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121696 CC Reg Min . CITY OF SHOREWOOD REGULAR CITY COUNCIL MEETING MONDAY, DECEMBER 16, 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 7:30 p.m. A. Roll Call Present: Mayor Bean; Councilmembers Benson, McCarty, Shaw; City Administrator Hurm; City Attorney Martin; Finance Director AI Rolek, Planning Director Brad Nielsen and Engineer Larry Brown. Absent: Councilmember Stover B. Review Agenda Planning Director Nielsen stated the applicant for Item 8B asked that his request be tabled indefinitely. City Attorney Keane had suggested it be tabled to a definite date. Nielsen stated it could be tabled until February 10, 1997. McCarty moved, Benson seconded to approve the agenda for December 16, 1996. . Motion passed 4/0. 2. APPROV AL OF MINUTES A. City Council Regular Meeting Minutes . November 25, 1996 Benson moved, Shaw seconded to approve the City Council Regular Meeting Minutes for November 25, 1996, as presented. Motion passed 4/0. B . City Council Regular Meeting Minutes . December 4, 1996 Benson moved, Shaw seconded to approve the City Council Regular Meeting Minutes for December 4, 1996, as amended on Page 6, Item 9, Paragraph 1, change "football fields" to "baseball fields." Motion passed 4/0. C. City Council Special Session Meeting Minutes . December 4, 1996 Shaw moved, Benson seconded to approve the City Council Special Meeting Minutes for December 4, 1996, as presented. Motion passed 4/0. D . City Council Executive Session Meeting Minutes . December 4, 1996 Benson moved, Shaw seconded to approve the City Council Executive Session Meeting Minutes for December 4, 1996, as presented. Motion passed 4/0. . 3. CONSENT AGENDA Mayor Bean read the Consent Agenda for December 16, 1996. . . . REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 2 Benson moved, McCarty seconded to approve the Motions on the Consent Agenda and to adopt the Resolutions therein: A . A Motion Authorizing the Purchase of Planning/Engineering Software B. A Motion Adopting RESOLUTION NO. 96-113, "A Resolution Approving 1997 Licenses for Refuse Haulers" C. A Motion Adopting RESOLUTION NO. 96-114, "A Resolution Approving 1997 Licenses for Tree Trimmers" D. A Motion Adopting RESOLUTION NO. 96-115, "A Resolution Approving Manitou Woods Final Plat" E. A Motion Adopting RESOLUTION NO. 96-116, "A Resolution Accepting Improvements of Waterford IV for David Carlson Companies, Waterford Twinhomes" F . A Motion to Approve Extension of a Deadline to Submit Final Plat - Larson Estates for Carl Zinn on Behalf of Stephen Larson, 20435 Radisson Road A Motion Adopting RESOLUTION NO. 96-117, "A Resolution Approving a Variance for Dock Use, Length and Setback for Bob Mellett, 4435 Enchanted Drive" H. A Motion Adopting RESOLUTION NO. 96-118, "A Resolution Approving a Variance to Shoreland District Hardcover Requirements for John Miller, 21125 Minnetonka Boulevard" G. I . A Motion Approving a Contract for Maintenance of SE Well J. A Motion Adopting RESOLUTION NO. 96-119, "A Resolution Approving a Transfer of Funds" K. A Motion to Approve the City Administrator's Employment Contract L. A Motion Adopting RESOLUTION NO. 96-120, "A Resolution Amending the Health Care Reimbursement Program Portion of the Shorewood Cafeteria Program" M. A Motion Approving a Sign Permit - Marsh Pointe for Lundgren Brothers Construction, Marsh Pointe (Smithtown Road) Motion passed 4/0. 4. MATTERS FROM THE FLOOR John Schmitt, 20725 Radisson Road, stated he has lived on Christmas Lake since 1960 and spoke in favor of Cabalkas and felt a variance should be granted allowing a dock on their property. . . . REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 3 Pat Arnst, 5480 Teal Circle, pointed out snowmobiles have been present in the wetland areas east of Brentridge Drive and also north of Smithtown Road. She asked what part of the implementation plan would address those violations. Ms. Arnst also noted there had not been any signs posted advising snowmobilers that the wetland areas are off limits. In addition, she inquired as to the amount of time the Shorewood officer spends enforcing the ordinance and how these issues conform with the zero tolerance policy. Mayor Bean stated snowmobiles have been prohibited from the wetland areas since the first snowmobile ordinance was put into effect. He felt mitigation of snowmobile use in those areas would be through enforcement. In addition, he stated the scheduling of the officers' time would be at the discretion of Chief Young. Mayor Bean noted the number of tickets which have been issued so far this year have probably exceeded the number of tickets in the past two years combined. Ingrid Schaff, 25605 Smithtown Road, stated she spoke with the officer on patrol over the weekend and he was very overworked. She questioned why only one officer was assigned to patrol the city in light of the extra patrol time