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City Council - 06/04/2002 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, JUNE 4, 2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, David Luse, and Jan Mosman CITY STAFF: City Manager Scott Neal, Parks & Recreation Services Director Bob Lambert, Public Works Services Director Eugene Dietz, Community Development and Financial Services Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Jan Nelson Curielli I. ROLL CALL / CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. Councilmember Butcher was absent. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Mayor Tyra-Lukens said the Council Forum has been modified as follows. Council Forum will be held the first and third Tuesday of the month from 6:30 – 7:00 p.m. in the Council Chamber. Please note that this portion of the meeting is off-camera. The Council Forum will consist of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Service Area Directors, please notify the City Manager’s office (at 952-949- 8412) by noon of the meeting date with your request. The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu, unscheduled appearances by individuals or organizations that wish to speak the Council. IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Rosow said a wrong copy of the Developer’s Agreement was delivered for Items VI.B. and C. He provided a corrected copy. He noted that the seventh bullet under Background Information on Item VI.C. is not a condition of the final plat and should be removed from the memorandum. Regarding Item VI.J., Case said this is an extremely pleasant task to approve the lease agreement with Dunn Brothers. He asked if they would be selling baked goods or other food items as they discussed before. Uram said they are going to bring in goods from a commercial kitchen. Case asked when the renovation work would begin. Uram said they expect to bring discussions back to the Council the first of July, and expect to have it open right before Thanksgiving. CITY COUNCIL MINUTES June 4, 2002 Page 2 MOTION: Case moved, seconded by Mosman, to approve the Agenda as published. Motion carried 4-0. V. MINUTES A. CITY COUNCIL WORKSHOP HELD MAY 7, 2002 MOTION: Mosman moved, seconded by Luse, to approve as published the Minutes of the City Council Workshop held May 7, 2002. Motion carried 4-0. B. CITY COUNCIL WORKSHOP HELD MAY 21, 2002 MOTION: Luse moved, seconded by Mosman, to approve as published the Minutes of the City Council Workshop held May 21, 2002. Motion carried 4-0. VI. CONSENT CALENDAR A. CLERK’S LICENSE LIST B. TERREY PINE VILLAS by Matrix Development, LLC. 2nd Reading Planned Unit Development District Review with waivers on 6.39 acres, Zoning District Change from Rural to R1-9.5 on 4.97 acres and Zoning District Amendment within the R1-22 Zoning District on 1.42 acres. Location: Terrey Pine Drive. (Ordinance No. 15-2002-PUD-10-2002 for PUD District Review, Zoning District Change and Zoning District Amendment) C. ADOPT RESOLUTION NO. 2002-106 APPROVING FINAL PLAT OF TERREY PINES D. APPROVE CHANGE ORDER NO. 1 FOR FLAGSHIP CORPORATE CENTER ACCESS DRIVE – PHASE II, I.C. 00-5517 E. ADOPT RESOLUTION NO. 2002-107 APPROVING PRELIMINARY LAYOUT PLANS FOR CHARLSON ROAD / TH 212, I.C. 98-5470 F. APPROVE PLANS AND SPECIFICATIONS FOR MITCHELL ROAD DRAINAGE IMPROVEMENTS ADJACENT TO ATHERTON TOWNHOMES, I.C. 015540 G. APPROVE PROFESSIONAL SERVICES AGREEMENT FOR UPPER EDEN LAKE SEDIMENT REMOVAL, I.C. 02-5575 H. APPROVE ENGINEERING SERVICES AGREEMENT WITH HTPO FOR PIONEER TRAIL/FLYING CLOUD DRIVE UTILITY IMPROVEMENTS, I.C. 52-204 I. DIRECT STAFF TO NOT WAIVE THE MONETARY LIMITS ON MUNICIPAL TORT LIABILITY ESTABLISHED BY MN STATUTE § 466.04 CITY COUNCIL MINUTES June 4, 2002 Page 3 J. APPROVE LEASE WITH CEEFAY LEASING, LLC (DUNN BROS. COFFEE) FOR SMITH-DOUGLAS-MORE PROPERTY AT 8107 EDEN PRAIRIE ROAD MOTION: Case moved, seconded by Luse, to approve Item A, amended Items B and C, and Items D-J of the Consent Calendar. Motion carried 4-0. VII. PUBLIC HEARINGS / MEETINGS A. SPECIAL ASSESSMENT HEARING FOR THE CRESTWOOD TERRACE NEIGHBORHOOD Neal said official notice of this public hearing was published in the May 2, 2002, Eden Prairie News and sent to 46 property owners. Gray said this is the final assessment hearing for the street and storm sewer portions of the project in the Crestwood Terrace neighborhood. He said the assessment amount for each of the properties is $10,968. There is an item later in the agenda to consider levying the assessment. He said we will also consider awarding the construction contract. He noted that the bids were very competitive and were $200,000 under the estimated cost. The City’s share will probably be about $2000 per unit. Case commended