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072803 CC Reg Min . . . $Cft.l\\\to CITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, JULY 28,2003 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:00P.M. MINUTES 1. CONVENE CITY COUNCIL MEETING Mayor Love called the meeting to order at 7:00 P.M. A. Roll Call Present: Mayor Love; Councilmembers Garfunkel, Lizee, and Turgeon; Administrator Dawson; Attorney Keane; Engineer Brown; Finance Director Burton; and Planning Director Nielsen Absent: Councilmember Zerby B. Review Agenda Mayor Love reviewed the Agenda for the meeting. Administrator Dawson requested Item 6A, "A Resolution Approving Publication of An Ordinance, and Item 9B, A Resolution Authorizing Purchase of a Beverage Cooler be added to this evening's Agenda. Turgeon moved, Lizee seconded, Approving the Agenda as Amended. Motion passed 4/0 2. APPROVAL OF MINUTES A. City Council Regular Meeting Minutes, July 14, 2003 Turgeon moved, Garfunkel seconded, Approving the City Council Regular Meeting Minutes of July 14, 2003, as presented. Motion passed 4/0. 3. CONSENT AGENDA Lizee moved, Garfunkel seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein: A. Approval of the Verified Claims List B. Policy Regarding City Employees Carrying Firearms Motion passed 4/0. 4. MA TTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. REPORTS AND PRESENT A TIONS A. Report on LMCD activities by Tom Skramstad CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 2 of 13 . This item was discussed after Item 6A in this evening's Agenda after Mr. Skramstad arrived at the meeting. Tom Skramstad, City Representative to the Lake Minnetonka Conservation District (LMCD) provided a brief report to Council regarding issues pertaining to the July 4, 2003, drowning near Big Island, the 2004 LMCD budget; Water Patrol Deputies; Solar Lights on Buoys; Compliance issues at Howard's Point Marina; Milfoil Harvesting Program; and Zebra Mussels. With regard to the recent death near Big Island, Mayor Love expressed gratitude for the quick action taken by the LMCD to meet with local Mayors to discuss the situation for that area, and also for the decision by the LMCD to provide two additional safety lanes, allocated buffer zones and establishment of a No Wake Zone around certain areas of Big Island. Councilmember Turgeon stated she was concerned for the situation near Big Island, and she believed the issue to be deeper problem in the loss of etiquette between boaters. Mayor Love stated further discussions had taken place regarding the situation with consideration being given to ideas of additional boat licensing requirements, "plainclothes" Water Patrol deputies, and support from the Excelsior Fire District fireboat in emergencies. With regard to the funding for additional deputies by Hennepin County, Councilmember Garfunkel stated he believed the funding responsibility should clearly be borne by the County as Lake Minnetonka was part of its jurisdiction and the County Board had established mandates regarding usage of Water Patrol deputies. Mayor Love also agreed, noting area Mayors had universally supported the idea that the County needed to be responsible for funding these Water Patrol officers. . Mayor Love thanked Mr. Skramstad for a job well done, and for keeping the Council informed of LMCD issues. 6. PUBLIC HEARING A. 7:00 PM - Consider Revisions to Chapter 903 of the City Code Regulating Water Use and Service Mayor Love opened the Public Hearing at 7:06 P.M., noting the procedures utilized in a Public Hearing. Administrator Dawson explained the current ordinances pertaining to this matter were difficult to understand and implement. The purpose behind the revisions was to streamline the regulations and make the proposed ordinances easier to understand. . Director Nielsen explained the revisions attempted to create equity through the community regarding water service charges. Historically, the water connections costs were based on the assumption that the City might one day have a citywide water system in place. Director Nielsen stated that was no longer an assumption as many residents throughout the City were receiving their water through the use of wells. Currently, the cost for connection to the City water system was $10,000, with the provision that the developer would have to pay the cost of the line to the property. Under the revised ordinances, the developer would pay connection cost per unit or the cost of the project, whichever was greater in amount. Also, with the new code, residents would have the option to have their connection charges assessed against the property. With the proposed changes to the ordinance, a provision regarding public notification through both the City newsletter and newspaper would be removed because it was very difficult for Staff to ensure timely notification through the newsletter. . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 3 of 13 There were no residents present wishing to comment on this matter. Mayor Love closed the Public Testimony portion ofthe Public Hearing at 7:15 P.M. Councilmember Garfunkel stated he thought the public notification should remain within the ordinance as it allowed residents an opportunity to speak on the matter. Also, he stated he liked the intent behind holding a Public Hearing on this issue, but as a practical matter requested information be posted on the City's website, instead of the newsletter, as part of the process utilized for review of the City Code on this issue. Mayor Love agreed, noting he, too, would like to see the Public Hearing process kept as part of the ordinance. He also congratulated Staff on its recommendations to enhance the City Code. Director Nielsen clarified the petition process residents could work through to bring municipal water to a certain area of the City if requested. He noted this policy change, while already a part of the Comprehensive Plan, would now be included in the City Code as well. He also emphasized residents did not have to connect tot City water, but this ordinance would provide them a vehicle as well as some monetary credit for doing so if the interest was expressed by residents. Lizee moved, Turgeon seconded, Adopting ORDINANCE NO. 395, "An Ordinance Amending Chapter 903 of the Shorewood City Code Regulating Water Use and Service, including the Amendment for Publication to Include Notification through the City's Official Newspaper and on the City's Website" and Adopting RESOLUTION NO. 03-059, "A Resolution Approving Publication of Ordinance No. 395 by Title and Summary." Motion passed 4/0. B. 7:15 PM - Consider a Request to Vacate a Portion of Undeveloped Tax-Forfeited City Property in Exchange for Property for Right-of-Way Purposes for Enchanted Point Mayor Love opened the Public Hearing at 7:45 P.M. Director Nielsen explained Mr. William Zucco, representing his father in this matter had requested the City convey a portion of property on Enchanted Island in exchange for additional public right-of-way for Enchanted Point. Mr. Zucco proposed obtaining only that portion of the city property that was not needed for the road and a reasonable width of right-of-way. He proposed to convey to the City an equal area of land to be used for right-of-way for Enchanted Point. Director Nielsen noted Enchanted Point was currently very substandard in terms of right-of-way width. While the proposed land trade did not resolve the substandard with of Enchanted Point it did provide additional width where the traveled surface of the road encroached on the Zucco Land. The City would obtain additional right way in the event the property was ever replatted. Mr. Zucco was present and agreed to answer any questions Council may have had of him. No other residents were present wishing to speak on this matter. Mayor Love closed the Public Testimony portion of the Public Hearing at 7:49 P.M. Lizee moved, Garfunkel seconded, To Vacate a Portion of Undeveloped Tax-forfeited City Property in Exchange for Property for Right-of-Way Purposes for Enchanted Point. Motion passed 4/0. CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 4 of 13 . 7. PARKS A. Report on Park Commission Meeting Held July 8, 2003 Engineer Brown reported on the Park Commission Meeting of July 8, 2003, (as detailed in the minutes of that meeting). He also thanked Bob Gagne for driving the bus on the tour of the parks in Shorewood and neighboring municipalities. Mayor Love exited Council Chambers at 7:50 P.M., leaving Acting Mayor Garfunkel to preside at the meeting. Councilrnember Lizee stated she thought it impressive to see what activities were taking place in other communities and she appreciated the spirit of the Park Commission in working with other communities in this way. 8. PLANNING Commissioner Gagne reported on matters considered and actions taken at the July 15, 2003, Planning Commission Meting (as detailed in the minutes of that meeting). Mayor Love resumed presiding of the meeting at 7:53 P.M. A. Setback Variance and Variance to Expand a Nonconforming Structure Applicant: John O'Donnell Location: 27100 Edgewood Road . Mayor Love stated additional testimonies would be heard from residents on the next two items; however, he requested new information be shared using brevity. Director Nielsen explained the applicant had requested variances to expand the nonconforming structure at 27100 Edgewood Road. The applicant proposed raising the existing house approximately 7 feet in height. He also explained the current house was less than one foot from the west lot line and approximately three feet from the east property line, and a third level would be added to the house. The applicant also proposed to demolish the existing detached garage and build an attached garage on the south end of the house. A second story would be built over the new garage. Aside from the setback issues associated with this request, the property had impervious surface amounting to 33 percent of the lot area, eight percent over the maximum allowed. Director Nielsen also noted the property was granted two variances in 1986 to expand the house to its current size and to build the existing garage. These variances