the City is funding. Ms. Schaff inquired as to any correspondence which may have occurred between the City, Hennepin County Rangers and Sheriffs Patrol relative to enforcing the current ordinance and the zero tolerance policy. She asked the Council to ensure that the officer trained to patrol the trail be allowed to do so. Ms. Schaff inquired when the backup officer will be trained. Mayor Bean stated he felt there may have been some scheduling difficulties contributing to the lack of coverage over the weekend and suggested Chief Young would best be able to address this issue. He did not feel this was typical of the patrol coverage in the city. 5. REPORT OF FRIENDS OF THE SOUTHSHORE SENIOR COMMUNITY CENTER Consideration of a Motion Approving Change Order Modifying Senior Community Center Construction Involving Construction Completion Date Rick Westling, TSPIEOS, explained letters are being obtained from the contractors indicating this project will be a priority on their schedule the beginning of the construction season relative to the finishing jobs. The building is expected to be completed by February 28, 1997. Mr. Westling felt this would be a reasonable completion date and stated the inspections which have been occurring on the site have been increased from once per week to every other day. Mayor Bean asked if the issue of a fixed per diem penalty has been discussed with the contractor. Mr. Westling noted it had been discussed and the contractor feels he can perform to the specified dates. Bob Gagne stated the Friends of the Southshore Senior Community Center felt the building should not be accepted until completed in full. He felt the contractor should be given some reasonable length of time to complete the project to ensure good performance on the part of the contractor. Mr. Westling noted the Change Order provides for the Friends of the Senior Center to have access to the large room within the facility in which to store their furniture as well as the new furniture which they are purchasing. Councilmember McCarty was in favor of the Change Order. Councilmember Benson noted his agreement, but expressed his disappointment the project had not been completed when planned. . . . REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 4 Bean moved, Benson seconded approving the Change Order modifying the Senior Community Center Construction Involving the construction completion date and authorizing the Mayor and City Administrator to execute the contract addendum regarding completion date. Motion passed 4/0. 6. SW QUADRANT OF CHRISTMAS LAKE ROAD AND TH 7 RIGHT-OF- WAY ACQUISITION A. A Motion to Adopt a Resolution Accepting MNDOT's Proposal for Right-of-Way Acquisition B . A Motion Authorizing Mayor and City Administrator to Enter into a Right-of-Entry Agreement in Favor of MNDOT Mr. Glenn Ellis, MNDOT, appeared to address the Council. He stated he had contacted a forester to review this matter. The forester indicated the trees of value are located outside of the subject area. The trees which are located within the subject area are of little value. Mr. Ellis noted the amount of fill to be used in the area is quite low. He pointed out a retaining wall would be expensive and there would still be a need for working area. The forester has identified some trees which have been designated hazard trees and he has recommended their removal. Mr. Ellis stated the practice of MNDOT has been to save as many trees as possible. Prior to any tree removal, the forester is to be on site. Councilmember Shaw expressed concern on the east side of Christmas Lake Road. He did not have a concern with the wetland area. His concern is with the easement located east of Christmas Lake Road and Highway 7. Engineer Brown stated his understanding to be that those trees will be impacted. Mr. Ellis stated the designer has been speaking with the property owners and MNDOT's intent would be to save every tree possible. He pointed out, however, there is one residence west of Mary Lane which will lose a tree. Mayor Bean asked if a temporary barrier will be used to prevent contractors from encroaching into areas which are not to be disturbed. Mr. Ellis stated temporary fencing would be provided in areas where specific trees are to be saved so the contractors are aware this area is not to be disturbed. Councilmember Benson expressed disappointment that the right-of-way on the south side of the highway could not be utilized. Brown pointed out Hennepin County will need to sign the Agreement since they provided the City with this parcel. There may be a question as to whether the County is entitled to a portion of the revenue generated by MNDOT. Councilmember Shaw stated the City had acquired title through a title forfeiture from Hennepin County and questioned how the County would be entitled to a portion of the revenue. Attorney Keane is reviewing this matter. McCarty moved, Shaw