Loading...
112596 CC Reg Min . . CITY OF SHOREWOOD REGULAR CITY COUNCIL MEETING MONDAY, NOVEMBER 25, 1996 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 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 Present: Mayor Bean; Councilmembers Benson, McCarty, Shaw, Stover; City Administrator Hurm; City Attorney Tim Keane; Planning Director Brad Nielsen and Engineer Larry Brown. Review Agenda B. Mayor Bean noted several changes to the agenda whereby Consent Agenda 3B will become 5D and Agenda Items 7 and 8 will be considered in reverse order with the Council recessing the meeting to convene a brief Executive Session prior to the consideration of Item 8. Shaw moved, Benson seconded to approve the agenda as amended for November 25, 1996. Motion passed 5/0. C. Introduction of Cub Scouts - Pack 428, Den 2 . Mayor Bean welcomed Cub Scout Pack 428, Den 2, and thanked them for attending the meeting. 2 . APPROVAL OF MINUTES City Council Regular Meeting Minutes November 12, 1996 McCarty moved, Stover seconded to approve the City Council Regular Meeting Minutes of November 12, 1996, as amended on Page 3, Paragraph 9, Sentence 1, change Connie Clover to Connie Dove-Clover; Page 5, Paragraph 1, Sentence 2, change Silver Park to Silverwood Park; Page 4, Item 6, Paragraph 3, Sentence 3, amend to read, "renaming of Smithtown Way to Reutiman Lane"; Page 2, Item 4, Paragraph 5, Sentence 4, change to read "adopted changes to the ordinance"; Page 6, Paragraph 11, Sentence 1, change "ordinance" to "resolution." Motion passed 5/0. City Council Work Session Meeting Minutes November 18, 1996 Benson moved, Shaw seconded to approve the City Council Work Session Meeting Minutes of November 18, 1996, as amended on Page 3, Paragraph 5, Sentence 3, add "and which will not be identified by aerial photography;" Add the following paragraph: "Mayor Bean noted the City needs to adopt a guiding philosophy with respect to stormwater management which takes into account the aspects of rural street design and budgetary constraints." Motion passed 5/0. 3. CONSENT AGENDA . Mayor Bean read the Consent Agenda, as amended, for November 25, 1996. REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 2 . McCarty moved, Stover seconded to approve the Motions on the Consent Agenda and to adopt the Resolutions therein: . . A. A Motion Adopting RESOLUTION NO. 96-105, "A Resolution Granting Deferment of Special Assessments for the 1996 Water Improvement Projects" B. A Motion Authorizing the Purchase of Computer Accessories for Use in Archiving Documents C. A Motion Adopting RESOLUTION NO. 96-106, "A Resolution Accepting Petitions for the Levy of Watermain Trunk Charges and Special Assessments" Motion passed 5/0. 4. MATTERS FROM THE FLOOR - None 5. PLANNING Planning Commissioner Turgeon reported on the Study Session held on November 19, 1996, (as detailed in the minutes of that meeting). A. A Motion to Direct Staff to Prepare Findings of Fact Regarding Appeal Interpretation of City Code Related to Non-conforming Docks Applicant: Location: James Cabalka 58XX Christmas Lake Road Attorney Mark Kelly appeared on behalf of the Cabalka family. Mr. Kelly stated his belief the preponderance of the evidence continues to be that the Cabalka family owned the lot when the ordinance came into effect and that a dock was maintained at that location for 35 years. Mr. Kelly asked the Council to make findings to that effect. He further noted at the time Mr. Cabalka fIled his appeal, the application included a request for a variance. Mr. Kelly stated that may be the only way to bring this matter to a conclusion so that the Cabalkas will not be called upon to defend themselves again in the future. Mayor Bean inquired as to whether the photographs taken subsequent to 1965 were conclusive relative to the existence of a dock on the property. Nielsen stated he was unable to detect any evidence of a dock and the photos were inconclusive. In addition, the photos were not clearly dated or sourced. Mayor Bean asked if a variance request had come before the Planning Commission. Nielsen explained the Planning Commission had addressed that issue and determined this request would require a use variance. He further explained in Minnesota a use variance cannot be granted. The Planning Commission also discussed the possibility of amending the ordinance. Mayor Bean asked Mr. Kelly ifhe was in agreement that a variance would be inappropriate. Mr. Kelly stated his recollection of the code specifically references the granting of variances in conjunction with docks and unbuildable parcels. Nielsen noted there had been changes made to the ordinance and it was his belief that provision was no longer a part of the ordinance. Attorney Keane confirmed this. REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 3 . Councilmember Shaw asked if any inquiry had been made of the DNR. Nielsen noted he conferred with Ceil Strauss at the DNR who suggested the Wilson Library at the University which has a number of aerial photographs of the area as well as photos available from the Agricultural Stabilization and Conservation Service. Councilmember Shaw stated during the period from 1979 to 1981, the DNR took photos of Christmas Lake relative to the usage level of boats on the lake. Nielsen stated