were allowed as the City had relaxed provisions allowing nonconforming single-family dwellings to be enlarged, or extended, provided the new construction complied with zoning requirements. The Planning Commission voted unanimously to recommend denial of the current variance requests. . Director Nielsen noted the presence of John O'Donnell, applicant for the case. Mr. O'Donnell introduced John Walter, attorney for the applicant, to Council. Mr. Walter stated the property had been considered to be non-conforming in 1986, and comments noted at the time of previous variances indicated the City had noted the narrowness of the lot as a hardship. To that end, Mr. Walter stated he believed all criteria regarding Section 1201.05 of the Zoning Code had been satisfied in this request. He stated he realized the Council was not inclined to grant the variances this evening, so he wanted the Council to be aware of how a court might apply the laws to this case, as he believed this knowledge would have the Council approve the request presented this evening. Mr. Walter then went on to share various citations from a court case that designated a three-part test for establishing hardship in granting variances. . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 5 of 13 Mr. Walter also stated he believed the issue of reasonable use in this case was contentious. He stated the proposed addition would comply with the City's height requirements; the request was not going to increase the structures-to-Iot ratio as it was at 22%; sightlines would not be impaired for adjacent properties; the proposed request altered the site of the garage to move further away from the adjoining property on the west; and the side deck removed to make a walkway of stepping stones along the side of the house. Further, he stated the adjoining property owner could put up further barriers on the property should they be needed. Mr. Walter stated it was clear the applicant met the criteria of the ordinance, and this was a reasonable request that should be settled through practical application. He stated this case was a common request, and contended it was not a detriment to the area. Since the building footprint was not being increased, he stated the request should be approved. George Lovrien, son and representative of adjacent neighbor Phyllis Lovrien, stated the biggest objection his mother had regarding this request was that the proposed house was too big for a lot that was too small in size. A bigger house would create a larger presence on the lot, and would also create a need to trespass on her property. He stated he was also concerned for basic fairness in this application as it seemed predicated on the use of other's property as a practical matter. He stated trees were hanging over the property line currently, and using common sense did not think a Court could possibly rule in favor of the applicant. He thought granting the variance was a poor idea and a poor precedent to set in this case. Mr. O'Donnell addressed Council, noting he agreed to increase the house only five feet overall. Trees could be removed also to address the concerns of trespass; however, he had planted them in an attempt to reforest the property after storm damage in 1998. Planning Commissioner Gagne reported the Planning Commission had noted the Council and Planning Commission had granted variances to make the house more useable in 1986, and the current Commission did not believe hardship had been demonstrated in this case. Councilmember Garfunkel asked Attorney Keane to comment on the testimony heard this evening. Attorney Keane stated he was familiar with the request, and noted the Commission's findings in this case were defensible, as the property could be put to reasonable use currently as allowed by the variances granted in the 1980's. Mayor Love questioned the discrepancy in hardcover calculations submitted for review by Council. Mr. O'Donnell stated the final hardcover calculations demonstrated 33% for the proposal. Mr. O'Donnell also stated he had requested information from City Staff regarding how the ratio of structures to lot area was calculated. Director Nielsen stated the structures-to-Iot area measurement was based on the floor area of structures as outlined in City ordinance. Mr. O'Donnell asserted the City Building Inspector had incorrectly told him this measurement was based on the footprint of the structure. Councilmember Turgeon stated she did not think hardship had been proven in this case. The current homeowner was not being deprived of rights of any other property owner within the Zoning district. She agreed the lot was small; however, the property was being put to reasonable use currently and did not believe a hardship existed. She supported the recommendations of the Planning Commission in this case. Councilmember Garfunkel stated the house was nice in spite of the assertion that it did not meet the needs of today. He also stated he did not want to see a structure built that would provide an entrance two feet from a property line. Mayor Love stated he supported the Planning