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051396 CC Reg Min . . . ".. CITY COUNCIL REGULAR MEETING CITY OF SHOREWOOD MONDAY, MAY 13, 1996 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:30 P.M. MINUTES 1. CONVENE CITY COUNCIL MEETING Mayor Bean called the meeting to order at 7:33 p.m. A. Roll Call .;. Mayor Bean; Councilmembers Benson, McCarty, Shaw, Stover; City Administrator Hurm; City Attorney Keane; Planning Director Brad Nielsen; City Engineer Larry Brown and Finance Director Alan Rolek. B. Review Agenda Present: McCarty moved, Shaw seconded to approve the agenda for May 13, 1996, as amended to add Item lIB Change Order to Caterpillar Grader 140H. Motion passed 5/0. C. City Council Review and Acceptance of Statement of Purpose, Statement of Goals, Statement of City Values and City Council Priorities for 1996. Stover moved, McCarty seconded to accept the Statement of Purpose, Statement of Goals, Statement of City Values and City Council Priorities for 1996. Motion passed 5/0. 2 . APPROVAL OF MINUTES A. Reconvened Board of Review Minutes - April 22, 1996 Stover moved, Benson seconded to approve the Reconvened Board of Review Minutes of April 22, 1996, as amended on Page 1, Item 3, change Peach Drive to read Peach Circle; Page 1, Item 3, change Elbert Port to read Elbert Point. Motion passed 5/0. B . City Council Regular Meeting Minutes - April 22, 1996 Benson moved, Stover seconded to approve the City Council Regular Meeting Minutes as amended on Page 2, Paragraph 13, Line 2, insert a space between "right-of-way" and "so"; Page 3, Paragraph 3, Line 3, should read "due to the poor quality"; Page 3, Paragraph 7, Line 1, insert a space between "be" and "brought"; Page 4, Paragraph 2, Line 2 change "approve" to "approving". Page 6, Paragraph 3, change "he" to "Nielsen." Motion passed 5/0. C. City Council Work Session Meeting Minutes - April 22, 1996 McCarty moved, Benson seconded to approve the City Council Work Session Meeting Minutes of April 22, 1996. Motion passed 5/0. D. City Council Special Meeting Minutes ~ May 1, 1996 ...REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 2 . Stover moved, McCarty seconded to approve the City Council Special Meeting Minutes of May 1, 1996. Motion passed 5/0. E. Mayor to Report on Special Council Meeting held May 1, 1996 Mayor Bean explained a Special Council Meeting was held on May 1, 1996, to discuss the fmal floor and site plans for the senior community center. The plans and specifications had not been available for the regular Council meeting prior to May 1 st. The Council did not want to delay the opportunity to obtain bids and keep the project moving. Due to conflicting schedules, it was not possible to televise the meeting. Bids should be received on this project by June 6, 1996. The next step will be to analyze cost versus budget. The Council also approved a proclamation designating Mayas "Older Americans' Month" in recognition of the contributions of the senior citizens in the community. 3. ~ CONSENT AGENDA Mayor Bean read the Consent Agenda for May 13, 1996. Stover moved, Shaw seconded to approve the Motions on the Consent Agenda and to adopt the Resolutions therein: A. RESOLUTION NO. 96-38, "A Resolution Appointing 1996 Election Clerk. " B. RESOLUTION NO. 96-39, "A Resolution Approving an On-Sale and Sunday Liquor License for the Minnetonka Country Club." . C. RESOLUTION NO. 96-40, "A Resolution Assuming Responsibility for Roads and Utilities in Smithtown Way Easement." D. RESOLUTION NO. 96-41, "A Resolution Making Appointments to the Shorewood Park Foundation Board of Directors." 4. MATTERS FROM THE FLOOR Christine Lizee, 27055 Smithtown Road, spoke in favor of the Smithtown Road hiking and biking traiL Smithtown Road is a popular route for strolling, hiking, biking, running and children walking to the elementary schooL Being a collector route, it is also popular with motorized vehicles and many vehicles do not adhere to the posted speed limit. The trail will bring safety to all who use it. Karen Anderson, 25920 Smithtown Road, also spoke in favor of the Smithtown Road traiL She stated the neighborhood is well traveled. She expressed the need for a road system for children to get to parks and schooL Traffic has increased dramatically with the new development and this presents a serious safety issue. Ms. Anderson also stated the implementation of the trail would not jeopardize the country atmosphere of the area as the anti-trail groups have suggested. 5. PARKS - Report by Representative . Park Commissioner Dallman reviewed the actions taken and recommendations made by the Commission at its April 23, 1996 meeting (detailed in the minutes of that meeting). . . . ~ REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 3 Mayor Bean noted the new members on the Park Foundation are Jim Wilson, Scott Hansen, Robert Noren, Ken Dallman and Bill Keeler. 