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101308 CC Reg MinCITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, OCTOBER 13, 2008 MINUTES 1. CONVENE CITY COUNCIL REGULAR MEETING 5735 COUNTRY CLUB ROAD SOUTHSHORE CENTER 7:00 P.M. Acting Mayor Turgeon called the meeting to order at 7:10 P.M. A. Roll Call Present. Acting Mayor Turgeon; Councilmembers Bailey, Wellens and Woodruff; Attorney Keane; City Administrator Heck; Finance Director Burton; Planning Director Nielsen; Director of Public Works Brown; and Engineer Landini Absent: Mayor Lizee B. Review Agenda Wellens moved, Woodruff seconded, approving the agenda as presented. Motion passed 4/0. 2. APPROVAL OF MINUTES A. City Council Work Session Minutes, September 22, 2008 Woodruff moved, Bailey seconded, Approving the City Council Work Session Minutes of September 22, 2008, as presented. Motion passed 4/0. B. City Council Regular Meeting Minutes, September 22, 2008 Wellens moved, Bailey seconded, Approving the City Council Regular Meeting Minutes of September 22, 2008, as presented. Motion passed 4/0. 3. CONSENT AGENDA Acting Mayor Turgeon reviewed the items on the Consent Agenda. Bailey moved, Wellens seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein. A. Approval of the Verified Claims List B. Approval of City Hall Construction Project Pay Request No. 1 C. Adopting RESOLUTION NO. 08-067, "A Resolution Approving Licenses to Retailers to Sell Tobacco Products." D. Approval of a Proclamation in support of the Kids Voting Program SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 2 of 14 E. Minnewashta Elementary School C.U.P. (This item was moved to Item 9.G under General/New Business.) F. Upper Minnetonka Yacht Club C.U.P. (This item was moved to Item 9.H under General/New Business.) Motion passed 4/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. REPORTS AND PRESENTATIONS A. LMCC 2009 Budget Presentation by Sally Koenecke, LMCC Executive Director Ms. Koenecke stated she had been asked to keep her presentation on the 2009 Lake Minnetonka Conununications Conunission (LMCC) budget relatively short; therefore, her budget presentation will be less detailed than last year's. She explained the LMCC is funded by cable franchise fees and PEG (public, education and governmental TV) fees paid by cable subscribers, and not by tax dollars. She noted the budget was prepared a little different for 2009 because of a Federal Communications Commission (FCC) ruling regarding how PEG fees can be spent. She explained the LMCC Budget Committee classified Studio Salaries as an operating expense. The Committee classified other funds needed for the studio as Access Studio Capital as the expenses incurred here result in a product (i.e., community programs). Ms. Koenecke explained the 2009 LMCC budget was comprised of three separate components -the Franchise Administration budget, the Access Studio Operating and Access Studio Capital budget, and the Capital Equipment budget. The Franchise Administration budget includes expenses for handling complaints, reviewing legislation, working with LMCC member cities regarding the franchise agreement, and things such as ad hoc corrnnittees. The Access Studio Operating salaries are for individuals who produce con-imunity television programs. She commented the LMCC Board is considering the possibility of relocating the LMCC studio; no decision has been made. She explained the 2009 Capital Equipment budget is somewhat higher than normal because of the planned purchase of a digital playback system. The new system should allow for some operating efficiencies to be achieved. Councilmember Woodruff stated he was a LMCC Commissioner and Patrick Hodapp, a Shorewood resident, serves in the position of Secretary for the LMCC. He explained he and Mr. Hodapp attended a meeting of the full Commission where the 2009 LMCC budget was reviewed. At that meeting the Commission recommended the budget be approved. He explained the LMCC is funded out of user fees, and the LMCC's budget has no tax impact on the City. Woodruff moved, Bailey seconded, directing Staff to prepare a resolution approving the Lake Minnetonka Communications Commission 2009 Budget as presented. Motion passed 4/0. 6. PUBLIC HEARING None. 7. PARKS SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 3 of 14 Engineer Landini stated there had not been a Park Commission meeting since the last regular Council meeting. The next meeting is scheduled for October 14, 2008. A. Tennis Courts Proposed Fees Engineer Landini stated at the September 16, 2008 Park Conmlission meeting Dan Carlson, an instructor with the United States Tennis Association (USTA) and a Minnetonka Country Club Pro, was present to discuss the possibility of reserving Badger Park tennis courts. Mr. Carlson had contacted Community Rec Resources to inquire about reserving the courts four mornings and two afternoons a week during the summer of 2009. He noted Mr. Carlson used the tennis courts at the Minnetonka Country Club. He related that Mr. Carlson had suggested that a $4 per hour per court rental reservation fee would be reasonable. He stated Staff contacted four cities to determine how they handled reserving and charging for tennis courts. He explained Golden Valley and Plymouth charge $5 per hour per court for businesses; they do not charge for residents or schools. The Cities of Chanhassen and Eden Prairie do not charge to reserve a court. Landini then stated at that meeting the Park Commmission made a motion recommending Council approve a fee for organized sports and activities for tennis in the amount of $5 per court per hour effective for