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032601 CC Reg Min , . . . ~ .... CITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, MARCH 26, 2001 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:00 P.M. MINUTES 1. CONVENE CITY COUNCIL MEETING Mayor Love called the meeting to order at 7:01 P.M. A. Roll Call Present: Mayor Love; Council Members Garfunkel, Lizee and Turgeon; Administrator Dawson; Attorney Keane; City Engineer Brown; and Planning Director Nielsen Absent: Council Member Zerby B. Review Agenda Mayor Love reviewed the agenda. Lizee moved, Turgeon seconded, approving the agenda as presented. Motion passed 4/0. 2. APPROVAL OF MINUTES A. City Council Special Meeting Minutes, March 12, 2001 Lizee moved, Garfunkel seconded, approving the City Council Special Meeting Minutes of March 12, 2001, as presented. Motion passed 4/0. B. City Council Regular Meeting Minutes, March 12, 2001 Lizee moved, Turgeon seconded, approving the City Council Regular Meeting Minutes, as amended on Page 1 under Roll Call, changing none absent to Director Nielsen absent. Motion passed 4/0. 3. CONSENT AGENDA Garfunkel moved, Turgeon seconded, approving the Motions contained in the Consent Agenda and Adopting the Resolutions therein: A. A Motion Approving the Payment of Verified Claims. B. A Motion Adopting RESOLUTION NO. 01-021, "A Resolution Proclaiming Arbor Day as Saturday, April 28, 2001." C. A Motion Awarding Contract for Spring Cleanup Services. Motion passed 4/0. 4. MATTERS FROM THE FLOOR There were none. CiTY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 2 of 10 . 5. PARKS A. Report on Park Commission Meeting Held March 13, 2001 Commissioner Berndt reported that the Commission discussed where to plant a tree for Arbor Day; various options in regards to telephones at the Skate Park, as well as naming the park itself; the status of concessions at Eddy Station; and the problem of dog feces at Freeman and on the trails. Berndt shared with the Council that the Commission is examining the opportunity to include other cities in the Skate Park naming process. She also noted the possibility of tying in a sponsor, such as the Veterans, as a part of the naming process. Turgeon asked if progress had been made in finding a concessionaire for Eddy Station. Brown reported that he has met with a supplier to discuss inventory control options for potential vendors to operate the concessions on a trial basis. He also noted that many vendors who moved south during the fall and winter months to operate their concessions are now just returning, and he is aggressively pursuing any interest they might express. Mayor Love inquired over the use of vending machines. Brown indicated that vending was part of the Park Commission's back-up plan and that Midwest Vending would be able to supply machines with a ten-day notice. . Turgeon inquired how the Park Commission would propose tracking violators who do not pick up after their pets. Berndt said that the Commission might have to consider disallowing dogs from the park and limit their presence only to the wooded areas. Engineer Brown added that he has received many more calls this year than last, and is concerned about the potential health hazards these feces may pose, especially near the "tot lot" area. Lizee commented that schools simply do not allow dogs on the playgrounds, and perhaps, the City will need to consider this option. Mayor Love appreciated the Commission's expedience on this issue and reminded everyone that the first priority of our parks is to supply our residents with a place to recreate, and not our dogs. B. A Motion to Award Contract for Installation of Skate Park Equipment Brown reported that after much consideration of the various proposals and layouts offered by vendors for the Skate Park, the design committee and staff recommend that a contract be awarded for the Skate Park Equipment. The vendor chosen was Ramptech, Inc. whose bid of $19,010.50 offered the best proposal. Brown indicated that the Skate Park Budget is made up of $22,718, which has been collected, with another $1,000 pledged. As reflected in his breakdown, Brown believed additional fundraising would be advantageous to the project. Lizee moved, Turgeon seconded, approving the contract be awarded to Ramptech, Inc. in the amount of $19,010.50. Motion passed 4/0. Mayor Love suggested that the Skate Park be referred to as the South Lakes Skate Park until officially named, out of respect to the many donors. Dawson added that April 25, 2001, has been selected as the date other South Lake communities will be invited to share in the naming process for the Skate Park. 6. PLANNING Woodruff reported on the March 20, 2001, Planning Commission Meeting and Joint City Council meeting that followed that evening. The first matter of business the Commission addressed was the 5/0 approval of the staff Findings