his belief those are the photos which Mr. Cabalka has and suggested submittal to the Council for review. Councilmember Stover questioned whose responsibility it would be to prove that a dock was or was not in existence since 1965. Attorney Keane explained that the applicant is asserting the right and on that basis, the burden is on the applicant to demonstrate the pre-existing right survives the nonconforming provisions. Councilmember Stover noted the letters received on this issue reference conflicting dates and asked how this issue can be judged given the conflicting information. Attorney Keane explained the Council sits as the body which hears appeals and, therefore, weighs the evidence and has the discretion to vote on a particular finding one way or the other. Councilmember Stover recalled the Planning Commission had inspected the Cabalka property relative to a subdivision and ask for a verification of the date that inspection was done. Councilmember Stover stated she has a clear recollection the dock was not in place at that time, however, she stated that inspection could have been pre or post dock season. In reviewing minutes of past Commission meetings, Nielsen verified the date of the inspection to have been June 6, 1981. . Mayor Bean asked if there is a specific length of time for the dock to be in place during the season. Nielsen stated there is no designated length of time. Councilmember McCarty felt there were equal recollections on either side and there is nothing concrete to consider. Councilmember Shaw stated he would not be willing to affirm Mr. Cabalka's rights without seeing the DNR photos. Mayor Bean noted the applicant has the right to appeal again if he is able to bring forth new evidence. Mayor Bean noted his agreement with Councilmember Shaw that there is no clear and convincing evidence to prove the existence of the dock. Nielsen suggested tabling the issue to allow further research into DNR aerial photos as described by Councilmember Shaw. Councilmember McCarty pointed out if the photos are dated 1979 or later, that would not prove that the dock has been in continuous use since 1965. Councilmember Stover suggested the Cabalkas submit have any other photographic evidence they may have. Mayor Bean noted from past discussions the survey did not reflect the dock, however, the Cabalkas indicated they had requested the survey not reflect the dock. He commented survey information could not be relied upon and some type of visual confirmation of the dock would be necessary. Mayor Bean explained other requests very similar to this have been denied. Mr. Kelly stated the Council is requiring the Cabalkas to provide proof by way of aerial photographs, over which they had no control, that a dock was in existence during a specific period of time. He stated the evidence standard can be set ever higher, making it an impossible standard to meet. Mayor Bean noted there has been conflicting evidence which has come forth and complainants have come forward asking that the ordinance be upheld. Councilmember Stover stated there are other unbuildable lots where the Council has denied accessory uses. . . . . REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 4 Stover moved, Shaw seconded tabling the appeal interpretation of City Code regarding non-conforming docks, for James Cabalka, 58XX Christmas Lake Road, until the December 16, 1996, City Council meeting to provide an opportunity for any further evidence to come before the City Council on or before that date. Motion passed 5/0. B . A Motion Directing Staff to Prepare Findings of Fact Regarding a Variance for Dock Use, Length and Setback Applicant: Location: Bob Mellett 4435 Enchanted Drive Mr. Mellett was in attendance. Mayor Bean asked if the three individual home owners would be able to have their own docks if they desired. Nielsen explained two of the lots would be allowed to have a dock and the third lot would possibly require a variance on the side yard setback. Councilmember Stover inquired about the allowed number of boats per dock/per property. Nielsen explained the LMCD would allow two boats as a matter of right with an allowance of up to four boats if it can be demonstrated all four boats are owned by the resident of the property. Councilmember Stover pointed out if one family had a dock, there could be four boats, however, under the current request, there will be only three. Councilmember Stover asked if the Declaration of Easement would be tied to the property or if it would stay with the residents. Attorney Keane explained the easement stays with the property. Councilmember Stover inquired how a purchaser of the property would be aware of this easement. Attorney Keane stated the Declaration of Easement is a recorded. The easement is a matter of public record and recorded as a part of each of the three parcels. Stover moved, McCarty seconded directing staff to prepare a Findings of Fact approving a variance for dock use, length and setback for Bob Mellett, 4435 Enchanted Drive. Motion passed 5/0. e . A Motion Directing Staff to Prepare Findings of Fact Regarding a Variance to Shore land District Hardcover Requirements Applicant: Location: John Miller 21125 Minnetonka Boulevard Mr. Miller was not in attendance. Mayor Bean asked