the 2009 tennis season and that the City not charge individual residents for reserving tennis courts. Councilmember Woodruff stated the City was considering allowing a commercial enterprise to reserve a City amenity thereby making it unavailable to the residents except through the organized program. He expressed concern that a commercial enterprise could potentially reserve all of the prime times, or a situation could be created where the average resident could not get court time without paying a fee. He stated he thought it was important to ensure there would be sufficient court time for the residents. Councilmember Wellens suggested the Park Commission define a smaller subset of time when the courts could be reserved for organized sports and activities for tennis. Engineer Landini stated it was his understanding that the Park Commission wanted to add this reservation policy to the one in existence for City-owned fields for other organized sports. Councilmember Woodruff stated he wanted to review the policy in its entirety before acting on it. Councilmember Bailey stated the USTA's mission is to promote playing tennis and he assumed that was Mr. Carlson's mission as well. He did not want the City to discourage that. Councilmember Woodruff stated the proposed policy and fee applied to anyone not just to Mr. Carlson and the USTA. Bailey stated he did not know enough about Mr. Carlson's program and maybe the City shouldn't charge any fee. In response to a question from Acting Mayor Turgeon, Director Brown stated Minnetonka Community Education Services receives a higher priority for the use of the City-owned tennis courts because its part of the Minnetonka School District. , In response to a question from Councilmember Bailey, Director Brown stated the current policy for reserving the use of the City-owned ball fields for organized sports is based on a priority structure and most of the fees charged are based on the number of participants. Brown then stated a private entrepreneur is charged the same rate but has a lower priority. SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 4 of 14 Engineer Landini stated he would forward to Councilmembers a copy of the existing reservation policy for discussion at its next meeting. 8. PLANNING Director Nielsen reported on matters considered and actions taken at the October 7, 2008, Planning Commission meeting (as detailed in the minutes of that meeting). In response to a question from Councilmember Bailey, Director Nielsen explained the Planning Commission unanimously voted to leave the language in the adopted Comprehensive Plan regarding the commercial element of Planning District 6 as it is currently written, Part of the reason was some of the commercial property owners in Planning District 6 did not want their properties to be restricted to redeveloping their properties as residential only. He explained the easements betwen the Shorewood Yacht Club and Minnetonka Portable Dredging Company properties and the Hennepin County Regional Rail Authority (HCRRA) can be revoked if the land uses of the two properties change or if light rail needs to use the HCRRA trail property. He noted the HCRRA had indicated it may be willing to consider other uses for the properties. 9. GENERAL/NEW BUSINESS A. Special Deer Removal Permit for the Minnetonka Country Club Administrator Heck stated the City received a request from the Minnetonka Country Club Association, Inc. (MCCA) to permit deer removal trap-and-dispatch activities similar to those conducted on that property the past two years. He explained the City will have to apply for a Special Permit for Deer Removal from the Department of Natural Resources because the deer removal activity would occur outside of the regular deer hunting season. The previous year's permit is not renewable. The permit allows the MCCA to have a maximum of 20 deer removed from it property. He stated six deer were removed from the MCCA property last year. Mr. Heck stated Bo Witrak with the MCCA was present this evening. Mr. Witrak stated the deer damage the golf course greens at the Minnetonka Country Club (MCC). He explained the MCCA embarked on a deer removal program a few years ago because of the increasing number of complaints from its membership regarding the condition of the greens. He stated the MCC grounds manager regularly observes a number of deer on the MCC property and he has to make repairs to the greens. He commented he owns Lakeshore property on Christmas Lake and he recently counted 11 mature deer and 3 young deer on his property at the same time. He stated the MCCA was responsible for all costs. Woodruff moved, Wellens seconded, approving the deer management plan, directing Staff to apply for a Special Permit for Deer Removal from the DNR, and approving the agreement with the Minnetonka Country Club Association, Inc., for deer removal from its property at 24575 Smithtown Road. Councilmember Bailey asked if there was any data available about the City's deer removal program. Director Nielsen explained during the previous year's program 26 deer were harvested and he thought 6 deer were harvested the first weekend of this year's program. Prior to the first year of the program the Three Rivers Park District conducted asnap-shot aerial survey of the City and it identified 126 deer in SHOREi~'OOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 5 of 14 the City. Last year's snap-shot aerial survey indicated there were 74 deer in the City. He stated some residents had commented they thought there had been a decline in the City's deer population. Councilmember Bailey stated it was not