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092506 CC Reg Min CITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, SEPTEMBER 25, 2006 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:00 P.M. MINUTES 1. CONVENE CITY COUNCIL MEETING Acting Mayor Lizee called the meeting to order at 7:05 P.M. A. Roll Call Present. Acting Mayor Lizee; Councilmembers Callies, Turgeon, and Wellens; Administrator Dawson; Associate Attorney Mayeron; Finance Director Burton; Planning Director Nielsen; Director of Public Works Brown; and Acting Engineer Gurney Absent: Mayor Love B. Review Agenda Callies moved, Wellens seconded, Approving the Agenda as presented. Motion passed 4/0. 2. APPROVAL OF MINUTES A. City Council Regular Meeting Minutes, September 11,2006 Wellens moved, Callies seconded, Approving the City Council Regular Meeting Minutes of September 11,2006, as presented. Motion passed 4/0. 3. CONSENT Acting Mayor Lizee reviewed the items on the Consent Agenda. Wellens moved, Turgeon seconded, Approving the Motions contained on Consent Agenda & Adopting the Resolutions Therein. A. Approval of the Verified Claims List B. Staffing - No action required C. Authorize Expenditure of Funds for a Service Counter Security Window at City Hall D. Adopting RESOLUTION NO. 06-072, "A Resolution Approving a Supplemental Agreement 7A for the County State Aid Highway 19 - Smithtown Road Intersection Improvement Project, City Project No. 97-07." E. Adopting RESOLUTION NO. 06-073, "A Resolution Accepting Public Improvements in the Plat of Parkview Crossing Addition." CITY OF SHOREWOOD REGULAR COUNCIL MEETING September 25, 2006 Page 2 of8 F. Petition for Connection to City of Minnetonka's Municipal Water Service for 5490 Vine Hill Road Motion passed 4/0. 4. MATTERS FROM THE FLOOR There were no matters of the floor presented this evening. 5. REPORTS AND PRESENTATIONS None. 6. PUBLIC HEARING None. 7. PARKS A. Report on Park Commission Meeting Held September 13,2006 Commission Chair Davis reported on matters considered and actions taken at the September 13, 2006, Park Commission meeting (as detailed in the minutes of that meeting). She stated the Commission's subcommittee for the Winter Community Event was scheduled to meet with Excelsior on September 27, 2006. She noted she was continuing her attempts to obtain an update on the off-leash dog park. Acting Mayor Lizee applauded the communities for their combined efforts on the Winter Community Event. Councilmember Turgeon stated she was pleased with the Commission's consideration of a partnership with Famous Dave's for a Blues and Barbeque Music in the Park event. 8. PLANNING Commissioner Schmitt reported on matters considered and actions taken at the September 19, 2006, Planning Commission meeting (as detailed in the minutes of that meeting). Acting Mayor Lizee commended the Commission on its efforts to date with regard to the use of outdoor wood-burning furnaces. Director Nielsen stated the Planning Commission had expressed concerns with its ability to complete a draft of text amendment for nonconforming accessory structures by the deadline for the December 11, 2006, City Council meeting. The Commission wanted sufficient time to prepare a quality text amendment. Acting Mayor Lizee stated the work the Commission had already completed appeared to provide a sound foundation for the preparation of a text amendment. In response to a question from Acting Mayor Lizee, Administrator Dawson stated the City had not received a letter from the Petersons authorizing a continuance of their C.D.P. request for accessory space CITY OF SHOREWOOD REGULAR COUNCIL MEETING September 25, 2006 Page 3 of 8 in excess of 1200 square feet. Director Nielsen explained the time frame for the Council to act on the C.D.P. was 120 days. In response to a request from Acting Mayor Lizee, Director Nielsen stated he would remind the Petersons of the need for an authorization letter. A. Outdoor Wood Burning Furnace Ordinance Administrator Dawson stated the issue of outdoor wood-burning furnaces (OWFs) had been brought to Council's attention in June 2006. Council had since directed the Planning Commission to review the City's nuisance ordinance relative to smoke emissions and the use of outdoor wood-burning furnaces (it had not requested the Commission to consider regulations with regard to recreational fires, indoor fireplaces, or indoor would-burning furnaces). Director Nielsen stated a great deal of research had been done with regard to OWFs. The research validated there was an issue with the amount of pollutants generated by OWFs. Nielsen stated the Commission (based on the City