if the applicant had approached the residents on Ferncroft relative to his request. Nielsen noted he had, however that property owner is not interested in selling any of her property. Mayor Bean asked if there would be another house on Lots 2 and 3. Nielsen stated there had been in the past. Mayor Bean also questioned the distance of the driveway to Ferncroft Drive. Nielsen stated it is approximately 120 feet and the minimum distance between a corner and a driveway is 40 feet. Councilmember Stover inquired with respect to erosion control and whether the Planning Commission was satisfied with the method to be used and if it will be effective. Nielsen explained that in addition to erosion fencing, there are recommendations for maintaining the disturbed slope. Councilmember Stover inquired as to the effect on hardcover if the driveway was not paved. Nielsen stated whether or not the drive is paved, it would be considered impervious. REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 5 . Stover moved, McCarty seconded directing staff to prepare Findings of Fact approving a variance to Shoreland District hardcover requirements for John Miller, 21125 Minnetonka Boulevard. Motion passed 5/0. D. A Motion to Adopt a Resolution Approving the Final Plat -Marsh Point Applicant: Lundgren Bros. Construction, Inc. Location: 76.5 Acres North of Smithtown Road West of Minnewashta School Mayor Bean asked whether there had been discussions relative to street lighting. Nielsen stated that issue had just recently been discussed. In the past, the City has addressed lighting as a part of the development, or upon receipt of a petition for lighting from the neighborhood. . Mark Anderson, Director of Land Development, Lundgren Brothers Construction, requested permission to install nine street lights. Mayor Bean recalled a situation whereby a developer had installed some street lights and other surrounding residents took exception to that intrusion. Mr. Anderson stated he preferred to have street lights included in the request. Nielsen explained that on past street lighting requests the Council has directed staff to notify home owners within a specified radius of the street light location. Mayor Bean commented the policy has been to illuminate an intersection only where there is a safety concern. Nielsen noted there is a policy relative to where the lights can be placed. Mayor Bean suggested the lighting issue be brought as a separate issue after notice has been provided to the surrounding home owners. Nielsen pointed out the agreement does not incorporate lights. In reviewing the plan, Mayor Bean noted several of the proposed lights would not fall within the City's policy with respect to lights on cul-de-sacs and other areas. Mayor Bean suggested that the maximum height be identified and compared with existing lighting policy. In addition, he pointed out on the Schedule of Work, Items 1 through 8 were to be completed by October 1, 1997. Nielsen also stated the City may want to provide that the final lift of asphalt would not be expected to be completed until the summer of 1998. Mayor Bean noted a question had been raised relative to the positioning of the street on the western half of the property and the preservation of the trees along the boulevard. Nielsen explained the intent was to save as many trees as possible. In the design of the road, the actual traveled surface had been moved to the west as far as possible in order to save that line of trees. Nielsen also explained the City has received a plan relative to the planting of trees to break up the massing of the two buildings located on the peninsula. In addition, a wetland restoration plan has been submitted outlining the plans for the restoration of areas where there exists an encroachment into any wetland buffer area. Mr. Anderson inquired as to the utilities to the peninsula being privately owned by the peninsula. He noted that a 6-inch watermain will be extended out into the peninsula with a fire hydrant on the end and questioned if it is the intent of the City that the residents have a private hydrant and responsibilities for flushing their own system which would have an affect on the City system. Engineer Brown responded if a problem arises with the system, there could be an issue with respect to maintenance and restoration of private driveways. He explained he would have preferred a lift station for the sanitary sewer and would not want the City to take ownership of that system. . . . . REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 6 Co~nc~lmember Stov~r questioned the adv~ta&es and disadvantages of ~e V:'ater system being mamtamed by the resIdents. Brown explamed If the system were not maIntaIned properly, this could impact the municipal system. If the City takes ownership of the utilities, it would take the responsibility for the flushing and maintenance of the system. Mr. Anderson did not feel private property owners would be capable of maintaining the water system. Mayor Bean noted he would be inclined to have the City maintain it. Brown noted if the City takes ownership of a utility, any expenses incurred in destroying a private driveway could be assessed back to the individual property owner. Councilmember Stover asked how a property owner