the City's goal to harvest all the deer in the City, He questioned what the manageable number of deer in the City should be, and how the City would determine when to temporarily suspend the program for a while. Councilmember Wellens stated the MBRB stated it would take a minimum of three years to determine the effects of the removal program. He thought the removal program would be self regulating because once the deer population was low enough the MBRB would not be interested in harvesting deer in the City. There would likely be an increase in deer population if the removal program was suspended. Councilmember Bailey suggested the removal program be temporarily suspended after this year to allow the City time to assess the impact of the effort. Acting Mayor Turgeon stated she would be in favor of granting the MCCA's request. She also would support assessing the impact of the City's removal program prior to identifying weekends in 2009 for conducting the harvesting effort. Motion passed 4/0. B. Request for Extension of Time re: Ivy Lane Hazardous Building Director Nielsen stated in August 2008 a `Notice to Remove or Repair a Hazardous Building' and a `Notice to Secure a Hazardous Building' were sent to Muriel Lindberg, the owner of the property located at 21045 Ivy Lane. Because of her health issues, Ms. Lindberg's son-in-law (Jim Carlson) has responded to the City's correspondence. Mr. Carlson has cleaned up the yard, removed the old van from the property and secured the building. Mr. Carlson has requested the City grant additional time to comply with the order to remove or repair, but he has not requested a specific length of time. He noted Councilmember Wellens had related there are a couple of windows on the upper level of the building that are open, and those windows could possibly be secured. In light of the owner's cooperation relative to securing the building and cleaning up the property, an extension of time does not seem unreasonable. Staff suggests that an additional 90 days would allow an adequate amount of time to resolve the issue. He noted the City Attorney advises that Mr. Carlson obtain a consent letter or a power of attorney document to act on behalf of the owner. Councilmember Wellens recommended a 60-day extension be granted for the order to remove or repair. Wellens moved, Woodruff seconded, directing Staff to extend the `Notice to Remove or Repair' for 60 days for the Hazardous Building Located at 20145 Ivy Lane. Motion passed 4/0. C. Lift Station #12 -Christmas Lake Point Bailey moved, Turgeon seconded, to reconsider adopting a resolution approving a Change Order Z for the Rehabilitation of Lift Station #12 Project, City Project No. 06-O1. Motion passed 4/0. Administrator Heck stated Fred and Ellen Johnson, 5695 Christmas Lake Point, asked that the Council reconsider relocating the vent pipe at Lift Station #12 noting they were not able to attend the September 12, 2008, City Council regular meeting when this topic was discussed. He explained the meeting packet contained copies of documents that were provided to residents near the Lift Station property prior to the SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 6 of 14 rehabilitation project being started. He described the documents and conversations Staff has had with the Johnsons about their request in a memorandum dated October 8, 2008 (a copy of the memorandum is on file). Councilmember Woodruff stated Ms. Kowalski had sent the City an email and photograph showing what was purported to be to the actual location of the vent pipe. He asked Staff if the photograph accurately represents the location of the vent pipe. Administrator Heck stated he had not received a copy of the email. Woodruff stated the email was forwarded earlier in the day. Woodruff stated if the picture was an accurate representation then it is in a different location than the location indicated on the Lift Station #12 Plan and Profile drawing provided to the residents and to Council. The As-Built location is on the opposite side of the chamber. Ellen Johnson 5695 Christmas Lake Point, routed a photograph of the original Lift Station #12. She stated in March 2007 she was told Lift Station #12 was going to be upgraded to the latest technology. At that time she asked that everything be pushed back, and when she and her husband signed the temporary construction easement that is what they thought was going to happen. At the completion of the project when she saw where the vent pipe was located she called the City and she was told the vent pipe was not going to be relocated, and the City had been more than accommodating in pushing the main power box back. She and her husband were under the impression that the vent pipe was going to be pushed back, but the vent pipe was actually moved forward. Fred Johnson 5695 Christmas Lake Point, confirmed that he thought the vent pipe was going to be pushed back as part of the project. It was actually moved forward. Ms. Johnson stated after she talked to someone at the City the construction workers indicated they could relocate the pipe in 15 minutes. She called the City back and informed the City the construction workers said they could move the vent pipe. When she went back to the construction workers they informed her they were not supposed to talk to her about moving the pipe. She explained if the vent pipe was located in the position it was originally designed to be located, then from her vantage point that location was not communicated to her. Kerri Hawk stated she was the Johnson's neighbor and she sent an email to the City. She explained the drawings provided to them