6. PLANNING - Report by Representative Planning Commissioner Pisula reviewed the actions taken and recommendations made by the Commission at its May 7, 1996 meeting at which the Planning Commission voted unanimously to deny the request for rezoning and conditional use permit for Amoco/McDonald's/Car Wash Facility P.D.D. (detailed in the minutes of that meeting). A Motion to Direct Staff to Prepare a Findings of Fact regarding a Rezoning and Conditional Dse Permit - Watten Ponds P.D.D. Applicant: Location: Dahlstrom Abingdon L.L.P. 5340 and 5370 Eureka Road Nielsen reviewed his report in detail as well as the actions and recommendations of the Planning Commission. He advised the request has been forwarded to the City Council with a negative recommendation. Mayor Bean asked Nielsen to expand on the issue surrounding the EA W as far as State statute rules. Nielsen explained in a project of this magnitude and nature, the City would be unable to require an Environmental Assessment Worksheet. Attorney Keane stated there is a minimum threshold. The proposal did not meet the requirement for a Petition for Environmental Assessment Worksheet. Mayor Bean inquired if there were new proposals by the developer. Rod Krass, attorney for the developer, informed the Council no new proposals had been made. Mayor Bean asked for some points of clarification with regard to Exhibit E and the building pad designation. Nielsen indicated the building pad sizes were considered to be unrealistic relative to the size homes that are built by Tony Eiden & Company. Mayor Bean stated, based upon a review of the materials and the recommendation of the Planning Commission, the size of structures is one of the significant concerns of the residences in the area. He asked Nielsen if there was an architectural ordinance which states a developer cannot exceed a certain percent of hardcover. Nielsen stated that would be true under traditional zoning, however, under P.D.D., the City can address building sizes, color, material, etc., although it does not usually come down to that type of detaiL Nielsen explained a P.D.D. is negotiated between the developer and the CounciL He stated the Planning Commission did not want to go that route and dictate the size of the buildings although they were concerned about the large size of the building compared to the lot. Nielsen stated in speaking with the developer, he did not feel the developer was willing to consider smaller buildings for the smaller lots. Mayor Bean asked Mr. Krass if the size of the homes was a negotiable point if the Council were to consider a P.D.D. Mr. Krass responded if the Council were to approve the zoning but not the P.D.D. as proposed, the developer would be willing to discuss options. Mayor Bean inquired if the developer would consider a 20,000 square foot lot. Mr. Krass stated that was probably not a possibility. . REGULAR CITY COUNCIL MINUTES MAY 13, 1996 . PAGE 4 . Mayor Bean felt the proposed homes should be more consistent with the neighborhood. He asked if 12 units was a minimum regardless ofP.D.D. and Mr. Krass stated the developer needs 12 units to make the development work. Mayor Bean asked for clarification on the work the Planning Commission had done with regard to tree preservation. Nielsen stated the tree preservation policy was developed this year and does not prohibit cutting of trees. It attempts to save trees wherever possible, but if trees are removed for purposes of roads, utilities and houses, the policy then calls for replacement of trees that are lost up to a maximum of eight trees per acre. The Planning Commission and staff felt existing trees on this development would be better preserved through planning and development rather than under traditional zoning or the current tree preservation plan. Mayor Bean clarified if the City could be more specific than the tree preservation policy indicates as far-'-as identifying a tree and protecting the tree. Nielsen indicated that was correct. Mayor Bean stated there was a discrepancy between the zoning map and the Comprehensive Plan which dates back to the 1981 plan. Nielsen stated the discrepancy comes up with the updated Comprehensive Plan. The difference between the two is that in 1981, the Comprehensive Plan simply recommended that the property be designated with a land use designation of one to two units per acre. It did not go on to say what zoning should be used to implement that designation. In the Comprehensive Plan update, the Planning Commission suggested that in areas where zoning is not reflective of the land use plan, the City should rezone the. property. In the update, the recommendation is that it should be rezoned from R-IA to R-IC and that it should be done through the Planned Dnit Development process. . Nielsen explained if the Planning Commission had arrived at some plan they felt was acceptable and the developer didn't follow through, the zoning would revert back to the existing R-IA. If the zoning were changed to R -1 C and the developer decided he could not do the project, that zoning would be attached to the property at that point. Mayor Bean stated when the planning process was underway, zoning breaks were looked for on properties backed up to one another as opposed to on the street. He asked Nielsen to explain that principle. Nielsen explained the theory is that there are unlike zonings meet in back yards versus across the streets because of the front yard setback requirement. When they come together at the rear of the property, it is not as noticeable. Also, the active recreational areas are in the rear yards with the ability to fence with 6' fences to create separations at the rear lot lines better than could be done at front lot lines. Mayor Bean noted there would be a fairly significant buffer from the one acre properties to the properties to the rear. Nielsen stated the one acre properties on Valley Wood are separated both by wetland and, in the proposed plan, by large lots. On the