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112607 CC Reg MinCITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD CITY COUNCIL REGULAR MEETING COUNCIL CHAMBERS MONDAY, NOVEMBER 26, 2007 7:00 P.M. MINUTES 1. CONVENE CITY COUNCIL REGULAR MEETING Mayor Lizee called the meeting to order at 7:05 P.M. A. Roll Call Present. Mayor Lizee; Councilmembers Callies, Turgeon, Wellens and Woodruff; Attorney Keane; Administrator Dawson; Finance Director Burton; Planning Director Nielsen; Director of Public Works Brown; and Engineer Landini Absent: None B. Review Agenda Turgeon moved, Wellens seconded, Approving the Agenda as Amended. Motion passed 5/0. 2. APPROVAL OF MINUTES A. City Council Work Session Minutes, November 5, 2007 Wellens moved, Callies seconded, Approving the City Council Work Session Minutes of November 5, 2007, as Amended in Item 3, Page 3, Paragraph 2, Sentence 1, change "the draft 2008 budget included $170,000 for the second half" to "the draft 2008 budget included $170,000 to fund the remainder". Motion passed 5/0. B. City Council Regular Meeting Minutes, November 5, 2007 Woodruff moved, Turgeon seconded, Approving the City Council Regular Meeting Minutes of November 5, 2007, as presented. Motion passed 5/0. 3. CONSENT AGENDA Mayor Lizee reviewed the items on the Consent Agenda. Wellens moved, Turgeon seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein. A. Approval of the Verified Claims List B. Staffing - No action required C. Adopting RESOLUTION NO. 07-073, "A Resolution Granting a Conditional Use Permit for Multiple Signs to Shorewood Village Center." SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 2 of 15 D. Adopting RESOLUTION NO. 07-074, "A Resolution Accepting Final Improvements and Authorizing Final Payment for the Wedgewood Drive, Mallard Lane and Teal Circle Road Reconstruction Project; City Project 02-02." Motion passed 5/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. REPORTS AND PRESENTATIONS A. Report on Intercongregation Communities Association (ICA) activities Annette Poeschel, Executive Director, and Shirley Buehler, Project Coordinator, both with Intercongregation Communities Association (ICA) provided an update on ICA activities. Ms. Poeschel stated ICA was the local emergency food shelf and emergency financial assistance agency for the residents of Deephaven, Excelsior, Greenwood, Hopkins, Minnetonka, Shorewood and Woodland. She explained the fund raising goal for the "ICA -Housing and More" was $150,000. She stated ICA had a transportation program for the community's senior residents; there were 55 volunteer drivers to provide the service. There were approximately 300 volunteers that provided assistance to the ICA. She commented that many of the residents that use the services of the ICA do not want family members and other residents to know they had done so. She thanked businesses, and civic organizations for their contributions to the 2007 Thanksgiving program. The ICA purchased 656 turkeys for the program; it served 1,849 people as part of the program of which 787 were children. The ICA would conduct a December 2007 holiday program. She explained the ICA had a new program called the Lifestyle Education Action Program (LEAP) for which it had received a grant from the University of Minnesota; the purpose of the program was to teach families how to prepare a holiday meal with limited funds. ICA's goal was to reduce hunger by 20 percent by 2009. Ms. Buehler invited residents to come and see the ICA's new facility located at 12990 St. David Road, Minnetonka. She stated operating out of one facility (as opposed to the two it had been operating out of) made operations much more efficient. The facility was created by the various organizations, businesses, and residents in the community. She commented that 87 percent of the ICA volunteers were seniors. She stated three junior high groups packaged all of the Thanksgiving holiday gift bags that were distributed with the turkeys. She explained three youth attained Eagle Scout status for their efforts in moving the ICA to its new facility. One individual coordinated the move of all of the ICA's food from the old Excelsior fire station to the new facility; that effort required the involvement of 60 scouts. The second individual was responsible for coordinating the move of all non-food supplies from the Williston Road house location. The third individual coordinated moving all of the furnishings from both the old locations and held a fundraiser to raise funds for a dumpster (for the items that would be purged). The move was completed on March 1, 2007. Ms. Buehler stated the ICA collaborated with a number of other organizations such as Hennepin County Emergency Assistance, Community Action Partnership of Suburban Hennepin (CAPSH) in Hopkins, Schools and Communities in Partnership (the Hopkins School District collaborative and the Minnetonka Family Collaborative), the Hopkins / Minnetonka Family Resource Center, Second Harvest, and State SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 3 of 15 and County legislators. She stated it was ICA's goal to see that everyone in need got signed up to receive food stamps; residents were often intimated by the volume of information they had to sort through before they could apply for food stamps. Ms. Buehler stated there were two upconung ICA fundraisers; all the proceeds from the fundraiser to be held on December 3, 2007 would go to the ICA. Mayor Lizee stated the rotary club she belonged to had held its meeting at the new ICA facility last week and she was very impressed by the facility and the activity there. 