Commission also; however, he was concerned for cumulative hardcover areas throughout the lake area. CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 6 of 13 . Mr. O'Donnell stated other homes in the area that had surface-to-Iot ratios of 29% that had been allowed by the City. Additionally, he stated hardship specific to this property had been shown in this case, and he asked the Council to reconsider. Mr. Walter stated court cases demonstrated expansion was appropriate in cases similar to this one, and variance criteria simply required that reasonable use needed to be demonstrated and the applicant had demonstrated this. Turgeon moved, Lizee seconded, to Adopt RESOLUTION NO. 03-060, "A Resolution Denying a Setback Variance and a Variance to Expand a Non-Conforming Structure for John O'Donnell, 27100 Edgewood Road," which included Findings of Fact. Motion passed 4/0. B. Shorewood Yacht Amendment Applicant: Location: Club Zoning Text Amendment and Conditional Use Permit John and Judy Cross 600 West Lake Street Director Nielsen explained the applicants were requesting amendments to the Zoning Code and to a Conditional Use Permit that would eliminate the restrictions on powerboats docked at the Shorewood Yacht Club (SYC). He also explained the Planning Commission had unanimously recommended denial of the requests in this case. Mayor Love stated he would allow additional testimony relating to this case, but strongly encouraged brevity in the commentary. . Judy Cross, applicant, stated she was aware of the concern expressed by the Planning Commission regarding phosphates and pollution being released into the lake water as a result of sediment from a treatment plant historically located near the area of the SYC. She believed she had compelling evidence as a result of testing that would provide results to the contrary. She introduced Mr. Bob Keiser, Vice President of American Engineering Testing, Inc., located in St. Paul, Minnesota. Mr. Keiser stated he had conducted testing of the sediment from the dock area of the Yacht Club for. . Mr. Keiser stated he had taken samples off the lake bottom at the end of each of the four piers located at the subject property and had sampled in two different places on the fourth pier located on the westernmost side of the property. He then reviewed the testing procedure and eleven different metal elements, phosphorus, and PCB's that could be identified as part of this testing. He stated there was not a great deal of lake sediment data available, but he had compared the findings to a Minnesota Pollution Control Agency (MPCA) report from March, 1996. According to his research, his findings indicated the metals found were consistent with those identified in the MPCA study. The single aspect found to be significantly different included the total phosphorus findings detailed in the MPCA report as being 1000 milligrams per kilogram and the Shorewood Yacht Club findings were listed as 100 milligrams per kilogram, thus there was little concern necessary for phosphates in the sediment in the water near the Shorewood Yacht Club. He also commented total sediment did not demonstrate any correlation with poor quality. He also summarized data from 2001 which noted that phosphates would most likely be discharged into water as it passed through treatment plants unless tertiary treatment had taken place. He stated it was thus considered likely that no phosphorus had been distributed near the Shorewood Yacht Club, but more realistically distributed throughout the lake area near the plant. . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 7 of 13 . Mrs. Cross stated she hoped this information would relieve any concerns remaining in this case regarding powerboats stirring up the sediment. She then introduced Burt Foster, Chairman of the Lake Minnetonka Conservation District (LMCD) residing at 19150 Park Avenue, Deephaven, Minnesota. Mr. Foster stated he was present this evening "wearing two hats" in speaking to Council. As Chairman of the LMCD, he stated the LMCD had wrestled with distinguishing between different kinds of boats as part of the permitting process for the LMCD. However, the LMCD decided not to make any distinction between powerboats and sailboats in its permitting process. Personally, Mr. Foster commented, he had been involved with the Wayzata Yacht Club issues regarding allowing powerboats to occupy slips at that marina. He noted they had been allowed to operate powerboats from that marina in recent years. Regarding the pollution issues in this case, he stated he could understand concern for powerboats in tributary waters, however, in a lake situation the phosphorus would be distributed throughout the lake as the phosphorus would be entering the lake from the shoreline primarily, rather than the flowage patterns of a tributary situation. He also noted the LMCD allowed for Slow/No Wake posting in quiet waters, and indicated he could support this posting if it would be helpful to the Council in this case. Mrs. Cross stated she did not believe the residents of Shorewood were being served