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07-26-10 CC Reg MinCITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, JULY 26, 2010 MINUTES 1. CONVENE CITY COUNCIL REGULAR MEETING Mayor Liz6c called the meeting to order at 7:05 P.M 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:00 P.M. A. Roll Call Present: Mayor Lizde; Councihnembers Bailey, Turgeon, Woodruff and Zerby; Attorney Tietjen; City Administrator Heck; Planning Director Nielsen; and Director of Public Works Brown Absent: None. B. Review Agenda Mayor Liz&e stated Senator Gen Olson is not able to be here this evening because she had other commitments. Item 6.A will be rescheduled to a future meeting. Woodruff moved, Zerby seconded, approving the agenda as amended. Motion passed 510. 2. APPROVAL OF MINUTES A. City Council Work Session Minutes, July 12, 2010 Woodruff moved, Turgeon seconded, Approving the City Council Work Session Minutes of July 12, 2010, as amended in Item 2, Page 8, Paragraph 9, Sentence 3 change "MSA reimbursement could be considered as part of the $700 transfer" to "MSA reimbursement could be considered as part of the $700,000 transfer ". Motion passed 510. B. City Council Regular Meeting Minutes, July 12, 2010 Woodruff moved, Turgeon seconded, Approving the City Council Regular Meeting Minutes of July 12, 2010, as presented. Motion passed 5/0. 3. CONSENT AGENDA Mayor Lizee reviewed the items on the Consent Agenda. Administrator Heck asked for check #50312 to Local Link in the amount of $131.80 to be pulled from the verified claims list. Turgeon moved, Woodruff seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein subject to check #50312 being pulled from the verified claims list. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 2 of 9 A. Approval of the Verified Claims List B. 2011 Road Improvement Project C. Adopting RESOLUTION NO. 10 -037 "A Resolution Adopting the Wildlife Management Plan for White- Tailed Deer in the City of Shorewood ". D. 2011 Mill and Overlay Sanitary Sewer Cleaning and Televising E. Street Sweeping Disposal for 2010 F. Massage Therapist License Motion passed 510. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. PUBLIC HEARING None. 6. REPORTS AND PRESENTATIONS A. Senator Gen Olson Senator Gen Olson was unable to be present this evening. She has been rescheduled to a future meeting 7. PARKS Commissioner Swaggert reported on matters considered and actions taken at the July 13, 2010, Park Commission meeting (as detailed in the minutes of that meeting). He asked Councilmember Bailey to provide Council with his perspective on the Park Commission's confusion about the Park Capital Improvement Program (CIP). Councilmember Bailey explained that during a May 10, 2010, . joint meeting of the City Council and Park Commission the Park CIP was discussed. He related that Councilmember Woodruff had encouraged the Commission to think big and to push Council to provide additional funding for projects the Commission thinks are worthwhile. The Commission took that to heart and added additional large, and costly, projects to the CIP. Based on an annual transfer of $42,000 into the Park Capital Improvement Fund the additional projects in the CIP would create a deficit in the Fund. Council has asked the Commission to prioritize the proposed projects and revise the CIP so that the Fund will not go into a deficit state nor reach a balance of zero dollars. The additional projects not included in the CIP should be prioritized and that list should be kept current. Commission Swaggert stated he was somewhat surprised the CIP would create a deficit in the Park Fund of $300,000. Mayor Lizde stated the Park Commission did a great job of looking at the big picture and to the future. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 3 of 9 Councilmember Woodruff apologized for creating the confusion. He stated that a few years ago Council encouraged the Park Commission to pursue projects because it wasn't spending the money councils had allocated for improvements to parks. The Commission has now created a project list so large it isn't financially doable. He then stated each year a council can decide if it wants to allocate additional funds to park improvements. Commissioner Swaggert stated he will bring this information to the Park Commission. A. Manor Park Swing Set Director Brown explained that the City had received a request from a resident for a handicap accessible swing in Manor Park. There are two handicap children in the neighborhood that would benefit from this. During its July 13, 2010, meeting the Park Commission recommended approval of changing out the current swing set for a new frame bay with four swings including an accessible swing with bar, concrete path and rubber coating, not to exceed $7,000. Staff is in agreement with the recommendation. Administrator Heck explained the Park Commission discussed two options. Option A is installing an accessible path to the current swing set and retro - fitting the set so that there was an accessible seat for