6. PUBLIC HEARING None. 7. PARKS -Report by Representative A. Report on Park Commission Meeting Held November 13, 2007 Director 'Brown reported on matters considered and actions taken at a November 13, 2007, Park Commission meeting (as detailed in the minutes of that meeting). PLANNING -Report by Representative Director Nielsen stated there were two items considered at a November 20, 2007, Planning Commission meeting and he would discuss them in great detail next on the agenda. A. L-R Zoning District Text Amendment and C.U.P Amendment Applicant: Shorewood Yacht Club Location: 600 West Lake Street Administrator Dawson stated the public hearing was held during the October 2, 2007, Planning Commission meeting to take public comment on a proposed Lakeshore -Recreational zoning district text amendment and the Shorewood Yacht Club's (SYC) request for an amendment to its Conditional Use Permit (C.U.P.). He then stated the City had received a great deal of communication on these items; all of the communication received as of 5:15 P.M. this evening had been distributed to Council. The communication was both in support of and against the SYC's request. Director Nielsen stated there were two zoning items for consideration before Council that evening. The first item was a text amendment to the City's Lakeshore Recreational (L-R) zoning district which would allow the City to consider allowing powerboats at multiple-dock facilities on Gideon Bay. The second item was an amendment to the SYC's current C.U.P. which would allow the SYC to rent no more than 35 of its slips for powerboat use. The 35 dock slips for powerboats would be in addition to the ones that were currently allowed (the SYC was allowed three powerboats which were used by management, one powerboat for the residents of 5585 Timber Lane, and the Excelsior Fire District's rescue boat). He noted the SYC had requested they be allowed to rent 50 percent of its 118 dock slips (this included the one slip for the EFD) for powerboat use. He explained the Planning Commission had considered a great deal of information that had been provided. The Commission discussed the items at its October 2, October 16, and November 20, 2007, meetings. After careful deliberations, the Commission decided to recommend an ordinance amending Section 1201.24 Subd. 10.d (L-R Licenses) of the City Code; it also recommended approval of a resolution granting the SYC's an Interim C.U.P. which would allow the SYC an additional 35 powerboats to be water harbored at the SYC and they would all be harbored at pier 4. SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 4 of 15 The interim C.U.P. would be in effect for three years to assess the impact of the powerboats; at the end of that three-year period a public hearing would be held with public notice to determine whether or not the use should be continued on a permanent basis. Nielsen stated the property currently consisted of three separate parcels of land and they were to have been combined as part of the last C.U.P.; the parcels must be legally combined as a condition of the resolution. In addition to attempting to rent slips to City residents first in accordance with a provision in the City Code (a condition of the resolution), the applicant proposed a discount for the residents. With regard to the number of additional powerboats allowed, Nielsen stated the Planning Commission thought the 35 slips on pier 4 at the SYC (which was the pier furthest away from the residents) would be relatively easy to monitor. The Commission also though the applicant should specify where the five powerboats currently allowed would be docked; the applicant had provided such a plan. The configuration of pier 4 limited the size of the boat that could be docked to 30 feet maximum. With regard to quiet waters designation, Nielsen stated the Lake Minnetonka Conservation District (LMCD) had advised that a quiet waters designation existed 150 feet out from all shorelines and from structures such as docks on Lake Minnetonka. Staff had suggested it was possible for the City to request an expansion of the quiet waters designation from the LMCD. A relatively easily defined and logical area was described by drawing a line from the shoreline north of the Timber Lane cul-de-sac to Duck Island to Frog Island to the peninsula at Lafayette Avenue. The Planning Commission thought most of the area was already designated as quiet waters; if the LMCD were to classify the entire area as quiet waters that would prohibit property owners from activities such as skiing. Therefore the resolution did not contain any condition regarding quiet waters. Nielsen stated Staff had suggested a trial solution of a three-year interim C.U.P. which would be monitored on an annual basis and the results reported back to the Planning Commission. The Commission had questioned what types of things would be monitored during that trial period. He explained verifiable complaints and the nature of the complaints would be monitored; any complaint filed through the South Lake Minnetonka Police Department (SLMPD) would be considered a verifiable complaint. If, for example, the City received a complaint during normal business hours that there were power boats docked at slips other than those designated, Staff could go down and research the complaint. Nielsen noted that Council had been provided a formal ordinance approving the text amendment that evening; the Council packet contained the actual text amendment. Nielsen explained the proposed resolution incorporated the original resolution adopted in 2000 which set forth all the requirements for the SYC's original C.U.P. as modified by the proposed change. Mike Maloney 231 Third Street and co-owner of the Shorewood Yacht Club, and Gabriel 7abbour, 985 Tonkawa Road and co-owner of the Shorewood Yacht Club stated they were present to answer any questions Council may have. Mayor Lizee stated a public hearing had already been held to take public comment; but, if there was any one in the audience who had not provided cormnent at the public hearing, or had not called or emailed or written the City with their comments then Council would be willing to take their 1 - 2 minute long comments. SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 5 of 15 Steve Haskins, 5455 Timber Lane, stated most of the pertinent information had already been published in local newspapers. He became a resident of the City 27 years ago. Shortly after that he had attended various discussions regarding access to the Lake. At that time he was concerned about the physical number of boats on the Lake; he continued to have that concern. He stated if a person was out on the Lake on the weekend it was not enjoyable due to the volume of boats. To add another 35 powerboats to Gideon Bay (and therefore the rest of the Lake) would only add to the problem. He asked Council to consider denying the request for the benefit of the Gideon Bay residents and the users of the entire Lake. Mike Kramer, 5425 Timber Lane, stated he had been a resident of the City for 52 years with the last 27 of them being at his current address. He stated the residents on Timber Lane were comprised of either two-wage-earner families or retired individuals. He recited a passage from a nineteenth century novel, Jane Eyre. He then reviewed what had changed from his vantage point in the last 32 years after John Cross had first established the Yacht Club (now known as the Shorewood Yacht Club). With the sailboat marina operating at the SYC the number of canoeists, rowers, and kayakers had increased significantly in the small