of Fact regarding the Russell property at 26080 Birch Bluff Road before moving onto the Joint Study Session. . CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 3 of 10 . Following the Regular Meeting, the joint Work Session gave the Commission an opportunity to review its 2001 Work Program with the City Council. Based on input from Council, the Commission will address the areas that were leftover from last year, which did not get properly addressed. These include a study on organized refuse collection and the senior housing study update, among others which will show up on the revised work program that Director Nielsen is putting together. A. A Motion to Direct Staff to Prepare a Resolution Regarding an Appeal to the Zoning Administrator's Interpretation of the Zoning Code Appellant: James Russell Location: 26080 Birch Bluff Road Director Nielsen reported that last November Mr. James Russell applied for a variance to build a new foundation under a cabin he owns at 26080 Birch Bluff Road. This variance was required because the cabin does not comply with the setback requirements of the RI-C/S Zoning district and the property is subject to shoreline management regulations. There were two staff reports recommending in favor of the variance with some conditions. The Planning Commission voted 3/2 to deny the variance. Mr. Russell then went to the City Council. However, before Council took any action, he withdrew his request for a variance stating he disagreed with the staff and Zoning Administrator's interpretation that a variance was needed in this case. He has since filed an official appeal of the Zoning Administrator's interpretation of the ordinance citing a provision in the ordinance that allows alterations to be performed on nonconforming structures that will improve the livability of those structures. He reviewed the March 1, 2001, staff report explaining the appeal process and how the provisions provide for the Zoning Administrator's decision. . Director Nielsen went on to identify the distinction between two kinds of nonconformities: first, there are nonconforming "uses"; and second, nonconforming "structures", where the use is allowed under zoning but the dwelling itself does not meet performance standards. He pointed out that nonconforming uses are handled much more strictly than nonconforming single-family structures. Director Nielsen pointed out that what is in question is whether what Mr. Russell is proposing to do is to be considered a structural alteration or simply a repair to what is there. Nielsen maintained that the ordinance provides that "nonconforming structures and uses are not to be permitted to continue without restriction..." . Director Nielsen went on to share that provision l.g points out that if a nonconforming structure is damaged more than fifty percent of its fair market value, the structure and land is then subject to all the regulations specified by the zoning regulations for the district in which they are located. On the other hand, if the damage is under 50% of its value, the structure may be restored to its former extent. Nielsen pointed out that one exception exists. Single-family residential units may be rebuilt on nonconforming lots of record, provided that setbacks are complied with to the extent possible. Finally, Nielsen noted that the assessor has placed an extremely low value on the structure, approximately $1,000. He maintained that with this in mind, if the foundation and roof are indeed destroyed, a question relative to this provision arises. The assessor will reevaluate the property if need be. . Director Nielsen reminded everyone that in the original variance request, staff recommended approval of Mr. Russell's application provided he would turn the structure slightly. As long as he had the building lifted, he could then build a new foundation under it, so as to better meet the current building codes. Most recently, the Planning Commission approved Findings of Fact to support the decision of the Zoning Administrator with a 5/0 vote. . . CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 4 of 10 Mayor Love reviewed the process of Appeal for the Council and Mr. Russell. James H. Russell, owner of the property at 26080 Birch Bluff Road, addressed the Council. Mr. Russell stated that there was one question facing the Council that evening, which was whether he could replace a deteriorating foundation under a nonconforming single-family dwelling. Furthermore, whether the Findings of Fact submitted by the Planning Commission are correct and whether its conclusions are consistent with the ordinance. While Mr. Russell pointed out there was no dispute with the first three findings, number four of the findings, which restricts the alteration of nonconforming structures, brought attention to the fact that there are also exceptions to those restrictions. He maintained that