information related to this public hearing. Brad Biermann~ 5106 Windsor Road - stated that his property borders the northern part of Windsor Road. "Regardless of whether yOU reduce the .street width, get rid of the retaining wall on the north side, I still have a problem with drainage on my property. All my property slopes down to that comer and I.just feel that with the road going thru there I'm going to have a problem.with puddling in the Spring, or a big rain storm and I'm going to. be looking at a small lake down there. Also, if I allow.fill, I have mature trees on that section of my property that will probably be killed from the fill after a period of a few years and if I allow the retaining wall, I get a steel corrugated wall which doesn't appeal to me. I'm'caught here. I either allow fill or I look at a. steel wall. I know the developer has a right to develOp his property but by the same token I don't see why I need to sacrifice any of my property. I would think if you were developing a piece of property, one of the first things you would have done was to figure out how you were going to get into your property without affecting anyon6 else. I'm not 'real thrilled about have a retaining wall being placed in front of my property." Todd Rask, 5109 Drummond Road - stated that his driveway .is right across the street from the proposed private road. "I haYe some concerns about the private road concerning water runoff and snow removal. I think if you look at those lots and apply the bluff properties to it you will find that probably they're not dealing with 'setbacks you are dealing with the bluff itself. So I think there is going to be a real runoff problem there. Right now a lot of us walk down Cobden Lane, out onto the slough and out onto the lake. I would like to know if there is a provision with these walls. I -know at one time they were talking about an 11 foot wall which would be insurmountable by foot. 10 January 10, 1995 Are there going to be provisions for us to cross that somehow if the wall is installed? Jhn Brunsell, 5111 Windsor Road, stated the following: "That he has lived here 3 years .and bought Neil Weber's~ h°u~: he 'was well aware that there could be a development. down below my property. I really felt that this was an area that would listen to its citizens and with all the variances and this Wall, it's awful, I put a lot of money into upgrading and developing my home, ' trying to make it a better place for me an my community ap.d my block and-now I sit there and have to look at half my property having a wall that goes down 95 feet up'to a pitch of 15 feet that comes around. On top of that, we have to look at having some kind of supports put in so that cars do not go off the road or whatever and. that's'going to'help me? This is awful. I can't buy it. I will not, if it comes to the road coming in with that wall, I will not allow.them to come and build or be on my property, or for you as' the City, to come and maintain .that wall on my property. 'I ask you one thing. If you had to be abutting property owners, looking at this, would you want to look at thi~?. You. know, for all the work you do on your homes and all the property you have, would you'want to have to lookat this? Isn't there a better way?" . ~ The Mayor brought the matter back to the Council. He asked if the Council had any questions of the staff or the developer at this' time. Councilmember Ahrens asked the City.Engineer about the storm water retention pond. She asked if anything' has changed. The-City Engineer stated he has not seen anything. He stated he is not sure where this stands with the Minnehaha Creek Watershed District. It was approved originally, but there were conditions attached to the approval and as far 'has he knows those conditions haven'tbeen m6t so they have never been issued an actual .permit. He stated he is not sure where that stands. When the final plat was approved before, that was one of the conditions of the final plat, that they be issued all of the necessary permits, before the final plat Was signed. The Engineer stated that we have the PCA permit for the sanitary sewer extension and it is the only one we have in hand. He suggested asking the developer where the watershed' district permit 'stands. Neil Weber stated that they were on the Minnehaha Creek Watershed District Agenda for appro~,al, but because of what happened in November, they took it off. Mr. Weber stated it was a standard approval and everything was there so they just p~lled it off until it gets reapproved by the City. The Mayor closed the public heating: MOTION made by Polst°n, to direct the staff to prepare a reSolution Of denial with the f'mdings of fact as listed by the Planning Commission' and bring it back to the n~xt meeting. The motion died for lack of a second. MOTION made by Hanus, to table the issue and have staff continue to work with the developer specifically in the areas of establishing some closer Criteria for a shortened retaining wall and the possibility of a variance to a 13% grade to the road. Also, to work with the applicant to consider reduction of Lots 1, 2 and 3 to 2 buildable lots, thus reducing the impact, on that bluff area. Also, looking at it this has a potential for eliminating the need for the street frontage variance. Mr. Hanus explained that he thinks there is a chance with only 2 lots in the bluff area,' there might be enough frontage there to abut the public roadway. 