Attorney's opinion) had decided it was more appropriate to draft an ordinance regulating the use of OWFs with extremely strict standards, than it would be to ban the use of OWFs entirely. Some of the standards included were: all OWFs must have an approved listing by Dnderwriter's Laboratories (DL); they must be installed according to the manufacturer's installation instructions; they shall comply with emission standards promulgated by the Environmental Protection Agency (EPA) and the Minnesota Pollution Control Agency (MPCA); they must be located on lots that were a minimum of three acres in size; their maximum chimney height could not be greater than 40 feet; and they could not be operated during the months of June - September. Existing OWFs would be "grandfathered in" provided they were legally installed, complied with the EP A and MPCA standards, and were only operated during the previously stated months of operation. Nielsen then stated the Commission had unanimously recommended approval of the draft ordinance. He noted much of the wording from the ordinance was taken from the State of Wisconsin's model ordinance; and the standards in the draft ordinance were consistent with the Wood Burning Industry's best-burn practices. Acting Mayor Lizee commended Staff for the background research it had conducted. Pam Asplin. 1655 Steller Court, (a Chanhassen resident) explained that her son, who was a friend of the Pahls' son, was always sick after staying at the Pahls' house over the weekend. Each Monday morning her son would have a sore throat, headache, and stomach ache. She would also have a headache after spending a few hours at the Pahls' house. She explained that went on all last winter. She then stated it wasn't until spring of 2006 when she was outside at the Pahls' house and a cloud of smoke came over her that she realized what was causing the illnesses. She also stated she thought Mr. Quast burned more than wood in his OWF. She commented the Pahls had to run their air conditioner during June 2006 when Mr. Quast was using his OWF because of the smoke emissions. Steven Pahl. 24860 Smithtown Road, stated he had observed two Planning Commission meetings where the topic of OWFs had been discussed. He stated some of the Commissioners had expressed a desire to place a ban on the use of OWFs; instead the Commission had drafted an ordinance strictly regulating the use of OWFs (per the City Attorney's recommendation). Mr. Pahl questioned why the City's nuisance ordinance was not sufficient to ban the use of OWFs because of health concerns. He stated there were been two complaints filed with regard to Mr. Quast's use of his OWF where the SLMPD officers did smell smoke. He had hoped the Commission would have banned the use of OWFs. CITY OF SHORE WOOD REGULAR COUNCIL MEETING September 25, 2006 Page 4 of8 Mr. Pahl stated he understood Mr. Quast did have rights that had to be respected, but not at the expense of causing health issues for Mr. Quast's neighbors. He explained he had great concerns that the increase of Mr. Quast's OWF chimney height would not alleviate the smoke emissions problem. He noted the type of fire Mr. Quast burned in his OWF was a smoldering fire which generated a great deal of smoke; it did not burn like a fireplace fire. He stated the fire never got hot enough for the smoke to rise but a few feet above the top of the chimney. He also stated the manufacturer of the type of OWF Mr. Quast used had a 60-foot chimney on his OWF, yet the manufacturer had received complaints about emissions. He went on to state both the manufacturer and a NESCA report stated the OWF did not comply with EP A standards. He recommended the City also address the issue of indoor wood-burning furnaces (IWFs), as a complaint had been filed regarding the emissions from an IWF. Acting Mayor Lizee stated she was not aware there had been a complaint filed for the use ofIWFs. In response to a question from Acting Mayor Lizee, Associate Attorney Mayeron stated the concern with placing a ban on the use of OWFs was there was a greater potential for a challenge to ban, with the challenge stating a ban was not related to the information the City had and the ban exceeded the City's authority. The City would be more susceptible to an OWF operator challenging a ban; it would be much easier to enforce the proposed ordinance. Administrator Dawson noted Mr. Quast had legally installed his OWF; therefore, if the use ofOWFs was banned the City could be subject to a claim for compensation. Associate Attorney Mayeron noted the proposed ordinance required existing OWFs comply with EP A and MPCA standards. Councilmember