south and to the east, those lots are smaller, but there would be a separation by that wetland as well. Councilmember Stover stated that this particular property is conducive to P.D.D. zoning. The original P.D.D. in 1980 emphasized the preservation of natural amenities. She further stated she was under the assumption something could be zoned P.D.D., however, if the application did not work out the property would revert to its original zone. Nielsen stated that could be done, however, the actual zoning occurs at the final plan stage in a P. D.D. The concept would have to be approved, then the development stage plan and then the final plan stage is where the rezoning actually takes place. . . . . · REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 5 Councilmember Stover stated one of the purposes of the P.U.D. is to give the land owner reasonable assurance of ultimate approval while assuring the City the property would retain the characteristics and vision at the time it occurs. She asked if that was still the intent and how both of those things would be accomplished at the same time. Nielsen stated when you approve a concept plan, it gives the developer the assurance to go ahead with more detailed plans. He further stated the actual act of P.U.D. zoning does not occur until the final plan stage in conjunction with the development agreement. Councilmember Stover stated the objective is to preserve and enhance site characteristics and end up with a more desirable environment than is possible through strict application of zoning regulations. She further stated this did not appear to be a logical place to have straight zoning. Whether the development occurs or not, this particular property should be thought of as a P. U . D. and currently that is the way the Comprehensive Plan looks at it. Councilmembers Benson, McCarty and Shaw stated they do not agree with the size of the lots. Councilmember McCarty stated the property should be P.U.D. and she would not be able to support the proposed configuration. Mayor Bean stated P.U.D. is appropriate for this property rather than a straight zoning. He noted a significant problem with the lot sizes, particularly along the side where the lots are 15,000 square feet. Councilmember Stover stated she would like the developer to consider the Planning Commission's recommendation of a ten unit P.U.D. Benson moved, McCarty seconded to direct Staff to prepare a Findings of Fact denying the request for rezoning from R-1A to R-1C and denying the P.U.D. as presented. Motion passed 5/0. Councilmember Shaw stated, while he is not impressed with this proposal, whatever happens on this property will be somewhat similar and will probably happen soon. Councilmember Stover stated she would like to have the Findings of Fact state P.U.D. IS an appropriate tool to be used on this piece of property. Mayor Bean recessed the meeting at 8:55 p.m. and reconvened at 9:03 p.m. 7. PRESENTATION BY EUREKA ROAD RESIDENTS ON PROPOSED IMPROVEMENTS Steve Croissant, 26025 Birch Bluff, stated he obtained information from City Hall and reviewed Planning Commission and City Council minutes. He stated his belief the views of the Council and those of his neighbors were in conflict. Mr. Croissant referred to a memorandum from City Attorney Frank Kelly dated December 8, 1980. At that time, Councilmember Stover had presented to the Planning Commission there was a promise in the City Policy that no property owner would be assessed for water who did not want to have water, that no property owner would ever be required to hook up to municipal water, and that water would never be extended where not requested. Mr. Croissant stated he was not able to obtain a copy of that policy. He proceeded with a detailed chronological summary of the water issue. Mr. Croissant stated it was his understanding there was a change in site for the water tower which resulted in a cost of $16,000 to $60,000 to the tax payers. He gave a detailed review of his calculations of the costs involved in the implementation and monthly charges for municipal water. . . . I REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 6 Mr. Croissant stated only 42 houses were requesting water out of 1,641. He stated the assessment along with Hennepin County taxes will increase his taxes to $1,173.90 per year. He estimates it will cost $2,300 to hook up. Mr. Croissant stated his understanding Mayor Bean had had two house fires and both happened on city water. Mayor Bean clarified one home was on city water and one was not. Mr. Croissant stated through the process he had gotten to know his neighbors. He stated he has found only two people in favor of city water versus the 70 to 75 percent the Council stated approximately a year ago. He expressed his belief when speaking with the City and in making presentations no one listens. Mr. Croissant expressed that many of his neighbors would like to feel they are in a democracy, however most of them feel the City is communistic. He stated this goes back to wwn in that the City does not want ethnic cleansing, but rather economic cleansing. He expressed concern for residents who are receiving Social Security Income and their ability to pay the assessment. Jerry O'Neill, 25540 Nelsine Drive, spoke regarding assessed value. He had asked the appraiser for proof of the $5,000 assessment. He stated he had received a copy of a letter from C.E. LaSalle, Real Estate Appraisers