would know that is a possibility when they purchase the property. Mayor Bean suggested it could be included in the Homeowners Association's Covenants. Mr. Anderson pointed out the roadway is being built to City standards. Brown stated if the project engineer provides pavement calculations specifically with respect to this peninsula which meets the City standards, it would then be appropriate for the City to assume ownership of the watermain only and restoration of the roadway in the event of damage relative to watermain maintenance. Mayor Bean clarified this would mean taking ownership of the utility and not the street. Mr. Anderson noted his agreement with that suggestion. Mayor Bean commented it could be difficult to define who damaged the street. He felt the City should assess street reconstruction back to the homeowner in the event of a utility problem. If a street would be restored relative to a utility maintenance such as a broken watermain, the City would be responsible for that particular repair. Nielsen noted the Planning Commission recommended throughout the plat that fertilizer containing phosphorous not be used and that be included in the covenant. Mr. Anderson asked if that applied to the wetland buffer area or the subdivision. Nielsen explained it is already prohibited in the wetland buffer area and this would pertain to the entire plat. Mr. Anderson commented he would support this program and suggested it be enacted throughout the City, however he noted enforcement would be difficult. Mr. Anderson stated he would not be opposed to that language in the covenant after the lawn has been established. He commented that it would be necessary to use the phosphorous in the first year of establishing the lawn. Mayor Bean suggested a one year or one growing season limitation. Mayor Bean noted the points of clarification relative to this request include: incorporate language in reference to the 35-foot limitation; the improvements to be installed by the developer specifically do not identify lighting and that would require a separate petition to be presented with notification to home owners; and the addition of language in the covenants relative to the use of phosphorous in the development. There would be a clarification that the street has been pushed to the west approximately 15 feet to accommodate the stand of trees; the responsiblity for street repair on the private portion, and the ownership of the utility and repair related to maintenance. The sanitary sewer on the peninsula would be the responsibility of the homeowners association. McCarty moved, Stover seconded adopting RESOLUTION NO. 96-108, "A Resolution Approving the Final Plat - Marsh Point for Lundgren Bros. Construction, Inc., 76.5 Acres North of Smithtown Road West of Minnewashta School," as detailed by Mayor Bean. Motion passed 5/0. A member of the audience questioned when the public hearings were held relative to this matter. Nielsen explained notice had been sent to residents within 500 feet of the property prior to the public hearing held by the Planning Commission. In addition, the noticed was published in the newspaper and a sign was posted for approximately a year on the property. Mayor Bean recessed the meeting at 9:30 p.m. and reconvened at 9:40 p.m. REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 7 . 6. REVIEW IMPLEMENTATION OF SNOWMOBILE TASK FORCE RECOMMENDA TIONS A. Grooming of LRT Engineer Brown pointed out he felt it was preferable for the Southwest Trails Association to groom the trail as opposed to Public Works. He pointed out that Public Works does not have the necessary equipment. However, if there are minor items requiring immediate attention, Public Works would not be precluded from entering the trail and addressing those items. Mayor Bean commented the City has an opportunity to have the work performed at no cost to the City and felt it would be beneficial to take advantage of this opportunity. . Councilmember Stover stated, to her knowledge, the Southwest Trails do not have any equipment to groom for cross country. They could only groom for snowmobiles. . Brown stated the current agreement calls for a flat base of four to six inches. Councilmember Stover asked if Public Works could plow leaving a base of four to six inches. Brown explained Public Works does not have the proper equipment to accomplish this. Councilmember McCarty felt if it is harder for snowmobiles to use the trail, there may not be as many on the trail. She noted that in spite of the December I time frame, she observed a steady line of snowmobiles out during the recent snowfall. Shaw moved, Benson seconded approving execution of an agreement with the Southwest Trail Association for the grooming of the LRT trail. Councilmember Stover noted the Freeman Park cross country ski trail should not be a part of the agreement. Hurm stated that was an oversight and the agreement would not include the Freeman Park trail. Councilmember McCarty stated she would prefer not to have Public Works performing the work, but would also prefer to not have snowmobiles on the trail. Councilmember Stover agreed. Motion passed 5/0. B . Review Police Department Memorandum Officer Keller was present. He noted the lights, siren, and radar equipment are on order for