with the restriction on powerboats in the marina. She stated she was concerned that the conditions specified in the C.U.P. for the property could never be changed. Furthermore, she stated she believed it was discriminatory toward the owners of the SYC to prohibit the use of powerboats. She questioned the fairness of the situation at hand and asked that representatives of the Council, Staff, LMCD, and/or attorneys discuss this issue to find a suitable resolution to the request. She thanked Council for the time and opportunity to speak on this matter. . Peter Watson, 5495 Timber Lane, stated he had appeared in support in the past, but was opposed to the change in this case. He stated the SYC had run an exemplary operation with quiet halyards, and had been good neighbors, but disagreed with the use of powerboats in the newer slips in the marina. He further stated it was unfortunate that the recent expansion by the SYC was too ambitious for the current market, but that did not mean the entire marina needed to be changed to accommodate powerboats. Mike Kramer, 5425 Timber Lane, stated he had attended a boat show in January of this year, and had noticed the SYC had attempted to sell slips to power boaters at that show. He agreed with Mr. Watson's comments regarding the SYC being a good neighbor, and he also liked the aesthetic quality the sailboats brought to the local environment. He stated operation of powerboats would be more intensive to the area than sailboats. Additionally, he shared concerns for boat safety on the lake, and was not aware that powerboat operators were being discriminated against in this case. Furthermore, he thought the Frog Island channel should be designated as Quiet Waters as well. Given the overall situation, he was also quite concerned about the need for additional Patrol Staff for the Water Patrol. James Hancock, 23800 LaTonka Drive and representative of the Gideon's Cove Homeowner's Association, stated he did not object to the efforts of the applicants to use available slips, as several people were unable to dock at their own property, and had rented slips at the SYC. He stated, with regard to the sediment concerns, he thought it was important for people to be aware a number of residents' homes were built atop that same sediment as it had been dredged in the area of the SYC. He further stated he would like to see equality between property owners on the lake regarding enjoying slip privileges of others. He did not agree with the LMCD's lack of distinction between permitting procedures of boats on the lake. . Mrs. Cross stated the SYC was also concerned for the need for Quiet Water designations near Frog Island. She stated open slips could be utilized by Shorewood residents without current dockage accessibility should the requests submitted this evening be approved. With regard to the boat show sales of slips, she noted she had believed she was within her rights at that time, money had been refunded in that case, and other dockage found for those slips. She stated she was also concern for the need for additional funding for Water Patrol . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 8 of 13 officers. She thought the SYC had been good neighbors and had taken pride in the marina facilities. She stated she was not asking for powerboats in the entire marina with this request. Councilmember Turgeon explained that with the request before Council this evening that was precisely what was being requested. She then explained the options that the applicant had with regard to moving forward with the application. Mrs. Cross stated the request was simply asking that the word "sailboats" be changed to "boats." Councilmember Turgeon explained that by requesting that change to take place, the application was requesting the opportunity for the SYC to occupy all slips with powerboats. Mrs. Cross stated she did not understand this request, her attorney was not present, and no written request had been submitted or discussed with her with this understanding. Councilmember Garfunkel questioned the intent of the application presented this evening. Director Nielsen explained the applicant had the opportunity to withdraw the application presented this evening, and return with an application that specified clear intent of the request of the applicant, or the applicant could allow the current application to move forward through the consideration process, and should it result in a denial, the applicant would need to wait 6 months to resubmit the request, unless the applicant received approval of the Council to reconsider the application prior that 6 months timeframe through a four-fifths vote of Councilmembers. Mr. Cross then questioned whether an extension could be granted to that time limit, and then representatives appointed to discuss this matter. Discussion then ensued between the Council and the City Attorney regarding options for proceeding with this matter. Attorney Keane stated the Council did not need to accept a request to extend the waiver in this case. Mayor Love sated he did not believe the Council had