and Consultants, which was addressed to the City of Shorewood dated April 1, 1996, regarding comparables used for water/sewer analysis. Mr. O'Neill questioned the procedure used by the consultant in determining the difference between a home with a well and a home with city water. He stated the difference is $1,000. He has researched the issue and was informed the average price for putting in a well is $4,200 which also raises the value of the lot. He pointed out empty lots were used as comparables, yet most people being assessed have functioning wells. Mr. O'Neill encourages the residents to appeal the assessment because there is no proof of a $5,000 improvement to a house with a functioning well. Kate Lynch Bix, 25545 Orchard Circle, stated she reviewed a 1992 mailing she had received from the City which concluded there was not majority support for water. This conclusion was based upon a survey. She stated since there has not been another survey, where is the documentation which would support there being a majority of the residents in favor of municipal water. Mayor Bean clarified the process which had occurred since the winter of 1995 as a result of several years of Planning Commission efforts to update the Comprehensive Plan. The Comprehensive Plan is the guiding document which the Council is operating under at this time. Mayor Bean explained the Comprehensive Plan called for a need over the long term for enhancements to the municipal water system. He further explained Shorewood does have a fractured water system in terms of the Amesbury facility, the southeast facility, the Badger facility, the W oodhaven facility, and Boulder Bridge. The system, in its entirety, is not efficient. Mayor Bean stated many options were considered such as selling the system to Minnetonka, capping municipal wells or expanding and completing the system to ensure its viability for 20 to 50 years. Mayor Bean related many residents inquired why this was not completed in 1971 when the sewer system was installed. History reflects the City could not afford it at the time. Discussion continued and this was formulated in the Comprehensive Plan. As far as notification, a number of things were done in an effort to communicate through cable television presentations, neighborhood I REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 7 . meetings, newsletters from the City, and feature articles in the Sailor. A public hearing was held on the Comprehensive Plan in the spring of 1995. Mayor Bean referred to the articles in the newspaper relating to the City proceeding street by street in an attempt to divide and conquer. He stated this is a controversial issue, however the Council has a responsibility to look at fiscal responsibility, stewardship of city dollars and take this issue very seriously. Mayor Bean stated there was a debate on the Council relative to what should be done. He stated Councilmember Stover was very articulate in identifying a lot of the downside of a municipal water system. The Council went further and identified themselves as a working group in addition to three citizens who were asked to assist in the assessment ordinance process. The Council felt in that process they were able to identify some people who would bring a full spectrum of discussion to the table. Mayor Bean stated the issue of what the assessment would be was a very difficult process. Consideration was given to where other cities have set their assessment and this seemed to be a reasonable number. The City ultimately retained a certified appraiser to determine the validity of the assessment amount. Many hours were spent brainstorming and reaching alternatives. . Mayor Bean stated with regard to municipal water quality, residents situated on the west end have indicated their private well water is horrible. The water quality out of the Boulder Bridge well far exceeds the quality of what they are able to get from their private wells. Mayor Bean explained with regard to the location of the water tower, a lO-acre parcel adjacent to the Minnewashta property became available as the result of a tax foreclosure. The City was the entity which had the right to acquire the property at an auction. The school district had a strong interest in acquiring the property to expand the land which was available for the elementary school. As a part of the negotiation on that, in exchange for the City's cooperation, a future site for a water tower was identified. . Last summer the City entered into discussions with the school district as to where to put the tower. Ultimately four or five particular locations were identified, some more desirable to the school and some more desirable to the City. According to Metropolitan Council a year ago, there were 6,300 residents in Shorewood. The 1990 census reflects 5,700 residents. Projections suggest a population of approximately 9,000 by 2020 which is where Shorewood will have peaked in terms of development and expansion. Shorewood is expected to have a 30 percent population growth before reaching a plateau. Mayor Bean explained with regard to house fires in the Bean family, in the 1960's Mayor Bean's parents lived in Deephaven and had a fire serviced by the Excelsior Fire Department. That particular house was a total loss. The Bean family had another fire when residing near Vine Hill which was serviced by municipal water hydrants by the Minnetonka Fire Department. In reviewing the