Turgeon questioned who was responsible for determining if an OWF complied with EP A and MPCA standards, as the Staff did not have the expertise to do so. Associate Attorney Mayeron explained the complaint should be handled in the same manner as other complaints for nonconformance with an ordinance were handled. Administrator Dawson noted the MPCA had both the expertise and equipment to assess OWF emissions. In response to a question from Councilmember Wellens, Mr. Pahl stated that in a letter, Central Boiler Company (the company manufactured the type of OWF Mr. Quast used) stated the OWF did not comply with EP A standards. In response to questions from both Councilmember Wellens and Councilmember Turgeon, Director Nielsen explained the proposed ordinance clearly defined out-of-doors. Deb Pahl. 24860 Smithtown Road, stated the smoke emissions from Mr. Quast's OWF did cause problems in the winter months as well. The emissions entered the Pahls' home through the windows. She stated the smoke affected the health of her son. She invited Council to experience the effects of the smoke when Mr. Quast's OWF was in use. She then stated her family's rights were being violated. She asked Council to consider a ban on the use of OWFs for health reasons. She commented her son can no longer be around a smoldering bonfire, because of his long term exposure to Mr. Quast's OWF's smoke emISSIons. In response to a question from Acting Mayor Lizee, Director Nielsen stated the draft ordinance could be modified to exclude the extension or enlargement of an existing OWF. He noted Mr. Quast's OWF was already a nonconforming structure. CITY OF SHORE WOOD REGULAR COUNCIL MEETING September 25, 2006 Page 5 of8 Councilmember Turgeon questioned if the months-of-operation standard should be modified to be consistent with the time period utility companies used where they could not terminate a utility service for nonpayment. Councilmember Callies stated Minnesota Law had established criteria for nonconformance uses, and she suggested the ordinance be consistent with those criteria. She commented if there was too much detail in an ordinance it could potentially conflict with future changes in State Law and be difficult to correct. Discussion ensued with regard to the allowable months of operation. Director Nielsen clarified the ordinance regulating the use of OWFs was a separate building code ordinance and not a zoning code ordinance; therefore nonconforming uses would not be included in the ordinance. He explained the months-of-operation standard was taken from Wisconsin's model ordinance. He stated he would research the State guidelines for determining when a utility company could terminate a utility for nonpayment, and report back to Council with that information. Turgeon moved, Wellens seconded, continuing the review of the outdoor wood-burning furnace ordinance to an October 9, 2006, Council meeting. Motion passed 4/0. Mr. Pahl questioned what type of help he could expect from the City if Mr. Quast used his OWF before October 9, 2006. Administrator Dawson explained Mr. Pahl should continue to report complaints for a smoke nuisance issue. Mr. Pahl questioned how many complaints would need to be filed before the OWF would be shutdown permanently. Administrator Dawson stated if it was determined there was a violation of the nuisance ordinance, the violator would be given a defined period of time to abate the nuisance; if the violator did not abate the nuisance the violation would be handled through a legal process. Mr. Pahl questioned if the City had concerns about possible repercussions to the City from him should Mr. Quast continue to use his OWF knowing the health issues it created. Councilmember Turgeon clarified if the proposed OWF ordinance was adopted, then Mr. Quast could continue to use his OWF provided it was appropriately installed and he adhered to the specified months- of-operation standard. The MPCA would need to determine whether or not Mr. Quast's OWF complied with EP A and MPCA standards. Councilmember Callies stated she understood Mr. Pahl's concerns, but this discussion was not a public hearing. A public hearing had occurred previously. 