the ability to waiver in this case as the Council could not subvert the process, as the matter would need to be reviewed by the Planning Commission and Council as a matter of process. He explained the application could move forward as submitted or could be withdrawn, and a recess would be granted for the applicant to make a determination of how to proceed in this matter. Mayor Love recessed the meeting at 9:20 P.M. and reconvened the meeting at 9:28 P.M. Mrs. Cross questioned whether the City would be interested in allowing powerboats in fifty percent of the marina. The City Attorney reiterated the options available for Council consideration in this case. Councilmember Turgeon questioned the applicants as to whether they wished to proceed with the process for the current application submitted. Mrs. Cross nodded affirmatively. Councilmember Garfunkel suggested that the reference to the agreement from three years ago be deleted. Lizee moved, Turgeon seconded, Adopting RESOLUTION NO. 03-061, "A Resolution Denying Shorewood Yacht Club Requests for Amendments to the L-R Zoning District Provisions and Terms of Conditional Use Permit." Motion passed 4/0. Lizee moved, Turgeon seconded, Denying Approval of the Shorewood Yacht Club Amended Application. Motion passed 4/0. Garfunkel moved, Turgeon seconded, Approving a Motion to Amend the Motion on the table by Amending the Proposed Draft Resolution as follows under Item B of the Conclusion section: . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 9 of 13 The City Council hereby denies the Applicant's requests for an amendment to its conditional use permit be denied, since it is inconsistent with the Comprehensive Plan and the existing zoning of the Subject Property. Motion passed 4/0. Lizee moved, Turgeon seconded, Adopting RESOLUTION NO. 03-061 as amended. Motion passed 4/0. Mayor Love departed the meeting at 9:47 P.M. leaving Acting Mayor Garfunkel to preside over the meeting. C. Zoning Ordinance Amendment - Fence Height Director Nielsen explained revisions were necessary to Section 1201.03 of the City Zoning Code that governed fencing regulations. He stated clarification was needed with regard to Subd.2.f. to allow fence caps and posts to extend beyond the previously designated maximum height of fencing since many manufacturers and installations resulted in posts that extended over the top of the fence. Staff recommended the following amendment for consideration. "(12) Fence Height: The height offences prescribed herein shall be considered to be the maximum height allowed. Fence posts may extend above the specified height b no more than eight inches (8")." Director Nielsen also explained Section 1201.03, Subd.2.f.(7) had, as its primary intent, the safety of small children and occasional stray pets from falling into unattended swimming pools. He noted clarification was needed regarding the need for a self-closing gate and screening. Setback issues regarding aboveground swimming pools also were in need of clarification due to concerns for the ultimate height of the structure. Subd.3c.(6) could be modified as followed: "(6) The minimum rear year setbackfor swimming pools shall be sixty percent (60%) of that which is required for the zoning district in which the pool is located. No part of anv such pool, includinJ! J!uardrails, shall exceed six feet (6') above J!rade in heiJ!ht. DeckinJ!, patios, and pools aprons shall not encroach into the reQuired rear vard setback area. Rear yard setbacks for lakeshore lots shall be as provided in Section 1201.26 of this Ordinance." Councilmembers Garfunkel and Turgeon requested brief clarification to the proposed modifications to ordinance. Turgeon moved, Lizee seconded, Adopting ORDINANCE NO. 396. "An Ordinance Amending Title 1200 of the Shorewood Zoning Code Regarding Fence Requirements." Motion passed 3/0. Mayor Love resumed presiding the meeting at 9:57 P.M. D. Minor Subdivision and Combination Applicant: David LaRose and Jim Mahoney Location: 5965 and 5985 Chaska Road Director Nielsen explained Mr. David LaRose owned the property at 5985 Chaska Road. Several months ago Mr. LaRose applied for a setback variance to build an addition to his home that was only five feet from his side lot line. The Planning Commission and Council denied the variance. Since then, Mr. LaRose had worked with his neighbor to purchase five feet of the neighbor's property, thus negating the need for a variance. He noted the Planning Commission had recommended unanimously to approve this matter, and Director Nielsen commended the applicants for working together in this matter for successful resolution of the situation. . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 10 of 13 Mr. LaRose was present and stated he would be happy to answer any questions Council may have had of him. Lizee moved, Garfunkel seconded, Adopting RESOLUTION NO. 03-062, "A Resolution Approving a Subdivision and Combination of Real Property for David LaRose and Jim Mahoney, 5965 and 5985 Chaska Road." Motion passed 4/0. E. Minor Subdivision Applicant: Location: Mark Kawell (representing Richard Bowman) 20025 Manor Road Director Nielsen stated the applicant had proposed to subdivide the property located 20025 Manor Road. He then explained the resulting subdivision of property would result in one lot containing 141,251 square feet of area, and one lot with 45,542 square feet. Both lots would comply with the setbacks of the R-1A Zoning District, and despite the existing topography, the new lot would have a natural shelf, of sorts, on which a new house could be situated. Director Nielsen then noted previous impacts to this case regarding lot configuration and the development agreement. Lizee moved, Turgeon seconded, Adopting RESOLUTION NO. 03-063, "A Resolution Approving a Minor Subdivision of Real Property for Richard Bowman, subject to Staff Recommendations." Councilmember Lizee commended the Planning Commission on its thorough discussion of issues of concern for this case at a recent meeting of the Planning Commission. Motion passed 4/0. F. Our Savior's Lutheran Church Request for Extension of Time for Compliance Director Nielsen explained City Staff had been working for many months with Our Savior's Lutheran Church to resolve zoning issues with respect to lighting and noise. While some progress had been made in reducing lighting levels, both noise and light remain problems for the site. He went on to explain the process had been delayed by the inability of the Minnesota Pollution Control Agency to assist cities in monitoring noise complaints due to recent budgetary cuts. Staff was able to borrow the necessary equipment to verify that noise levels were in fact higher than what was allowed for nighttime. A letter was then sent t the Church, setting forth a deadline for bringing both noise and light levels into compliance. Director Nielsen stated he had met with Mr. Brian Kuhnly, representing the Church, earlier in the day to try to remedy the current situation of noncompliance. Mr. Kuhnly stated he had spoken with an electrical contractor and HV AC contractor to provide resolution of the situation and to bring items into compliance. Mayor Love stated he had received a number of emails and correspondence regarding this matter requesting a timely resolution. Brian Kuhnly, 24300 Ridge Court Circle, representing Our Savior's Lutheran Church, stated an electrical contractor would be present at the site the next day to correct the lighing concerns. He also stated a HV AC contractor would be present at the Church prior to the end of the week to bring the noise from two chiller units into compliance. Mayor Love stated he appreciated Mr. Kuhnly's candor and determination to correct the situation. He noted this problem had been present for a year, and he appreciated the statements of immediate relief. CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 11 of 13 . Director Nielsen questioned Mr. Kuhnly about the necessity of the lighting on the building. Mr. Kuhnly stated the lights could easily be changed to shut off earlier; however, had been left on in the past to combat vandalism. Roger Stein, 5999 Glencoe Road, stated he had been more than patient with the Church in resolving this matter, and he requested the extension be denied. He explained he had not been able to utilize his property for the past two years due to the noise emanating from the site. He stated he appreciated the cooperation of the Church in conducting its business and school, however, current noise and light levels were impacting his quality of life and he did believe they should be. Merle McKenzie, 5975 Glencoe Road, stated there were many areas of concern; however, these two items happened to fall under City ordinance. She stated she had talked with representatives of the Church previously that stated money was an issue of concern and no remedies could be found. She stated the noncompliance issues in this matter were impacting the enjoyment of the neighborhood. Pamela Honzl, 6065 Glencoe Road, stated that many minimal attempts at conformity had not taken place as of this time, and she requested the City legally ask the Church to conform to ordinance guidelines. Attorney Keane, in response to Mayor Love's question, explained the options for compliance in this case. A brief discussion then ensued regarding air conditioning units and light levels with regard to temporary solutions and possible time lines for compliance. Garfunkel moved, Turgeon seconded, Full Compliance be expected of Our Savior's Lutheran Church for Noise and Light Concerns beginning July 29, 2003. Motion passed 4/0. . Mayor Love exited Council Chambers at 10:35 P.M., leaving Acting Mayor Garfunkel presiding the meeting. F. Limited Certificate of Occupancy - Bayside Bank Director Nielsen stated the Bayside Bank had requested a limited Certificate of Occupancy for the bank only to be able to move into the CUB/Shorewood Village Shopping Center prior to completion of the landscaping. Mayor Love resumed presiding the meeting at 10:36 P.M. Councilmember Turgeon stated she was hesitant to grant this request as CUB had not fulfilled its development agreement. Mayor Love stated