response records of those two calls, they were less than a minute apart. Mayor Bean also commented on the fire in Deephaven this past February where there was substantial fire. The response had to be with tankers. There are a couple of minutes of flow from a tanker before it would need to be refilled. There were very harsh weather conditions. Mayor Bean recognized the Excelsior Fire Department on an heroic effort in fighting that particular fire. There was severe weather, and they ran out of water for five minutes. He stated it may have no bearing on that particular property and a five minute gap may not be significant, however, Mayor Bean's concern is if one of the tankers would have had a collision in route or some other type of mechanical problem and water would have been denied to that site for 10 to 20 minutes. . . . REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 8 Mayor Bean recessed the meeting at 9:42 p.m. and reconvened at 9:43 p.m. Councilmember Stover commented in the Excelsior Fire experience, the Fire Department's report stated water supply was not the problem. Mayor Bean suggested the fire could have been much worse. There was a significant coordination effort between Chanhassen and Minnetonka, to keep tanker trucks on site. The question is had there been a mechanical problem and one of the tankers had failed to operate as well as they did, would the outcome have been significantly different and how close could the City come in the case of an elementary school and relative to other homes in the area. Mayor Bean commented per the City code, municipal water is not an item which requires a referendum. Relative to the democracy versus republic, the Council is a body by representation. This is not a Town Hall form of government where everyone gets together and comes to a decision. The Council is a representative group elected by all of the community to make the best decisions possible within guidelines. Attorney Keane explained there is a deferment process for senior citizens. The Council has the authority on case by case requests to grant deferments of special assessments for senior citizens. There is also a process of deferments for people who are in a position of economic hardship as well as permanent disabilities. Mayor Bean asked Attorney Keane to comment on the appeal process for the assessment amount. Attorney Keane explained the City did undertake the services of a licensed appraiser with significant credentials in the valuation business. The City wanted to be sure the proposed assessment amount was one that was defensible from the benefit standpoint. The City's first burden is to demonstrate that the benefit to the raw property exceeds the cost of the assessment. Attorney Keane further explained individual property owners have an opportunity to challenge that assessment. All fee owners of each affected parcel will receive notice of an assessment hearing. There will also be two notices published in the newspaper of assessment hearings and the City will give each property owner significant advance notice. The property owner must object prior to or at that hearing in order to preserve their right to appeal. An appeal of an assessment would be made to District Court within 30 days after the assessment hearing. Councilmember Stover commented this was an extremely difficult position and because the decisions of the Council are made by a majority of the Council, that is the decision the City makes. She further stated this happens to be a decision she does not agree with. Councilmember Stover explained the basic reasons for promoting city water usually include the fire department, possibly reducing insurance premiums and quality of water. She further explained she has witnessed a house burn to the ground with city water more than once. She stated she feels the local fire department is excellent and can fight fires with both systems. Councilmember Stover further commented with regard to the southeast well system, it is financially solvent on its own, does work, and is probably supporting more residents than many of the city wells in the State of Minnesota. Councilmember Stover stated as far as the quality of water, every private well has a different amount of impurities. The southeast water system was upgraded with a treatment plant which was not originally planned because of the quality of their water. Financially, private water is less expensive than city water over the long run. . . . . REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 9 Councilmember McCarty stated a prior councilmember had contacted her and stated they had had the opportunity to do this and they should have done it. The councilmember stated he was proud the Council was going forward. She further stated it is more responsible fiscally to connect the elements of the existing system to make it the best system possible. She stated the Council has put a lot of thought, effort and soul searching into the decision and she is comfortable with it. Councilmember Benson stated his agreement with Councilmember McCarty. He stated the Council has made the decision with their hearts and their minds. He also stated he is offended when he is accused of being a communist. He stated he is a lifelong resident of the community and is on the Council because he feels he can help the community. He stated there was no fmancial incentive to make this decision. Mayor Bean thanked the audience for coming and expressing their concerns. 