sub-bay of Gideon Bay where they are generally free from the wakes of powerboats. He stated in the past the City Council had been excellent stewards of the small amount of lakeshore resource on the Lower Lake. He explained that Mr. Cross's request for additional sailboat dockage had been recommended, but before the additional dockage was installed Mr. Cross began to market slips for powerboat use which was contrary to what he had told the neighbors of his property; therefore, Council had denied his request. He cautioned Council to be sensitive to responding to what, from his vantage point, was essentially an economic argument; financial hardship was seldom allowed in the variance process in the City. He stated Mr. Jabbour had not kept it a secret that he wanted the SYC to make more money by renting dock slips for powerboat use. He then stated from his vantage point the Council would put itself at serious risk for the appearance of subsidizing a commercial enterprise at the prospect of the reduction of the livability of the neighborhood and the congestion of a very small part of Gideon Bay. He asked Council to please continue its good stewardship of the most livable city in the western suburbs by denying the SYC's request. Mayor Lizee stated the Council was considering an application on the SYC's property. Gene Marren, 5815 Echo Road, stated he was a SYC sailboat member and as most of the City's residents he did not live on the Lake. He was able to enjoy the Lake because he had the availability of the SYC. He thought there were a lot of residents of the City who did not live on the Lake that would like a place available like the SYC. He stated he thought the SYC was a beautiful facility for the City. He commented the SYC members wondered every 2 - 3 years whether or not the SYC would remain in business. He then stated he would like the SYC to remain in business and he understood the problems the SYC was experiencing trying to increase the number of sailboats at the SYC. He would like the SYC to remain sailboats only but that was not realistic. He would support granting a request for a small number of powerboats of limited size. Perry Ry_ an 31395 Casco Circle, Navarre, stated he also owned the property located at 422 Lafayette Avenue and he had previously lived at 430 Lafayette Avenue for 8 years. He stated the applicant's request letter stated "we are seeking this change as the demand for sailboat slips has diminished to the point where we have currently leased 52 of our 117 slips". He then stated he had not been privy to how many slips had been leased at the time the current owners purchased the SYC. He went on to state the request letter stated "the purpose of the L-R zoning district was to give Shorewood residents access to the Lake". He noted the letter did not refer to the statement in the City Code which said "it behooved the city to subject the possible areas available for access to the lake to close scrutiny and limitation so as to insure that use of the land does not unduly infringe upon property rights and public health, safety and SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 6 of 15 welfare of others residing on nearby residential sites". He distributed a graphic depicting the residential locations in the Gideon Bay area of the people who signed a petition to deny the request. He stated granting the request would result in an infringement upon property owners' rights; it would pose additional threats to health, safety, and welfare; and it would result in additional environmental impact, erosion, and damage to the shoreline. He distributed a graphic from the Hennepin County Sheriff's Patrol which he thought depicted that once a boat was past the first set of buoys (especially near Lafayette Avenue) it could speed up. He commented that according to the Sheriff's Patrol, the area past the first set of buoys should not be posted as quiet waters. He stated the request letter stated "Failing this change, we will need to seek other ways to make this property meet its financial obligations"; that type of threat had been presented before. He stated at a Planning Commission meeting Director Nielsen had stated that the SYC property could support 12 condominiums. That number would result in an additional 10 - 12 boats on the Lake at the same time. He then stated Planning Commission Chair Schmitt was quoted to say "if it doesn't work as a sailboat-only marina and it has to close up its doors, who knew what the property could be developed as". He suggested the number of powerboats allowed should not be any more than what would be allowed if the property were developed into a residential area. He again asked what had changed since 2003 to have the Council consider allowing 40 power boats at the SYC when only 10 - 12 condominiums could possibly be developed there. He stated Director Nielsen's report dated September 26, 2007, stated (with regard to the City Code) "these criteria should guide City officials in determining the acceptability of the proposed changes". Stanle.~piro, 14614 Karyl Drive, Minnetonka, stated he had a sailboat on the Lake for over 30 years. He had a vested interest having the SYC stay in business because there were not many marinas on the Lake for sailboats. He then stated since 2003 the volume of boat traffic had increased substantially around Gideon Bay and Frog Island; the Minnetonka Portable Dredging Company was very active and it made a great deal of noise doing business; and there had been an increase in non-residents and Lakeshore property owners in the area waterskiing and pulling people on various flotation devices. He suggested if the powerboats in the area were going to be a problem maybe the boating recreational activities (except for anchoring a boat for fishing) could be limited to entering and exiting Gideon Bay. He stated he had observed residents water ski from their docks and he thought that created problems. He had also observed a resident wakeboarding and he thought that created more havoc than other boating activities. He stated the number of boaters on Gideon Bay had increased since 2003 because there were more boats on the Lake already. Mr. Jabbour stated that although he was reluctant to speak this evening he thought it pnident that he provide some comment. He commented that since the American Indians lived on the Lakeshore a lot had changed. He stated the SYC was in the mode of rejuvenate or liquidate (a mode of every business). He noted Mr. Cross had requested that the SYC be allowed to rent all of its slips for powerboat use. He then stated he and Mr. Maloney understood