Mr. Gray and other Staff members for handling the questions and concerns of the residents, particularly since there were no neighborhood representatives here at the public hearing. Luse asked if the sidewalks are included in the construction. Gray said the sidewalks are part of the bid but are not part of the assessed costs. The sidewalks will be funded from the Parks budget. There were no comments from the audience. MOTION: Mosman moved, seconded by Case to close the public hearing for street improvements in the Crestwood Terrace Neighborhood. Motion carried 4-0. B. GUIDE PLAN UPDATE - AIRPORT ELEMENT by the City of Eden Prairie. Request for approval of the Aviation Goals, Chapter 2 and Airport Element, Chapter 6, to be included as part of the approved Guide Plan Update. (Resolution for Adopting Airport Element of the Comprehensive Guide Plan Update) (Continued from May 21, 2002) Neal said this item was brought to the Council before and staff is asking that it once again be continued to the June 18th meeting. He said we are awaiting the FAA review of the agreement with MAC. CITY COUNCIL MINUTES June 4, 2002 Page 4 Luse asked if we have any idea when the information will be able to be disclosed to the public. Rosow said he recently talked to the attorney for MAC. He said they are trying to arrange another meeting between MAC and the FAA to go over some details with the FAA and then they plan to have a meeting with us. Rosow said the details of the proposed final agreement are already public and were discussed at the Planning Commission meeting. He said our consultants are preparing information to bring to the public once the agreement has been approved. Case noted the FAA has jurisdiction over the funding MAC receives but does not have direct approval of the agreement. Rosow said we are looking to MAC to get certain assurances from the FAA. If we don’t have those assurances, we would need to take a look at the terms of the agreement and modify it. Having been part of this effort since former Mayor Harris and he were appointed to the negotiating team, Case said he continues to be very confident in our legal counsel. He said they work very well with MAC, but they are very independent and vigilant to work on our concerns. He thanked Mr. Rosow and the others who have been involved in developing the agreement. Luse said he was looking for the point where a celebration might be appropriate to involve those advocates who worked really hard to bring this about. Mosman noted she has received calls and some emails saying the Council has dropped the ball on the airport issue, so this makes people aware that we are continuing to work on this issue. Case said, in his mind, when we get to the point where we celebrate the final document, we are celebrating the cessation of the fight and that is a different celebration than celebrating the existence of the airport. He said he wanted to be careful that all we as the Council have agreed is that we are no longer going to fight the specific expansion and in exchange for that we have guarantees to the limits of the future expansion and a protection for our people. He noted there are people out there who would like to not have the airport expand. Be that as it may, that is a regional and statewide issue in which the Council may or may not want to be involved. Tyra-Lukens thought every person has a different point at which they would recognize success. Luse was concerned that this not just be put on the agenda as a consent item. He thought we will get press and commentaries, and we may want to consider a mailing to define what this is. Case said he agreed with Councilmember Luse, because any time the Council spends this amount of dollars we should go out and show on what we spent those dollars. He said he was very proud of the choices we have made to protect the future health and welfare of the people. CITY COUNCIL MINUTES June 4, 2002 Page 5 MOTION: Mosman moved, seconded by Case, to continue the public hearing until June 18, 2002. Motion carried 4-0. VIII. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Mosman to approve the Payment of Claims as submitted. The motion was approved on a roll call vote, with Case, Luse, Mosman, and Tyra-Lukens voting “aye.” IX. ORDINANCES AND RESOLUTIONS X. PETITIONS, REQUESTS AND COMMUNICATIONS XI. REPORTS OF ADVISORY BOARDS & COMMISSIONS XII. APPOINTMENTS XIII. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER 1. Proposed Hennepin County LRT Study Tyra-Lukens said Councilmembers have been getting a lot of emails regarding the LRT study. She said this is just a study of a possibility in the LRT corridor. Some of the emails have indicated a frustration that Councilmembers did not attend one specific meeting in Minnetonka; however, all the Councilmembers were attending a welcome for the new City Manager that evening. Tyra-Lukens said the presentation that the HCRRA did for the Council in April was one of six presentations, and there have been seven community meetings. She attended a presentation last week for elected officials and businesses. She said there seems to be a misconception that the Minnetonka City Council has taken a stand against light rail. Neal said the actual name of the study is the Southwest Corridor Rail Transit Study. He said this is a proposal we received from the organization. He noted staff has received some of the same emails. He said he talked to the Minnetonka City Manager who said they have not taken a position against the study. Neal said we are working on a meeting here that will be similar to the one in Minnetonka. He thought the best time for the meeting is going to be 30- 60 days out when we believe the rail authority will have more information about what they are doing and why they are doing it. CITY COUNCIL MINUTES June 4, 2002 Page 6 Tyra-Lukens thought the meeting should have a representative presenting what the study will look like. She thought there might be some value in discussing among the Councilmembers what our position is on this proposed study. Tyra-Lukens said her position would be that you couldn’t make a decision until you have some information about the study. She thought there are a lot of big loose ends including where the trail ends. Rather than making a motion against the study being done, she would like to see what the proposal is. Luse said he remembered from the first evening that there were a lot of people who had conflicts. He thought the people who are coming forward are personally involved because it is apparently in their backyards. He thought Councilmembers and City staff are taking this seriously, and ultimately we have to look at what is the best final decision for all of Eden Prairie. He thought there appears to be a good thought process in “why don’t you keep it contiguous to a major thoroughfare,” but we won’t know until we take a look at it. Tyra-Lukens noted that we have no authority over whether they do the study. Case said he wanted to underscore that in no way has this Council given any indication to the rail authority that we would favor this proposal. He agreed that until the study has been done and is presented to us, it would be difficult to make a judgment on it. He said he would hate to see Southwest Metro damaged by this, so he is a skeptic who has to be convinced. He wanted to reassure the residents that we would never make the decision lightly, and ultimately do what we think is best for everybody with special concern for the residents who live along the corridor. He reiterated that no decision whatsoever has been made. Mosman said she told people at the Saturday morning meeting the Council did not have control over this, but we would be listening and that we would have some kind of public meeting with the Council. Luse said those people who have voiced concerns and thoughts will need to stay with the process. As the Mayor pointed out, we do not have legal recourse over the other entity. He thought the Council has been consistent about safety being the ultimate issue. C. REPORT OF PARKS AND RECREATION SERVICES DIRECTOR D. REPORT OF COMMUNITY DEVELOPMENT AND FINANCIAL SERVICES DIRECTOR CITY COUNCIL MINUTES June 4, 2002 Page 7 E. REPORT OF PUBLIC WORKS SERVICES DIRECTOR 1. Crestwood Terrace Area Improvements a. Approval of Special Assessment (Resolution No. 2002-108) Dietz said the Public Hearing for this item was held earlier this evening. Staff is asking for approval of the special assessment for street improvements in the Crestwood Terrace neighborhood. Dietz noted that, since the project was expanded beyond the scope of the petition received, a 4-0 vote would be required for approval. MOTION: Case moved, seconded by Mosman, to adopt Resolution 2002-108 approving Special Assessments for street improvements in the Crestwood Terrace Neighborhood (I.C. 98-5474). Motion carried 4-0. b. Contract for Improvements (Resolution No. 2002-109) Dietz said he distributed copies of the resolution to award the contract for the Crestwood Terrace street improvements earlier this evening. He said staff is recommending award to the lowest bidder who was S.J. Louis Construction, Inc. MOTION: Case moved, seconded by Mosman, to adopt Resolution No. 2002-109 awarding contract for I.C. 98-5474, Crestwood Terrace Area Improvements to S.J. Louis Construction, Inc. Motion carried 4-0. F. REPORT OF PUBLIC SAFETY SERVICES DIRECTOR G. REPORT OF MANAGEMENT SERVICES DIRECTOR H. REPORT OF CITY ATTORNEY 1. Protocol for Public Meeting on Smoke-Free