8. PRESENTATION BY SMITHTOWN COMMITTEE ON PROPOSED ~ IMPROVEMENTS Tom Dahlberg, 25270 Smithtown Road, stated he had two random sample surveys to share with the Council. He stated at the outset he would like to make an observation about watching the whole process, listening to the City Council sincerely articulating the fact they have a vision and certain ideas about what is good for Shorewood. He stated the Council is missing the point. All of these people are saying it's their city, and whether they are right or wrong, they should have the right to make that decision. Mr. Dahlberg stated there is no law prohibiting a referendum which keeps the Council responsive to the people. Mr. Dahlberg stated the Council's decision is not based on a democratic majority. He further stated he respects the fact the Council has strong convictions for what they feel is right for the city, however, the Council appears to be an activist government with their own view of how things should be and simply take advantage of the way the city is legally organized in order to bring about their own views. Mr. Dahlberg stated lawyers are threatening the city with lawsuits because the Council's view of how government works in the city is completely different from the residents. He stated the residents' view of city government is that it can be representative, that it is not incompatible with democracy and you can fight over whatever you believe. Mr. Dahlberg stated in February several residents came to the City Hall to review the plan for the Smithtown Road trail. At that time he was surprised to fmd there were plans for a trail which would take up to 17 feet from the front yards of properties where there was little more than 17 feet between the door of the house and the street to begin with. He suggested very little planning had been done and no contact had been initiated with the residents of Smithtown Road. Mr. Dahlberg commented the City intended to put a 17' wide trail on Smithtown which he stated is unconstitutional and out of step with Minnesota case law. He stated it now appears, according to his lawyer, that the City has a 33' right-of-way on Smithtown Road based on actual use. He stated the area and actual use of Smithtown Road was measured and found to be 29 feet. He stated a jury could be brought to Smithtown Road to do the fact finding themselves. Mr. Dahlberg stated he was referring to the Barfnecht v. Town Board of Hollywood Township case which was circulated and the other case which his lawyer cited. Both cases put into question the adverse use doctrine in the State of Minnesota. He stated the Council is wrong about all of their facts. Mr. Dahlberg stated the Constitution requires if the City is going to take a resident's property in any way, shape or form, including a utility easement, it has to compensate the resident. Mr. Dahlberg reviewed in detail the two raridom surveys he provided. The Smithtown Committee poll was based on a simple random sampling of 49 households on the first survey and 43 ". . . . .' REGULAR CITY COUNCIL MINUTES MA Y 13, 1996 - PAGE 10 households on the second. He stated he has a business background in market research and knows how to select a true random sample and he knows how to enforce the randomness of that sample by telemarketing. He stated from the viewpoint of the Smithtown Committee, it is not so much what the Council is doing, it's the elitist, dictatorial fashion in which it is being done. Mr. Dahlberg stated the survey included people who are currently on city water and have curb and gutter. He stated the Smithtown Committee is asking the Council to prove the City has the constitutional right to reconstruct Smithtown Road or they will ask the courts to stop the reconstruction. Mr. Dahlberg stated he appreciated receiving a response from City Attorney Keane regarding the main issues. Mr. Dahlberg stated with regard to the Zimmerman case which was cited by City Attorney Keane, his attorney considers the case not on point. He further commented it is an old case and there are Supreme Court decisions since that case which invalidate Zimmerman. Mr. Dahlberg stated the Council has not given the evidence the Smithtown Committee has asked for, that the City has the legal right and the property rights to reconstruct the road. ' Mayor Bean stated in no way, shape or form was the City going to take property. He stated the City has an established street and right-of-way under definition. Mr. Dahlberg stated it is the opinion of his attorney the Barfnecht case includes aspects which are unconstitutional. He further stated it was possible this case would go to the Supreme Court where he feels the Smithtown Committee would win. He stated this issue deals with the adverse use doctrine in the State of Minnesota. City Attorney Keane assured Mr. Dahlberg, as an officer of the Court, that no one's constitutional rights would be violated. He further stated the Constitution provides if there is a taking for public purposes, the City would be obligated to compensate the property owner. He noted there is no unconstitutional conduct being undertaken as suggested and there will not be any unconstitutional acts undertaken by the City in the future. Councilmember McCarty commended Mr. Dahlberg on the work on his survey, despite the fact it is a small percentage of people. She commented she has some familiarity with