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072808 CC WS MinCITY OF SHOREWOOD CITY COUNCIL WORK SESSION MONDAY, JULY 28, 2008 MINUTES 1. CONVENE CITY COUNCIL WORK SESSION 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 6:00 P.M. Mayor Lizee called the meeting to order at 6:00 P.M. A. Roll Call Present. Mayor Lizee; Councilmembers Bailey (arrived at 6:11 P.M.), Turgeon, Wellens and Woodruff; Attorney Keane; Acting Administrator/Director of Public Works Brown; Planning Director Nielsen; and Engineer Landini Absent: None B. Review Agenda Wellens moved, Woodruff seconded, Approving the Agenda as presented. Motion passed 5/0. 2. PET POLICIES A. Mr. Wintheiser Dog Issue Acting Administrator Brown stated William Wintheiser, 850 Third Avenue, has voiced numerous concerns regarding the City's kennel licensing regulations. Mr. Wintheiser has filed several complaints and concerns with the Police regarding the property located at 5730 Christmas Lake Road; that property has been licensed for a kennel operation. Three dogs are kenneled at that property, and feedback received from Mr. Wintheiser and the Animal Control Officers definitely suggests that there is prevalent barking by the animals kenneled at this property. It has not resulted in a violation because the five minute time period of repeated barking has not been exceeded. Mr. Wintheiser had indicated that while a citation has not been issued, he does not have the ability to enjoy his property (in particular the rear of his property) because almost anytime he is outside the dogs are barking at him. City Code does specify the kennel structure must be located within prescribed setback requirements; it does not have a provision for proper screening of such operations. Mr. Wintheiser stated if he is in his backyard for any reason, when the dogs are outside they bark at him. The barking lasts for 20 seconds to 2 minutes. If he calls Animal Control Services, respondents cannot get to his property within five minutes. There is nothing they can do if they do not witness the five minutes of repeated barking. This has been occurring since 1992. The situation has gotten to the point where he wears ear plugs when he is doing anything in his yard. He perceives his neighbors let the dogs outside when they see he is out there. He gets startled by the dogs if he was not aware they were outside and they start to bark. He gets tense when he gets out of his car or goes outside because he's waiting for the dogs to bark. He perceives the dogs think his property is theirs to protect so they bark. He stated the City ordinance does not address this problem. The fence around the kennel area (there is no structure) is roughly the size of the Chamber area and is attached to his fence. He thinks attaching the wire fence to his fence is a violation. He stated the barking is a serious nuisance for him and creates a great deal of stress for him. He commented that he and the neighbors had exchanged strong words. He suggested some type of setback regulation be established, and also after a certain number of complaints have been filed, then the property owner should have to come before Council. CI'T'Y OF SHOI2EW®Ol) W®RK SESSIGN MEETING MINUTES July 28, 2008 Page 2 of 6 Councilmember Bailey arrived at 6:11 P.M. Mr. Wintheiser asked if owning dogs is a right or a privilege. He believes his civil rights have been violated. He minimizes using his backyard because of the barking dogs. Mayor Lizee clarified there are certain provisions in the City Code for where kennels can be placed. Councilmember Wellens stated it appeared the City was only focusing on City Code Section 701.01 Subd. 3 and not Subd. 1 and Subd. 2. If these other two subdivisions were being violated that should also be considered. Acting Administrator Brown stated a 10-foot setback is basically irrelevant because a dog can see beyond that. It is difficult to define nuisance from a legal perspective. Mr. Wintheiser stated lie believes that the wire fenced in area for the dogs could be relocated to another area of his neighbor's property. He stated to put up a solid wall becomes somewhat problematic with City Code restrictions. From his vantage point, the neighbors could relocate the fenced in area for the dog but chose not to because it would not be as convenient for them. Mayor Lizee stated the "kenneling" part of the City Code is about the number of dogs. She stated what the City is dealing with is the nuisance component of the barking dogs. She suggested maybe the nuisance element of barking dogs should be addressed. Councilmember Turgeon stated she did not think screening would make any difference. She noted the fee for a citation for a barking dog is $180. Mr. Wintheiser stated the dogs have never barked for more than five minutes. The dog