Ordinance Rosow said his office has arranged for Administrative Law Judge Allan Klein to preside over the public meeting on June 11, 2002. His office also prepared a Notice and Order for Public Meeting and a letter to Judge Klein identifying preliminarily the procedure we would use for the meeting. Rosow reviewed a proposed five-point process with the Council. The five points included: a. Each presenter shall be limited to three (3) minutes. b. Each presenter shall be required to present testimony under oath. CITY COUNCIL MINUTES June 4, 2002 Page 8 c. The Law Judge would ask speakers to alternate between pro and con until that was not possible. d. The Council requested that there be backup data for factual data being presented. If factual testimony is, in fact, opinion testimony, it will be received as opinion. e. Parameters will be set regarding the length of the meeting. The meeting will start at 7:00 p.m. and adjourn no later than 10:00 p.m. If, at the end of the three-hour time period, there are additional presentations not yet heard, the Council would have the opportunity to continue the meeting to another date or possibly extend the time beyond the scheduled 10:00 p.m. adjournment. Case asked if we could take written testimony up to a certain time as a third alternative. Rosow said that was an excellent point and he would add that written testimony could be submitted. Tyra-Lukens said she maintains that what somebody says here at a public meeting doesn’t have any more weight than another person’s email or phone call. She was not sure there should be a cut-off at all because that may imply we want to restrict the amount of information submitted. Luse said we need to let all the voices be heard and that is what we are doing. He thought we have been very clear about how we were going to do it and we decided this was the best format. He didn’t think we would know until that night if we will need another night or more for presentations. Tyra-Lukens said this is not the only format to let them be heard because email and calls are acceptable. Case said he would also like to have the idea out there that every voice could be heard, but it may not be heard at that public meeting. He said the purpose is to gather information but also to assist us in formulating our position, He said there is more value to us to be able to ask questions of the speaker rather than having an additional number of speakers, and he thought those two things might be at odds. Ultimately the goal is to help the five of us to arrive at a decision that is the best for the residents of Eden Prairie. He encouraged people who are not able to attend the meeting to contact the Council by another means. Tyra-Lukens asked if there is a way the Council can ask questions of the presenter. Rosow said he would add to the first item that the council may ask questions and that will be outside of the speaker’s three minutes. Case thought we might also have to limit the response time. He also thought after a certain time when speakers have said the same thing, it is important that the judge says it is helpful to hear something new. He thought the judge should be able to handle that. CITY COUNCIL MINUTES June 4, 2002 Page 9 Mosman said her question has been whether we plan to respond to the public as they are speaking. She thought we are not making a decision that night so we should not be expected to give our responses. Tyra-Lukens said that was how she is feeling. She said there is no ordinance that we are defending. Case said the State Supreme Court does this by hearing both sides and questioning each one. That is our role to take testimony and respond back. Mosman said she has received a number of phone calls and emails that have questioned whether the Council has the right to pass an ordinance on this. She asked Rosow if he could provide a statement Councilmembers could use to answer such communications. Rosow said the Council does have the authority to adopt an ordinance dealing with this subject matter and the Attorney General has so said. We can reiterate that at the public meeting and have a copy of the Attorney General’s opinion on that subject available. Luse thought we need some structure as we gather this information, and he thought we are being very professional in our approach. He thought it feels a little restrictive about how we have information coming to us. He would agree that we should be able to ask questions of a presenter. Regarding the question of whether we as the Council have the authority to adopt such an ordinance, he thought maybe the answer is that it goes on a ballot in November. Luse thought we have to be sure that all the people feel they had had their voice heard. He would support follow-up questions and