seconded authorizing Mayor and City Administrator to enter into a Right-of-Entry Agreement in favor of MNDOT. Motion passed 4/0. Mayor Bean requested an explanation of the proposal by Engineer Brown. Mayor Bean asked if the City has fee title to the property. Brown explained the City has the deed and fee title. The deed states that the parcel is to be used specifically for right-of-way purposes and a signature from Hennepin County would be necessary to ensure the use of the property. If the parcel were to be used for something different, it would then revert back to Hennepin County. REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 5 . City Attorney Martin commented the State of Minnesota has provided for statutory provisions which allow the State to transfer out to subdivisions of the state at no cost, land which has been tax forfeited. He stated the City Attorney is attempting to detennine whether a sale of part of the parcel for right-of-way purposes is a violation of that use restriction. Mayor Bean inquired as to reforestation to the extent trees are removed from the area. Brown stated a plan could be brought back before the Council. Mayor Bean stated perhaps through the use of the revenue funds some of the trees could be put in an area such as Freeman Park. Nielsen pointed out there is no tree replacement required for public road projects. Councilmember Benson commented there will be a higher amount of noise in the area due to the removal of the trees. He felt a resource is being lost which has been a benefit to all of the residents in the area. Councilmember McCarty stated her agreement and noted aesthetics would be a consideration as well. She stated her preference the reforestation take place in the area where the trees are removed. Shaw moved, McCarty seconded adopting RESOLUTION NO. 96-121, "A Resolution Accepting MNDOT's Proposal for Right-of-Way Acquisition" Motion passed 4/0. 7 . PARKS - Report by Representative A. Report on November 26, 1996 Park Commission Meeting . Councilmember McCarty reported on the matters considered and actions taken at the November 26, 1996 meeting of the Park Commission (as detailed in the minutes of that meeting). B. Consideration of a Motion Approving the Naming of the Road through Freeman Park "Reutiman Lane" Mayor Bean felt this to be an excellent idea and noted it will not disrupt any other citizens. Benson moved, McCarty seconded approving the naming of the road through Freeman Park "Reutiman Lane". Motion passed 4/0. 8. PLANNING - Report by Representative Commissioner Turgeon noted the next meeting of the Planning Commission to be Tuesday, December 17, 1996, and therefore, there was no report to be made at this time. A . A Motion to Direct Staff to Prepare Findings of Fact Regarding an Appeal Interpretation of City Code Related to Non-conforming Docks Applicant: James Cabalka Location: 58XX Christmas Lake Road Mr. Mark Kelly, attorney for the Cabalkas, provided photographs which were prepared in conjunction with the Christmas Lake access and stated to his knowledge they were taken in 1985. Mr. Kelly is requesting the matter be tabled until sometime in June of 1997 to allow the Cabalkas an opportunity to have the material in the dock analyzed to establish a time frame for the existence of the dock. . Mayor Bean commented this would not necessarily prove the dock had been in place in this particular area and in continuous use for a specific period of time. REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 6 . Mayor Bean noted a letter dated December 12 had been received from Gerri Kuester, 5885 Christmas Lake Road, disputing the dock has been present and in continuous use. In addition, a letter was received from Mike Pierro, 5880 Christmas Lake Road, who also takes issue with the existence of the dock. Mayor Bean responded to Mr. Kelly's December 12 letter relative to why the City has disregarded an alleged code violation for in excess of 12 years. He explained it has been the City's consistent practice to not seek out violations of housing and zoning codes, but to respond when citizen complaints are received. He stated there has been consistent application of the ordinances in this case and many similar cases. . Councilmember Shaw stated he is not convinced all of the material available and relevant to this issue has been presented. He felt if this had been presented, the Council could make a definite decision. Councilmember Shaw stated the burden of proof to be upon the applicant. He commented boat usage studies of Christmas Lake had been made by the DNR by way of aerial photos. Mayor Bean commented on the requirement of residents to prove what they did or did not do with their property 20 years ago. In the case of a grandfathered condition, Mayor Bean felt it would behoove the property owner to take appropriate steps and actions to preserve that grandfathering. He