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HomeMy WebLinkAboutCity Council - 10/03/1989 t EDEN PRAIRIE CITY COUNCIL APPROVED MINUTES 'T'UESDAY , OCTOBER 3 , 1989 7:3 0 PM CITY HALL COUNCIL CHAMBERS 7600 Executive Drive COUNCIL MEMBERS: Mayor Gary Peterson, Richard Anderson, Jean Harris, Patricia Pidcock, and Douglas Tenpas CITY COUNCIL STAFF: City Manager Carl J. Jullie, Assistant to the City Manager Craig Dawson, City Attorney Roger Pauly, Director of Planning Chris Enger, Director of Parks, Recreation & Natural Resources Robert Lambert, Director of Public Works Eugene A. Dietz, and Recording Secretary Deb Edlund PLEDGE OF ALLEGIANCE ROLL CALL: All members present. I. APPROVAL OF AGENDA AND OTHER ITEMS OEBUSINESS MOTION: 1 Harris moved, seconded by Pidcock to approve the Agenda as published. Motion carried unanimously. II. MINUTES A. Minutes of the City Coupcil Meeting held Tugsday. September 12, 1989 MOTION: Harris moved, seconded by Pidcock to approve the minutes of the September 12 , 1989 Special Assessment Hearing as published and amended. CORRECTION Page 9, Paragraph 2, Sentence 2 , should read: was unique because it had not received that same benefit. Motion carried 4-0-1. Peterson abstained. III. OON,SENT CALENDAR A. Eden Prairie Sogce C u.2 ProRosa l �. B. Policy on Cancellation of RefUnds City Council Minutes 2 October 3 , 1989 C. Mini Rinks/Skating Rinks D. Willow Park Improvements E. Community Center Membership Policy Change Request F. 2nd Reading of Ordinance No 34-89 to Regulate Snowmobile Operations G. Lease for Winter Storage of Public Works and Parks Maintenance Equipment H. Grading Permit for Proposed Exipansion of Jubilee Church I . Martin Luther King. Jr. Celebration J. Finai, Agproval for S5. 985. 000 for Multi-Family Housing � Donds fgr Prairie Villa Villagg apartments (Sterling Ponds) Resolution No. 89-21.3 K. Clerk's License List 3 NOTION Harris moved, seconded by Pidcock to approve Items A through K on the Consent Calendar as published. a ITEM C Pidcock believedthat the skating rinks were a positive activity for children and would like to see a few more rinks opened. Peterson stated that the usage of the rinks would be monitored. Lambert added that the two rinks which had been petitioned would be maintained and monitored this season. Pidcock stated that the City had been criticized because it did not maintain the facilities as well for the children as it did for the adult activities. Pidcock added that she would like to see more done for the youth and especially to reconsider opening the two rinks which had been eliminated. Anderson stated that the City had tried the mini-rinks in the past with little success. Anderson concurred with Staff's statements that maintenance was difficult. Peterson believed that Staff was making a sincere effort to improve the facilities available and would continue to monitor them. Peterson requested that the City Council and the Parks, Recreation, & Natural Resources Commission be given reports of the monitoring process. Pidcock asked if the other two rinks could be done on a trial basis. Lambert replied that the 3rd rink at Outlot C of Amsden Hills Second Addition had not been petitioned, City Council Minutes 3 October 3 , 1989 ( was not on City property, and unless the neighbors did petition for the project Staff recommended that this project not be done. Pidcock stated that residents would not think about the rink until winter was actually here. Tenpas stated that the neighbors did understand the problem about getting the maintenance vehicles to the water. Motion to approve the Consent Calendar carried unanimously. IV. PUBLIC HEARINGS a A. SPECIAL ASSESSMENT NEARING (Continues from September 12, tt 1989) Resolution No. 89-199 - Approving 1989 Special Assessment Rolls i a Dietz referred to Exhibit A, Item I.C. 52-132 , which showed that the two vacant lots on Franlo Road had the lateral sewer and water assessments deferred with interest r as discussed at the September 12, 1989 meeting. w Dietz reported that Item I .C_ 52-147 had originally had 3 items continued. It was later determined that the first two parcels noted on the revisions had been erroneously classified as homesteaded properties. Mr. Brown and Mr. Wendt had indicated they believed the front footage calculations prepared by Staff to be incorrect; however, r upon further investigation it was determined that Staff's calculations were correct as originally proposed. Dietz reported that the front footage for the Wagner property had been recalculated. The original deferment amount was approximately $12 , 000. The amount to be deferred had been reduced to $6,149. Dietz stated that the reduction in the assessment was calculated based on the fact that if the right-of-way for Scenic Heights Road were extended across the Wagner property the northern portion, or approximately 324 feet, would not receive benefit and, therefore, should not be assessed. Based on this figure the total frontage to be assessed would be 500 feet, which reduced the total assessment from the original amount of $15, 590. 08 to the current figure of $9, 460. 00. Dietz stated that this proposal had been presented to Mr. Wagner on the telephone. Steve Wagner, 8430 Eden Prairie Road, stated that until the past Friday, Staff had not notified him of the proposal . Wagner requested that this item be continued for an additional 30 days to allow him adequate time to thoroughly investigate the legalities of this issue. Wagner believed that the assessment was still too high and, based on conversations and a recommendation from the d City council Minutes 4 October 3 , 1989 ( City of Minnetonka, wanted time to consider having an outside appraiser evaluate this item at a cost shared with the City. Peterson asked if the City were under any time constraints. Dietz replied that the assessments had to be filed with Hennepin County by October 9, 1989 . Dietz added that Mr. Wagner had been given the figures on Friday. Wagner replied that he had not been given exact figures and had only been told on Friday that the assessment would be prorated. Dietz believed that the original $15, 000 assessment would be of benefit to the property. He added that without utilities the property was farmland. Property in this area was currently selling for approximately $40, 000 per acre. Dietz further believed that Staff had made a good faith effort to reach a compromise on this item and did not believe that another 30 days would prove beneficial in reaching an agreement. Dietz noted that the appeal fi process was an option for Mr. Wagner. Dietz believed that the assessment of $9,460 was a reasonable assessment for this parcel . Pidcock asked for an opinion from the City Attorney. City Attorney Pauly replied that the appeal process was an option for Mr. Wagner and that the appeal should be filed within 30 days of this hearing. Harris asked if within the 30-day period the City could consider this item further and make corrections if so determined. Pauly replied that the assessments would be certified as adopted by the City. He added that the landowner can preserve the rights for review by a court appeal. Pauly stated that this would not preclude t:ie City from determining if errors had been made. Peterson stated that the Council had to either approve or adjust the assessment amounts at this meeting in order to be certified for the 1989 assessment roll . Tenpas stated that this item could be held over for the 1990 assessment roll . Pauly noted that interest would not begin until January 1, 1991 if the assessment were held over until 1990. Tenpas stated that he appreciated the Staff's efforts to reach a compromise; however, he was unclear on the benefit or detriment to the property. Tenpas recommended further review during a 30-day interim. Dietz stated that if the assessment were approved and certified, the City would at least have something on C record; if the assessment was not certified by October 9, 1989, nothing could be assessed until 1990. Dietz added that a correction could be made if an error was found City Council Minutes 5 October 3 , 1989 after the assessment was certif ied, but if no assessment was certified at this time, the assessment could not be made until 1990. Wagner believed that it would only be common courtesy for the City to allow him adequate time to determine if this assessment amount was a fair amount and time to get a second opinion. Wagner added that he did not wish to get x into a legal battle with the City. R Dietz stated that the assessment figures had not changed by more than $1,000 from the time of the feasibility hearing which was held last fall. Jullie asked Pauly that if Mr. Wagner had an appraisal done prior to the 30-day limit for an appeal, could a correction be made to the assessment if necessary. Pauly replied yes. Anderson believed that because Staff agreed that another 30 days would actually be available to Wagner to substantiate the need for a correction he would support approval of the assessment as proposed. Dietz reported that I.C. 52-149 had a correction: the Nelsons had connected to the watermain and, therefore, the { deferment was changed from the deferment column for 1995 to be assessed in 1990. Dietz stated that on the supplement page under trunk, sewer and water, both the Michabee and the Nelson properties should be deferred with interest until development. Dietz stated that under lateral exclusion, the Northwest Racquet Club had purchased the property and the exclusion was being picked up by the club. There were no further comments from the audience. JJOTIQN: Anderson moved, seconded by Harris to close the public hearing and adopt Resolution No. 89-199 approving the 1989 Special Assessment Rolls to include Staff recommendations. Tenpas asked Pauly for clarification that Wagner would have 30 days to try to justify a modification to the assessment roll before beginning the appeal process. Pauly replied that this was correct. Wagner requested that he be provided with a copy of the information which had been provided to the Council regarding the assessment. Motion carried 4-0-1 . Peterson abstained. City Council Minutes 6 October 3 , 1989 ! B. SHORES OF MITCHELL LAKE by Mr. USHOT. Request for Zoning District Change from Rural and R1-22 to R1-13 . 