surveys. Councilmember McCarty stated with respect to the question regarding the expansion of high density housing in Shorewood, the City is not looking at any apartment buildings or any of that sort of housing other than perhaps very small four unit developments. The only exception to that would be affordable senior housing. She stated she wanted to clarify that because it appears to be a very leading question rather than a neutral question. Councilmember McCarty also inquired if, when asking about forced hook-up to city water, was it explained to people they would have 18 months or that the City is possibly looking at a policy where they would not have to hook up? She stated she is simply pointing out a good job was done on the survey, however many of the questions were leading. Councilmember Stover stated a survey was completed a number of years ago and analyzed by a professional consultant. The result of the survey demonstrated the majority did not want city water. Consideration was given to that response. Council has considered updating the survey, however, it was felt a public hearing would provide that kind of information. Councilmember Stover also commented there is the philosophy between representative government or leadership, a person elected can have a different philosophy between those two or someplace in between. She stated some feel one way and some feel the other way, both have merit and it is just a different style of conscientiously trying to do a good job. .. , REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 11 . 9. CONSIDERATION OF MOTION TO ADOPT A RESOLUTION APPROVING CONSULTING ENGINEERING CONTRACT FOR 1996 PROJECTS Engineer Larry Brown reviewed the matter. Mayor Bean inquired if staff was concerned about the ability of OSM to perform considering the number of people who have the left the firm recently. Brown stated the City has been receiving good professional design services from OSM. Brown stated the services the City receives through the construction inspection will determine if there is a need to reconsider. Brown will keep the Council posted. Brown stated there is a new field representative who is energetic and experienced. He has solved a number of problems. Stover asked if any other outside engineering firms had been considered regarding the projects. Brown stated there has been a modification to the scheduling of projects early on and it forced the City to quicken the schedule to make a firm bidding atmosphere. Possibly in the 1997 improvements staff will look at investigating what it would cost to go with another firm. Brown stated as he understands it, as far as their profession goes, it is not ethical to bid for professional engineering services. City Attorney Keane stated it is not required. Brown further stated it is a pattern that has been going on, however the Board that oversees the profession takes a dim view of that. Staff could investigate that further, should the Council wish to move ahead. Brown asked the Council to realize the City has asked OSM to proceed with some of the design aspects of the project and are trying to keep firm bidding ground here. Brown stated the City has paid for records with OSM being the steward of them. In an effort to update City records, Paul Hornby and Brown have agreed to transfer records over a period of time. . Councilmember Stover inquired if it would make a difference that personnel has changed. Brown stated it is fortunate in that the individual currently serving as project manager was the former design engineer. Paul Hornby received a promotion and is familiar with all of the background information. Brown stated Attorney Keane will have an opportunity to review those agreements. McCarty moved, Benson seconded approving: RESOLUTION NO. 96-42, itA Resolution Authorizing Execution of an Agreement for Professional Engineering Services for Project 95- 14, Eureka Road Improvements; RESOLUTION NO. 96-43, "A Resolution Authorizing Execution 0 f an Agreement for Professional Engineering Services for Project 95- 15, Smithtown Road Watermain Extension from Boulder Bridge Circle to south City limits; RESOLUTION NO. 96-44, "A Resolution Authorizing Execution of an Agreement for Professional Engineering Services for Project 95- 16, Smithtown Road Improvements from Eureka Rod to Country Club Road; . . .' REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 12 . RESOLUTION NO. 96-45, " A Resolution Authorizing Execution of an Agreement for Professional Engineering Services on Project 95- 17, Strawberry Lane Improvements." Motion passed 5/0. Brown asked for clarification if the Council would desire staff investigate a consultant services process. Mayor Bean expressed concern in the turnover with the senior people at OSM and asked for input from the City Attorney. City Attorney Keane stated that would be a fair question when there is a high level of change in personnel and staffing in a short period of time. The City, as a client, could inquire as to what is occurring and does the firm have the critical mass of expertise to service the needs of the City. City Administrator Hurm stated the City went through a process some years ago and he would rely on Brown's opinion on the working relationship he has with them. City Attorney Keane further added the City may want to take this opportunity to have OSM come in for a discussion and to also make clear the understanding that all of the work product they have generated is the intellectual property of Shorewood and that the engineer does not have an interest or claim. If in the future there were to be a transition of services, or the City wishes to obtain certain documents, these should be made immediately available. Councilmember McCarty stated she would rely on Brown's opinion since he is the staff person who deals with them on a day to day basis and knows their expertise. Brown stated the overriding key from a civil engineering standpoint would be how effective the field personnel is. . 