9. GENERAL/NEW BUSINESS None. 10. ENGINEERING/PUBLIC WORKS A. Approve Change Order #1 for the Wedgewood Drive, Mallard Lane, and Teal Circle Improvement and Appurtenant Works Project Acting Engineer Gurney explained Change Order # 1 for the Wedgewood Drive, Mallard Lane, and Teal Circle Improvement and Appurtenant Work Project was related to a revision of the pipe used for the channel crossing located behind the homes on the west side of Teal Circle. The existing pipe was a CITY OF SHOREWOOD REGULAR COUNCIL MEETING September 25, 2006 Page 6 of8 corrugated metal culvert that conveyed runoff to the north under Wedgewood Drive. The plan specified a new concrete round pipe based on a height of pipe that had been measured as 24 inches. During construction staking it was discovered the pipe was actually an arch pipe. Because arch pipes were larger, a 36-inch equivalent diameter arch was necessary. The changes necessary to replace the culvert with a storm sewer of equal capacity would result in an increase in cost of approximately $17,947.60. In response to a question from Councilmember Turgeon, Gurney explained the increased cost would be funded out of the Storm Dtility Fund. Director Brown stated Staff tried to ensure each project segment was funded out of the appropriate fund; and the assessment portion of this project was solely for watermain improvements. In response to a question from Councilmember Wellens, Director Brown explained the City's records (e.g. drawings) were quite accurate. Turgeon moved, Wellens seconded, Adopting RESOLUTION NO. 06-074, "A Resolution Approving a Change Order 1 for the Wedgewood Drive, Teal Circle, and Mallard Lane Improvements and Appurtenant Work, City Project No. 02-02." Motion passed 4/0. B. Rescinding Award of Contract for the ChanhassenIWoodhaven Well Interconnection Project, City Project 05-11 Director Brown explained on August 29,2006, Council had authorized the Mayor and City Administrator to enter into a contract with the firm AB Environmental to carry out the Chanhassen/Woodhaven Well Interconnection Project. AB Environmental was notified of that action on August 30, 2006. He also explained the contracts were not returned to the office of WSB and Associates (acting on behalf of the City) until September 18, 2006. In addition, the certificates of insurance or bonds were not provided with the transmittal. That lack of action typically indicated the contractor was having difficulty obtaining proper bonding or insurance as required by the contract. Because of the delay and lack of certificates or bonds, additional background checks on AB Environmental were conducted. (He noted the initial references provided by the contractor had not indicated anything out of the ordinary.) Little was found in the way of background for AB Environmental. Director Brown went on to explain in spite of the "red flags", Staff proceeded with a preconstruction conference on September 19, 2006, with representatives from the small utility companies, the City of Chanhassen, WSB and Associates, Acting Engineer Gurney, the Director of Public Works, and AB Environmental. During the meeting AB Environmental failed to engage in the conversations, or to provide any information that was helpful in determining its plan for carrying out the contract or procedures. After more specific questioning, it became suspect as to whether AB Environmental had the capability or resources required to perform the project. In accordance with the proposal form, Staff requested additional information from AB Environmental representatives. Director Brown then explained that one hour after the meeting, Acting Engineer Gurney received an e- mail from AB Environmental which stated it would not provide the bonding, as required by the contract, until the City had executed the contracts. Director Brown went on to explain after further investigation Staff determined that AB Environmental was a startup firm. The owner had previously done business under another company name, for which Staff rechecked references. The original company had a history of defaulted contracts, failure to perform on contracts, poor workmanship, and irresponsibility. The original company was bankrupt. CITY OF SHOREWOOD REGULAR COUNCIL MEETING September 25, 2006 Page 7 of8 Director Brown stated Staff recommended the award of the contract for the project be rescinded based on Section 17 of the Contract, Failure to Execute Contract. He explained that based on the timeframes necessary to get revised contracts, bonding, and insurance for the next lowest responsible bidder and because of the equipment required, it would not be possible to commence with the contract and get the improvements completed prior to the end of the 2006 construction season. The project would be re-bid in the spring of 2007. He stated AB Environmental inquired as to when the project would be re-bid, and if it did re-bid the project he would recommend the bid not be considered. Director Brown noted there was risk of delaying the project because of the vulnerable state of the Woodhaven Well. He stated Chanhassen had committed to providing assistance to the City should the well fail. Acting Mayor Lizee stated she had respect for Director Brown's expertise, and commended him for the quality of information he provided to substantiate the recommendation. Turgeon moved, Callies seconded, Adopting RESOLUTION NO. 06-075, "A Resolution Recinding Award of Contract for the Chanhassen 1 Woodhaven Well Interconnection Project, City Project No. 05-11." Motion passed 4/0. 