5 on 94 .8 acres with Shoreland variances to be reviewed by the Board of Appeals, Preliminary Platting of 94 . 8 acres into 175 single-family lots, 3 outlots, and road right-of-way, Environmental Assessment Worksheet Review on 94.8 acres as part of a 450-acre phased action E.A.W for construction of residential development. Location: South of State Highway #5 and west of Mitchell Lake. (Ordinance No. 37- 89 - Rezoning; Resolution No. 89-210 - Preliminary Plat; Resolution No. 89-211 - Finding of No Significant Impact for EAW) Jullie reported that notice of the public hearing had been mailed to 18 surrounding property owners and published in � the September 20, 1989 issue of the Eden Prairie News. Jack Buxel, representing the proponent, presented the plans for the 95-acre site and the topography of the property. The tree inventory showed that the vast majority of the property was open, with the trees being clustered in a stand and along the knoll. There would be 3 basic market types of homes with the most expensive homes being developed along the lakeshore, then a tier of lots approximately 15, 000 square feet, and the third tier approximately 13, 500 square feet. A trail would be provided to connect the City's trail systems. The south point, 100 feet of lakeshore, and 1/2 of the north knoll would be dedicated to the City. This dedication on the south bay would complete the park for the City and would allow the City to control the bay area. This dedication would also allow for preservation of the trees and the knoll. Two lots would share a driveway to save additional trees. The proposed tree loss would be 22%. The replacement of the trees would occur mainly along Highway 5 along with a sound abatement berm. The total project consisted of 174 lots. The lakeshore lots did not meet the minimum shoreline ordinance of 40, 000 square feet; however, the proponent believed that because of the dedication of the property to the City and the remainder of the lakeshore property, it would meet the objective of the ordinance. Buxel said that out of the 5000 feet of lakeshore, approximately 2600 feet would be dedicated to the City. A connection to Dell Road would also be made. Lee Johnson, representing the proponent, stated that he did not agree with the City on two points. Johnson believed that the sequential staging of development should be modified. He believed that the development construction work should be able to be done concurrently with the highway construction. Johnson did not believe that the Final Plat was the proper place to have the (� controls for development. City Council Minutes 7 October 3, 1989 Enger reported that this item was reviewed by the Planning Commission on June 12 , July 10, August 14 , and finally on September 11, 1989 . The plans had gone through revisions during this process. The Planning Commission recommended approval of the request for zoning district change with shoreland variances to be reviewed by the Board of Appeals and Adjustments based on the plans submitted September 11, 1989. The additions to the Staff Report recommendations were that: 1 . The design of the fence to be reviewed by and meet EPA standards. 2 . The developer should work with City Staff as to the design and the aesthetics of the fence. 3 . The maintenance of the temporary road shall be the responsibility of the developer. z The Planning Commission approved the proposal with a 4-0-0 vote. Enger reviewed the main points presented in a summary memo from Senior Planner Mike Franzen dated September 28, 1989 . Enger emphasized that according to the Southwest Area Study no more than 100 units would be allocated for this project and 250 units total for the entire lA Section. Enger stated Staff recommended that a fair way to determine the number of units for each developer was to prorate the number of units based on a per acreage allotment at approximately 1 unit per acre. Based on this calculation US Homes which had 96 acres could be allocated 100 units until Dell Road was completed. The 1st Phase would have 55 units and the 2nd Phase would consist of 45 units when the temporary connection was made to Bell Road; however, because Dell Road was not extended into this area presently, it would require that Dell Road construction be completed. Enger noted that cooperation was required of the developer for the frontage road construction to connect to Highway 5. This would require that some grading would be necessary within the project prior to the completion of Highway 5 and the intersection of Dell Road . Enger stated that Staff was concerned about the control the City would have if based on occupancy as Johnson recommended as to who the City would deal with regarding Final Plats, the builders or homeowners. The builders and homeowners would need to be made aware of the restrictions on the parcels. Enger stated that if a special document could be prepared and the number of units was limited, this could be a workable situation for US Homes. The final details for this recommendation had not been worked out at this time. Lambert reported that the major issues for this project were trees and trails. Lambert viewed the plan positively as it provided an extension to Miller Park, preserved a City Council Minutes 8 October 3, 1989 significant number of trees, and provided an 8-foot trail connection. The Parks, Recreation, and Natural Resources Commission recommended approval unanimously at its September 18, 1989 meeting based on the September 15, 1989 Staff Report. Tenpas asked when Dell Road would be completed. Dietz replied that the bid opening was scheduled for March 1990 and that the intersection could be completed in December 1990. Tenpas then asked when the loop with Scenic Heights Road would be completed. Dietz replied that County Road 4 needed to be improved before Dell Road was completed. Dietz added that Hennepin County was reluctant to make any commitments on County Road 4 . Tenpas stated that t?iis could near: that the completion of Dell Road could be 4 to 5 years away. Dietz replied ;des. Tenpas asked if a temporary outlet could be made to County Road 4. Dietz replied that if the marketing of these homes progressed as expected, the City would probably be pressured to do something prior to 1993 . Harris asked for further details on the recorded document to be filed on these lots. Enger replied that the proponent and Staff had discussed the possibility of construction of a few units with special recorded documents because additional parties other than the City and the developer could be involved in the Final Plat process. These documents would allow for the construction of model homes and would also apply to the subdivision proposed by Tandem Properties. Enger noted that Staff recommended that these special recorded documents be allowed for no more than 10 units. Harris was concerned about this because more than one developer was proposing development in this area at the same time. Enger recommended that no occupancy permits be issued until significant completion of the intersection of Highway 5 and County Road 4 . Peterson was concerned about control by certificates of occupancy because residents had been known to move into homes without these certificates. Peterson was concerned that an orderly, staged development in the best interest of the City had not been agreed upon at this time. Johnson replied that he believed that an agreement was close to being reached. Johnson added that an interim proposal was to install a turn lane onto Highway 5 at Dell Road prior to the full upgrading of the intersection. Johnson recommended that no building permits be allowed until completion of the turn lane and that the permits be limited to 10 until the intersection was totally upgraded, Johnson requested that 55 lots be platted with 10 building r permits being issued, but no occupancy permits issued. Peterson was concerned that once 55 lots were final platted, what control the City would have to limit the P City Council Minutes 9 October 3 , 1989 amount of construction. Peterson noted that this area was special because of the contingency for improvements prior to development. Johnson replied that occupancy could not take place prior to utilities and paved streets being provided. Enger stated that an agreement was close. The issue was actually the degree of control desired by the City. Enger recommended approval of the preliminary plat of all lots, and approval of a final plat with 55 lots but a covenant with the final plat to include construction on only 10 lots. A brief recess was held to allow Staff and the proponent a arrive at an acceptable solution regarding platting and permits. Enger reported that the consensus was that a Final Plat be granted for 55 lots, that the Final Plat not be released by the Engineering Department to Hennepin County until the proponent had determined which 10 lots would be sold to the builders, and the restrictive covenants which would A preclude building permits from being issued until the Dell Road intersection had been completed on the remaining 45 y lots. Enger added that no occupancy permits would be issued for the 10 lots until the Dell Road