10. CONSIDERATION OF A UTILITY FEE REDUCTION ON FINAL BILLING - JIM AND CONNIE VOLLING, 6200 SIERRA CIRCLE Finance Director Alan Rolek reviewed the matter stating the V ollings are requesting an abatement of a portion of their final utility bill. They feel the consumption was too high given the length of time (20 to 25 days) they were living in the house that month. Rolek stated it is possible something could have been left on in the house which would generated higher volumes of water consumption such as faucet dripping, toilet running, etc. He further stated it could be a malfunctioning meter. However, in discussing the matter with Engineer Brown, when a meter malfunctions, it is generally to the benefit of the property owner. Councilmember Stover inquired since people were not living in the home, and if something was left dripping, how many gallons would that be? Brown stated if something were leaking, that would not add up to four gallons per minute. The consumption would more likely be a large flow such as a garden hose. Rolek stated it is possible the meter was misread in the previous quarter. Mayor Bean asked if the previous month wouldn't have been unusually low. Rolek stated the consumption for that home has been consistent for the last four quarters, but considerably lower than in previous years. Rolek stated what would normally be done is the charges would stay against the property and would transfer to the new owner. Mayor Bean suggested the Vollings be billed, but that the charges not transfer to the new owner. . Stover moved, Benson seconded to deny a utility fee reduction on final billing 0 f Jim and Connie Volling, 6200 Sierra Circle. Motion passed 5/0. 4>' . . . .' REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 13 llA. CONSIDERATION OF A MOTION TO ADOPT A RESOLUTION AUTHORIZING EXECUTION OF AN URBAN HENNEPIN COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT. Stover moved, McCarty seconded adopting RESOLUTION NO. 96-46, "A Resolution Authorizing Execution of an Urban Hennepin County Community Development Block Grant Agreement." Motion passed 5/0. Councilmember Shaw asked if the agreement had been reviewed by the City Attorney. Attorney Keane confIrmed that it had. City Administrator Hurm stated this is a new policy for Hennepin County. liB. CONSIDERATION OF A MOTION APPROVING A CHANGE ORDER TO CA TERPILLAR GRADER 140H PURCHASE City Engineer Brown reviewed the matter. City Administrator Hurm indicated this is approximately $14,000 under what was budgeted. McCarty moved, Shaw seconded to approve a change order to caterpillar grader 140H purchase. Motion passed 5/0. 12. ADMINISTRATOR AND STAFF REPORTS A. Report on Recycling Chipboard Hurm reported the recycling fIrm has indicated there is no market for chipboard at this point. It consists mostly of recycled materials and it would cost the City to dispose of it. B . Report on V oiceMail System at City Hall Hurm stated the V oiceMail System is being utilized. A newsletter will be sent to residents to make them aware of the new system. Councilmember Stover stated her approval of the system. C. Report on Development of Home Page Hurm reported the City is continuously looking for ways to communicate with the residents. The City will be asking several questions in the survey which is going out in the newsletter regarding use of the internet. In a previous newsletter, the City asked for volunteers to assist in developing the Home Page and a committee was establish to assist in that development. Planning Director Nielsen stated there is a developer interested in senior housing. He has extended an invitation to the City Council and the Planning Commission to tour the new senior housing project in Chanhassen. Nielsen will notify the developer to send invitations. 13. MAYOR AND CITY COUNCIL REPORTS Councilmember Shaw announced the annual meeting/community. breakfast of the Community Education and Services of Minnetonka on May 30th at the Minnetonka Baptist Church. Councilmember Stover reminded the Council of the Hennepin County Parks Meeting and urged as many people as possible to attend. She also stated she would like to remind everyone that home occupations require a permit. ~ . . . ~. REGULAR CITY COUNCIL MINUTES MAY 13, 1996 - PAGE 14 Mayor Bean stated it was noted in the Sailor Deephaven's decision to withhold their contribution for the senior center was relative to getting fmal plans and specification. Hurm stated they have been supplied. 14. ADJOURNMENT SUBJECT TO APPROVAL OF CLAIMS Shaw moved, McCarty seconded to adjourn the City Council meeting at 11: 19 p.m., subject to approval of claims. Motion passed 5/0. RESPECTFULL Y SUBMITTED, Cheryl Wall at, Recording Secretary TimeSaver Off Site Secretarial ATTEST: ! ~ <:/)/ . . n:_)c:) '7'-:> __..I...:.:::.".:!~'::lhlL~,.t(.~ ROBERT B. BEAN, MAYOR _________ ; __~!_[_~wVl JAMES C HURM, CITY ADMINISTRATOR