the snowmobile. Mayor Bean stated he did not feel the ordinance prohibits the officer from patrolling on snowmobile prior to the December 1 date, and that he would be in a position to ride on the trail and within the city in an attempt to enforce the ordinance. Mayor Bean clarified this would apply to any licensed enforcement agency in the pursuit of the enforcement of Ordinance 803. Officer Keller noted 39 citations had been issued over the past weekend. He did not believe there were citations anywhere other than in Shorewood. C . Miscellaneous Recommendations . Mayor Bean encouraged the Councilmembers and Council-elects to review these recommendations with detail and any issues be brought back before the Council. Councilmember Stover referred to a memorandum from Ms. Kolstad which states that "continued mixed use of the trail creates a safety hazard which should not be acceptable." Councilmember Stover noted she agrees with that statement, however, she disagrees with the statement that . . . REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 8 "members of the Council who oppose snowmobiling for safety reasons have, by their very decisions, continued to support and encourage an unsafe situation." Mayor Bean commented that from a personal standpoint, he shares the concerns relative to mixed use, but recognizes that lifestyle choices made by residents. Mayor Bean felt there is an alternative which can work, a middle ground option which would allow preservation to enjoy this activity and eliminate the public safety issue. He felt a separation of activities could be achieved which would allow an activity to continue and eliminate the public safety concerns which everyone should have. Councilmember McCarty stated her opposition to the side trail issue. She felt brush would be taken out and did not want to see that. Councilmember McCarty commented given the way the area is developing, she feels a future Council will come to the decision that mixed use is not appropriate. Mayor Bean stated his suggestion would be for the pedestrians to utilize the flat surface and the snowmobiles utilize a side trail. Councilmember Benson noted his agreement with Mayor Bean. 7. CONSIDERATION OF A MOTION ADOPTING AN AMENDMENT TO SECTION 201 PLANNING COMMISSION AND RELATED RESOLUTION Mayor Bean noted there had not been consistency between the language relative to the Park Commission and the Planning Commission and consistency would be achieved through this amendment. Councilmember Stover asked if there should be a reference to a geographic balance among the members of the Commission. Attorney Keane noted that to be a policy question and if the policy of the Council is to further endeavor to provide for geographic balance and representation of planning commissioners, that can be added. Mayor Bean noted in the past there was a problem with not being able to acquire applicants from a particular area. Councilmember Stover noted that to the degree possible, she would like to have area representation. Attorney Keane noted the Council endeavors to consider the most qualified applicants, and to include that provision would possibly limit the selection process. Councilmember McCarty inquired as to missed meetings and if there should be a reference to that issue in the ordinance. Hurm stated that Ordinance 84 states three consecutive missed meetings shall be the basis for the Council to remove that member from the Commission. Attorney Keane stated there is a "for cause" removal and absences could be considered a cause and would not specifically need to be included. McCarty moved, Stover seconded adopting an amendment to Section 201 Planning Commission and adopting RESOLUTION NO. 96-107, "A Resolution Establishing Membership on the Planning Commission." Motion passed 5/0. 8. DISCUSSION OF AN AMENDMENT TO ORDINANCE 308 - TRANSIENT MERCHANTS, SOLICITORS, PEDDLERS, CANVASSERS AND GARAGE SALES Attorney Keane reviewed previous discussions relative to this matter in addition to issues which have been raised by Citizens for a Better Environment. Mayor Bean adjourned the meeting at 10:24 p.m. to an Executive Session for discussion pertinent to pending litigation. Mayor Bean reconvened the meeting at 10:47 p.m. . . . . ~ REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 9 Attorney Keane noted that discussions were held on October 28, 1996, and again more specifically amendments to the solicitors and canvassers ordinance were discussed on November 12, 1996. Mayor Bean noted the Council has identified five exceptions which were in discussion at those meetings and the amendment would be to eliminate those exceptions. He noted the intent of this amendment is to bring consistency with regard to exceptions to the ordinance. Stover moved, McCarty seconded approving an amendment to Ordinance 308 - Transient Merchants, Solicitors, Peddlers, Canvassers and Garage Sales. Motion passed 5/0. 9. ADMINISTRATOR & STAFF REPORTS 10. MAYOR & CITY COUNCIL REPORTS 11. ADJOURNMENT Shaw moved, McCarty seconded to adjourn the meeting at 10:55 p.m. subject to the approval of claims. RESPECTFULL Y SUBMITTED, Cheryl Wallat, Recording Secretary TimeSaver Off Site Secretarial ATTEST: 'j~ 0 '. 'fI (~()-I/' : ---~"v~''''''rl-;J~-Y.t-'({:'-.... ROBERT B. BEAN, MAYOR