the ordinance contains a conflicting statement that "any structure ... shall not be enlarged, extended, or structurally altered..." and goes on to say "except as hereinafter specified...". With that in mind, Mr. Russell maintained that the Planning Commission has turned the ordinance reference of some into all structures, and he submitted that this is an impermissible enlargement. Mr. Russell also posed questions and provided an outline on his argument page handout, which he reviewed, for the Council. He referenced the differences contained in the ordinance between nonconforming non-residential structures and nonconforming residential structures and the exceptions therein. While non-residential structures "shall not be enlarged, extended, or structurally altered", residential structures "may be expanded" and "alterations may be made when they will improve the livability thereof'. He added that many of the limitations contained in the ordinance apply to non- conforming uses and not to residential use. Mr. Russell argued that Sections l.j and l.k both support his position and allow him to make the alterations he proposes in order to improve the livability of his structure. Mr. Russell maintained that he is merely asking to replace an existing foundation that is broken. The original full perimeter foundation was not poured deep enough and did not go beyond the frost line, as it was not required in 1880. For the past 30 plus years shimming has only provided a temporary fix, and Mr. Russell would like to permanently solve this problem. He found that little is mentioned in the ordinance about maintenance except in section 1.i and that he found that this only applies to nonconforming uses. Mr. Russell stated that his desire is to fix the hole in the roof and repair the foundation. Based on the valuation notice he received from the assessor, it was obvious to Mr. Russell that the assessor did not think much of his building. Originally built in 1880, his father purchased the property in 1950 and Mr. Russell was shocked to find that the assessor saw such little value in this charming piece of property. He indicated that he was shocked and disputed the assessor's assessment of the value. In conclusion, Mr. Russell asked the City Council to overrule the Planning Commission's ruling and the Zoning Administrator's interpretation of the ordinance. Mr. Russell reiterated that he is merely seeking to replace a cracked and settled foundation, which is really only maintenance, and not prohibited by the ordinance on single-family residential units. He maintained that a better foundation fits the category of maintenance and also fits as an alteration improving livability because the door and window alignment is a constant problem with the existing broken and settling foundation. Mayor Love thanked Mr. Russell for his presentation and asked if he would take questions at this time. Mayor Love began by asking for clarification on whether the current foundation would be considered a . floating foundation. . . . CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 5 of 10 Mr. Russell indicated that it is a poured foundation built in 1880, thus was not dug to the frost level of 42". He continued that there is cement pad every twelve feet and supporting beams. His proposal is to lift the home, dig down the 42" and place footings and finally pour a permanent foundation. Council Member Turgeon reminded everyone that the discussion this evening revolves around whether Mr. Russell needs a variance period. It does not address the particulars of moving the home or the conditions attached to an earlier variance request. Lizee asked for clarification from Attorney Keane as to what vote would be required this evening. Attorney Keane noted that a simple majority vote could call for new Findings of Fact for the Appeal to study whether a variance is necessary. A four-fifths vote would be required to overturn the interpretation of the Zoning Director. Mayor Love asked for discussion and/or a motion from the Council. Turgeon stated that she did not disagree with the Planning Commission's recommendation. She maintained that the intent of the ordinance is to bring nonconforming structures and their uses into conformity as much as possible. She viewed pouring a new foundation as not merely a repair, but a structural alteration. Based on this perspective, it fits within the ordinance and requires a variance. Garfunkel shared his view that the ordinance does have conflicted wording and could be read either way. However, he cautioned the Council by asking what its goal is, whether it is to just let the building collapse in disarray or allow the repair to take place. Mayor Love admired the interesting argument raised this evening. He recognized that the existing cabin foundation has served it well over the years, but now that it is in need of restoration, this