they had a right to request a change and they asked to be allowed to use 50 percent of the dock slips for water-harboring of powerboats; they did not challenge the Planning Commission for fewer than that. He explained a 2004 LMCD and DNR joint study indicated there had been a 25 percent reduction at the peak time in the number of powerboats on the Lake; also, at any given time the number of powerboats harbored at a marina that left a marina harbor was 21 percent and at a maximum peak it was 29 percent. Therefore, if there were 35 additional powerboats harbored at the SYC the maximum that would leave the SYC at any given time would be 9 - 10. He stated he had demonstrated his ability to convince boaters who harbored their boats at his other marinas to be good custodians of the Lake. He commented he believed in allowing everyone public access to the Lake. Mr. Jabbour then stated in 1992 the Lake Access Task Force identified the SYC property as having the potential to become a Lake access site. In 1994 the DNR, the LMCD, the Cities of Shorewood and Tonka SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 7 of 15 Bay, and the Metropolitan Council approved it. He clarified that he was not threatening anything. He stated he wanted the SYC to remain in business to be able to a render a service to the Lake communities. He noted that the SYC was the only yacht club on the Lake that catered to non-racing sailors. He stated the SYC had cormnissioned a survey by members of the marketing fraternity at the University of Minnesota Carlson School of Management which documented the decline of the sailing market as well as the desire for residents to have access to rental dock slips. He explained that 2100 surveys had been sent out and approximately 20 percent had been returned. Based on a rating of 7 being high and 1 being very unlikely, the respondents average was close to 5 with regard to the likelihood of their docking a boat at a marina that gave priority to the residents of the City and the average was close to 6 for docking at a marina that offered a discount to residents. Dave Ronal, 55 Crabapple Lane, Tonka Bay, stated in 1985 he would observe approximately 25 boats on Gideon Bay on a very busy day; this past sunmler the average was 34. Gideon Bay was known as a great bay to be in for waterskiing and floating around on. The Bay had become so busy it was harder to enjoy. He questioned what the environmental and lake use impact of the increased number of powerboats would be. He suggested someone determine what the Lake can bear. He stated he appreciated the SYC may have to increase its boat harboring density to be economically viable; but to ask for a zoning change now was presumptuous. Mayor Lizee stated there were a number of entities that dealt with public waters (e.g., the State, the DNR, the LMCD, etc.); and although the City had some jurisdiction with regard to shoreline, it looked to those other entities for legislation and help regarding boat density and other legal issues. Dan Frederick, 422 Lafayette Avenue, Excelsior, stated he had been renting the house on that property for the last two years and he and his wife were building a house a few properties down (the property was located on the south shore of Gideon Bay). He explained the rental property was located at the choke point between Frog Island and Excelsior where the buoys were located. He stated on any given day he could call the SLMPD to report boats that did not honor the minimum wake restriction; it did not seem realistic that people would call the SLMPD that many times to ensure they had a verifiable complaint. He commented that he moved from Wayzata Bay so he could live in a quieter area on the Lake. He stated from his vantage point power boaters used the Lake differently from sailors, in particular during the evening. He expressed concern that if the SYC was allowed to rent 35 dock slips for powerboat use that it would eventually request more. He stated the Planning Commission had stated there was a difference between a marina and a yacht club. He then stated from his perspective the only reason that the application would be approved would be for Mr. 7abbour to make more money. James Hancock, 23800 Lawtonka Drive, stated he kayaked on Gideon Bay and he harbored a sailboat at SYC. He commented he was the President of the Gideon Cove Homeowners Association which consisted of 12 twin-homes. He stated those homeowners had no place to harbor their powerboats on the Lake. He commended the Planning Commission for recommending a plan for the public to be able to use the Lake as they should be able to. He stated the viability of the SYC was an asset to the neighborhood and the City. Todd Frostad owner of the Southlake Office Building located at 23505 Smithtown Road, stated if the SYC was not able to be economically viable then someone like himself would acquire the property and develop it for other uses. The quaintness of the SYC area today would change. Peter Watson, 5495 Timber Lane, stated he had lived at that location for 35 years. He stated he would like to have the recreational quality of Gideon Bay and the rest of the Lake preserved. He stated he would SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 8 of 15 like to understand what the impact on the City's carbon footprint would be if the request were approved. He commented that other cities around the Country were beginning to work very hard to try and reduce their carbon footprint. He asked that Council vote no as its way to do a little bit in the right direction on that. Tom Nicol 3895 Glacier Count Minnetrista, stated he was a business owner in the City. He then stated he had been working with Mr. Jabbour as a captain out Mr. Jabbour's marina, as well as using his services over the years. He also stated the comment that Mr. Jabbour made his request only to make more money was ridiculous and a disservice to a man that had done a great deal for the Lake. He went on to state as a business owner he would be the first in line to request the opportunity to rent a dock slip for his powerboat. He commented that many residents wanted access to the Lake. He stated the character attack on Mr. Jabbour was unacceptable. Deb Termer, 438 Lafayette Avenue, stated she had lived on her property for 22 years. She then stated there was a difference between how Lakeshore property owners used and respected the lake and non- lakeshore residents. She was concerned about what could be the lack of accoLmtability of the non- lakeshore power boaters to the City and the residents. John Mielke 16311 Limerick Lane Minnetonka, stated he was a SYC member and a SYC Boardmember. He stated the SYC had a social membership and any person who harbored a boat at the SYC was a member. He stated the SYC members were held accountable and the powerboat members would be held to the same standards. Duane B~dons, 5585 Timber Lane, stated 11is property was located next to the SYC property. He commented he had a powerboat and he loved to fish. He stated he had empathy for the Council for having to make the decision as Council had heard good arguments in support of and against the request. He then stated he would like the SYC to remain economically viable under the current use or the requested use. He asked Cowlcil to approve the request. Mayor Lizee stated the Council did not make decisions based on the number of people that were in support or against an application.. The application was considered by Council based on its merits, after a public hearing had occurred anal evaluated by the Planning Commission for recommendation to the City Council. Councilmember Callies questioned how athree-year timeframe for the interim C.U.P. was arrived at. Director Nielsen explained that the Planning Commission thought aone-year timeframe would not be adequate to fairly assess the success or failure of the situation. The Planning Commission agreed with the suggestion in the Staff report that the interim C.U.P. be in effect for three years; Staff would provide the Commission with a status report annually. Councilmember Callies stated the applicant had a right to make a request about the use of its property. Tonight Council was considering the applicant's request to rent out a percentage of its existing dock slips for powerboat use. She stated she did not agree with the statements made earlier that Lakeshore owners were more concerned and well behaved individuals than non-Lakeshore owners. She explained one of the reasons for considering an interim C.U.P. rather than a permanent C.U.P. was to allow the City an opportunity to assess the impact of water-harboring an additional 35 powerboats at the SYC. She stated if a resident had problems with a neighbor having loud overnight parties repeatedly then they should file a complaint with the SLMPD or the City. She commented that economic factors were a fact of life for anyone, but the economic viability of the SYC was not germane to the issue. Council needed to consider SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 9 of 15 whether or not the applicant's request was permitted based on the City Code as well as considering what the effect granting the request would have on the Lake and the SYC's neighbors. Callies went on to state based on the information that had been provided and discussed, she thought it would be appropriate to grant an interim C.U.P. Public access to the Lake was important. She again stated the request did not include the addition of dock slips. She commented things do change over time. She stated the applicant requested it be allowed to rent a percentage of its dock slips for powerboat use. She commented that many people used the Lake and many people used the Lake inappropriately. She had not heard any comments that there had been particular problems with boaters who water-harbored their boats at the SYC. There had been comments about powerboat operators, water skiers, wake boarders and power boaters partying on their boats into the evening but there was no evidence linking that to the SYC. She explained that when she drove around the area near the SYC and nearby properties on Gideon Bay and in the City, it appeared that all of those Lakeshore residents had powerboats. She stated it was difficult for her to make a distinction such that powerboats should not be allowed at the SYC yet they should be and are allowed at many more places on the Lake. She then stated it was prudent for the City to exercise caution; that was the reason for the interim C.U.P. which would allow the City the opportunity to monitor the effects (both positive and negative) of the additional powerboats. She stated she was in support of granting the interim C.U.P. Councilmember Wellens stated he was also in support of granting the interim C.U.P. The new SYC owners realized it was not appropriate to request the SYC be allowed to use 100 percent of its dock slips for water harboring of powerboats; the previous owners had requested it be allowed to use 100 percent of its slips for powerboat use and that request had been denied. The interim C.U.P. would be re-evaluated in three years. At that time it could be possible to consider petitioning the LMCD to make all of Gideon Bay a quiet waters area. The purpose of the L-R zoning district was to address the Lakeshore recreational needs of the City. The Lake had been described as a park and it did not make sense to have a park if people couldn't access the park. Granting the applicant's request would increase public access to the Lake which was in concert with the L-R zoning district. The City's residents would have a priority to rent the dock slips and they would receive a residential discount. He went on to state there were a lot of people who were hostile toward and suspicious of businesses and business owners. He stated businesses and businesses owners were of great benefit to the community; he expressed his gratihide toward them. With regard to what had changed, he cited the example that Excelsior had many regulations on store fronts; some of its storefronts were boarded up because Excelsior was not willing to change its regulations to conform to how the economy was changing. From his vantage point, he thought government needed to change to realize the changes in the marketplace and to support and accommodate businesses to some degree. He stated the DNR and the LMCD identified the area as one lacking in Lake access based on a survey of boaters; the LMCD and the DNR had encouraged the Lake area cities to contribute to the goal of a more equitable distribution of access to the Lake. Councilmember Wellens questioned if the applicants would be willing not to water-harbor any boat that had an exhaust system above the water. Mr. Jabbour explained that Lake Minnetonka was the only lake in the United States that adecibel-sound rule that was 2 decibels below the national average (an 82- decibel sound rule); boats with motors having a decibel level higher than that were against the law. Also, it was not legal to have an exhaust system that could be switched to be above or below the water. He stated the SYC intended to abide by those rules and it would ensure that all boats water-harbored at the SYC were within compliance with State Statute. He stated the SYC's contracts with it members were extremely extensive. SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 10 of 15 Councilmember Turgeon stated she was not in support of the interim C.U.P.; she did not think it was an appropriate use. She commented that in 2003 the previous owners had requested it be allowed to use 100 percent of it docks slips for powerboat use. The Planning Commission recommended that request be denied because it was inconsistent with the City's Comprehensive Plan in two areas -the natural resources section (which related to the natural and aesthetic quality of the Lakeshore environment and the reduction of lake pollution); and to the protect the Lakeshore from over intensification and use and development, along with protection of the residential neighborhoods from adverse environmental impacts (including noise, air, and visual pollution). She stated from her vantage point she did not think anything had changed since 2003; she had the same concerns that she had in 2003. In 2003 the Council upheld the Planning Commission's recommendation to deny the request. Councilmember Woodruff stated he was not in support of the interim C.U.P. He commented that this request was a contentious issue. He stated from his vantage point it was strictly a financial discussion. The SYC appeared not to be viable without changing the use of its property. The City had a long history of stating economics were not a reason for considering a variance or change. He stated earlier in the year the Council had a contentious discussion about the Upper Minnetonka Yacht Club's use of some of its dock slips for powerboat use (which was located on Enchanted Island). The Council ultimately adopted a resolution to clarify the resolution which granted the UMYC a C.U.P. to dock or moor boats; the original resolution inadvertently omitted the word "sail" in front of "boats". He considered the SYC's request to be similar to, if not exactly the same as, the UMYC's. The UMYC was claiming financial hardship and it needed to be allowed to use some of its dock slips for powerboat use to be financially viable; Council denied that. He went on to state the interim C.U.P. referenced the SLMPD. He explained the SLMPD had no jurisdiction over the Lake, and was incredulous that anyone thinks that the City will tool for this 3- year interim C.U.P. He then stated the LMCD and the Hennepin County Sheriff's Department were not effective in enforcing their responsibilities too. He related that he lived on the Lake and was a sailor and power boater. He observed that the decibel rule is violated routinely every weekend, as was the speed limit, and the no-wake zone, as is the unsafe boating practices. He did not think that Shorewood was going to be able to monitor and track, and after three years with some good judgment, evaluate the results. He again stated he was not in support of the request. Mayor Lizee stated she was in support of the interim C.U.P. She stated Council was considering an application for a C.U.P.; it was not considering a variance. She stated one of the things the interim C.U.P. was intended to do was address behavior. She stated public access to the Lake was very important; the Lake was an asset that everyone should share. The interim C.U.P. would open Lake access for more residents to use and have safe harbor for their boats. The Lakeshore Residential District permitted the use being requested. In 2003 the previous owners requested the SYC be allowed to use 100 percent of its dock slips for powerboat use. The current owners' application requested the SYC be allowed to use 50 percent of its dock slips for powerboat use. There was a significant difference between the SYC's request and the UMYC's request: the UMYC was located in a R-1C/S, Single-Family Residential/Shoreland zoning district and the SYC was located in a Lakeshore Recreational District. She stated the Sheriff's Water Patrol which would be dispatched through the 911 call center could also be responsible for calls. She believed there would be a lot of monitoring of activities by members of the SYC. Wellens moved, Callies seconded, Approving ORDINANCE NO. 443, "An Ordinance Amending Section 1201.24 Subd. 10.d. (L-R Licenses) of the Shorewood Zoning Code. Motion passed 3/2 with Turgeon and Woodruff dissenting. SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 11 of 15 Wellens moved, Callies seconded, Adopting RESOLUTION NO. 075, "A Resolution Granting an Interim Conditional Use Permit for Michael Maloney and Gabriel Jabbour Allowing a Certain Number of Power Boats at the Shorewood Yacht Club." Director Nielsen stated the interim C.U.P. required the applicant submit a plan subject to approval by the Council. The applicant had submitted a plan and it had submitted a drawing depicting where all powerboats would be located. The plan did not address the residential discount. He suggested the applicant's plan be set aside for future consideration. He explained the plan could be approved by a motion. In response to a comment from Councilmember Turgeon, Director Nielsen stated he suggested the resolution not be released for recording until the three separate parcels of land had been legally combined. The maker and seconder of the motion amended the motion to include approval subject to the three parcels of land on the Shorewood Yacht Club property being legally combined. Motion passed 3/2 with Turgeon and Woodruff dissenting. Mayor Lizee recessed the meeting at 8:37 P.M. Mayor Lizee reconvened the meeting at 8:45 P.M. B. Minor Subdivision Request Applicants: Dan and Melissa Nelson Location: 25865 Birch Bluff Road Director Nielsen stated Dan and Melissa Nelson owned the property at 25865 Birch Bluff Road, and they proposed a minor subdivision of their property into two lots. He explained the property was zoned R- lA/S, Single-Family Residential/Shoreland, and the westerly portion of the property was occupied by the applicants' house. Both lots would exceed the width requirements of the R-lA district. The westerly lot (Parcel A) would contain 45,895 square feet of area, exclusive of wetland area; the easterly lot (Parcel B), or new lot, would contain 40,000 square feet of area, exclusive of the wetland area. The major issues with the requested subdivision were site alteration and access. With regard to access, Nielsen explained the existing home was accessed via a private driveway that was located in the right-of--way of Second Street, a "paper street" that had never been improved. The second property could share that common driveway. A