owners bring them inside shortly after they bark. He commented his neighbors don't apologize for the barking. During the time of strong words his neighbor stated he (Mr. Wintheiser) makes noise in the yard therefore his dogs should be able to make noise. Director Nielsen questioned if any other neighbors were disturbed by the barking. Mr. Wintheiser stated the neighbor on the other side has two dogs and when those dogs come outside the subject neighbor's dogs bark for slightly under five minutes before they are taken inside. Nielsen suggested maybe this problem could be considered under the City's nuisance ordinance which has a provision for disturbing the peace. Mr. Wintheiser stated he has installed a video camera to record the situations. He questioned if his video documentation of the situations would be sufficient to have a citation issued. Councilmember Woodruff stated from his vantage point the City's ordinance does not define what a kennel is which,- from his perspective, in an enclosed structure. He suggested maybe there was a way to amend the ordinance to address the number of times within a certain time period that barking could occur. Councilmember Bailey asked Attorney Keane if disturbing the peace was a fact and circumstance issue. Keane stated it was a judgment call in every instance. The record about the frequency and the specifics of the frequency make a difference. There are no objective measures for nuisance complaints. Director Nielsen stated the proposed administrative code enforcement process could be useful in dealing with these types of situations. CI'T'Y OF SI-I®IgEWOOi) W®IdIC SESSIOI~T MEP'TIIVG MINIJTPS July 28, 2008 Page 3 of 6 Councilmember Bailey stated the solution is not in the dog nuisance language; it's a disturbing the peace issue. Mr. Wintheiser stated the Animal Control Officers will not enforce disturbing the peace without observing it. In response to a comment by Councilmember Woodruff, Director Nielsen explained the attachment of the wire fence to Mr. Wintheiser's fence is a private matter. Director Nielsen suggested the section in the City Code about disturbing the peace should be expanded. Mr. Wintheiser questioned if the City could send something to the neighbors (or any other person in that situation) informing them they had received numerous complaints. Director Nielsen stated it would help if other neighbors would also complain. There was consensus to strengthen the disturbing the peace section of the nuisance ordinance. B. Ms. Lindy Martin request for consideration of "no pet limit" Acting Administrator Brown stated that Lindy Martin, 6065 Lake Linden~Drive, had submitted an email requesting that the four-dog limit per household in the City Code be removed or increased. Ms. Martin stated she did not think the City was very welcoming to dogs and there were no commercial dog boarding kennels in the City. When her work day was done she focused her attention on her dogs. She would like to see fewer restrictions on the number of dogs an individual can have. Mayor Lizee stated the City had not had a request for boarding kennels for dogs that she could recall. Director Nielsen stated the ordinance doesn't allow them in residential districts. Councilmember Woodruff stated from the standpoint of having a breeding facility the City Code is clear that it applies to dogs over the age of six months. Because the City is a residential community the City tightly regulates individuals running businesses out of their homes. He does not believe there is a reason to remove the limit; he could consider changing the limit if it was justified. Director Nielsen stated he did not think the City's Ordinance was unusual with its restrictions. Mayor Lizee stated the rescue organizations she was aware of allowed foster families take in one dog rescue at a time. Ms. Martin explained she had a renter who had two dogs, but only one of her dogs could be accommodated. The other dog, which has challenges, had to be taken care of by someone else. The dog was difficult for other people to care for because of its challenges. She commented the City was under a lot of pressure from people who did not like dogs, and questioned why the limit was put in place. Mayor Lizee clarified the City was not under pressure from people who dial not like dogs. She stated the four-dog limit was not an arbitrary number. She understands why there are limitations on pets in rental situations. Woodruff moved, Turgeon seconded, recessing the work session at 6:56 P.M. The work session was reconvened at 10: 15 P.M. CITY ®F S~IOREWOOD V1'®RK SESSI®N MEETING MINUTES July 28, 2008 Page 4 of 6 3. DISCUSSION OF DRAFT 2009 MOUND FIRE BUDGET Acting Administrator Brown stated shortly before the meeting packet was distributed Staff received the first draft of the 2009 Mound Fire Department Budget. Staff thought it prudent to include it in the packet even though it did not have time to review it in detail. The City's portion of the proposed 2009 budget is $25,193 compared to $25,257 in 2008. Spring Park suggested the formula for allocating facilities costs be considered for changes. Councilmember Woodruff stated the Mound Fire Department has done a fine job of providing service to Enchanted and Shady Islands. He was pleased to see that early indications the City would not have an increase in its portion of the 2009 budget over the 2008 budget. 