may be the time to consider getting the building into conformity. Turgeon moved to uphold the Planning Commission's recommendation and the Zoning Administrator's decision. The Motion failed for lack of a second. Garfunkel moved to grant the Appeal to Mr. Russell of the Zoning Administrators interpretation of the ordinance. Mayor Love asked for clarification from the Attorney as to what vote would be required to overturn the Zoning Administrator's findings. Attorney Keane stated that the approval of the Appeal would require a four-fifths vote, but a simple majority could support a second set of Findings of Fact. With this in mind, Garfunkel amended his motion based on his judgment that if Mr. Russell is not allowed to repair his building it will be unlivable. The windows and doors will not work etc. Garfunkel went on, that while he understands the goal is to have a conforming building as much as possible, there is conflicting wording in the ordinance. Garfunkel amended his Motion by moving to bring back Findings of Fact to support the overturn of the Zoning Administrator's decision. Lizee seconded the Motion. Mayor Love summed up by saying that controversy, such as in this case, is what keeps a community vibrant. He stated that he personally views this proposal as a change from a summer cabin to a permanent dwelling. Mayor Love added that how we maintain the charm of our community is one of the problems our lake community faces daily. . . . CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 6 of 10 John Russell, James Russell's son, argued that the existing foundation couldn't be termed a floating foundation. It is the same full perimeter foundation found under most homes, but built prior to the 42" requirement. James Russell went on to explain the 1881 plat and how the home came to be situated as it is. Motion failed for lack of a Majority Vote, with Garfunkel and Lizee voting in favor of the Proposed Findings of Fact, and Mayor Love and Turgeon opposed. Attorney Keane advised the Council to continue this matter when a full Council is present in order to get the required majority. Turgeon moved, Lizee seconded, to Continue the Discussion of this Matter until the Meeting of April 23, 2001, when all City Council members would be present. Motion passed 4/0. B. A Motion to Adopt RESOLUTION 01-022 Approving a Final Plat and Authorizing the Mayor and City Administrator to Enter Into a Development Agreement for Manitou Woods Applicant: Roger Anderson Location: 5580 Manitou Road Director Nielsen reported that this item was approved last year, however, since that time the ownership has changed and the legal work needs to be redone. A simple development agreement for the property is attached. Nielsen also relayed that the developer has requested to pay half of the municipal water charges as a part of the plat and pay the remaining charges with building permits. Nielsen maintained that beyond that, the builder has provided everything the City has asked for and it is staffs' recommendation that the development agreement be approved. Turgeon moved, Lizee seconded, approving a Final Plat and authorizing the Mayor and City Administrator to enter into a Development Agreement for Manitou Woods. Motion passed 4/0. GENERAL A. Report from the Lake Minnetonka Conservation District (LMCD) on Water Patrol Funding Tom Skramstad, of the LMCD, reviewed his report on water patrol funding. In his report he answered several questions posed by the City Council during his visit last month. In response to the first question, the funding request is for two boating seasons 2001 and 2002, as Hennepin County should be picking up responsibility for the project by then. He then referred to the boat storage and usage numbers, as well as, the boater opinion and attitude reports from 1996 and 2000 included in his report. Skramstad indicated that specific ticketing, accident and warning information is not available for Lake Minnetonka alone, but only for Hennepin County as a whole. Finally, Skramstad explained that the LMCD plans to measure the effectiveness of the additional deputies by keeping lines of communication open between themselves and the deputies, as well as, member cities. They will also be attempting to develop a survey instrument to be administered at marinas and boat landings to evaluate boater's experiences and attitudes. Skramstad reported that to date, the LMCD has received support from 10 LMCD member cities, and would like to count on Shorewood's contribution of $3285 this year. Garfunkel questioned the need for increased patrol on Lake Minnetonka. He asked to analyze the data CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 8 of 10 . Lizee, as the City of Shorewood Representative to the Committee, commented that she has seen how hard this group works to make this event a huge South Lakes success. Lizee moved, Turgeon