intersection was completed. Pidcock asked what would happen if Dell Road were not completed as anticipated. Enger replied that only the Dell Road intersection was being considered. Enger. added that the risk was that of the developer and if the improvements were put off indefinitely the developer would need to return to the City Council. Randy Capeski, Box 243, Afton, Minnesota, stated that he owned property adjacent to this development. Capeski asked for clarification on the alignment of Dell Road and who would be responsible for the construction. Dietz explained the location of the alignment for Dell Road and added that the first section of construction was the responsibility of MnDOT; the City of Eden Prairie would be responsible for the next section, for which a fea- '.bility study was being prepared by Staff. Dietz clarified that the construction would not go through Capeski's property. Dietz recommended that Capeski come into the City offices and discuss this further with Staff. Jim Ostenson, partner of Tandem Properties, stated that he was in agreement with the proposal this evening and the allocation of the building permits. Ostenson stated that he was concerned about the future development of this whole area and the timing of the development. He added that the land can only be partially developed, yet sewer i 1 City Council Minutes 10 October 3, 1989 i and water would be installed and assessments would begin. All of the landowners had petitioned the City to have the improvements made. Ostenson was concerned that the frontage road would be constructed, the maximum number of units developed, and the remainder of the property would be sitting with assessments and taxes accumulating and not be allowed to develop. Ostenson stated that he would like be allowed to develop. Ostenson stated that he would like to see the City look at alternative ways to connect Scenic Heights Road and Dell Road. Ostenson believed that this portion of Eden Prairie was being held hostage by other government bodies. There were no further comments from the audience. MOTION: Harris moved, seconded by Pidcock to close the Public Hearing and approve lst Reading of Ordinance No. 37-89 for Rezoning. Motion carried unanimously. MOTION: Harris moved, seconded by Pidcock to adopt Resolution No. 89-210 for Preliminary Plat approval . Motion carried 1 unanimously. XQJIO Harris moved, seconded by Pidcock to adopt Resolution No. 89-211 Finding No Significant Impact for the Environmental Assessment Worksheet and direct Staff to prepare a Development Agreement incorporating Commission and Staff recommendations, that the Final Plat be approved for 55 lots, that the recording of the lots not be released by the Engineering Department until the proponent determined which 10 lots would be sold to builders, that restrictive covenants be placed on the remaining 45 lots until the completion of the intersection of Highway 5 and Dell Road, and that no occupancy permits be issued for the 10 lots until completion of the intersection of Highway 5 and Dell Road. Motion carried unanimously. Peterson commented that the City appreciated the proponents' dedication of the property for the parks and trails to the City and the cooperation of the proponent. C. SCHBQEE,S PUD by BDD Partnership. Request for Comprehensive Guide Plan Amendment for the relocation of the Metropolitan Urban Service Area (MUSA) Line to include an additional 32 .2 acres of property, Planned Unit Development Concept Review on 129.8 acres, Planned Unit Development District Review on 129.8 acres with waivers, Zoning District Change from Rural to R1-9. 5 on 24 acres and from Rural to R1-13. 5 on 8 . 2 acres, Preliminary City Council Minutes 11 October 3 , 1989 Platting of 129.8 acres into 77 single-family lots, 3 outlots, and road right-of-way, Environmental Assessment Worksheet Review on 129 .8 acres as part of a 450-acre phased action E.A.W. for construction of a residential development. Location: North of Rice Marsh Lake, just east of the Chanhassen-Eden Prairie City limits. (Resolution No. 89-215 - Comprehensive Guide Plan Amendment; Resolution No. 89-216 - PUD Concept for Schroers PUD; Ordinance No. 40-89-PUD-8-89 - PUD District and Rezoning; OHSchroers PUD; Ordinance No. 40-89-PUD-8-89 and Rezoning; Resolution No. 89-217 - Preliminary Play:; Resolution No. 89-218 - EAW Finding of No Significant Impact) Jullie reported that official notice of the public hearing was nailed to 7 property owners and published in the September 27, 1989 issue of the Eden Prairie News. Don Patton, representing the proponent, stated that the proposal had been reviewed by the Planning Commission at four separate meetings and also reviewed by the Parks, Recreation & Natural Resources Commission. Patton said that the project was very complex and that the plans had been revised in accordance with the recommendations of Staff and the Planning Commission. Patton believed that this project would be important to the City for the location of Dell Road and stated that a portion of this t parcel would be dedicated for the construction of Dell Road. Patton stated that the Zoning District requests had been changed for the R1-9. 5 to 13. 9 acres with 40 lots and the R1-13.5 zoning to 18.9 acres with 40 lots. Because of the above-referenced changes the Preliminary Plat request was for a total of 8O lots, not 76 lots as originally proposed. Patton- presented a brief history of the location of the MUSA Line. He stated that the proponent . could have requested to develop areas within the MUSA Line; however, it had chosen to develop the property outside the MUSA Line , which was adjacent to Dell Road. Mike Black, representing the proponent, presented the plan details for the project. The proponent would be requesting a variance from the Shoreland Ordinance for smaller lot frontages along Rice Marsh Lake, and proposed to offer in trade the dedication of Outlot B to the City for park land and a public trail system. Outlot A would be platted for future development. Berming along the northern boundary would be approximately 6 feet high to provide a transition between the industrial area and the single-family units and the berms along Dell Road would be approximately 4 to 8 feet high to provide a buffer for the single-family units. Black stated that the tree inventory had been completed for Phase I . The depth of the lots along the Rice Marsh lakeshore had been increased based on the recommendation from the Planning Commission. Black City Council Minutes 12 October 3 , 1989 noted that the berming issue adjacent to DataSery was critical and the details were yet to be determined. Enger reported that the Planning Commission had reviewed this item at the June 12, July 10, August 14 , and September 11, 1989 meetings. The Planning Commission had voted for denial of the project at the September 11, 1989 meeting with a 4-0 vote. Enger noted that the majority of discussion centered on the MUSA Line change because the Planning Commission believed that without an expansion of the MUSA Line, the development could not proceed as proposed. The Planning Commission did make suggestions on all of the requests so that if the City Council decided to approve the MUSA Line change that the project could proceed with the zoning and platting requests. The State Law only required that the Planning Commission had reviewed the zoning and platting issues in a Public Hearing process and did not require that positive action be taken. Enger reviewed the reasons for denial which were outlined in the September 11, 1989 Planning Commission minutes. Enger reviewed the possible MUSA Line issues which had been outlined in the Planning Staff V Report dated September 8; 1989 . Enger stated that the City needed the cooperation of the Tandem and the US Home projects to construct the frontage road in this area. Enger noted that the recommendation of Staff and the Southwest Area Study regarding phasing of this project did not agree with that which was being proposed by the proponent at this time. Dick Feerick, representing the proponent, stated that Mr. Schroers and his two sons were available to answer questions. Feerick stated that this was an inf ill piece of property. Feerick said that the Metropolitan Council supported the development of Highway 212 and Highway 5 and that Dell Road would serve as a collector road between these two major roads. Feerick believed that Metropolitan Council would look favorably on a minor amendment for under 40 acres, which was what would be presented. Feerick believed that Dell Road was needed for the logical development of this area. Feerick noted that to be allowed to continue working with the Metropolitan Council the proponent needed a supportive decision from the City of Eden Prairie. He added that a private property owner could not go to Metropolitan Council on its own without the support of the City. Feerick believed that the phasing issues could be worked out with Staff. Lambert reported than the Parks, Recreation, & Natural Resources Commission did not make a recommendation regarding the MUSA Line expansion. Peterson asked the proponent to address the issue of possible further requests for expansion of the MUSA Line. i 9 City Council Minutes 13 October 3, 1989 Patton presented the Council with a construction schedule_ Patton added that the proponent would like to begin construction in 1990. This 32 .8 acres of property would be developed first and then the Jacques/Delegard parcel . Peterson asked what was proposed for development further to the west. Patton replied that the proponent would return to the Council at a later date with additional phases. Feerick stated that as a logical sequence of development would need to be substantiated to the Metropolitan Council, an additional request for 30 acres could be done in 1992 and another 30 acres in 1995 . Feerick added that the: City Staff and Council would be in control of further phasing. j Tenpas believed that other developers within the MUSA Line would be handicapped if this proposal was approved due to the restricted number of homes allowed. Ostenson, representing Tandem Properties, replied that Tandem Properties would be the first development along Highway 5. Ostenson added that it was important to have the cooperation of all the land owners in this area to make the road, water, and sewer connections. Ostenson believed that if Dell Road were to be extended that it would only be fair to allow development of this property because of assessments, whether it was inside or outside of the MUSA Line. !! S t. a Peterson asked what the current inventory was for developable lots and how the addition of these lots would affect development within the MUSA Line. Enger replied that Staff suggested that a development rights trade be negotiated so that the proponent would forego its right to develop its land holdings in Section 1A of the Southwest Area Study for the right to develop this 32. 