some all- encompassing additional time frame if needed. He said there is a whole problem with the three-minute time frame, but he would agree we have to do it that way to make the process fair. He would support scheduling another meeting in July, which we could cancel if it is not necessary, so that we get all the information needed to make a final decision on the issue. Case thought we should cross that bridge when we get there. He thought at the conclusion of the public meeting it is possible that something will come out to indicate we have received the information we need to make a decision. We could come back at the next regular meeting and raise the question of whether there was enough time spent. At some point we as a Council need to look at what we get and make a decision. An individual can reach us in various formats, so he did not think we need to allow every individual to use the format of speaking at a public meeting. He said we are promising that every position will be heard. Mosman said she agreed with Councilmember Case. She noted that some of the emails that were in the Council packets have very interesting pieces of CITY COUNCIL MINUTES June 4, 2002 Page 10 information and she wondered if it would be appropriate to read some of them at the meeting, or if they should be brought in as backup for why a particular decision was made. Tyra-Lukens said she did not think everything that has been sent to the Council has to be entered into the record at the public meeting. Luse said the majority of the voices heard to date tend to be on one side of the issue or the other. He was seeing about half and half on the issue. He thought there are many people who would say this is an important individual rights issue, and we need to take a vote of our 55,000 people. He thought we would be setting ourselves up for public scrutiny if we don’t go the extra mile to get the information. He thought ultimately the issue is a health issue, but he didn’t want others in the community to think that the individual rights issue and all the other political issues were not heard. Tyra-Lukens thought the issue of a referendum comes later, and she thought there would be pros and cons for a referendum. Luse said he was asking for a three-hour meeting to be scheduled in July, with the stipulation that presenters cannot duplicate their presentation from the June meeting. He thought then whatever decision gets made, we will have done everything we can to get the issues out on the table. Tyra-Lukens said she would prefer to wait to make a decision until after the meeting on the 11th. She didn’t want to schedule a meeting now. She thought we should get as many people at this one as we can and then deal with whether to schedule another meeting. Case said the point is the objective of the meeting is to get information on the positions, and we have told every citizen in the community that they can contact any of us at any time. He thought in the course of three hours this representative body will get the information and can then consider the next step. Tyra-Lukens said the purpose of the meeting is to determine the pros and cons of the issue. Case added that the purpose is also to help us make a decision as a governing body. Mosman asked if we would want to limit who would be allowed to present, for example, would a restaurant owner from Florida who would be against such an ordinance be a relevant presenter that we should be hearing from. Case thought it would be a slippery slope to limit those who could present. He thought having the disclosure of who they are and where they live or work would put the testimony in the appropriate light. CITY COUNCIL MINUTES June 4, 2002 Page 11 Tyra-Lukens said we should ask people to sign up on a pro or con list and they will be asked to come forward alternately. She asked if we want to regulate how often anyone can speak. Case said he thought we should allow each person to speak one time. Luse said to him this is a health issue, an economic issue and an individual rights issue. He thought we will continue to receive input on the health and economic issues next Tuesday, but we have barely begun to touch the individual rights issue. He implored the Council to go the extra mile so we can get rid of any question as it relates to the ability to communicate. He was concerned that a three-hour time frame is not going to allow us to get finalization on all three of the issues involved, and he again asked for another three-hour meeting in July. Case thought the purpose of the meeting is to get all the issues laid out. That may be done in one meeting or not, but we would decide that after the first meeting. Tyra-Lukens said we definitely want to get a lot of public input, and we are