11 January iO, ~1995 The 'mo~iOn d~ed for lack of a.second, The;City Engineer stated he believes there is enough frontage on Drummond Road to allow 2 buildable lots in the bluff area instead of 3. MaYor .Polston siated that he has a problem with what is being proposed because there are 8 variances being re~luested which he considered major Variances. He also stated that he doesn't feel the Council should get into trying to design' the plat. Councilmember Jensen stated that this case involves raw land which has be~n' proposed for a subdivision into 9 parcels using the Planned Development Area (PDA). PDA allows development flexibility. It involves, using the term variance, but it is still an opportunity for raw land to be developed in a way that does not impose the same restrictions and allows some creativity in how that is accomplished. MOTION made'by Jensen, seconded by jessen to direct staff to prepare a resolution of apProval with conditions, with input from the Council on the conditions, and bring this resolution back to the Council at the next meeting. The vote was unanimously in,favor. Motion carried. Mr. Edewaard asked that he receive a copy of the minutes from tonight. Mr. Casey stated that since an EAW petition was filed, a motion for approval is not in order. He stated that the Council needs to look at the EAW process first before this 'matter is brought before the Council for final plat approval, as specified in Rule 4410. The City Attorney read the statute to the Council. "An environmental assessment worksheet (EAW) shall also be prepared for. proposed action whenever material evidence accompanying a petition, by not less than 25 individuals, submilted before the proposed project has received final approval, by the appropriate governmental units, demonstrates that because of the nature or location of a proposed action, there may be a potential for significant environmental effects." He further stated that he understands that this process has been undertaken already in connection with this project. However, he just heard a lot of input about the project from staff and the people here and he was not awa/e of any material changes that have been made to the project. Mr. Weber has stated that this is the' same project you reviewed before and he is asking the Council to approve it again. Mr. Casey reSponded that when that petition is filed with the Environmental Qualtity Board, you receive a copy, and the City's comment period on that, even its right to decide whether or not an EAW should be done, starts frOm the date the City receives it from the EQB. Mr. CASEY then stated the following: "So in a sense, you can't make a final ruling until you get the copy from the EQB and then comment within that 15 day time period. So it would be inappropriate to say tonight that the EAW is not necessary because you haven;t received it yet. But it has probably been filed and kicks the statute (the rule) in that says you can't make a final order or final approval until that's done." 12 JanuarY 10, 1995 The City Attorney asked Mr. Casey'the following: "Is it your opinion that you can serially do that and forever block the project?" Mr. Casey responded: "Well, I think any order that is taken and your not filing in good faith then somewhere down the line there could be problems, but I think these people filed in good faith.'" The City Attorney advised that it is within the'discretion of this Council to make a determination that there is no material evidence presented that indicates that this is in any way different from the project that was already reviewed in the context of an EAW and therefore, it is not necessary to do another EAW. Mr. Casey maintained that the decision has to be made after the City receives the EQB's petition that was filed. The City Attorney asked if that has happened yet? Mr. Casey stated, "No, that the fax came not from the EQB, but from the petitioner. The EQB has not sent a copy." Councilmember Jessen asked why did the petition come today. Mr. Casey responded that they had to get 25 signatures and that it was not easy to organize the neighborhood. , Councilmember Jensen asked for clarification from the City Attorney. She asked if we have taken final action on this? The City AttorneY answered, no. Councilmember Jensen stated since that is the case' we have time between now and two weeks from now to receive said item and take action on that item prior to taking action on the proposed resolution. The City Attorney stated that he thinks that is a good point and that will enable the staff to read the regtflations that Mr. Casey is referring to be in a better position to 'advise the Council on what is required of the Council, given the reilling of a request for an EAW. Mr. Casey argued that unless the decision is reversed to deny the proposal, he considers the action taken tonight as the ilnal decisiOn to approve, which Mr. Casey stated cannot be made tonight. Councilmember Jensen stated that if deliberations among the staff result' in a determination that bringing this back is two weeks is not a wise action, don't bring it back in two weeks. She stated that she feels these things can move in Parallel not in series. 