seconded, increasing the contribution to the 4th of July Committee from the $1,000 donated last year to $1,500 this year. Motion passed 4/0. D. A Motion to Approve Amendments to the Park Foundation Bylaws Administrator Dawson reported that the Park Foundation has refocused its purpose and structure in an effort to be an effective organization for the City of Shorewood. After reviewing its by-laws and making a number of amendments to them, the Board of Directors is looking for City Council approval. Mayor Love invited Kenneth Dallman, Chair of the Park Foundation, to speak. Kenneth Dallman, of 5780 Eureka Road, indicated that the original intent of the Foundation was to serve as a communications forum for persons or organizations using or interested in the Shorewood Park and no longer fits. In the beginning the Foundation tried to be a little too large and be something to all people. The reduction of members from 15 to 21 down to 7 to 9 makes for a far more manageable group and more accurately reflects the level of participation that has occurred over the past few years. Refocusing its efforts on fundraising could aid the park system by both expediting planned and unplanned capital improvement projects. Garfunkel moved to approve the amendments to the Park Foundation by-laws. Turgeon seconded. . Discussion resumed. Lizee questioned if p. 3, 4.04, the statement that "Essentially, anyone with an interest in raising funds for the betterment of the parks..." is an open invitation to anyone. Is it necessary then to specify whom the diverse group of people attempts to represent as on the memorandum. Mayor Love asked Dallman if the by-laws could delete the specific categories from which membership would be most desirable. Dallman felt this would not be a difficult task, but that letters will be sent out to the various civic and sports organizations telling them about the new Park Foundation vision and inviting membership. Garfunkel moved, Turgeon seconded, to remove the specifications of membership on p. 3, 4.04, and approve the amendments to the Park Foundation by-laws. Motion passed 4/0. E. A Motion to Designate a Representative to the Mound Fire Commission Mayor Love reported that Administrator Craig Dawson has volunteered to act as representative to the Mound Fire Commission. Lizee moved, Turgeon seconded, the designation of Craig Dawson to the Mound Fire Commission. Motion passed 4/0. 8. ENGINEERINGIPUBLIC WORKS Engineer Brown had nothing further to report. . . CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 7 of 10 Skramstad referred to himself and wondered if the patrol is truly enforcing the law or merely the culture the lakes provide. He saw little evidence of increased citation use. Garfunkel voiced concern whether increased patrol is the answer or if more citations being given out would be. Mayor Love pointed out he believed that it is the sense of presence of the law enforcement officials that often keeps people from breaking the laws in the first place. Lizee complimented Skramstad on his representation of the City on the LMCD and putting this report together for the Council. She did not believe it unreasonable for the City to donate $3285 to the LMCD in comparison to what is given to other parks and recreation. Turgeon inquired as to whose responsibility it is to educate the public on what is acceptable on the lakes. Mayor Love replied that information is mailed out to boat owners annually and advertised at marinas. LMCD Director Nybeck indicated that watercraft operator permits would be a useful tool and a potential requirement down the road. Skramstad also added that often the patrollers can educate, as well as enforce the law. Lizee moved, Turgeon seconded, to approve a two-year commitment for the Water Patrol funding for the LMCD in the amount of $3285 for 2001, and an amount not to exceed a 10% increase for 2002. Discussion resumed, with Garfunkel reiterating the responsibility for law enforcement on Lake Minnetonka belongs to the County, and ultimately Hennepin County should be responsible for the funding. . Turgeon asked the LMCD to keep Shorewood up to date on the progress of the project. Motion passed 3/1, with Garfunkel dissenting. B. Report from LMCD, Represented by Tom Skramstad Skramstad reported on the Upland Farms project and concern over the dredging of Six Mile Creek and the installation of a marina upstream. The LMCD feels that this area of Six Mile Creek is under their jurisdiction and it is seeking comment from other agencies, including the DNR, MCWD etc., about the development and environmental impact it will have. Mayor Love voiced his concern over the precedent it sets for repairian access, as well as, how the dredging will effect the water quality of Halsteads Bay. C. Consideration of a Request from Excelsior Area Chamber of Commerce for City Representation to the 4th of