indicated the vent pipe would be located in the back of the large cement piece. She assumed it was unintentionally miscommunicated to the residents, and they just wanted it relocated to the back. She noted her property was located across the street from the vent pipe. Ms. Johnson requested the vent pipe be relocated. Councilmember Bailey asked Staff if the vent pipe could be relocated. Director Brown stated the only change between the drawing referenced above and the actual location of the vent pipe is the pipe was originally supposed to come off of the top of the hatch and it was actually located eight inches over on the side of the hatch. He explained there were a number of pieces of hardware under the hatch that limited where the vent pipe could be moved to. He stated the pipe could be moved from its current 12 o'clock position to roughly a 3 o'clock position. The location for the vent pipe was chosen to avoid a conifer tree that has value to the Johnsons. It was his understanding that the Johnsons would not hold the City or the contractor liable for any damage to the tree if the vent pipe was relocated. He clarifiedthat the City did not tell the contractor workers that they could not talk to Ms. Johnson; the contractor project superintendent gave that direction. SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 7 of 14 Councilmember Bailey stated the vent pipe was not very attractive and he thought the location of the pipe was a hazard for traffic entering onto the Johnsons' driveway and in particular at night when it is difficult to see the vent pipe. He noted that at the last Council meeting he was not in favor of relocating the pipe because he did not think the City should be responsible for making things aesthetically better for property owners. Director Brown stated there have already been instances of people parking over the hatch and that is a problem. If there was a malfunction at the Lift Station then Public Works has to be able to access the hatch. Councilmember Bailey questioned if a landscape barrier could be constructed to keep that from happening. Administrator Heck stated Staff has had discussions with the Johnsons about placing boulders near the pipe, but he thought the problem is with people parking on the paved area. The City will re- install no-parking signs by the paved surface. Councilmember Woodruff questioned if relocating the vent pipe to the 3 o'clock position would be sufficient for the Johnsons. Administrator Heck stated Staff had met with Ms. Johnson and her landscape architect and stated the vent pipe could be placed between the control panel and the conifer tree, and Ms. Johnson was okay with the proposed new location. Director Brown stated because of the potential damage to the conifer tree's root system, he recommended the Johnsons sign a waiver absolving the City and the contractor from any liability for any future damage to the tree. The Johnsons' landscape architect informed Staff the tree's root system was fairly extensive and it had already been traumatized by the installation of the Lift Station, and the vent pipe on the other side of the tree would not result in any additional damage to the tree. Ms. Johnson stated she and her husband understood the City and the contractor would not be liable for any damage to the tree. She then stated they were willing to help discourage people from parking on the paved surface near the Lift Station. Councilmember Woodruff requested Staff prepare a drawing indicating the existing and proposed location of the vent pipe for the Johnsons and Council to review. Director Brown suggested that signoff on the proposed location be handled administratively rather than bringing it back to Council for approval. Woodruff was receptive to that and he requested a waiver be signed before it is moved. Councilmember Woodruff stated if there is an issue with people parking on the paved surface then something should be placed there to prohibit that. Director Brown stated he would contact the contractor on October 14"' and ask to have the pipe moved as soon as possible. He hoped the pipe could be moved within the next few weeks, pending the contractor's availability. Woodruff moved, Bailey seconded, Adopting RESOLUTION NO. 08-069, "A Resolution Approving a Change Order 2 for the Rehabilitation of Lift Station #12 Project, City Project No. 06-01" subject to Ellen and Fred Johnson signing a waiver absolving the City and the contractor of any liability for damage to the conifer tree and to Staff and the Johnsons agreeing to a document indicating the new location of the vent pipe. Motion passed 4/0. D. Street Light Request -Virginia Cove/Smithtown Road Intersection Director Nielsen stated the City received a request from a resident of Lake Virginia Woods to have a street light installed at the intersection of Virginia Cove and Smithtown Road. The request complies with the City's street light policy with regard to intersections. The petition cites vehicular and pedestrian SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 8 of 14 safety as the reason for the proposed light. All property owners within 500 feet of the intersection were notified that Council would consider this request at its October 13, 2008, meeting. He explained Lake Virginia Woods is new development consisting of 13 properties; 6 of the properties have been developed and 5 of the houses are occupied. He noted the City's policy is to pay for monthly electricity charges for the light which amounts to approximately $200 annually; Xcel Energy installs and pays for the light pole and a standard light fixture. Councilmember Wellens questioned who else besides Karl and Dawn Riem wanted the light installed. Director Nielsen stated he did not know who else wanted it installed. Councilmember Wellens stated he wanted to have more than one resident request the installation of the light. Acting Mayor Turgeon and Councilmember Woodruff agreed. There was consensus to continue this item to the October 27, 2008, City Council regular meeting pending additional residents signing the petition or the homeowners association documenting that the Riems were speaking on behalf of the association. E. Audit Services Appointment 2008 - 2010 Director Burton stated one of the items on the City's goal list this year was to seek Request for Proposals (RFPs) for audit services. Accordingly, staff prepared an RFP and the deadline for submitting the proposals was October 1, 2008. The RFP was advertised on the League of Minnesota Cities website. There were six firms that expressed interest in submitting proposals; from this group, the City received four proposals. The Audit Selection Committee (comprised of Councilmember Woodruff, City Administrator Heck and Finance Director Burton) met to review the proposals, make a selection and prepare a recommendation for the Council. Burton explained each proposal was reviewed in conjunction with evaluation criteria as specified in the RFP. All of the proposing firms have a good reputation; however, some of the proposals failed to address certain points or provide information as requested by the City. The firm of Abdo, Eick & Meyers, LLP, submitted a complete and satisfactory proposal, in addition to submitting the lowest quotes for both the 2008 year-end audit and the total 3-year bid. The firm's bid is $24,335 for the 2008 year-end audit and its total 3-year bid is $75,280. Some factors in its favor include: standard rates that are very competitive; the firm has similar engagements with about 100 similarly sized cities; they were amongst the first to implement the "paperless audit" and portal technology; and the firm has performed satisfactorily for many years as the City's auditor, which is to the City's advantage in that they are familiar with our operations, thus minimizing the learning process to get up to speed. Burton stated the Audit Selection Committee recommends the Council appoint the firm of Abdo, Eick and Meyers, LLP, as the City's independent auditor for the period 2008-2010, and authorize the City Administrator to enter into the annual audit engagement contract for the year ending December 31, 2008, as per the firm's proposal. Councilmember Woodruff stated he read all of the detailed proposals. He explained when he reviews RFPs he always considers how satisfied an organization is with a current provider. Based on his two-year tenure on the Council, Abdo, Eick and Meyers, LLP, has provided quality services to the City. He commented it is good business to periodically obtain quotes for services provided. He stated the firm's bid was slightly lower than the next lowest bid, but there is a significant advantage for Staff not to have to educate a new audit firm on City practices. He then stated he was satisfied with the selection of the firm. SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 9 of 14 Councilmember Wellens stated the bid amount difference was small. He would value a "new set of eyes" doing the 2008 year-end audit. He thought a new audit firm may be more thorough for the first few years and that may outweigh the benefits of the lower bid. Councilmember Woodruff stated audit firms have rigorous standards they must adhere to, and all firms must satisfy those requirements. He noted one of the firms would include a disaster plan audit but for a substantially higher cost. Director Burton stated the firm's managing partner provides continuity, but the on-site auditors vary from year to year. Woodruff moved, Wellens seconded, appointing the firm of Abdo, Eick and Meyers, LLP, as the City's independent auditor for the period 2008 - 2010, and authorizing the City Administrator to enter into the annual audit engagement contract for the year ending December 31, 2008, as per the firm's proposal. Motion passed 4/0. F. Telephone System Assessment Administrator Heck stated the need for a new voice and data communications system is one of the components that have been discussed as part of the City Hall renovation project. Staff has identified the limitations of the current phone system and the types of improvements that could be gained by installing a new communications system. Those limitations and improvements are documented in a memorandum to Council from him dated October 9, 2008 (a copy of that document is on file). The current phone system is over 20 years old which makes maintenance problematic and finding replacement parts difficult. He explained a new communications system will have two components -the service (i.e., trunk lines) coming into the building, and the hardware and software necessary to run the system. One type of system that would be considered is an Internet protocol phone system. Heck then stated Staff was asking Council to authorize Staff to prepare a Request for Proposals (RFP) for voice and data services (i.e., the service lines coming into City Hall and the connectivity between City Hall and the Public Works building), and an RFP for new hardware and software to run the phone system itself. He commented that he and Director Burton have met with a Qwest representative about a new communications system. Wellens moved, Bailey seconded, directing Staff to prepare a Request for Proposal (RFP) for voice and data services (the lines