common driveway could have a minimum width of twelve feet which was the width of the driveway; twelve feet was all the existing right-of--way could accommodate leaving five feet on each side of the traveled surface for snow storage. The issue was when the lot to the east of Second Street (Block 5) needed to have access to it; if an access were to serve three properties it would require, at a minimum, a private road. While private roads were highly discouraged, the Comprehensive Plan allowed them where no other alternative existed, where no more than three properties were served, and where a 50-foot-wide easement with an adequate turn-around was provided. A Fire Code access road (a 20-foot paved surface) was the minimum design for a private road. A private road design could not be achieved within the 22-foot-wide Second Street right-of--way. Consequently, the existing lot of record on the east side of the right-of--way (Block 5) could not be built upon unless an additional right-of--way or easement was acquired and the Fire Code access road was constructed, placing the entire cost of it on that owner, SAOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 12 of 15 With regard to site alteration, Nielsen explained the original plans submitted would have resulted in approximately one-half of the site being altered by tree clearing and grading. Existing grades were at 33 percent over much of the property. The proposed grades would have resulted in disturbed slopes as steep as 46 percent -all of which would result in extensive tree removal. The City's Comprehensive Plan recommended that development which would result in disturbed slopes exceeding 3:1 (33 percent) should not be allowed, except in extreme situations. Nielsen noted this request had been discussed at a September 4, 2007, Planning Commission and had been continued to an October 16, 2007, and again to a November 20, 2007, Commission meeting. Nielsen explained at the October 16, 2007, Planning Commmission meeting Gene Ruffenach, who owned Block 5, stated he would be willing to establish a protective covenant stating that Block 5 would never be accessed from Second Street. That would eliminate a good share of any of the issues associated with the subdivision. Mr. Ruffenach had followed up with a letter stating that he would be willing to waive any right to use the Second Street right-of--way, which eliminated the problem of having to develop a private road to serve three lots. The Ruffenachs' were satisfied that their property could be adequately accessed via Meadow View Court, which extended to the southeast corner of their property. Nielsen commented that Meadow View Court had been extended to Block 5 when Watten Ponds had been platted; that extension provided the opportunity for a driveway to be extended into Block 5. With regard to site alteration, the applicants had submitted a revised grading plan which would result in significantly less site alteration than their previous plan had. The revised plan still depicted the driveway branching off to the corner of the property. The revised plan limited the amount of site alteration by proposing a retaining wall that would achieve the 3:1 maximum slope required in the City Ordinance. Construction on the new lot would likely require fill in excess of 100 cubic yards. The revised grading plan dated October 23, 2007, would be used as a guide for the future development of the new lot; the revised plan only demonstrated that a house could be built on the new lot without a variance. Nielsen stated the Planning Commission unanimously recommended approval of the subdivision subject to the conditions identified in a November 15, 2007, Staff report. He highlighted two of the conditions identified. 1. A deed restriction or development agreement must be prepared and recorded against the Ruffenach property to the east, including the waiver of any right to use Second Street for the future development of the Ruffenach property. That deed restriction or agreement must be recorded at Hennepin County, together with the resolution approving the subdivision. 2. The applicant must have a deed restriction or development agreement prepared for the new lot, suitable for recording, with the City as a signatory; that deed restriction or agreement would be recorded with the resolution approving the division. The deed restriction or development agreement should put future property buyers on notice that the lot was restricted as set forth in the resolution. Construction on the site would likely require fill in excess of 100 cubic yards and thereby require a conditional use permit. The retaining wall, because of its proximity to the common driveway, would likely have to be designed by a registered professional engineer. No site alteration shall result in a disturbed slope in excess of 3: 1. SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 13 of 15 Nielsen commented that he had not yet had the opportunity to ask the City Attorney if a deed restriction or a development agreement would be his preference. Nielsen suggested Council direct Staff to prepare a resolution for consideration at the next Council meeting on December 10, 2007. He stated the resolution may have some "blank spots" in it (re: the deed restriction or development agreement). He then stated given the amount of legal and surveying work involved with this matter, it was recommended that the deadline to complete the items should be 60 days rather than the normal 30 days. Nielsen stated Mr. Nelson was present this evening to answer any questions Council may have. Councilmember Woodruff stated he had spoken with Director Nielsen prior to this meeting. Woodruff questioned if a retaining wall had to be built on the new lot if a house were to be built on it. Director Nielsen stated it was possible, although highly unlikely, that a 3:1 slope restriction could be accomplished without a retaining wall. Woodruff stated he and Nielsen had earlier discussed what must be done for a minor subdivision. Woodruff stated he had some reservation with the City approving the minor subdivision which in effect was saying the new lot would be a buildable lot; he had not been aware that the City generally stated a subdivided lot was buildable. He commented he did not care if the new lot was buildable. He went on to state he went out to the property and observed that a number of trees were tagged; he questioned if they were to be cut. Mr. Nelson explained those trees had been tagged as part of the original survey to show which trees may be impacted if a new driveway were to be installed; they were not identified