he appreciated Councilmember Turgeon's concern; however, the bank was a separate business and having to move twice seemed a bit difficult. He also thought the bank could give assurance that a limited Certificate of Occupancy would be followed. Turgeon moved, Garfunkel seconded, Approving a Motion to Allow a Limited Certificate of Occupancy be granted to Bayside Bank. Motion passed 4/0. G. Second Amendment to Shorewood Village Shopping Center Development Agreement H. Development Agreement for Kelly Bosworth Director Nielsen stated Items 8G and H were very similar in regard and could be discussed at the same time. He went on to explain the agreements pertained to bringing municipal water to the Shorewood Village Shopping Center and to a property owned by Kelly Bosworth. . . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 12 of 13 Lizee moved, Turgeon seconded, Approving Amendments to the Shorewood Village Shopping Center Development Agreement. Motion passed 4/0. Turgeon moved, Lizee seconded, Approving a Development Agreement for Kelly Bosworth. Motion passed 4/0. 9. GENERAL/NEW BUSINESS A. Approval of Lease for Shorewood Village Shopping Center Liquor Store Administrator Dawson explained that the lease for the Shorewood Village Shopping Center Liquor Store had been in negotiations for several months. The Liquor Committee had been meeting regularly to discuss the progress of the lease negotiations. Provisions of the lease were being reconsidered as part of the negotiations, and the Committee recommended approval of the amendment. Garfunkel moved, Lizee seconded, Approving Lease Amendment #3 between the Shorewood Village Shopping Center and the City of Shorewood, and Authorizing the Mayor and City Administrator to Enter into Lease Agreement, subject to the Review and Approval of the City Attorney. Motion passed 4/0. B. Authorization to Purchase a Beverage Cooler Lizee moved, Turgeon seconded, Adopting RESOLUTION NO. 03-064, "A Resolution Authorizing Advertisement for Bids of a Beverage Cooler for the Shorewood Village Liquor Store." Motion passed 4/0. 10. ENGINEERING/PUBLIC WORKS A. Authorization for Expenditure of Funds for used Paver Engineer Brown explained a Paver was needed to minimize costs and provide aid in the construction of the walkway designated by the Park Commission that would encircle Freeman Park. Since the City of Excelsior was in need of a Paver as well, the two cities were recommending the cost of the purchase be split between them for the Paver to construct trail segments, and perform the work with the City crews. The total cost of the used Paver was $7,500 without sales tax. Each city would then pay $3,750, plus sales tax. Turgeon moved, Garfunkel seconded, Authorizing Expenditure of Funds for a Used Paver. Motion passed 4/0. 11. STAFF AND COUNCIL REPORTS A. Administrator & Staff 1. County Road 19 Intersection Administrator Dawson stated the City of Tonka Bay had not accepted the most recent offer made by Hennepin County for the Tonka Bay Liquor Store. Final designs were being discussed and more information would be available at a later date. . . . CITY COUNCIL REGULAR MEETING MINUTES JULY 28, 2003 Page 13 of 13 2. Public Safety Facilities Administrator Dawson reported the West Side Facility was progressing appropriately, and the East Side Facility project expected occupancy within the first quarter of 2004. 3. Smithtown Road Engineer Brown reported the first phase of the project that included the section from the City of Victoria Municipal border to Cathcart Road had begun. He explained the facilitation of traffic in that area proved challenging. Additionally, concerns had been expressed by the principal of Minnewashta Elementary regarding the construction schedule and the opening of the school year. Engineer Brown explained revisions to the construction schedule had taken place that would allow Phase 2 to begin early to alleviate any problems with school buses in the area. Councilmembers Lizee and Turgeon agreed notification should be provide to residents about the change to alleviate any concerns regarding deviation of contract plans. Engineer Brown noted the early start to Phase 2 would save approximately one week's construction time for all residents. 4. Water Report Engineer Brown stated the recently published Shorewood Water Report had indicated some level of concern in the amount of lead and copper found in the City's drinking water. Staff expressed concern for faulty testing data. After retesting the water, the levels of lead and copper were found to meet all state requirements and the water was not high in any other contaminants. B. Mayor & City Council Mayor Love reported he had met with the other Lake Minnetonka Mayors to request funding of Water patrol Deputies continue to be supplied by Hennepin County. He appeared before the County Board on July 22, 2003, to request this funding continue. 12. ADJOURN Lizee moved, Turgeon seconded, Adjourning the Regular City Council Meeting of July 28, 2003, at 11:07 P.M. Motion passed 4/0. RESPECTFULLY SUBMITTED, Sally Keefe, Recording Secretary