a cost of $4,784.93. Option B is to replace the swing set with a new swing set with accessible swings and with rubberized surface around the entire area. The cost for the new swing set and rubberized surface is $5,801.13. Mayor Liz& noted that the new swing set will be installed at the same time as the boundless playground on August 14, 2010. In response to a question from Councilmember Turgeon, Administrator Heck explained the City can submit the invoice for the swing set as part of the grant through the Hennepin County Youth Sports Grant Program. Turgeon asked where the funding would come from otherwise. Heck stated there are funds in the Park CIP. Councilmember Woodruff stated the grant amount is set; this purchase will not result in the City getting any more grant funds. Therefore, it will have to be paid for out of the Park CIP. Zerby moved, Bailey seconded, approving the Park Commissions recommendation to pursue Option B, changing out the current swing set for the new frame bay with four swings (including a swing with a bar), concrete path and rubber coating, for an amount not to exceed $7,000 and authorizing Staff to proceed with the project. Motion passed 510. S. PLANNING Director Nielsen reported on matters considered and actions taken at the July 20, 2010, Planning Commission meeting (as detailed in the minutes of that meeting). He noted the Commission has scheduled a mobile tour for August 3, 2010, to look at redevelopment projects and some senior housing that could influence the redevelopment plan for the Smithtown Crossing area. A. Edwards Conditional Use Permit Director Nielsen explained that during its April 6, 2010, meeting the Planning Commission held a public hearing to consider an application from Marry Edwards, the owner of the property at 6170 Ridge Road, for a conditional use permit (C.U.P.) to demolish the existing home on the property and build a new one in its place. The lot is a substandard because it does not have 40,000 square feet of area required in the R- CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 4 of 9 IAS, Single- Family Residential /Shoreland zoning districts. It is a buildable lot. It has 28,730 square feet of area and therefore complies with the 70 percent requirement. There are two nonconforming accessory structures on the lot in terms of required setbacks; a two -car garage and a shed /deck structure. Both of those structures were required to be removed as part of the C.U.P. that was granted on May 10, 2010. Nielsen went on to explain that during the permitting process the applicant's attorney challenged the City's authority to require the removal of nonconforming structures, citing an eminent domain statute passed in 2006. The statute states that if a city requires the removal of nonconforming uses the city may be subject to paying fair market value for them. The statute talks about the legal nonconforming uses. The applicant has since applied for a revised C.U.P. The applicant's revised plan indicates the new home will be located southward on the property. It will be 10 feet from the south fine. It will have a 27.5 foot setback on the north side of the lot and when combined with the 2.5 foot setback on the existing garage makes 30 feet. Except for the nonconforming structures, the plan complies with the minimum side yard setback requirement. Nielsen then explained the Planning Commission reopened the public hearing for the application during its July 20, 2010, meeting. Based on Nielsen's advice, the Commission voted to recommend approval of the revised C.U.P, keeping the existing garage in place, and giving the applicant six months or upon issuance of occupancy (whichever occurs first) to remove the shed/deck unless the applicant can demonstrate to the Council and Commission that the structure is in fact a legal nonconforming use. Nielsen stated today he decided on a drastically different recommendation than the one he made to the Planning Commission and City Council. He arrived at this new recommendation after again going over the original site plan and comparing it to the City's Zoning Code, and discussing it with the City Attorney. He explained that by definition side setbacks do not extend the entire length of the lot. They extend from the required front setback to the rear setback. The existing garage and shed/deck are nonconforming with respect to the front and rear setbacks. They are not located within the side yard setback. The existing garage appears to be protected by the eminent domain statute. The question remains as to when the shed/deck by the lake was originally built. The City's 1966 aerial survey does not show the shed/deck was there. Also, staff was not able to find a record of a building permit having been issued for the structure after 1966. Nielsen then stated his new recommendation is for the C.U.P. to allow the new house to be put 10 feet from the north property line and a minimum of 20 feet from the south property line. The existing garage is protected by the eminent domain statute. He explained