as trees that had to be cut. Mr. Nelson stated there were alternative locations for where the driveway could be located. Councilmember Turgeon questioned if Director Nielsen would have had the opportunity to confer with the City Attorney prior to the December 10, 2007, meeting on a deed restriction or development agreement approach for the Ruffenach property. Nielsen stated the verbiage in the resolution would reflect the preference. With regard to a question from Councilmember Wellens, Director Nielsen stated if alternative locations for the driveway were to be considered the driveway maintenance and easement agreement would have to be drawn wide enough and broad enough to accormnodate either design. Wellens moved, Callies seconded, directing Staff to prepare a resolution approving the minor subdivision for Dan and Melissa Nelson, 25865 Birch Bluff Road, subject to the provisions specified in the Staff report. In response to a question from Councilmember Woodruff, Director Nielsen explained that the lots on the plat along Clara Avenue addition to Birch Bluff were mainly double-deep lots. Motion passed 5/0. 9. GENERAL/NEW BUSINESS A. Contract for Audit Services Administrator Dawson stated the City had received a proposal from its independent auditors Adbo, Eick and Meyers, LLP, for services for the December 31, 2007, annual audit. He then stated Council had had discussions about issuing Request for Proposals (RFP) for those services. Staff recommended the City SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 14 of 15 retain the firm's services, which it had used in the past. Staff thought it would be more effective to use that firm because of the complexity the City had as a result of the sale of its liquor operations and its conversion to a new financial system, and the firm's familiarity with City's financials. Staff recommended entering into the engagement contract with the firm of Abdo, Eick and Meyer, LLP, for auditing services for the year ending December 31, 2007. Councilmember Wellens stated he had been pushing for "new eyes" to audit the City's financials. He questioned if Council considered the sale of the City's liquor operations to be a justifiable reason to retain the firm's services. Councilmember Callies stated there were many accountants but there were not as many fines that conducted audits. She stated this fine was always well prepared and its presentation of the year-end audit was always well done. Councilmember Woodruff stated he had recommended the City pursue the RFP process and he still recommended the City request bids in the future. He then stated the quote from Abdo, Eick and Meyer was reasonable. He also believed the firm did a good job. He went on to state there was value in having a fine that knew the City's financials and operations conduct the audit for 2007 year-end. He suggested Council direct Staff to conduct the RFP process with a timeline for the bids to be received by July 2008. Woodruff moved, Wellens seconded, authorizing the City Administrator to enter into the audit engagement contract with the firm of Abdo, Eick and Meyer, LLP for auditing services for the year ending December 31, 2007, and directing Staff to issue a Request for Proposals (RFP) for those services and request responses back by July 2008. Director Burton and Administrator Dawson stated that would be a reasonable time for the RFP process. Motion passed 5/0. B. Authorizing Off-Sale Liquor Licenses Administrator Dawson stated the city had received two Applications for an Off-sale Intoxicating Liquor License. There were no criminal or financial reasons to deny the applications. The licenses would become effective upon the closing of the sale of the liquor operations. He commented that it appeared that the closings would be November 30, 2007, or December 3, 2007, He stated one of the applicants had a lease issue. Staff recommended Council adopt the resolutions. Wellens moved, Woodruff seconded, Adopting RESOLUTION NO. 076, "A Resolution Approving the Off-Sale Intoxicating Liquor License for The Cellars Wines and Spirits of Shorewood, Inc." and Adopting RESOLUTION NO. 077, "A Resolution Approving the Off-Sale Intoxicating Liquor License for Park Square Subway, Inc., DBA Shorewood Liquor." Motion passed 5/0. 10. ENGINEERING/PUBLIC WORKS None. 11. STAFF AND COUNCIL REPORTS A. Administrator & Staff SHOREWOOD CITY COUNCIL REGULAR MEETING November 26, 2007 Page 15 of 15 Administrator Dawson stated there was a meeting scheduled for the Southshore Center working group on November 27, 2007. There was an EFD Board meeting scheduled for November 28, 2007. The City's Truth-In-Taxation hearing was scheduled for December 3, 2007. In response to a question from Councilmember Woodruff, Attorney Keane stated confirmation had been given that part of the settlement funds from Ascending Praise Church had been sent but the full amount had not yet arrived. Keane then stated a draft contract for the services of Collaborative Design Group, Inc, for the City Hall renovation project had been prepared and it would be submitted to Staff on November 27, 2007. Administrator Dawson stated a kickoff meeting was scheduled for November 28, 2007. B. Mayor & City Council Mayor Lizee stated she had held a coffee with the mayor session on November 8, 2007, and a number of residents had attended. She then stated a family attended and asked how they could volunteer to help the City. Mayor Lizee then extended condolences to Deephaven Mayor Skrede for the unexpected loss of his wife Paula Winter. Ms. Winter had been an asset to the community. Councilmember Woodruff stated he had attended a Lake Minnetonka Communications Conmmission (LMCC) full Board meeting and he reported on that meeting. He stated the LMCC staff had been directed to research a new technology that would allow a viewer to tab through a broadcast meeting and to allow for better presentation. There were five member cities that had not yet approved the amendment to the LMCC JPA or the 2008 LMCC Operating Budget. Mediacom had stated there would be a minor rate increase and it was still in discussions with the Big Ten network. The Federal Communications Commission had issued a second ruling which stated that incumbent cable companies had soiree of the same rights granted under the first ruling regarding how PEG monies could be collected. 12. ADJOURN Turgeon moved, Woodruff seconded, Adjourning the City Council Regular Meeting of November 26, at 9:16 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder (~ L~ Christine Lizee, Mayor ATTEST: _, ~ ~ . ~~ Craig °. Dawson, CityAAdministrator/Clerk