4. PHASE II WATER METER RADIO READ PROJECT Engineer Landini explained to date 691 out of 1,366 water meters have been replaced. Staff had budgeted $75,000 to continue with the replacement effort. It's projected that 287 additional meters can be replaced based on the budgeted amount; inflation has been factored into the costs. Staff is looking for direction from Council to continue with the project. Mayor Lizee stated the replacements have been occurring according to plan and funds are budgeted to continue with the project. She recommends it continue. Acting Administrator Brown explained the simplest way to move forward would be to approve a change order to the existing contract, which would also have to address additional material costs. Staff will make sure the bid would be competitive. He noted the City is locked into the current radio read system. Councilmember Woodruff requested Staff provide Council with an update about the radio read system and benefits received from the system during budget discussions. 5. DEER MANAGEMENT Director Nielsen stated the 2007 Dear Management Program went very well in large part due to Bob Whiting, President of Metro Bowhunters Resource, Inc. There were no accidents or incidences. A reasonable number of deer were harvested. There appears to be Council consensus to conduct the program again in 2008. Staff has some recommendations that might increase the number of deer harvested: they are based on comments and suggestions from Mr. Whiting. Nielsen reviewed the recommendations which are as follows. - The program would begin with the beginning of deer bow hunting season. The first weekend for the program in 2008 would be September 20`x' and 215` - Three to four weekends would be scheduled for harvesting with approximately three to four weeks separating the efforts. - To improve the success rate, the harvesters would be allowed to take either gender deer. Antlerless deer were not allowed in 2007. - Property owners with one-acre lots who requested and were selected to have their property harvested would be advised to ask their neighbors on each side to agree to the harvesting. This is to try and avoid a situation where a wounded deer goes on to someone's property who does not want it there. - Notification of surrounding property owners would be done with more advance notification of the harvesting than was done in 2007. CITY OF SHOREWOOD WORT{ SESSION MEETING MINUTES July 28, 2008 Page 5 of 6 Nielsen stated if Council agrees with the recommendations Staff will provide the entire Deer Management Program packet at the August 11 `~' Council meeting. There was Council consensus to move forward with the Program. 6. ADMINISTRATIVE ENFORCEMENT DISCUSSION Director Nielsen stated at the June 23, 2008, Council work session Staff initiated a discussion regarding administrative code enforcement. Council identified a number of issues and asked Staff to research them. The issues that were identified are as follows. - How are the attorneys that serve as hearing officers selected? - What is the cost of conducting a "local court" (e.g. hearing officer, recording secretary, etc.)? - To what types of code violations might administrative enforcement apply? - Are there examples of cases where administrative enforcement did not work? - Concern of Rights of Violators (Due Process?) - What is the City's legal exposure? Nielsen explained Staff interviewed three individuals involved with administrative code enforcement in three other cities to gain insight into these issues. The individuals were the Community Development Director for City of Minnetonka, an Associate City Attorney for the City of Bloomington, and a planning consultant who handles code enforcement for the City of Otsego. He commented the more Staff researches the administrative code enforcement process, the more it's convinced that this is a reasonable, cost effective and expeditious way to handle City Code violations. Nielsen then reviewed the findings from the interviews. Selection of Hearing Officers -Minnetonka maintains a pool of lawyers from which hearing officers are randomly drawn. Otsego uses one lawyer outside of its office. Bloomington maintains arrangements with two lawyers