11. STAFF AND COUNCIL REPORTS A. Administrator & Staff Administrator Dawson stated an EFD Board meeting was scheduled for 6:00 P.M. September 25,2006, at the East Side Station. Director Brown stated he had requested Mayor Love and Administrator Dawson to appear with him before the Tonka Bay City Council to again request a temporary access road to Lilah Lane off of Wedgewood Drive. (Acting Engineer Gurney had previously made the same request and had been denied it.) He explained there was additional information he wanted to present to the City of Tonka Bay which he hoped would encourage it to reconsider the request. Councilmember Turgeon suggested Tonka Bay may consider the request more favorably if the request was for specific time periods rather than for the entire length of the project. Director Brown explained Staff had identified another solution to the problem last week. He stated there had already been one instance where it was very difficult for public safety vehicles to navigate the construction areas; and that instance reaffirmed the need to open up the access. Staff had requested the contractor to revise its construction approach. A large change order had been prepared for that change, but the contractor was reluctant to do it the revised way. The revised method would have allowed access to be maintained throughout the day except for very limited time periods. Staff then asked the contractor to consider directional boring. Staff was assessing the time that approach would save, and whether or not it would allow the roadway access to remain open the majority of the time. Director Brown then explained Tonka Bay residents had concern that a temporary access would eventually become a well known route to access the end of Wedgewood Drive. Staff suggested the City approach Tonka Bay with the idea to plant trees at the temporary access once it was no longer needed. In response to a question from Councilmember Turgeon, Director Brown explained the public safety organizations stated they would use the trail if absolutely necessary. Using the trail on a regular CITY OF SHORE WOOD REGULAR COUNCIL MEETING September 25, 2006 Page 8 of 8 temporary basis could be a liability issue because the 10 - 11 foot trail would be used for both vehicles and pedestrians. Acting Mayor Lizee supported the decision to re-approach Tonka Bay on this matter. Councilmember Wellens questioned if the City may want to re-approach Excelsior about a possible interconnection with Woodhaven Well considering the project had been delayed. He noted an Excelsior interconnection would have been less costly than the Chanhassen interconnection. Administrator Dawson clarified Excelsior did not move forward with the interconnection because it believed it did not have sufficient storage capacity. Director Nielsen stated there had been an incident around September 15, 2006, where a contractor had used the Grant Lorenz fire lane to access private property for a rip-rap job. The contractor was cited for eight City violations because of the incident. Staff recommended giving the contractor a right-of-way excavation permit, and requiring the contractor to restore the fire lane to City specifications. He noted the City Attorney was pursuing a formal complaint against the contract for the eight City violations. Director Nielsen suggested the City place a barrier made from bollards across the fire lane to prevent vehicular travel on that fire lane. In response to a question from Acting Mayor Lizee, Director Nielsen stated the current plan was to place bollards on that fire lane only. Lizee stated she would prefer all the fire lanes be handled the same. Nielsen stated there was a recommendation that had come forward as part of the fire lane study to not draw attention to the fire lanes. There was Council consensus that Staff could issue the excavation permit, and construct a bollards barrier on the fire lane. B. Mayor & City Council 12. ADJOURN Wellens moved, Turgeon seconded, Adjourning the Regular City Council Meeting of September 25,2006, at 8:07 P.M. Motion passed 4/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder ~~~ Christine Lizee, Acting Mayor ATTEST: