City Council - 09/07/2004 APPROVED MINUTES
EDEN PRAIRIE CITY COUNCIL
TUESDAY, SEPTEMBER 7,2004 7:00 PM, CITY CENTER
Council Chamber
8080 Mitchell Road
CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case, Jan
Mosman, and Philip Young
CITY STAFF: City Manager Scott Neal, Parks &Recreation Director Bob Lambert,Public Works
Director Eugene Dietz, City Planner Michael Franzen, Community Development Director Janet
Jeremiah, City Attorney Ric Rosow and Council Recorder Theresa Brundage
I. ROLL CALL/ CALL THE MEETING TO ORDER
Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. All members were present.
II. PLEDGE OF ALLEGIANCE
III. COUNCIL FORUM INVITATION
IV. UPDATE ON CITY'S MEET AND GREET PROGRAM
Economic Development Manager David Lindahl reported the 2-year program has reached its
100"'meet and greet with Arrow Electronics. The meet and greet program began as an effort
to strengthen the City's ties with the business community and to obtain feedback about city
services. Lindahl said quality of life is what attracts and keeps businesses to Eden Prairie and
his goal is to accomplish 40 meet and greets this year.He said 100 of the companies visited
account for over 16,000 workers and represent 25% of the entire workforce in Eden Prairie
V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS
Neal requested pulling Consent Calendar Item I. and placing it under Item XIV.H. Report of
City Attorney. Neal also requested pulling Consent Calendar Item J. and placing it under
XIV.C. Report of Community Development Director.Rosow requested reversing of the order
of items under XIV.H. with number 2 as number 1; number 1 as number 3; and Consent
Calendar Item I. as XIV.H.2.
MOTION: Case moved, seconded by Mosman, to approve the agenda as published and
amended. Motion carried 5-0.
VI. MINUTES
A. CITY COUNCIL WORKSHOP HELD TUESDAY,AUGUST 17,2004
MOTION: Young moved, seconded by Case,to approve the minutes of the City
Council workshop held Tuesday,August 17, 2004. Motion carried 5-0.
CITY COUNCIL MINUTES
September 7,2004
Page 2
B. CITY COUNCIL MEETING HELD TUESDAY,AUGUST 17,2004
On page 5, Item XV.A.2, Mosman said the entire third sentence should read "She said
the agreement has weight-bearing restrictions, limits nighttime maintenance and
keeps the general recreational character of the airport."
MOTION: Young moved, seconded by Case,to approve, as amended,the minutes of
the City Council meeting held Tuesday, August 17, 2004. Motion carried 5-0.
VII. CONSENT CALENDAR
A. ADOPT RESOLUTION NO. 2004-127 CERTIFYING PROPOSED 2005
PROPERTY TAX LEVY,ACCEPTING THE PROPOSED 2005 BUDGET,
AND SETTING DATE(S) FOR TRUTH-IN-TAXATION HEARING(S)
B. APPROVE AGREEMENT WITH J-III PROPERTIES ALLOWING CITY TO
DEMOLISH STRUCTURES AT 18600 AND 18700 PIONEER TRAIL
C. APPROVE AGREEMENT WITH EXCEL ENERGY FOR A TRANSMISSION
LINE EASEMENT ASSOCIATED WITH CSAH 4/VALLEY VIEW ROAD
INTERSECTION PROJECT,I.C. 96-5405
D. ADOPT RESOLUTION NO. 2004-128 ORDERING A FEASIBILITY STUDY
FOR STREET IMPROVEMENTS FOR PIONEER TRAIL, I.C. 04-5632
E. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH TKDA FOR
DESIGN AND CONSTRUCTION OF WELL#15, I.C. 04-5611
F. AUTHORIZE SUBMISSION OF PERMIT APPLICATION FOR WINTER
USAGE OF THE LRT TRAIL
G. ADOPT RESOLUTION NO. 2004-129 AUTHORIZING DISPOSAL OF TAX
FORFEIT LAND PARCEL
H. CONSENT TO ASSIGNMENT OF AN AGREEMENT WITH THE CITY OF
EDEN PRAIRIE FROM OWEST WIRELESS LLC TO VERIZON WIRELESS
I. APPROVE GRADING/LAND ALTERATION PERMIT FOR LOT 2,BLOCK
1, BRYANT LAKE HEIGHTS
J. ADOPT RESOLUTION NO. 2004-130 AUTHORIZING EXECUTION OF
DOCUMENTS RELATING TO SALE OF PROPERTY TO WEST HENNEPIN
AFFORDABLE HOUSING LAND TRUST
MOTION: Mosman moved, seconded by Case,to approve Items A-H of the Consent
Calendar.
CITY COUNCIL MINUTES
September 7,2004
Page 3
Case commented on Item B. He said photo documentation is important as one of the
structures is the last of five or six 1878 brick farmsteads in the city and the other
wood structure also has historical value.Neal reported that Mr. Gertz has photo
documented both properties. Motion carried 5-0.
VIII. PUBLIC HEARINGS/MEETINGS
A. HILLTOP TOWN OFFICES by Arima L.L.C. Request for Plamied Unit
Development Concept Review 6.89 acres, Planned Unit Development District
Review with waivers on 6.89 acres, Zoning District Amendment within the Office
Zoning District on 6.89 acres, Site Plan Review on 6.89 acres, and Preliminary Plat of
6.89 acres into 16 lots. Location: 7480 Flying Cloud Drive. (Resolution No. 2004-
131 for PUD Concept Review, Ordinance for PUD District Review and Zoning
Amendment, Resolution No. 2004-132 for Preliminary Plat)
City Manager Scott Neal reported that official notice of this public hearing was
published in the August 26, 2004,Eden Prairie Sun Current and sent to 10 property
owners. He said this project is for five town office buildings totaling 15 units. The
total size of all buildings is 39,749 sq. ft. He said this project was first reviewed by
the Community Planning Board at the July 12,2004 meeting and the Board voted to
continue the item and directed the developer to revise plans to include right of way
for a future turn lane. The Board also directed the developer to revise the grading plan
and construct retaining walls necessary to accommodate the right turn lane.
Neal said at the August 9, 2004 meeting, the Community Planning Board voted 7-0 to
recommend approval of the project to the City Council based on revised plans with
right-of-way and retaining walls to allow the construction of a right turn lane. This
site is part of the Wilson Learning Center PUD approved in 1986 for office use.
Twenty-thousand square feet of office was anticipated for this property.
He said PUD waivers are requested for lot size and dimension,building setback,
development on a shoreland bluff, and impervious surface. Lot size and dimension
are due to platting each building unit for individual sale, the bluff was a result of
previous grading; impervious surface includes existing Wilson Ridge driveway, and
building setback due to additional right of way dedication.
Janet Jeremiah pointed out that although this is an increase in the office density
compared to the original PUD for the Wilson Learning Center, it is in keeping with
the densities anticipated during the Golden Triangle area study. She added that the
developer is dedicating a substantial amount of right of way and is doing grading and
retaining walls to allow future road improvements.
Jeremiah said two of the four waivers are to accommodate the sale of the offices as
condominiums and do not affect the physical character of the development. She said
the third waiver is due to the shore land bluff that is man made.
There were no public comments.
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September 7,2004
Page 4
Case asked staff if there was an anticipated footprint originally and if the current
project is within that. Jeremiah said that is something staff can look into and provide
comparison before final approval.
MOTION: Butcher moved, seconded by Mosman, to close the Public Hearing; and
adopt the Resolution for Planned Unit Development Concept Review on 6.89 acres;
and approve 1st Reading of the Ordinance for Planned Unit Development District
Review with waivers, and Zoning District Amendment within the Office Zoning
District on 6.89 acres; and adopt the Resolution for Preliminary Plat on 6.89 acres
into 16 lots; and direct Staff to prepare a Development Agreement incorporating Staff
and Board recommendations and Council conditions. Motion carried 5-0.
IX. PAYMENT OF CLAIMS
MOTION: Case moved, seconded by Young, to approve the Payment of Claims. The
motion was approved on a roll call vote with Butcher, Case, Mosman,Young and Tyra-
Lukens voting"aye."
X. ORDINANCES AND RESOLUTIONS
XI. PE_TITION&REQUES_TS AND COMMUNICATIONS
XII. REPORTS OF ADVISORY BOARDS & COMMISSIONS
XIII. APPOINTMENTS
A. ARTS & CULTURE COMMISSION
Neal reported that the Arts and Culture Commission, currently at six members, is
under the maximum membership level of seven members, and Ms. Diane Zielke's
application was just received in the past few weeks. He said Ms. Zielke has a
Bachelor's degree in Graphic Design and a Masters degree in Art Education, and
most recently taught as an art teacher in the St. Louis Park school district for about 10
years. He said since Ms. Zielke has outstanding qualifications, he and the Arts and
Culture Commission staff liaison Sandy Werts recommend Council approve this
appointment.
MOTION: Case moved, seconded by Mosman,to appoint Ms. Diane Zielke to the
Arts and Culture Commission for a term to end on March 31, 2006.
Motion carried 5-0.