the plan includes creating a new driveway to service the new house. The City Code has a requirement that there can only be one driveway per 120 feet. The applicant intends to use the existing garage for additional storage. He noted he went to the site today and met with the applicant and the applicant's builder, noting that Councilmember Woodruff was at the site as well. He now recommends leaving the bituminous pavement of the existing driveway alone; it forms part of the cul -de -sac at the end of Ridge Road. The concrete apron can be saw -cut and the gap created can be filled in with a landscape treatment that supports a vehicle. The existing driveway would be separated from the street and it would then be in compliance. Nielsen stated that earlier in the day the applicant had mentioned that the previous owner had indicated they had rebuilt the shed/deck about 15 years ago. That cast additional doubt as to whether the structure is a legal nonconforming use. He concurs with the Planning Commission's recommendation to give the applicant more time to prove the structure is a legal nonconforming use. Nielsen summarized his revised recommendation which allows the new house to be placed on the north side of the property, it allows the existing garage to remain where it is, and it requires the existing CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 5 of 9 driveway be modified to comply with the City Code. He noted prior to the meeting he provided Council with a revised resolution granting the C.U.P. for consideration which is different than the resolution Council adopted on May 10, 2010. He then distributed copies of an email sent to the Mayor and Councilmembers today from the applicant's attorney. Mayor Lizde stated she would the like the C.U.P. to reflect the new house will be located on the north side of the property. Mayor Lizde noted that Mary Edwards (the applicant), Dan Meuisi (the applicant's builder) and Jack Fess (South Commissioner for Ridge Road) were in attendance this evening. Councilmember Woodruff stated he thought Mayor Lizde's suggestion would be more restrictive than it needs to be. Mayor Lizde stated as long as it is clear she is okay with how it's written. Councilmember Turgeon thought further restrictions would confuse things. Mayor Lizde expressed her disappointment that Council was not provided with a copy of the resolution prior to this meeting. She stated she was pleased that Staff and the applicant could come to an acceptable solution which allowed the existing garage to remain in place. She then expressed concern that the existing 10 -foot driveway has to be separated from the street; hardcover is not an issue for the applicant. Director Nielsen explained that City's Ordinance allows one driveway per property; to have two would require a variance. Nielsen noted an effort was made not to go the variance route. He explained there is a substructure that allows things to grow inside of cylinder shapes yet allows vehicles to drive on it. Councilmember Turgeon asked if saw - cutting the concrete apron in the existing driveway will cause issues with opening the door on the existing garage. Director Nielsen explained the concrete seam is outside of the door and the door rests on a slab. Councilmember Turgeon asked if the shed/deck could be relocated somewhere else on the property so it would be in compliance. Director Nielsen stated he thought it would be difficult to move it from a practical matter. There are places to locate a shed and deck. He noted the applicant proposes having a fair amount of deck as part of the project already. Councilmember Turgeon asked if the stairs were too close to the property line. Director Nelsen explained the City Ordinance allows stairs and lifts to encroach into that area as long as they are not wider than four feet. In response to a comment from Councilmember Turgeon, Mr. Meuisi explained a few broken steps will be replaced but there is no plan to rebuild the steps. Mr. Meuisi thanked Director Nielsen for his efforts to work towards a good compromise. He also thanked Councilmembers Turgeon and Woodruff for going out to the site. He thanked the South Commissioner for Ridge Road for attending the meeting. He noted the applicant has received a lot of support from abutting property owners. Mayor Lizde stated a Ridge Road project is always very interesting. It's a beautiful area but it has its challenges. She then stated she was pleased with the flexibility in locating the house on the north side of the property. She had been concerned about the topography and about the amount of fill that would have had to be brought in. Councilmember Turgeon commented she was also pleased with that. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 6 of 9 Couneilmember Bailey stated that Director Nielsen had explained the shed had been rebuilt 15 years ago and the City did not issue a permit for that project. Bailey explained if the shed was rebuilt it would not be protected by the 2006 eminent domain statute. Nielsen stated 15 years ago such a project would have required a permit and a permit would not have been issued without a variance. Bailey stated therefore it's an illegal structure. Ms. Edwards stated she knew the shed existed in the 1930s. She can prove that but she needs additional time to get the City what it needs to solidify it was a legal building. Couneilmember Bailey asked if the structure would be illegal if it existed in the 1930s and was then torn down and rebuilt with a deck 15 years ago. Director Nielsen stated that is correct if it was done without a permit. The City Ordinance that was in place as early as the mid 1980s stated a nonconforming structure that was destroyed to 50 percent or more of its value it could not be put back. Ms. Edwards clarified the structure was not rebuilt. The previous property owner owned a hardware store and he did a patchwork repair job to it. She thought it looked that way. Couneilmember Bailey stated it's his understanding that the deck is green treated lumber. Director Nielsen explained the assessor has indicated that the structure is green treated. Bailey stated that would indicate the deck was rebuilt somewhat recently. Nielsen stated it's a pretty new material relative to that type of construction. Woodruff moved, Turgeon seconded, Adopting RESOLUTION NO. 10 -038 "A Resolution Revising a Conditional Use Permit to Build on a Substandard Lot for Mary Edwards, 6170 Ridge Road, subject to the following conditions: 1) The proposed house plan will be adjusted to comply with the front and side yard setback requirement for the R -IA/S zoning districts; 2) The nonconforming garage near the street may remain in place; 3) The 10 -foot driveway serving the existing garage must be separated from the street; 4) The nonconforming shed and deck near the lake must be removed within six months, or upon issuance of a certificate of occupancy, whichever comes first, unless the Applicant can demonstrate to the satisfaction of the Planning Commission and City Council that the structure is a legal nonconforming use, constructed prior to 2 August 1956. To ensure compliance with this provision, the Applicant shall enter into an escrow agreement with the City, providing financial security (cash escrow or letter of credit) in the amount of one and a half times the estimated cost of removing the structure and restoring the site." and, 5) The building permit plans for the new house shall include a tree preservation and reforestation plan for the site." Motion passed 510. 9. ENGINEERING(PUBLIC WORKS There was nothing additional to report. 10. GENERAL/NEW BUSINESS A. Water Brochure Mayor Lizke asked what action Council wants to take with regard to the revised water brochure. The options are approve it as presented, approve it with edits or don't approve it. Turgeon moved, Bailey seconded, approving the water brochure as presented. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 7 of 9 Councilmember Woodruff suggested that under the heading "If water is available to your home..." delete Item I "Great! Contact the city to fund out how much you owe on your assessment, and make arrangements to pay." It did not make sense to him. He then suggested in Item 2 delete the word "around" from the phrase "the connection fee is around $10,000 ". After some clarification about the suggested changes there was consensus that the changes be made. Without objection from the maker or seconder of the motion, the motion was amended to include subject to the two proposed changes being made. Motion passed 5l0. B. Dog License Administrator Heck stated the Councilmembers had received an email sent from a resident regarding their concern about the City Ordinance requirement for dogs to receive a rabies vaccination in order to obtain a dog license. The resident's issue is her dog has an allergic reaction to the rabies vaccination. He asked if Council wanted to consider an amendment to the existing dog license ordinance that would allow a resident to get a waiver from their veterinarian stating whey the dog should not be vaccinated. He received a note from Councilmember Zerby saying Bangor, Maine, allows for such an exception. Heck commented that a few cities in the metro area have eliminated the need for dogs to be licenses; the dogs do need to be tagged saying they have had a rabies vaccination. The reason for stopping the licensing program was because of cost. Ile noted he had previously distributed information Mayor Liz&e had provided him from the University of Minnesota's Veterinary School about rabies vaccinations. Councilmember Bailey commented that Bangor, Maine, can't be the only city that has encountered this problem. Councilmember Zerby explained the concerned resident had provided a list of about 14 cities throughout the country drat have dealt with this. He found Bangor's ordinance to be most compatible with the City's existing language in its ordinance. He thought Bangor's text was a good fit. Councilmember Zerby stated he thought the resident would not license the dog