pointed out the ordinance provides that the dock must have been in continuous, uninterrupted use to preserve the grandfathering. He felt the burden to be on the applicant to preserve the grandfathering and to provide the appropriate documentation. Councilmember McCarty did not feel all of the necessary documentation had been provided, however, the Council has spent a considerable amount of time considering this matter and did request additional information on this issue. She questioned rumors that the land has been deeded to someone else. Mr. Kelly stated the property remains in the Cabalka family. He further commented the aerial photos which had been presented for review are such that it would be very difficult to depict a dock of any sort. He further commented it would be unreasonable for the Cabalkas to have known years ago they would need to be able to prove grandfathering at this time. Mr. Kelly was not in agreement that the burden of proof is upon the Cabalkas and stated the Cabalka family will pursue this matter further if the Council rejects the request of the applicant. Mayor Bean commented the Council has incomplete evidence as to the continued use of the dock in addition to conflicting testimony as to its existence throughout the specific time frame. He stated citizen complaints have been presented to the Council in addition to citizens commenting on behalf of the Cabalka family who recall the presence of a dock. There is no evidence to determine which group of citizens are mistaken in their memories. Bean moved, McCarty seconded directing Staff to prepare a Findings of Fact denying the appeal interpretation of City Code related to nonconforming docks for James Cabalka, 58XX Christmas Lake Road. Motion passed 3/0. (Councilmember Benson abstained.) . Councilmember Benson stated comments had been made this is a personal vendetta against the Cabalkas. He pointed out he has not discussed this with the Council at any time. Councilmember Benson noted he has lived along Christmas Lake Road all of his life. He did not recall a dock in this area. He stated he did not become involved in the vote on this issue due to the affect it could have on his own property. REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 7 . B. A Motion to Adopt a Resolution Approving a Simple Subdivision Applicant: Richard Jensen Location: 6020 Galpin Lake Road McCarty moved, Shaw seconded tabling the simple subdivision for Richard Jensen, 6020 Galpin Lake Road, to February 10, 1997. Motion passed 4/0. C. A Motion to Direct Staff to Prepare Findings of Fact Regarding a Variance to Temporarily Allow Two Houses on One Lot Applicant: Stan Taube Location: 27280 Edgewood Road and 5315 Howard's Point Road Shaw moved, Benson seconded directing Staff to prepare a Findings of Fact approving a variance to temporarily allow two houses on one lot for Stan Taube, 27280 Edgewood Road and 5315 Howard's Point Road, subject to the second home being removed by June 16, 1997. Motion passed 4/0. 9. CONSIDERATION OF A MOTION REGARDING REQUEST FOR STREET LIGHTING - MARSH POINTE Applicant: Lundgren Bros. Construction Location: Marsh Pointe (Smithtown Road) Marc Anderson, Director of Land Development, Lundgren Bros. Construction, appeared to address the Council. He noted light one would need to be relocated slightly. He stated he would support the staff recommendation to remove lights two, five and eight. He stated he would also be in agreement with using a carriage style light as opposed to the cobra style. . Mayor Bean noted a letter on fIle with respect to this matter from Christine Lizee, 27055 Smithtown Road. Ms. Lizee was present and read her letter for the Council. Councilmember McCarty felt it would be favorable to have less lighting. She noted her surprise there was not more public input into this issue. Mayor Bean was also surprised there was not more input from residents along Smithtown Road. Ms. Lizee did not feel a coachlight in position one would provide adequate illumination given the sharp curve in that particular area. With respect to light nine, she did not feel this light would be necessary given the sodium vapor light approximately two houses away at the Minnewashta School. Mr. Anderson did not feel the lights from the school would benefit this area. Councilmember Benson felt light four would be obvious from the wetland area. Nielsen stated it would be obvious from several directions, however, the carriage light allows for a side of the light to be blocked out in the direction which is bothersome to residents. Nielsen stated his agreement with Ms. Lizee that a cobra style light would be more appropriate in the area proposed for light one. . Mr. Anderson stated it would be important to provide for light four due to the private drive and stated he would be in agreement with blocking out a side of the light. Mayor Bean recessed the meeting at 9:30 p.m. and