July Committee and Financial Support Linda Murrell, Executive Director of the Excelsior Area Chamber of Commerce, explained that once again the Fourth of July Committee is asking each of the South Lakes Cities for financial support to offset the cost of police and sanitation. She thanked Shorewood for its past support and asked the City to at least match its prior contribution of $1,000. She added that other fundraising efforts including the spring boat show bring in additional monies. This year they have also bought out the Old Log Theatre for a performance in April and are selling tickets to that event in an effort to raise an additional $6,000. Murrell shared several of the events planned for the celebration, including the recent commitment of the Minnesota Orchestra to play, a kid's parade, sand castle building, the fireworks themselves and many more activities. . Administrator Dawson indicated that both Deephaven and Excelsior will be contributing $1,200 each. CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 9 of! 0 . 9. REPORTS A. Administrator & Staff 1. Gideon Glen Nielsen reported that he had met with Mayor Love and consultant Dan Dickel to discuss potential grant programs that might help fund the improvements on the property, and perhaps even offset the purchase price of the property. Dickel is in the process of developing a concept plan for the property; however, this will have to be delayed until the weather improves. He shared that they are also working on establishing an Advisory Committee made up of representatives from the LCEC, Planning and Park Commissions, and up to three neighbors. An ad will be placed in the paper recruiting the public or neighborhood representatives to the Advisory Committee soon. 2. Skate Park Nothing further to report other than that he will be ordering the equipment. 3. Eddy Station No change until the weight restrictions are lifted, the weather breaks and the snow melts. 4. County Road 19 Intersection . Brown reported that he has spoken to Bruce Polacyzk, of Hennepin County, and reaffirmed that the project is moving forward in their capital improvement program. It is interested in learning more about our discussions with the City of Tonka Bay and what provisions are being made to deal with the liquor store. Brown will be sending him a letter reiterating the City's desire that this move into construction next year. 5. Freeman Park Access Closure Brown reported that the City has been working with Mn/DOT over the past few years with various access closures. Specifically, Mn/DOT has asked that the south access from Freeman Park to Highway 7 be closed. A previous Council approved that closure long ago. However, due to unforeseen circumstances in negotiations with the state, the City has gone back to the state and said it hadn't been treated fairly in other projects; therefore, it will require additional funds to the City to make that closure happen. Brown indicated that, in an unprecedented move, the state extended the funding out one year and added another $20,000 to it due of our actions. 6. Legislative Update Administrator Dawson reported that the phosphorus-free lawn fertilizer legislation that Attorney Keane, Mayor Love, and himself have been working on has now made it through the Senate Environmental Committee to become a Bill. The bill regulates not just the use but sale as well. The Senate File #1789 will be heard next week. He voiced his gratitude to those that have aided in the support of this legislation at both the local level and Senate, and pointed out that more and more City's are offering their support. . Dawson stated that he and Deputy Clerk Jean Panchyshyn have attended redistricting workshops. It is hoped that redistricting be accomplished by the end of this legislative session. There is a March 2002 .. CITY COUNCIL REGULAR MEETING MINUTES MARCH 26, 2001 Page 10 of 10 . deadline on the process, however. As a high priority, the City hopes to accomplish redistricting this year. B. Mayor & City Council Mayor Love shared that there has been great interest expressed by the SLMPD and EFD boards to continue examining a joint facility. Mayor Love invited the public and especially the press to stay for a work session scheduled immediately following the Executive Session to discuss a Community Visioning Process. 10. EXECUTIVE SESSION Lizce moved, Turgeon seconded to recess to Executive Session. Motion passed 4/0. The Executive Session commenced at 9:27 p.m. The item under consideration was a matter of litigation. Lizce moved, Turgeon seconded to close the Executive Session and return to the regular meeting at 9:34 p.m. Motion passed 4/0. 11. ADJOURNMENT Lizce moved, Turgeon seconded, adjourning the City Council Regular Meeting of March 26, 2001, at 9:35 P.M. Motion passed 4/0. . RESPECTFULLY SUBMITTED. Kristi Anderson Recording Secretary a Woody Love, Mayor .