going after issues. She wasn’t sure what more information we would get regarding the individual rights issue if another meeting were scheduled. Luse said his concern is the group of people who are concerned that this is an individual rights issue have not been heard. Case said the individual rights issue is not a gray area. He didn’t think we need three hours to cover that because it is a belief statement. He thought we do need to take the time to get feed back on the health issue and look at the impact of what we do to see how it affects businesses. Luse said he was trying to eliminate the other pieces of this issue so that we can get back to where he can accept this. He believed we need more than three hours to get the information out, and the additional time could be held any time, not necessarily in July. Case noted that no one has said we wouldn’t go beyond three hours. Mosman thought just bringing up the subject may trigger people who feel strongly on the individual rights issue to come to the meeting or email us. She said we should encourage them to come, as we want to hear that as part of the testimony. Luse said his concern is that only 25% read the paper, and even fewer view the cable channel. He didn’t think the residents fully understand the process. He wanted to give the impression that we are going the extra mile, and that is really what the request is. He did not want it to be construed as a delay, but rather as a way to get a group of very strong views. CITY COUNCIL MINUTES June 4, 2002 Page 12 Case thought everyone wants to go the extra mile, and we are saying that we are not sure the extra three-hour meeting will be necessary. We can take the meeting at face value and assess where we are at the end of the meeting. Tyra-Lukens reiterated that the public meeting is not the only way to get opinions to the Council. She said emails, phone calls and letters are all available to the public and each type of information will be given equal weight. Rosow reviewed the guidelines the hearing officer would employ at his discretion as follows: a. Each presenter shall be limited to three (3) minutes. b. The Mayor and Council Members may ask questions of presenters. The time to answer the questions will be in addition to the three minutes provided for above but never-the-less, the response to the questions should be limited to two (2) minutes. Mayor and Council Members will not respond to questions from the public at this meeting. c. Each presenter shall be required to present testimony under oath. Each presenter will be allowed to speak once. d. Each new presenter will be asked to state their name, home and business address and the name of their employer. e. Alternate between presenters pro and con on the issue. A sign-up list for both pro and con will be available and individuals wishing to present testimony should sign the appropriate list. f. After the same point has been made by several speakers, the Hearing Officer will ask future presenters to present new information, not just reiterate what has been previously said before. g. Anyone presenting factual evidence (as opposed to opinion testimony) must also present to the Council supporting data that tends to establish the facts being presented to the Council. For instance, if a presenter wishes to persuade the Council that the adoption of such an ordinance would have either a negative or a positive impact on a business sector, the presenter should be required to provide the factual basis or data that supports the claim, i.e. a survey or study measuring the impact of a similar ordinance in another city. If the factual testimony is in fact opinion testimony, the Council will receive the opinion testimony as part of the record but it should be so identified. CITY COUNCIL MINUTES June 4, 2002 Page 13 h. The public meeting will start at 7:00 p.m. and adjourn no later than 10:00 p.m. If there are present at the public meeting individuals who wish to address the Council but have not had an opportunity to do so, the Council will decide at that time whether or not to continue the meeting to another date MOTION: Case moved, seconded by Mosman, to set the eight-point process as a guideline for the Public Meeting on Smoke-Free Ordinance to be held on June 11, 2002. Motion carried 3-1, with Luse opposed. Tyra-Lukens said she wanted to reiterate the fact that all forms of communication will be given equal weight. She noted that if someone chooses to send an email, it would be helpful to include their name and the other information requested of presenters at the public meeting. XIV. OTHER BUSINESS XV. ADJOURNMENT MOTION: Mosman moved, seconded by Case, to adjourn the meeting. Motion carried 4-0. Mayor Tyra-Lukens adjourned the meeting at 8:25 p.m.