8-acre parcel. The cap for unit development in this area is 250 units at this time. Peterson asked the proponent if this type of trade would be acceptable. Feerick replied yes. Anderson asked the exact location of the lots to be involved in the trade. Enger replied that the lots were to be within Section lA of the Southwest Area Study. Anderson asked if a letter of agreement for the land trade was available at this time. Enger replied that a letter from the attorney representing the mortgagees only stated that they were considering the request. Pidcock questioned if it would not be appropriate to have a letter of agreement regarding a 16-acre land trade in hand before taking action on this proposal. Feerick replied that it would helpful in dealing with the Metropolitan Council if the City's position was known on the issue of the MUSA Line Change first. 6 City Council Minutes 14 October 3, 1989 Peterson believed that the benefits for a MUSA Line change as noted in the Staff Report were significant. Peterson asked if there could be precedent-setting issues that the council was not aware of. Enger believed that all the issues were addressed in the Staff Report. T°enpas believed that this was a unique parcel in that the City' s trunk sewer line was outside the MUSA. Anderson asked how much extra traffic would be added to Highway 5 by this proposal . Enger replied approximately 800 trips. Anderson then asked if there would be any adverse affect for the water and sewer lines. Dietz R replied that the waternain would not be available until. August 1990. Anderson asked if this would put an extra strain on the City. Dietz replied no, not once the Highway 5 project was completed. Harris believed that a sufficient case could be presented to the Metropolitan Council . Harris added that the information regarding the 16-acre trade should be included in the presentation to the Metropolitan Council . Peterson stated that the proponent would have to impress upon the Metropolitan Council the importance of this trade. Peterson believed that the risk would be for that ( of the proponent. Peterson added that he would like more assurance that the City would not be pressured next year to extend the WA SA Line again or to increase the amount of lots allowed for development. Patton replied that the phasing after this proposal would be to develop within the MUSA Line. Tenpas believed that the MUSA Line should match the trunk sewer line. Peterson stated that this would represent too large of an amendment and would probably not be approved by the Metropolitan Council and secondly that the City would lose control regarding requests for further development. Mr. Schroers, 8080 184th Avenue West, explained the history of the MUSA Line from his involvement starting in 1946. Schroers believed that since the MUSA Line had been changed once it should be able to be changed again. Anderson asked the price range of the homes. Patton replied that the homes would be constructed by New Concept Homes and would be priced between $125, 000 and $200 ,000. Anderson was concerned about the size of the home on a R1- 9 . 5 lot. Anderson believed that a $12 5, 000 home on a Ri- 9 . 5 lot defeated the purpose of R1-9. 5 zoning. Anderson further believed that it was important to provide affordable housing. City Council Minutes 15 October 3 , 1989 Peterson asked how many square feet could be built in a house for $125, 000. Bob Bjorkland replied that the houses would be approximately 1300 to 1600 square feet in floor space. He added that it would be difficult to construct a quality home priced below $125, 000 on these lots. Tenpas stated that the land cost factor for Eden Prairie needed to be taken into consideration in the price range of the homes. Patton stated that the proponent had been requested to install sidewalks, which increased the price of the lots. Patton added that if the City's requirements were lessened the cost of the lots could be reduced. Peterson stated that in Eden Prairie a $125, 000 home was a starter home. He added that 1300 to 1600 square feet was not a large home. Anderson stated that he would like to see a footprint plan for the houses. Anderson was concerned that this section of the City would be concentrated with. R1-9. 5 housing. He added that the R1-9.5 zoning seemed to be concentrated in the western and northern sections of the City. Anderson believed that careful placement of the R1-9.5 zoning needed to take place in order to provide a good mix. Peterson asked Enger if the Planning Commission would like t review o re ze the plans again if the MUSH Line change were approved by the Council. Enger replied no. Randy Capeski, Box 243 , Afton, believed that the WJSA Line expansion would not be in best interest of the City. Capeski was concerned about the increase in traffic. He believed that this should be continued until it was determined exactly what would be done with Dell Road. Capeski was concerned about who represented the private landowners in this area. Peterson recommended that Capeski meet with Staff to discuss these issues further. George Bentley, 1080D Fieldcrest Road, believed that in the long term the MUSA Line should be moved all the way to the City limits; however, this was not appropriate at this time. He believed that the MUSA Line was an arbitrary line. Bentley believed that Dell Road needed to be constructed and assessments were necessary to accomplish this. He added that upgrading County Road 4 needed to be addressed as soon as possible and that the City needed to take a strong position ; however, the entire development of this area should not be contingent on the upgrading of County Road 4 . Bentley commented that regarding the R1- 9. 5 zoning issue, many of the lots in the Preserve area were zoned R1-13 .5 but through density transfers were developed as R1-9. 5 or less. 3 i 4 City Council Minutes 16 October 3 , 1989 Lambert reported that the Parks, Recreation & Natural Resources Commission had discussed the possibility of a trail along the lakeshore and accepting land in lieu of park fees. He added that the City would obtain permits needed to construction are 8' asphalt trail. Lambert believed that this was a valuable piece of property for Cash Park Fees. The proponent would be getting credit for the land dedication to the City for the trail by having the lot frontage sizes reduced from the requirement of the Shoreland Ordinance. The Parks, Recreation & Natural Resources Commission recommended approval of the development proposal with the condition that the Cash Park Fees be reduced by $100 at the park fee in effect at the time of building permit issuance as a credit for the strip of land for trails. Enger stated that the proponent still needed to provide Staff with information on a number of items, including a revised buffer plan for the lots in the northern section and an architectural variety plan for the RI-9.5 area. Enger noted that it was important that the proponent adhere to the phasing schedule outlined in the Staff Report. Enger added that the Council needed to consider if an 80 lot trade would be acceptable for the Southwest Area Study. He noted that the Planning Commission in general had concurred that a full trade as originally proposed by the proponent would be favorable, and further that the case presented by the proponent to the Metropolitan Council should be able to support a full 32- acre trade. Enger stated that this development would set a precedent for development of the remainder of the Schroers property. Peterson asked if the three remaining issues could be resolved during a short break. Enger replied that the proponent had agreed to provide the architectural variety plan and revised buffer plan; however, the remaining issue was the phasing schedule. The proponent currently planned to request 10 occupancy permits by the fall of 1990; however, according to the Southwest Area Study, no final platting of lots was to occur prior to the completion of improvements of the intersection of Trunk Highway #5 and County Road 44 , which was not expected to be completed until late 1990 . Pidcock stated that the Council had just approved the issuance of 10 occupancy permits for the Shores of Mitchell Lake Project. Enger replied that what had been approved was the issuance of 10 building permits for the full of 1990, with no occupancy permits issued prior to the completion of the Dell Road intersection. Enger noted that this accelerated program had been approved because of the need for the frontage