if they thought the vaccine could harm the animal. He indicated an exception would be appropriate. Councilmember Turgeon commented a dog owner would not know the dog would get a reaction until it's been vaccinated. She expressed concern that if the City quit licensing dogs then there would not be any way to limit the number of dogs residents may have. She would not mind a change where if the dog had previously been vaccinated and had an allergic reaction to the vaccination then a licensed veterinarian could sign a waiver for the dog to not get another vaccination. Councilmember Zerby explained the Bangor ordinance contained such language. Mayor Liz& stated there are two issues being discussed. One is if the City should be dealing with health issues (vaccination requirements) that belong to the Minnesota Board of Animal Health. The other is whether or not the City's licensing ordinance should be amended. She explained she did some research on the rabies vaccination. Veterinarians have told her the reaction is to the solution the vaccine is suspended in which is injected into the animal. The pet's veterinarian can recommend the pet be vaccinated with a vaccine suspended in a different type of solution. The rabies vaccine is tested by something called a "Titer" testing. With this testing a blood sample is drawn from the pet by the veterinarian, tested and then sent to a national center in Kansas City, Kansas, to verify if there still are anti rabies antibodies in the dog's blood. That burden of proof lies on the pet owner. She expressed her hesitancy to say that if a dog has had an allergic reaction it doesn't need to be revaccinated. She stated she did not think any veterinarian would sign a waiver saying a dog did not have to be revaccinated. She suggested Council talk about the licensing issue. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 8 of 9 Councilmember Woodruff stated the individual who made the request has a couple of actions it would like Council to consider. He is only willing to consider the issue of rabies vaccinations. He explained that based on his research the federal government approves rabies vaccines. There are currently nine different types of rabies vaccines approved for dogs and they are manufactured by four different companies. He has not yet been able to verify if the different vaccines are in the same type of solution. The dog is allergic to the vector the vaccine is grown in and not the vaccine. He assumes that if there are nine different vaccines then there are probably different types of vectors. There is a high probability the dog would not be allergic to one type of vector. He commented he has a call into the Veterinary School to talk about the list. He expressed his unwillingness to change the City's licensing ordinance. Administrator Heck recapped his understanding of this discussion. Mayor Liz6e and Councilmember Woodruff don't want to change the licensing program. Council would like additional information about rabies vaccinations before any action is taken. Mayor Liz6e stated she was not interested in staff researching what types of solutions a dog may be allergic to. She then stated she stands behind the law that protects the residents and other domestic animals from rabies. She noted that between 1977 and 2009 there had been 72 test positive rabies cases in Hennepin County. She again stated the burden of proof remains with the pet owner. Councilmember Zerby stated if there is a state law that supersedes the City's ordinance then he thought this should be discussed further. Administrator Heck stated there is not much about vaccinations in the state laws. He will continue to research that. 11. STAFF AND COUNCIL REPORTS A. Administrator and Staff Administrator Heck stated that the park shelter in Silverwood Park is almost done. The parking lot and curbing as well as the final grading still have to be completed. With regard to the shelter in Manor Park, sewer and water is being worked on this week. The project coordinator is researching alternatives to a concrete slab underneath the canopy because of the fact that the slab will shift and move. One of the alternatives being considered is a permeable pavers type solution. The boundless playground will be installed in Manor Park on August 14 "' by a group of volunteers. B. Mayor and City Council Mayor Liz6e stated the August 9, 2010, work session from 6:00 P.M. — 7:00 P.M. will be devoted to discussions from Senator Gen Olson and from South Lake Minnetonka Police Department Chief Litsey. Senator Olson will discuss questions about the Lake Minnetonka Conservation District. Chief Litsey will entertain questions about the SLMPD 2011 Operating Budget the Coordinating Committee has recommended. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES July 26, 2010 Page 9 of 9 12. ADJOURN Zerby moved, Turgeon seconded, Adjourning the City Council Regular Meeting of July 26, 2010, at 8:07 P.M. Motion passed 510. RESPECTFULLY SUBMITTED Christine Freeman, Recorder ATTEST: Christine Lizee, Mayor