coming into the building to support the system), to prepare an RFP for the equipment (hardware and software), and to investigate the cost and benefit of becoming part of a hosted platform system. Councilmember Woodruff stated the RFPs must be very detailed, and they should be written to identify the minimum requirements and then additional features that may be desired. Administrator Heck stated if the City chose to become part of a hosted platform system the City would enter into a contract with another party to provide all maintenance and support services. He noted the City does not have Information Technology staff; it contracts for its IT support needs. He stated one of the items that will be identified during the RFP preparation process is the type of back-end support that is needed for a new system. Motion passed 4/0. SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 10 of 14 G. Minnewashta Elementary School CUP Applicant: Minnetonka School District 276 Location: 26410 and 26550 Smithtown Road This item was removed from the consent agenda at Councilmember Woodruff's request. Councilmember Woodruff stated the reason he requested this item be removed from the consent agenda was because the conditions listed in the resolution did not appear to included all conditions agreed to during the September 22, 2008, City Council meeting. He asked Staff to comment on this. Director Nielsen stated the resolution references an Exhibit B, a landscape plan. The City has the original landscape plan which was submitted, and there were a number of recommendations for how that plan should be modified. The City has not received the revised landscape plan, but when it receives it that plan will be attached to the resolution. The revised landscape plan will also reflect the redesign of the southeast corner of the parking to address the issue of the dead-end spaces. Woodruff moved, Wellens seconded, Adopting RESOLUTION NO. 08-068, "A Resolution Granting a Conditional Use Permit for the expansion of Minnewashta Elementary School" subject to the applicant submitting a new landscape plan. Motion passed 4/0. H. Upper Minnetonka Yacht Club This item was removed from the consent agenda at Councilmember Wellens' request. Councilmember Wellens stated the reason he asked that this item be removed from the consent agenda was earlier in the day the City received a petition from property owners on Enchanted Point requesting the City file an appeal regarding the Upper Minnetonka Yacht Club (UMYC) case. Scott Brown, 4560 Enchanted Point, stated he lived next door to the UMYC. He is a former member of the UMYC, he owns UMYC stock and he had been a member of its Board and held various UMYC Board positions. As a resident he is concerned that the judge ruled in favor of the UMYC. He was unaware that the City was in litigation about this case at this time. He explained that when he was considering purchasing his property he reviewed the UMYC's files to do research on the history and workings of the UMYC. He still has copies of those documents. He stated there was a great deal of information supporting the intent to establish the UMYC as sailing club. When he read the District Court's decision in this matter he was astounded to find out that the same individual who wrote many of the UMYC notes he reviewed, told the judge that he did not make the stipulation. The stipulation is in three forms - an inter-club memo of the Building Grounds Committee, in documentation presented to the City, and it's presented in a resolution. He stated there is a precedent that is unbelievable with regard to this case; this is a private business that needs to make more money so it decides to allow power boats at its facility. He commented that this past surmner some of power boaters at the UMYC stayed on their boats overnight. He requested the City file an appeal. Attorney Keane explained that on September 22, 2008, the Council met in an executive session with the defense counsel for the City's insurance carrier. After discussing the matter Council is reporting at this meeting that it is directing the City's defense counsel to move forward with preparation and filing of an appeal of the District Court's decision in this matter. Councilmember Wellens stated the City has already lost a criminal case against the UMYC, The City then filed and lost a civil case against the UMYC. Attorney Keane clarified that the City did not bring SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 11 of 14 civil action against the UMYC; the UMYC brought civil action against the City. Wellens stated the City was going to appeal that decision. He then stated the last Conditional Use Permit (C,U.P.) issued by the City to the UMYC only stated "boats", not "sail boats", and that is what the judge ruled on. He noted the residents' petition states "Shorewood's code allows only the City Council to grant a conditional use permit.". He stated the City did issue the C.U.P. James Thibault, 4565 Enchanted Point, stated when the City granted the UMYC a special use permit in 1969 it referred to sail boats. When the UMYC was granted a C.U.P. to replace the special use permit in 1977 [yacht clubs were then allowed as conditional uses in residential zoning districts] the word sail was inadvertently omitted from the C.U.P. He stated when the City, UMYC representatives and property owners discussed replacing the special use permit with a C.U.P. it was under the premise that it was for sail boats. He explained the original special use permit issued in 1969 was for 30 sail boats. In January 1977 the UMYC approached the Lake Minnetonka Conservation District (LMCD) about increasing the number of sailboat slips to 34 and eight keelboats. The City chose to keep the number at 30. He stated he had provided the City with a letter from former Mayor Frasier which stated the UMYC was intended to be a sailing club and not a marina. He noted he was not against sail boats at the UMYC; he was not in support of power boats at the UMYC. Bill Thibault, James Thibault's brother, stated in 1977 Mr. Frasier's motion was to approve a conditional use permit for 30 slips. The motion did not refer to boats. No one other person or group can change what the Council approved. The UMYC's application referred to sail boat slips. The public hearing held then was on sail boat slips. Council's discussion was about sail boat slips and the number of slips. The motion was for 30 slips. The .motion by the Council should not be usurped by someone writing the resolution incorrectly. Council's actions should be protected and Council's power of authority should be protected. Councilmember Wellens stated he wanted to avoid spending more money by going after a law abiding private citizen. He stated from his vantage point former Mayor Fraiser's letter was irrelevant. Council voted on the C.U.P. and that is all that matters. Mr. Bill Thibault stated the minutes of the July 25, 1977, City Council meeting state "Frasier made motion to approve a conditional use pei7nit for 30 slips ., ."The motion did not say boats. Mr. James Thibault stated he would be willing to go the court of appeals and would ask former Mayor Frasier if he would do the same. In response to a question from Mr. Brown, Administrator Heck stated it is his understanding that the appeal would be paid for by the League of Minnesota Cities Insurance Trust (LMCIT). Heck explained an appeal is based on information already submitted to the District Court; the appeal is to argue the judge's rationale for making the decision. Attorney Keane concurred. Bailey moved, Woodruff seconded, directing the City's defense counsel to proceed with filing an appeal. Motion passed 3/1 with Wellens dissenting. 10. ENGINEERING/PUBLIC WORKS A. First Draft Illicit Discharge Ordinance Engineer Landini explained City's Storm Water Pollution Prevention Plan (SWPPP) states the City will adopt an Illicit Discharge Ordinance by December 31, 2008. The SWPPP requires the permittee to develop, implement and enforce a program to detect and eliminate illicit discharges. The permit states SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 12 of 14 "You must, to the extent allowable under law, effectively prohibit, through ordinance or other regulatory mechanism, non-storm water discharges into your storm sewer system and implement appropriate enforcement procedures and actions." Examples of illicit discharges are dumping oil or paint in a catch basin, having a septic field drain to a roadside ditch, etc. Landini stated the City Attorney has reviewed the ordinance and his comments have been incorporated into the draft provided to Council for discussion this evening. He noted the draft ordinance is based on a model ordinance provided by the Environmental Protection Agency (EPA). Councilmember Woodruff questioned if the League of Minnesota Cities has a model ordinance. He stated sometimes the EPA models are excessive. Engineer Landini stated the Minnesota Pollution Control Agency (MPCA) directs people to the EPA's model. Engineer Landini commented that Sunfish Lake adopted an ordinance modeled after the model EPA ordinance. He stated he did not know what neighboring communities have done with regard to an illicit discharge ordinance. Councilmember Woodruff reviewed some details in the draft ordinance he thought should be corrected or clarified. Section 2 Illegal Discharge refers to Section X and there is no Section X. Section 2 Pollutant refers to abandoned objects, ordinance and accumulations and he wondered what ordinances were. Engineer Landini explained it was some type of ammunition. Landini then explained swimming pools can be drained onto City streets provided the water has been dechlorinated first. Woodruff asked Staff to research what Section 6 actually meant. He also asked Staff to research who the authorized enforcement agency is that is referenced in Section l0. Woodruff asked Staff to clarify the frequency of 12 equal payments in Section 14. He stated that he did not like the stated alternative compensatory actions referenced in Section 16; it is too opened ended. He stated he wanted Staff to research what other cities are doing with regard to criminal prosecutions. Administrator Heck explained if there is criminal prosecution there are statutory requirements. If the violation is a misdemeanor it's up to $1,000 and a certain amount of time in jail. If it's a gross misdemeanor then is up to $3,000 and up to 365 days in jail. He explained compensatory actions have to be reconciled with State Statute, and the violation has to be classified as some type of misdemeanor. Woodruff recommended the ordinance reference the appropriate State Statute regarding the amount for violations. Councilmember Bailey questioned if illicit discharges are currently prohibited. Engineer Landini stated cities are being forced to enforce the State and Federal mandates. Bailey then questioned if there would be any benefit to having the ordinance or was it just more bureaucracy. Landini stated currently if a person observes someone dumping illicit discharge materials into the sewer system the observer has the right to sue that person for violation of the Clean Water Act. Landini explained the City's ordinance does not address that violation. Councilmember Bailey stated if the ordinance would add extra protection he could support that, but he did not want an ordinance written in such a harsh and onerous way that it would cause problems for the residents. He suggested the ordinance be rewritten so the wording is similar to other City ordinances. Councilmember Wellens stated he thought the EPA's model ordinance is preposterous, ridiculous and draconian. The list of pollutants was unreasonable. He suggested Staff write a new ordinance. From his vantage point the draft ordinance would allow residents' basic civil liberties to be violated. Attorney Keane clarified this agenda item is for discussion and its intent was to bring the government's request before the Council. He stated Council's input is greatly valued. He explained Engineer Landini SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 13 of 14 had taken the MPCA's recommendation to draft an illicit discharge ordinance based on the EPA's model ordinance for consideration and adoption. He stated it was appropriate for Council to provide Engineer Landini with clear direction on how he should proceed with the draft ordinance. He questioned if Council wanted Landini to rehabilitate the ordinance, or did it want to forget having an ordinance and inform the MPCA of the City's decision to do so. He explained the MPCA requests the ordinance be adopted by 2008 year-end. He recommended Landini contact the MPCA representative and ask the individual how much leeway there is with the December 31St deadline and the language in the ordinance. Councilmember Woodruff stated he wanted to know what some of the other municipalities in the metropolitan area have done about an illicit discharge ordinance. He thought this was a worthwhile activity, but the EPA's model ordinance was heavy handed. He stated the goal of the ordinance is to keep illicit discharge from entering the water. With that as the intent the language in the ordinance could be simplified and softened, and the MPCA would likely be supportive of the City adopting an illicit discharge ordinance. Councilmember Bailey stated he wanted to know what other municipalities were doing. B. Request for Patching and Seal Coating Costs for Boulder Bridge Road Director Brown stated at the September 22, 2008, City Council meeting Thomas Wartman, who owns the property located at 28120 Boulder Bridge Drive, appeared before Council and requested that a complete accounting of costs be prepared for the patching and sealcoating of Boulder Bride Drive, Boulder Bridge Lane and Boulder Circle. He stated Council and Mr. Wartman had been provided with that information. The total cost was $31,608.78 and the seal coat portion was $20,306.10. He noted the cost to mill and overlay those same roadways was projected to be $155,397.56. Councilmember Woodruff stated based on Mr. Wartman's comments at that meeting and previous comments Mr. Wartman had made to him, it was his understanding that Mr. Wartman thought if a mill and overlay were to have been done to the roadways, the roadways would not have to have been patched. Director Brown stated that was incorrect; they would have had to have been patched. Councilmember Wellens asked Director Brown if he would take the same approach again, to which Brown responded yes. 11. STAFF AND COUNCIL REPORTS A. Administrator & Staff 1. City Hall Construction Update Administrator Heck stated the Council Chambers have been torn down at City Hall. The goal is to have walls on the addition by the end of the month. He explained there is some exterior work scheduled for what is called Phase II of the project, and Staff has told the contractor he could remove the old siding and put the new siding and windows on at the same time the new Council Chambers is sided. He stated the City will be provided with a more detailed project timeline the next day at the weekly project meeting. Other Staff Reports SHOREWOOD CITY COUNCIL REGULAR MEETING MINUTES October 13, 2008 Page 14 of 14 Director Brown stated the plan is to have containment curtains around the SE Area Water Tower within the next few days. Staff is working with the contractor to install new controls at the Amesbury Well house, and it should take approximately two weeks to wire the controls. Director Burton stated at Council's request she met with the County Assessor for an preliminary market evaluation of the City-owned house. If the house were to be put on the market soon it could sell for $330,000 - $340,000; and, it could be on the market for 6 - 12 months. The City paid $314,000 (including closing costs of approximately $10,000) for the house. Administrator Heck stated Staff has not contacted a rental agency as of yet, but he will provide Council with an update on that at its next meeting. Heck then stated Engineer Landini suggested the City secure a drainage and utility easement on the east side of that property prior to selling it. B. Mayor & City Council Councilmember Wellens stated at an Excelsior Fire District Governing Board special meeting held on September 29, 2008, the Board approved hiring a full time fire inspector. He then stated he had spoken with a business who informed him the City's Ordinance requires him to prepare a detailed inventory of everything before he sells the items in agoing-out-of-business sale. Acting Mayor Turgeon stated the EFD Fire Prevention Open House was a success. 12. ADJOURN Woodruff moved, Bailey seconded, Adjourning the City Council Regular Meeting of October 13, 2008, at 9:10 P.M. Motion passed 4/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder r Christine Lizee, Mayor