road. City Council Minutes 17 October 3, 1989 Tenpas asked if this proposal would accelerate the extension of Dell Road. Enger replied that it accelerated the need for extension of Dell Road further south than would otherwise be necessary. Enger added that with or without this proposal Dell Road would be extended south of the US Homes development. Dietz stated that Dell Road needed to be a City project in this area because the right-of-way was on other private property. Dietz added that the schedule for construction would be part of the feasibility study. A brief recess was taken for Staff and the proponent to discuss further the phasing schedule. Enger reported that the proponent had agreed to accept a similar plan as US Homes in that no occupancy permits would be issued, 10 building permits would be issued, and final plat would not be released until restrictive covenants had been filed on the balance of 70 lots. He added that this would further be contingent on approval of the MUSA Line change by the Metropolitan Council. There were no further comments from the audience. MOT ION: Pidcock moved, seconded by Harris to close the Public Hearing and adopt Resolution No. 89-215 for Comprehensive Guide Plan Amendment. Motion carried unanimously. MOTION: Pidcock moved, seconded by Harris to adopt Resolution No. 89-216 for PUD Concept for Schroers PUD. Motion carried unanimously. MOTION Pidcock moved, seconded by Harris to approve 1st Reading of Ordinance No. 40-89-PUD-8-89 for PUD District and Rezoning. Motion carried unanimously. NOTION Pidcock moved, seconded by Harris to adopt Resolution No. 89-217 for Preliminary Plat approval . Motion carried unanimously. MOTION: Pidcock moved, seconded by Harris to adopt Resolution No. 89-218 for the Environmental Assessment Worksheet Finding of No Significant Impact and direct Staff to prepare a Development Agreement incorporating Staff recommendations 5 City Council Minutes 18 October 3 , 1989 and further conditions that no occupancy permits be issued until 1991, that 10 building permits may be issued in 1990, the balance of the permits to be issued upon completion of the intersection at Dell Road and County Road 5. Enger asked the Council if it chose to recommend support of the 80 lot trade as outlined in the Staf f Report dated September 8, 1989, Item 4 . The Council concurred that this recommendation should become part of the developers agreement. Motion carried unanimously. a D. NEW HORIZON CHILD CARE by New Horizon Child Care. Request for Zoning District Change from Rural and. Public to C-Reg- Ser on approximately 2 acres, and Site Plan Review on approximately two acres for a day care center. Location; North of Prairie Center Drive, east of Arby's restaurant. (Ordinance No. 38-89 - Rezoning) Jullie reported that notice of the Public Hearing had been mailed to 6 adjacent property owners and published in the September 20, 1989 issue of the Eden Prairie News. Mr. Peterson, representing the proponent, stated that this was a pilot project for Homart Development. The daycare center inside the mall would be moved outside and the Kids Club would be constructed inside the mall and an extensive promotion program was planned. The proponent would like to complete the project as soon as possible so that the Kids Club could be ready for this holiday season and, therefore, was requesting an early grading permit and early foundation construction permit. Enger reported that the Planning Commission had reviewed this item at its September 11, 1989 and recommended approval unanimously based on the recommendations outlined in the Staff Report. Enger stated that regarding the early grading permit and foundation work, this same proponent had requested an early permit in May 1989 and all requirements were met. Harris believed that daycare services were needed in the community. MOTION: Harris moved, seconded by Pidcock to close the Public Hearing. Motion carried unanimously. t City Council Minutes 19 October 3 , 1989 MOTION• Harris moved, seconded by Pidcock to approve 1st Reading of Ordinance No. 38-89 for rezoning; and to direct Staff to prepare a Development Agreement incorporating Commission and Staff recommendations. Motion carried unanimously. MOTION: Harris moved, seconded by Pidcock to grant an early grading and foundation permit, with the understanding that the proponent is proceeding at its own risk. Motion carried unanimously. E. TECH 10 by Hoyt Development Company. Request for Zoning District Change, from Rural to I-2 on 5 .6 acres, Preliminary Plat of 5.6 acres into one lot, Site Plan Review of 5.6 acres for construction of a 73, 367 square foot office warehouse. Location: 74th Street and Golden Triangle Drive. (Ordinance - No. 39-89 - Rezoning; z Resolution No. 89-212 - Preliminary Plat) Jullie reported that notice of this public hearing was § mailed to 6 property owners and published in the September 20, 1989 issue of the Eden Prairie News. Bob Smith, representing the proponent, presented the plans for 73 , 367 square-foot office/warehouse complex. A tenant had signed a 20 year lease agreement for the building. The potential tenant had 52 employees. 90 parking spaces would be provided with additional proof-of-parking. Mass grading would occur on the site with 479 caliper inches of trees being removed. The tree replacement would take place on both Tech 9 and Tech 10. Three loading docks would be located on the north side of the building. Berming would be placed close to the building to reduce the mass appearance. The lighting proposed would match that of the existing Technology Park projects. Because of the tenant's wish to obtain occupancy in December the proponent was requesting an early grading permit, a foundation permit, and a shell permit. The proposal was in compliance with all zoning requirements. Enger reported that this issue was reviewed by the Planning Commission at its September 11 and September 25, 1989 meetings and recommended approval of the project with a 4-0-0 vote subject to the recommendations outlined in the September 8, 1989 Staff Report. Lambert reported that the Parks, Recreation and Natural ( Resources Commission reviewed this item at its October 2, t 1989 meeting and recommended approval of the proposal unanimously. F City Council Minutes 20 October 3, 1989 Dietz reported that the proponent had a debt of approximately $30,000 to the City for the design of the creek crossing for Golden Triangle Drive and out like to have a stipulation attached to the Developer's Agreement. Smith replied that he would have to defer this item to Mr. Hoyt. Peterson replied that the issuance of early permits could be contingent on this matter being cleared up. Tenpas asked for further details on what had occurred. Dietz replied that as Vantage Companies owned the property to the north of the creek and the Hoyt Companies the property to the south, it appeared that the only way to accomplish a crossing of the creek was for this to be a City project and apply assessments. During the design phases, which were extensive, Hoyt and Vantage came to an agreement to do the project themselves. Engineering costs had been incurred and the bills had been paid by the City, and the City would like to be reimbursed. Tenpas asked why only Hoyt would be held liable for the costs: Dietz believed that monies were held in joint tenancy between Hoyt and Vantage for these costs. Dietz added that this was a petitioned project. Jullie added that there was a dispute during the design process; however, there is still a legitimate bill which needs to be addressed. Tenpas believed that the responsibility should be partly Vantage's as well as Hoyt. Dietz replied that an escrow account was established between Hoyt and Vantage. Smith stated that there was litigation in progress regarding Golden Triangle Drive and urged the Council not to allow the $30, 000 to influence a decision on this project. Peterson believed that this was an appropriate time to have the issue resolved. Tenpas asked if this would come as a complete surprise to Hoyt. Dietz replied that he had had conversations with Hoyt regarding this issue; however, he probably would be surprised that it might be a condition of approval of this project. Peterson recommended that this item be resolved prier to 2nd Reading. Anderson asked if any of the flood plain would be filled. Smith replied that a small area would require fill and that this had the approval of the Watershed District. There were no further comments from the audience. F City Council Minutes 21 October 3 , 1989 MOTION• Pidcock moved, seconded by Tenpas to close the Public Hearing and approve lst Reading of Ordinance No. 39-89 for Rezoning. Motion carried unanimously. MOTION: Pidcock moved, seconded by Anderson to adopt Resolution No. 89-212 for Preliminary Plat Approval and direct Staff to prepare a Development Agreement incorporating Commission and Staff recommendations and Council conditions that prior to 2nd Reading an agreement be reached regarding the resolution of the $30, 000 debt. Tenpas asked City Attorney Pauly if this was a legitimate action. Pauly replied that he did not know enough about the details to give an answer at this time. Peterson asked if the wording of the motion was acceptable. Pauly replied yes. Motion carried unanimously. V. PAYMENT OF CLAIMS MOTION: Pidcock moved seconded b Barris y to approve Payment of Claims No. 54330 through No. 5467 1. ROLL CALL VOTE: Anderson, Harris, Pidcock, Tenpas, and Peterson all voting "AYE". VI. ORDINANCES & RESOLUTIONS A. RED SOCK SHORES by Scenic Heights Investment. 2nd Reading of Ordinance No. 13-89, Zoning District Change from R1-22 to R1-13 . 