1.2 COMMISSION REAPPOINTMENTS Hanus .moved and Jensen seconded the following resolution: RESOLUTION//95-1 RESOLUTION REAPPOINTING THE FOLLOWING PERSONS: ED SURKO AND JERRY CLAPSADDLE TO THE PLANNING COM1VI[ISSION; DAVID STEINBRING, PETER MEYER AND TOM CASEY TO THE PARKS & OPEN SPACE COMMISSION; AND DAVE WILLETTE TO THE ECONOMIC DEVELOPMENT COMMISSION - 3 YEAR TERMS - EXPIRING 12/31/97 The vote was unanimously in favor. Motion carried. 13 January 10,. 1995 13 APPOINTMENT OF ACTING MAYOR FOR 1995 Jessen moved and Jensen SeConded the following resolution: RESOLUTION #95-2. RESOLUTION APPOINTING LIZ JENSEN ACTING · MAYOR FOR 1995 The vote was unanimously in favor. Motion carded. 1.4 APPOINTMENT OF ACTING CITY MANAGER Jensen moved and Ahrens seconded the following resolution: RESOLUTION//95-3 RESOLUTION APPOINTING CITY CLERK FRAN · ' CLARK 'ACTING CITY MANAGER FOR 1995 The vote was unahimously in favor. Motion carried. 1.5 DESIGNATION OF OFFICIAL NEWSPAPER Jessen moved and Ahrens seconded the following resolution: RESOLUTION g95-4 RESOLUTION DESIGNATING THE LAKER THE .OFFICIAL NEWSPAPER .FOR 1995 The vote was unanimously in favor. Motion carried. APPROVAL OF OFFICIAL BONDS 1.6 Hanus moved and Ahrens seconded the following resolution: Councilmember Hanus questioned why the resolutions for the bonds are-worded the way they are. The City Manager will get an explanation and report back to the Council. RESOLUTION g95-5 The vote. was unanimoUsly in favor. 1.7 RESOLUTION APPROVING THE PURCHASE OF AT LEAST A $20,000 BOND FOR THE CITY CLERK Motion carded. Jensen moved and Hanus seconded the following resolution: RESOLUTION g95-6 The vote was unanimously in favor. RESOLUTION APPROVING THE PURCHASE OF AT LEAST A $20,000 BOND' FOR THE CITY TREASURER/FINANCE DIRECTOR Motion carded. 14 January 10, 1995 1.8 DESIGNATION OF OFFICIAL DEPOSITORIES jeSsen moved and Jensen seconded the following resolution: RESOLUTION ~)5-7 RF~OLUTION i DESIGNATING THE OFFICIAL DEPOSITORIES FOR 1995 The vote was' unanimously in favOr. Motion carded. APPOINTMENT OF COUNCIL REPRESENTATIVES TO VARIOUS COMMISSIONS 1.9 Polston. m~ved and Jessen seconded the following resolution: RESOLUTION #95-8 RESOLUTION APPOINTING ANDREA AHRENS TO THE PARK COMMISSION ' AS COUNCIL REPRESENTATIVE FOR 1995 The vote Was unanimously in favor. Motion carried.' 1.10 Ahrens moved and Polston seconded the following resolution: RESOLUTION g95-9 RESOLUTION APPOINTING MARK HANUS TO THE PLANNING COMMISSION AS COUNCIL REPRESENTATIVE FOR 1995 The vote was unanimously in favor. Motion carded. 1.11 Polston moved and Hanus seconded the following resolution: RESOLUTION. #95-10 RESOLUTION APPOINTING LIZ JENSEN TO THE ECONOMIC DEVELOPMENT COMMISSION (EDC) AS COUNCIL REPRESENTATIVE FOR 1995 The vote was' unanimously in favor. Motion carried.' COMMENTS & SUGGESTIONS FROM CITIZENS PRESENT. John Edewaard stated he would like to offer caution to the City Council. He stated that two years ago Neil Weber came with the project for Teal Pointe,'however well it was conceived, he filled out the application.. The Planning Commission did not review the project the way they should have reviewed it. The City Council went ahead and added condition upon condition to the project, so the project change, incrementally. Every time there was a hearing, there were 3 or 4 more concessions that the City made to the proposer. He would like to see this City Council avoid that. He stated he is concerned that in two weeks the resolution that the City Council will be 'voting on will have more concessions on it. He hopes everyone understands. He then read pm of Resolution//93-20. 15 January 10, 1995 1.12 APPROVAL OF SIGN PERMIT APPLICATION - NORTHWEST TONKA LIONS - WINTERFEST 1995. MOTION made by Ahrens, seconded by Jensen to approve a sign permit application · for the Northwest Tonka Lions for Winterfest 1995. The vote was unanimously in favor. Motion carried. 1.13 RECOMMENDATION FROM .PARK & OPEN SPACE COMMISSION RE: GUIDELINES FOR PLANTINGS ON PUBLIC SHORELAND. The City Manager explained that the P.ark.Commission has reviewed the guidelines for allowing plantings on public shoreland and they have softened the language so it is more a guideline. This is their recommendation for this.. MOTION made by Jensen, seconded by Jessen to amend the public lands procedure m~nual adding Exhibit "Q" Guidelines for Allowing Plantings on Public Shoreland. Councilmember Jensen and Jessen stated that they are happy with changes and the recommendation for the guidelines. Mayor Polston commented that he has not been exposed to this for some time and in reading it changing the word "Residents" to "General Public" could be a problem because'some of the commons are dedicated to the people who live in particular area and using "general public" could be ambiguous and misleading. He asked that this item be discussed at the next COW meeting so he can get a better understanding of what we are talking about. The Council agreed. The maker of the motion withdrew and the seconder withdrew the motion. MOTION made by Jensen; Jessen seconded to table this item to the next Committee of the Whole Meeting. The vote was unanimously in favor. Motion carried. 