reconvened at 9:35 p.m. Councilmember Benson felt this would provide considerably more lighting to the area and he expressed his disappointment there was not more input from the residents. He stated he would like to see input from the residents with respect to light nine. ~ REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 8 . Councilmember McCarty noted there had been only one letter which went out to the affected residents. She pointed out the development has been somewhat controversial and stated she would be uncomfortable taking any action on a lighting plan at this point. Councilmember Benson noted his agreement and felt the matter should be referred back to the Planning Commission for their review. Mayor Bean stated if the Council could not come to concurrence, the matter should be referred back to the Planning Commission for review and further public input. Mayor Bean did not see a value to a light in the cul-de-sac. Councilmember Benson felt there would be a safety issue with light nine. Brown noted it is a good idea to illuminate the intersection due to the traffic on Smithtown Road. He further stated an element could be put in the light to ensure the illumination is directed downward. In addition, one side of the light could be blocked out. . Mayor Bean suggested a monument type light to illuminate the private drive which would not illuminate the entire cul-de-sac, but would identify the end of the driveway. He felt utilizing lights one, three, seven and nine would be a workable solution. Mayor Bean stated the use of a carriage lamp with downward projection would achieve public safety and mitigate the illumination. Benson moved, McCarty seconded approving the request for street lighting - Marsh Pointe for Lundgren Bros. Construction at Marsh Pointe (Smithtown Road), limited to four lights located at areas one, three, seven and nine and that the developer work with City Staff to limit the amount of impact on the existing residences on both sides of Smith town near light nine. Motion passed 4/0. 10. CONSIDERATION OF A MOTION REGARDING A SEWER REFUND REQUEST - CHANDLER Mr. Chandler was present and explained his request to the Council. Mayor Bean questioned the delay from 1992 to 1996 in making this request. Mr. Chandler stated he was uncertain whether or not he should request the refund. Finance Director Rolek explained the assessment had been approved in 1972 and concluded in 1992. Mayor Bean pointed out Mr. Chandler would receive the original assessment in addition to any interest he had paid on that assessment. Mayor Bean stated it was clear the assessment should not have occurred. Councilmember Shaw noted if Mr. Chandler should decide to re-subdivide the property, he would be subject to an assessment at today's much higher rate. Mayor Bean pointed out this would also require a variance. Shaw moved, Benson seconded approving the refund of the original sewer assessment and interest paid in the amount of $3,048, for Jack Chandler, 28200 Woodside Road. Motion passed 4/0. 11. CONSIDERATION OF A MOTION TO ADOPT A RESOLUTION APPROVING THE 1997 BUDGETS AND APPROVING THE 1996 PROPERTY TAX LEVY COLLECTIBLE IN 1997 . Councilmember Shaw pointed out the actual tax rate for the City did not increase. Any increase in taxes would be the result of an increased property valuation. f . REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 9 . Benson moved, Shaw seconded adopting RESOLUTION NO. 96-122, "A Resolution Approving the 1997 Budgets and Approving the 1996 Property Tax Levy Collectible in 1997" Motion passed 4/0. 12. CONSIDERATION OF A MOTION TO ADOPT A RESOLUTION ESTABLISHING THE 1997 PAY SCALE Benson moved, McCarty seconded adopting RESOLUTION NO. 96-123, "A Resolution Establishing the 1997 Pay Scale" Motion passed 4/0. 13. ADMINISTRATOR & STAFF REPORTS 14. MAYOR & CITY COUNCIL REPORTS Councilmember Benson stated he has enjoyed his time on the Council and challenged the new Council to work to get along and look out for the City like the present Council has. He expressed his appreciate to his fellow councilmembers. Councilmember McCarty presented plaques to Councilmembers Shaw, Benson and Mayor Bean. Councilmember Shaw stated he has enjoyed the opportunity. to serve on the Council. He expressed his appreciation to City Staff and the Council. Mayor Bean also stated he has enjoyed his term and noted it has been somewhat frustrating at times. He encouraged every resident in the City to become involved on a Commission or Council which gives a greater appreciation for the process and how difficult that work can be. . 15. ADJOURNMENT Shaw moved, Benson seconded to adjourn the meeting to an Executive Session at 10: 10 p.m. subject to the approval of claims. Motion passed 4/0. RESPECTFULL Y SUBMITTED, Cheryl Wallat, Recording Secretary TimeSaver Off Site Secretarial ATTEST: a;::fJ~ TOM DAHLBERG, A YOR ~.~ S C. HURM, CITY ADMINISTRATOR .