5 on 22.97 acres; Approval of Developer's Agreement for Red Rock Shores; Approval of Land .Alteration Permit for Red Rock Shores; and. Adoption of Resolution No. 89-214, Authorizing Summary of Ordinance No. 13-89 and Ordering Publication of Said Summary. 22. 97 acres into 20 single family lots, two outlots, and road right-of-way . Location: East of County Road #4, north and east of Lake Shore Drive. (Ordinance No. 13-89 - Rezoning; Resolution No. 89-214 - Authorizing Summary and Publication) Jullie reported that this was a 2nd Reading for the Red Rock Shores proposal . He added that the proponent had signed the Developer's Agreement and Staff would recommend approval . City Attorney Pauly stated that the proponent had signed the agreement; however, there was a recommended change to Item 1 of the Developer's Agreement. The paragraph should read: "Developer shall develop the property in City council Minutes 22 October 3 , 1989 conformance with the materials revised and dated June 15, 1989, reviewed and approved by the City Council on June 20, 1989, and attached hereto as Exhibit B, subject to such changes and modification as provided herein and further subject to and as modified by the provisions of a land alteration permit relating to the property. " Pauly noted that both Item VI.A and B. should be considered together. The materials presented in the Council package related to the Developer's Agreement, the 2nd Reading of the Rezoning Ordinance and Resolution for Final Plat approval, and the approval of a land alteration permit. Pauly believed that the proponent was in agreement with the City regarding the Developer's Agreement and the rezoning and final plat items; however, the land alteration permit had been signed with two sections stricken. The sections stricken were Section 7 which related to the tree replacement and the last paragraph of Section 9, which related to security for the trees addressed in Section 7. Pauly stated that the proponent believed that the City did not have the authority to impose the requirement that the trees be replaced on the property, and if the City did have the r authority to require the replacement of the trees, it did not have the authority in respect to the building pads as opposed to the streets and utilities. George Hoff, attorney representing the proponent, stated that at the last review of this project by the Council, . two issues were discussed: zoning and subdivision a approval . The zoning was approved without conditions and the subdivision approval was adopted subject to land swaps being arranged and a land alteration permit being obtained subject to the City's tree policy. The proponent received a Developer's Agreement and signed that agreement without reservation with the exception of one typographical error. The signing of the agreement was consistent with what the Council had directed. There were no impediments based on the record before the Council todate in respect to the rezoning that did not now have R1-22 zoning. Hoff stated that the only issue which remained unresolved was the Land Alteration Permit. The proponent had excised Section 7 , which parroted the tree policy of the City (which was not in ordinance form) . Hoff understood the land alteration permit to prescribe that the proponent would in good faith perform all grading and restoration of the site, would post an $11,000 bond, and would not damage any trees outside of the construction zone. Hoff stated that City Attorney Pauly was correct that it was the proponent's position that the City was without authority to impose the tree policy through the land alteration permit. The standards of judgment of the land alteration permit and on which a denial could be based included City Council Minutes 23 October 3 , 1989 whether a safety risk were present, undue destruction of vegetation occurred, proper methods for restoration were not used, and the land was not zoned for proper use. Hoff noted that no safety risk was present, additional conditions were agreed to limit the amount of construction traffic in the area, and the property was zoned for appropriate use. Hoff noted that half of the property was already zoned R1-22 . Hoff believed that the. Land Alteration Permit's purpose was to cover regulations for land alteration for development reasons. The Land Alteration Permit stated that destruction of vegetation outside the construction area was not permitted and would be considered undue destruction of vegetation; Hoff added that the proponent agreed with this condition. Hoff said that as he had previously discussed with Staff and the Council, he did not believe that the City had the authority to enforce the Tree Replacement Policy based on State Statue #462 . 358, which stated the sole authority for subdivision regulations. The Tree Replacement Policy was not in ordinance form at this time. Hoff requested that the Council approve the rezoning based upon the execution and submission of the Developer's Agreement as developed by Staff, executed by the proponent, and tendered to City Attorney Pauly; that the Land Alteration Permit be approved as amended by the proponent with the exclusion of Section T referencing the Tree Policy; and that the Final Plat be approved in its present form. Dietz reported that the grading plan submitted by the proponent dated May 11, 1989 did not show the Strawberry Hills portion of the subdivision, the plan did show some of the grading necessary on the individual lots and an asterisk with a notation that stated that initial grading on lots pads 1 through 6, Block 2, and 1 and 2, Block 3, would be graded to allow for custom homes, street right- of-way to be graded only. A new grading plan was submitted for Council review at the June 20, 1989 meeting, which depicted the Strawberry Hill subdivision, some of Red Rock Shore Estates, and removed the grading on the individual lot pads. Staff understood that the proponent did not propose to do the initial grading on the lot pads; however, in all of the other projects to date a grading plan is submitted and approved which shows the ultimate grading of the site, such that Staff would have a master plan of how the development would occur. The Land Alteration Permit makes reference to both the June 23, 1989 and the May 11 , 1989 plans. Staff was asking that the proponent submit as part of the Land Altowratior. Fermis an overall grading plan, which would be a Master Plan as to how the land would be ultimately developed. The addition of language to the Developer's Agreement was City Council Minutes 24 October 3 , 1989 intended to recognize that the grading plan dated June 15, 1989 was not the ultimate plan for the site and that a master plan would be required. Pauly asked Dietz how Staff determined the grading on individual lots. Dietz replied that when a building permit was requested, Staff reviewed the permit, which included a lot survey and grading plan, for conformance to the master grading plan. Pauly then asked if there were separate grading plans issued for individual lots. Dietz replied no, the grading plan for the overall site was the typical way to see the grading of the site. Pauly stated that the overall grading plan for the site carried the authority to grade the individual lots. Dietz stated that this was correct. Stuart Fox, City Forester, reported that the Tree Replacement Policy was based on information from the US Forestry Department and Agriculture Department. A 20% random survey of the site was conducted. The tree inventory was 968 trees, with 3022 diameter inches total for the one acre surveyed. Fox stated that the entire site had been traversed. Based on the site review and the survey the tree inventory for the entire 5. 2 acre site was 5,034 trees over 1" in diameter for a total of 16, 650 diameter inches. Fox then reviewed the Staff report prepared by the Planning Department, which depicted a tree loss of approximately 1, 041 diameter inches of significant trees, or those of 12 inches or better in diameter. Fox showed the Council a plan which depicted the areas to be impacted by the road construction or by building pads. The area to be disturbed by construction activity totaled 1 .9 acres. Based on the calculations the total tree loss would be 1,843 trees, 5, 664 diameter inches. Sixty-one trees, or a total of 1, 024 diameter inches would be considered significant. These figures were within 20 diameter inches of the original estimates. The original count did not include trees under 12 inches in diameter. The proposed replacement request was for 462 diameter inches , which represented only 8% of the total trees which could be removed from the site. Peterson asked Fox if there were any state or national standards to support the formula for replacement calculations used by Staff. Fox replied that the method used to determine the tree loss was a common method used in forestry practices. Pauly asked Fox if the estimated tree loss for the entire 5. 2-acre site was to be 5,034 trees over 1 inch in diameter. Fox replied yes. Pauly then asked if the total diameter of the trees would be 16, 650 inches. Fox replied yes. Pauly asked if this amount represented the amount of destruction to the trees resulting from the development of City Council Minutes 25 October 3, 1989 f the site. Fox replied yes. Pauly asked if the total number of trees to be lost due to construction was estimated at 1,843 trees over 1 inch in diameter, which represented a total of 5,664 caliper inches. Fox replied yes. Pauly then asked Fox if he had an opinion of the effect of the tree loss on the surrounding properties. Fox replied that the existing subdivision to the south would be affected by the removal of these trees. Fox added that the winds from the north, which were now currently blocked by the existing tree cover, would be channeled to the homes to the south. A significant amount of the canopy would be removed. Pauly then asked Fox to identify the area on the map. Fox showed the location of the 20-foot-wide canopy of trees in relation to the subdivision to the south. The print being used was dated April 18, 1989, prepared by Ron Krueger & Associates, for the Red Rock Shores Subdivision. Pauly noted that the print was color-coded and asked Fox for an explanation. Fox replied that the green area depicted the extent of the wooded area as indicated by the developer. He added that the orange area was the tree area to be lost due to construction of the roads or building pads. Pauly asked Fox if the destruction of the 1, 084 trees would result in the undue destruction of the environment and, therefore, would cause harm to the environment. Fox replied that the loss of the trees would change the wind patterns in this area. Pauly asked Fox if he would consider this harmful to the environment. Fox replied yes. Pauly asked Fox if he would consider the removal of the 1,084 trees to be undue destruction of vegetation. Fox replied yes. Hoff asked Fox if the proponent had received a copy of this report. Fox replied no. Hoff asked Fox when the report was prepared. Fox replied Friday, September 29, 1989. Hoff then asked Fox if he was aware that this was a matter in controversy. Fox replied yes. Hoff asked why the report had not been presented to himself, or the proponent. Fox replied that the report was submitted through the Planning Department and Director Chris Enger. Hoff asked Fox if he had recommended that the report be submitted to the proponent. Fox replied no. Hoff asked what type of trees were located on the site. Fox replied oaks, red oaks, sugar maples, etc. Hoff asked if these were not considered deciduous trees which lost their leaves in the winter. Fox replied this was correct. Hoff asked if the loss of the leaves did not cut down on the amount of wind blockage significantly during the winter. Fox replied that it did affect some of the blockage; however, by opening up the corridor the amount of blockage would be reduced significantly. Hoff asked if the wind blockage effect was reduced when the leaves from the trees f were lost. Fox replied yes . Hoff asked Fox what the property was zoned. City Council Minutes 26 October 3 , 1989 Tenpas stated that he did not wish to make light of the wind issue ; however, he did not consider this to be of vital importance to this proposal . Tenpas requested that the presentation move forward. Hoff concurred with Tenpas that this was a non-issue; however, Staff believed that it was an issue and proved undue destruction of vegetation. Hoff believed that this was proceeding along the lines of a "Swanson hearing". Pauly replied that this was a proceeding designed to have issues become part of the record. Peterson stated that he did not agree that this was a non- issue item, it was an issue which related to land alteration. Peterson noted that Hoff had stated at the beginning of the presentation that this was a legal issue. Peterson believed that a good- faith effort had been made by City Staff to work with the proponent to make modifications, which have not been acceptable to the proponent. Peterson did not believe that more questions or cross-examination were necessary in this setting. Peterson was prepared to ask for the court's opinion regarding the City's authority to enforce the Tree Replacement Policy. It Hoff asked Peterson if he was stating that he did not have the right to cross-examine Staff any further on this issue. Peterson replied that he the right to do this; however, he believed that this should take place in a legal setting. Pauly recommended that Hoff should be allowed to ask further questions. Hoff stated that the s Chair viewed the cross-examination as supercilious. Peterson replied no. Hoff asked Fox again if he knew what the property was zoned. Fox replied that he did not know. Hoff then asked if one of the notations in the Land Alteration permit standards was the underlying zoning and use of the property. Fox replied that he did not know. Hoff asked Fox if he had read the Land Alteration permit standards prior to preparing his report. Fox replied that his report was prepared as a supplementary report. Hoff asked Fox if he would disagree that the property was zoned Rl- 2 2 . Fox replied that he did not know the zoning. Hoff then asked if he understood R1-22 zoning to be residential zoning. Fox replied yes. Hoff asked Fox is it was not necessary to provide a road and utilities to serve residential properties not previously developed. Fox replied yes. Hoff asked Fox if in providing the roads and utilities in a heavily wooded area the result would be the loss of some trees. Fox replied yes. Hof f asked Fox if the construction of homes and building pads resulted in the destruction of some trees. Fox replied yes. Hoff then asked Fox if the construction of roads, utilities, City Council Minutes 27 October 3, 1989 and house pads, would be considered a permitted use within that zoning district. Pauly replied that City Forester. Fox might not know the answer and should only answer if he was sure of the response. Fox believed that the requirements would be outlined in the Developer's Agreement. Hoff restated the question to Fox: would the development of a residential project in a heavily wooded area result in the destruction of some trees. Fox replied yes. Hoff asked if that was true of this particular site outlined in green on the exhibit. Fox replied yes, with the proper clearance. Hoff asked Fox if it was correct that he believed that the property owners to the south would be impacted as a result of northern winds. Fox replied yes. Hoff asked Fox if to his knowledge the property owners to the south had any easement or any other type of interest in real-estate to grant them the right to maintain the trees on the proponent's property. Fox replied not to his knowledge. Pauly asked Hoff if his referral to the rights of the property owners to the south was direct or through the City's Land Alteration permit code. Hoff replied directly. Pauly asked Hoff if he disputed the City's authority to control land alteration. Hoff replied that he did not dispute the City's authority to issue Land Alteration Permits nor did he dispute that the City was : obligated to follow the standards as set forth in that portion of the City Code. Hoff believed that the standards were clearly stated. Hoff asked Fox in respect to the tunneling effect, would the roadway being constructed run in a direction from northwest to southeast. Fox replied yes. Hoff asked Fox if the total number of trees in the entire area was 5, 034 . Fox replied yes. Hoff asked how large an area this covered. Fox replied 1.9 acres. Hoff then asked how many residential lots would be created in the green area. Fox replied 6 lots. Hoff asked if the 6 lots were located on the 1.9 acres. Fox replied that 1.9 acres of property would be disturbed. Hoff asked Fox if 1,843 trees would be disturbed in the wooded area. Fox replied that he would need to refer to his memorandum. Hoff asked Fox if the environmental harm would be the wind destruction to the property to the south. Fox replied that was one consideration; there were several others. Harris questioned what this line of questioning had to do with the City's Tree Replacement Policy. She added that the City Council would continue to support the current Tree Replacement Policy as written. Peterson questioned if it was appropriate to continue the public hearing discussion along these lines. Hoff replied that a Swanson hearing meant that ghat would happen in a City Council Minutes 28 October 3 , 1989 court of law was limited to the record before this Council. Hoff added that he did not have prior knowledge of this tree report memorandum, and, therefore, had done a cold cross-examination of Mr. Fox, which he did not believe was fair to himself or the proponent. Hoff stated, if City Attorney Pauly would agree that this was not to be considered a Swanson hearing and the issue on this matter was not closed with respect to the Tree Replacement Policy and undue harm to the environment, he would be willing to conclude after one additional question 4 to Mr. Dietz. Pauly replied that he was interested in hearing the points to be made before going to court. Pauly added that he would not concede that this was not a Swanson hearing and believed that Hoff should continue with questions. Hoff stated that he did not view this as a Swanson-type hearing due to the failure on the City's part to provide the necessary underlying documentation. Hoff asked Dietz for clarification on the Land Alteration Permit: was the plan as submitted to Staff incomplete. Dietz replied yes. Hoff then asked Dietz if the need for additional information had been submitted to Ron Krueger & Associates prior to this meeting. Dietz replied that Staff had met with a representative from Ron Krueger & Associates last Thursday and had requested that the grading plan include all of the contemplated grading to r take place on the site for both road and utility construction and home construction. Hoff stated that he did not know the impact of this at this time. Hoff asked if the City was requesting only that a master grading plan be submitted. Dietz replied yes, and added that the two separate plans needed to be combined into one master plan so that Staff could see the individual grading for the pads as well as the road and utility grading to take place. Hoff asked Dietz if Staff was aware that the proponent would not be doing the grading on the individual lots . Dietz replied that it was noted on the May 11, 1989 plan that the grading would be done by others. Hoff stated that he would like to comment on the findings and requested a copy. Pauly stated that a memorandum dated September 27, 1989. from Stu Fox had been provided to the City Council and attached to this was a summary of the value of trees and forest lands and which spoke in general of the urban forest. Pauly asked Fox for an opinion as to whether the values expressed in the memorandum would be present in the forests under consideration. Fox replied that the values of the forest on the Gilk property would be similar to those described in the memorandum. Pauly asked Dietz to clarify the reference to the Strawberry Hill project as being encompassed in this plat. City Council Minutes 29 October 3 , 1989 Dietz replied that at the initial public hearings on June 6, 1989, the Council reviewed 3 separate projects for this area. The projects were Red Rock Estates, Strawberry Hill, and Red Rock Shores. Dietz added that during the interim the proponent for Red Rock Shores had purchased the Strawberry Hills property and, therefore, the preliminary plat reviewed as Strawberry Hill would now be part of the Final Plat for Red Rock Shores. Pauly then asked if the original property for Red Rock Shores consisted of 19.77 acres and the property for Strawberry Hill 3. 