outside of its office (despite having an in-house legal department), with most of the work being done by one of them. Cost of Local Court - It is anticipated that the Hearing Officer and any recording secretary time would be reimbursed through a system of fines imposed for violations. In Bloomington's case, they pay $75-100 per hour for the Hearing Officer, with an average case (including preparation time) costing approximately $400. Application to Various Code Sections -Otsego has not gone to District Court over nuisance or zoning violations in several years. Minnetonka issued approximately 200 citations last year; many of them had to do with long grass and property maintenance issues. Bloomington issued 22 citations last year, even though it has a broad range of code provisions to which the enforcement process applies. Staff thinks most, if not all, violations of City Code Chapter 501 (Unhealthy Substances/Nuisances) could start with administrative enforcement. Many zoning violations could also be subject to administrative enforcement/citations, not the least of which would be sign violations. Nielsen explained there had been three instances since the June 23'd work session involving landlords who had failed to obtain the required license for their rental units. The only recourse the City has at this time for either failure to obtain a license or failure to comply with a correction order is to advise the owner that the unit can not be rented. Unfortunately this either results in the eviction of the tenant or pursuing the violator through the District Court system. Staff expects an administrative citation would trigger a quicker, and likely a more acceptable, response since it would be more cost-effective to apply for a license and correct deficiencies than to pay a series of fines. CITY OF SH®REW®®D W®RIC SESSI®N MEETING MINUTES July 28, 2008 Page 6 of 6 Where Administrative Enforcement Has Not Worked -The individuals Staff interviewed were satisfied with the outcomes of administrative enforcement. The Otsego consultant mentioned there had been only one instance where that process had not been successful. In that situation a landowner had allowed his property to achieve "dump" status and continuously failed to comply, despite fines levied by the City. Otsego is currently exploring further legal action or possibly initiating its own cleanup, with costs being assessed to the violator. Out of the 22 cases cited in Bloomington last year, only two ended up in District Court. One of these was a very chronic violator who is being sentenced this week. Bloomington adds an additional $250 fine for a chronic violator. The Bloomington Associate City Attorney had commented she perceives the District Court to be much more cooperative with cities that have taken the trouble to go through an administrative process, and she also perceives judges appreciate this process rather than resent it as they did in the earlier years of this process being used. Rights of the Violator -This was addressed at the June 23`d work session. A violator has options within and beyond the administrative enforcement process. The violator has a right to appear before the City Council. The Hearing Officer, while appointed and hired by the City, will not be an employee of the City. If the violator is not satisfied with the local process, the violator can choose to go through the District Court system. City's Legal Risk -Attorney Keane stated if the City were to implement an administrative code enforcement process, the City would provide all of the essential steps (notices, due process, an opportunity to be heard, fairness and corrective measures) of the County District Court system internally. He supports the process. He explained there would be extensive up-front work to define the process. There are a number of different models that can be considered and tailored to the City's specific needs. There will be a number of policy issues that must be addressed. Once the process is defined it can be refined at a future date; it doesn't have to be perfect the first time around. He commented the League of Minnesota Cities has been promoting this approach for about 10 years. He noted street and highway enforcement issues cannot be addressed with this process. In response to a question from Councilmember Woodruff, Attorney Keane explained the City would deputize who (in addition to the South Lake Minnetonka Police Department officers) can issue a citation. There was consensus to move forward with defining the process. 7. ADJOURN Wellens moved, Turgeon seconded, Adjourning the City Council Work Session Meeting of July 28, 2008, at 10:50 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder ~,. .. ~ ~ Christine Lizee, Mayor ATTEST: rence A. Brown, Acting City Administrator/Clerk