1.14 RE~OLUTIQN DESIGNATING A SEGMENT OF BELMONT LANE BETWEEN SHORELINE DRIVE (COUNTY RD. 15)AND AUDITOR'S ROAD (CONTROL SECTION 109) AS A MUNICIPAL STATE AID (MSA) STREET. The City Manager explained that in conjunction with the Mound Visions Program, we are looking at a realignment of Auditor's Road. There is a section coming off of County Road 15, known as Belmont, and then tums into Auditor's Road that goes to the rear of the Post Office. That segment is not designated as a Municipal State Aid street. Auditor's Road is and we are asking the State to designate that part of Belmont as MSA. Jensen moved and Ahrens seconded the following resolution: RESOLUTION #95-11 RESOLUTION ESTABLISHING MUNICIPAL STATE AID HIGHWAYS (BELMONT LANE FROM CSAH 15 TO AUDITOR'S ROAD) The vote was unanimously in favor. Motion carried. 16 JanuarY 10. 1995 1.15 PAYMENT OF MOTION nmde by jenSen, SeConded by Hanus to authorize the payment of bills as presented .on the pre-list in the amount of $343,898.21, when funds are available. A roll call vote was unanimously'in favor. Motion carried. INFORMATION/MISCELLANEOU..S: A. Department Head Monthly Reports' for December 1994. LMCD Representative's Monttdy Report fo? December 1994. LMCD Millings. In late December, I sent you information on the Newly Elected Official's Conference. Mark Hanus has indicated that he wishes'to attend; 'Anyone else interested? We need to send registration in by january t 3, to take advantage of the. early registration fee. I recommend the conference for not only the new members, but also the incumbents. Let Fran know ASAP so we can send in the registrations. Enclosed is a memorandum from Jim Miller, Executive Director, League of Minnesota Cities (LMC) reminding us of the annual National League of Cities (NLC) Congressional-City Conference to be held in Washington, D.C., March 11-14. Deadline for advance registration is Friday, February 10. If interested in attending, please'let Fran known ASAP. The conference brochure .is enclosed for your review. Financial Report for' November 1994 as prepared by Gino Businaro,-Finance Director. Letter dated December 22, 1994,' from Moody's Investor Service re: City's Bond Rating. Please note Moody's has confirmed the rating of "A" which is what the City's rating has been since 1974. Memo dated December 14, 1994, from the League of Minnesota Cities Insurance Trust (LMCIT) re: 1994 LMCIT property/casualty dividend. A check in the amount of $25,263 was received in late December. I. Park & Open Space Commission Minutes of December 8, 1994. Letter from Steve Erickson, Fire Chief, to City of Shorewood re: Installation of three new dry fire hydrants now in operation on Enchanted Island. At the December 13, 1994, City Council Meeting, the City Council approved amendments to the Water & Sewer Ordinance allowing for a 5 % rate increase in both the water'and sewer rates for 1995 pursuant to City Council action in 1993. Questions were raised by the Council concerning provisions in the ordinance re: water .and sewer connections and the apparent conflict with existing ordinances which require residences to be hooked up to city water and' sewer. The CounCil directed staff to research these 17 .: January 10, 1995 Lo provisions, to see if they should be deleted. Staff has determined that the. provisions shoulal.be retained because there are instances where properties in Minnetrista which border Mound, request hookup to either water or .sewer and these prOvisions that are being questioned would apply in those particular instances. Therefore, staff is recommending that the provisions .be retained. While attending the National League of Cities Conference in Minneapolis in early December; Councilmembers Ahrens, Councilmember Elect Mark Hanus and myself attended a session entitled, "Tools for Local Leaders: Strengthening Your City Hall Team". I found the session very interesting and purchased an audio tape for each member of the City Council and myself for future reference. I've given Bob Polston and Mark Hanus their copies. Enclosed are copies for Councilmembers Liz Jensen, Phyllis Jessen and Andrea Ahrens. Me Enclosed is a letter dated December 23, 1994, re: Certificate of Achievement for Excellence in 'Financial Reporting given by :the Government .Finance Officer's Association (GFOA) for the year ended December.31, 1993. This is the fourth year in a row that we have received this distinguished award. We extend our appreciation to Gino Businaro, Finance Director for his hard work and diligence in receiving this award. Thanks also to Gary Groen, Abdo, Abdo & Eick, for his assistance on the award.. REMINDER: Committee of the: Whole Meeting, Tuesday, January 17, 1995, 7:30 P.M., City Hall. REMINDER: City Offices closed Monday, January 16, 1994, in observance of Martin Luther.King's Birthday. MOTION made by Ahrens, seconded by Jensen to adjourn at 9:20 P,M. The vote was unanimously in favor. Motion carried. ~tt~-s[: City Clerk 18 BILLg January 10, 1995 BATCH 4122 $145,719.58 BATCH 4123 198,178.63 TOTAL BILLS $343,898.21