2 acres, making the total plat now 22 . 97 acres. Dietz replied that he did not know the exact figures and ? referred that question to Director of Planning Enger. ? Enger replied that the figures as stated were correct. Pauly noted that a copy of the material which had been provided to the City Council was available at this meeting and to the public at any time during the meeting. Pauly referenced pages 2832 through page 2935 from the Council packet. a Hoff asked Fox how many trees would be removed in the development of the residential project zoned as R1-22 . Fox repl ied that the number of trees to be removed over 1 inch in diameter would be 1,843. Hoff then asked Fox if the lots were developed as single-family homes, would it f be possible to replace the trees lost on the lots in question. Fox replied not as they exist. Hoff asked if Fox would recommend replanting the trees in another area of the plat. Fox replied that the recommendation was to replace the trees in the entrance areas, outlot areas, and steep slope areas based on the requirements of the City's Tree Replacement Policy. Hoff then asked if the replacement would take place away from the heavily wooded area . Fox replied yes. Hoff asked if some of trees would actually be replaced on a site not part of this plat. Fox replied that was not being recommended in this case and without looking further at the site he could not make a determination. Pauly believed that Hoff had implied that by virtue of platting and/or zoning a property owner had the right to alter the land. Pauly asked Dietz if he understood the City Code to allow for such rights without a Land Alteration Permit. Hoff believed that this would require a legal opinion from Dietz . Hoff did not believe that the Land Alteration Permit section of the Code was relevant. Pauly believed that Hoff had argued previously that by virtue of zoning and plat approval the City did not have the authority over land alteration. Hoff replied that his point had been that if the City Code provision were interpreted in plain English, tr.e City Code talked about undue destruction of trees based upon the underlying zoning of the property. Hoff added it would be necessary City Council Minutes 30 October 3 , 1989 to remove trees to develop the property in question with R1-22 zoning. Hoff believed that "undue•' was the key word. Pauly did not see any reference to "undue". Pauly read and reviewed the "Findings, Conclusions, and Decision" . Pauly noted that this draft had been prepared based on approval of rezoning and platting. Pauly stated that regarding Item 4 it was the proponent's contention that there would be no grading other than for the streets and the utilities. Pauly suggested that this argument would be similar to the argument that a storm sewer would only apply to the water which rushes down the streets and not that which flows off the property which was developed. Pauly emphasized the conclusion stated on Page 3 , "The functional, aesthetic, and economic values of trees enhance not only the land on which they are grown, but adjacent lands and neighborhoods as well . " . Regarding Item 7 , Subsection 2, Pauly stated that the word "undue" would not necessary qualify all harm to the environment. Pauly requested that a new paragraph be added as Item 8 to read as follows: "The destruction of the 1, 843 trees by the alteration of the property will cause undue destruction of vegetation and trees on the property and will cause harm to the environment. " Pauly added the addition would address the criteria of the City Code. The remaining paragraphs would be renumbered. Pauly stated that the a correction should be noted in the. Decision Section, •'herein•• should be changed to "therein" . Hoff stated that there was no reference shown that the City had a conservancy easement nor fee or other ownership interests in the property. He added that there had been no recommendations shown to develop this property in accordance with zoning without destruction of some vegetation. Hoff questioned the finding that the trees should be replaced on the property in light of Fox's testimony that it would be difficult to replace all of the trees on the property. He added that Senior Planner, Mike Franzen, had also made reference in other meetings that the trees would have to be replaced off-site. Hoff believed that the Council needed to view the intention of the Land Alteration Permit as a whole in which it dealt with the utilization of the property as contemplated in zoning. Hoff believed that the way the Land Alteration Permit was signed, undue destruction of vegetation would be avoided with the provision of construction limits. Hoff requested that the Land Alteration Permit be issued as submitted by the proponent with the amendment. Pauly described the Swanson case, as containing criteria for subdivision of property in Bloomington, which was based on language close to that of Eden Prairie's ordinance. He added that the Swanson case went before the Supreme Court because of a denial by Bloomington of a i City Council Minutes 31 October 3 , 1989 ( request for subdivision of property based on tree lose and harm to the environment. The Supreme Court upheld the decision by Bloomington to deny the subdivision. Peterson asked Pauly if the motions prepared in the Agenda packet were properly worded and would cover all the necessary items. Pauly replied yes and added that the order of approvals should be to approve the rezoning: the Developer's Agreement with the amendment to the first paragraph, first sentence, to read: and further subject to and as modified by the provisions of the Land Alteration Permit relating to the property; the adoption of Resolution No. 89-214 ; the adoption of Resolution No. 89-- 206; and the adoption of the Findings, Conclusions, and Decision as presented to the Council with amendments suggested by the City Attorney. Tenpas asked the proponent if the dispute was the amount of trees to be replaced or the bonding required by the City. Hoff replied that the proponent did not believe the City had the authority to require the replacement. Hoff added that the original objection was that because the proponent was not developing the building pads himself; as a compromise position only the trees in the road right- of-way would be replaced by him. Pidcock stated that she did not agree that the City did not have the authority to enforce the tree replacement policy. MOTION: Pidcock moved, seconded by Anderson to approve 2nd Reading of Ordinance No. 13-89 for Zoning District Change. Motion carried unanimously. MOTION: Pidcock moved, seconded by Anderson approval of Developers Agreement for Red Rock Shores subject to modifications as referred to during the proceedings. Motion carried unanimously. MOTION: Pidcock moved, seconded by Anderson to adopt Resolution No. 89-214 Authorizing Summary of Ordinance No. 13-89 and Ordering Publication of Said Summary. Motion carried unanimously. MOTION: t Pidcock moved, seconded by Anderson to adopt the Finding, Conclusions and Decision RE: Land Alteration Permit for City Council Minutes 32 October 3, 1989 Red Rock Shores as amended during the proceedings. Motion carried unanimously. B. Final PlAt AQWroval for Red Rock Shores (located east of Eden Prairie Road and South of Scenic Heights Road (Resolution No. 89-206) MOTION: Pidcock moved, seconded by Anderson adoption of Resolution No. 89-206 granting Final Plat approval for Red Rock z Shores. Motion carried unanimously. 5 VII . pETITION ,. REOUEST,S & _QQKIUNICATIONS VIII . REPORTS OF AQyISORY COMMISSIONS I X. APPOINTMENTS x A. Tj2ree X22ointmen&s ro the Citizens Advisory gomnittee for T.H. ,212 (,C_A.C. ) MOTION: Anderson moved, seconded by Pidcock to nominate Sidney Pauly, Anne Boline, and Jim Ostenson to the Citizens Advisory Committe for T.H. 212 . Motion carried unanimously. X. REPORTS OF OFFICERS` BOARDS & COMMISS,IONS A. Rgyorts of Council Members B. Rggort of City Managgr C. deport of City A&torney D. Regort of Director of Planning E. Directgr of Parks, RecreatioI2 & Natural Rgsources F. Bepojtof Dirgctox of, Public Works 1. NOP Underg round ing proposal NOTION: Harris moved, seconded by Pidcock to continued this item to the October 12, 1989 Council meeting. Motion carried unanimously. G. Report of Finance Dir!gcto XI . NEW DUSINESS city Council Minutes 33 October 3 , 1989 XII . APiOURNMENT The meeting was adjourned at 12: 50 AM. i i "s W l