XIV. REPORTS OF OFFICERS
A. REPORTS OF COUNCILMEMBERS
B. REPORT OF CITY MANAGER
CITY COUNCIL INHWTES
September 7,2004
Page 5
I. Proposed Disposition of the Settlers West Undesignated Financial
Contribution
Neal reported that last week he shared with the Council his proposal for the
disposition of the Settlers West financial contribution. He said in connection
with this, the City will receive$1,000,000 over the next five or six years and
he proposes to accept those funds as undesignated gifts, as recommended by
the city attorney's office, to designate approximately$270,000 for use of long
term upkeep and maintenance of underground utilities in that area.He said
that amount is approximately what the project would have paid if it had been
done entirely within the city.Neal said the balance would be accepted into the
Capital Improvements Program to be distributed as changes are made to the
CIP during the regular budget process.
Case asked if a formal motion is necessary to say that the proposal is also the
council's intention. Rosow said when the first portion of the gift is received,
he would propose bringing a resolution to the council accepting the gifts and
conditions. He said at that time all future gifts can also be accepted to avoid
multiple resolutions over the next five years.Rosow said Neal will be
presenting a proposal for how the funds will be spent at various times and the
council would be malting decisions at that time.
Case asked if a formal action should be made to dedicate the first$270,000 to
its specific fund with the balance to go into an undesignated capital
improvement fund. Rosow said it's a matter of policy and is appropriate to
have such an action by the council. He said he doesn't believe it's legally
required, but in terms of preserving for future councils the explicit intent of
the council resolution is a fine way to deal with it. Neal agreed.
Case said it is strategically important that the monies are received with that
thought. He said this is the first time in history that an area outside of the City
is being serviced with no future assessments for redevelopment
improvements, so it requires special thought given to recommendations for
future councils.
Young said even though he understood that part of the approval was the
receipt of the$1,000,000,his assumption was that the money merely reflected
the cost that the City would otherwise incur and there would be a similar
charge placed upon the developer as if the entire property had been in the City
and the City would be able to assess it in taxes. He said it is now his
understanding from Neal's memo that that may not be the case.
Young asked if the receipt of the money was a condition upon which the
council approved the development proposal. Neal said it was part of the
overall agreement and was brought to the council and approved as part of the
overall agreement. Young said he is uncomfortable with the"gift"
nomenclature and it was not a gift, but part of what was approved.
CITY COUNCIL AUNUTES
September 7,2004
Page 6
Young asked if the development had been entirely in Eden Prairie,would the
City have charged$270,000 for the expected future upkeep of the utilities.
Neal said yes, in two different forms—sewer access charge and water access
charge. Young asked if it had been entirely in the City, would there have been
any other charges imposed upon the developer as a normal part of getting the
project completed.Neal said he doesn't have that answer but it will be
discussed tomorrow morning, in addition to park dedication fees, at the staff
meeting. Young asked for a ballpark figure on park fees. Lambert said
approximately$2,800 per unit so about$140,000 or so in park fees.
Young asked Neal what is the historical origin of the $1,000,000 figure. Neal
said it is his understanding that in an attempt to see if the land could be de-
annexed from Chanhassen and annexed into the City, the developer had
discussions with Chanhassen concerning long term property tax loss
Chanhassen would sustain if the land were de-annexed and added to Eden
Prairie. He said the developer tried to mitigate the loss by offering Chanhassen
cash compensation up front and through early consideration by the mayor, the
mayor declined to support that proposal so the developer asked the City of Eden
Prairie to take those same dollars and extend utilities to an area outside the City
that the City would not normally extend its utilities.
Neal said there were discussions at staff meetings and with the city attorney to
bring a development agreement that would legally provide the citizens of Eden
Prairie with a benefit that they would not have ordinarily received—the dollars
over and above what the City would have received if this development would
have been in the City. Young asked if that figure is approximately$400,000 in
fees and Neal said it is something on that order. Young said he is uncomfortable
with receiving$600,000 from the developer for the purposes of facilitating the
development, and there is no formula that creates that figure. Young said he feels
the City opens itself up for criticism that if the number is right, the City will
accommodate the developer's request to do this. Young suggested if the money
is accepted from the developer for Settlers West, that the highest possible
number be used to justify so as not to expose the City to costs in the future.
Tyra-Lukens noted the council already voted unanimously to accept this and
Young was part of that vote. Young said until he read Neal's memo last week,
he didn't realize the$1,000,000 was anything other than the normal cost
associated with the development. He said it was spelled out in the memo for
the first time.
Case said he feels that originally part of the reason to accept monies was the
uniqueness of this project to service an area that could not be serviced
otherwise by Chanhassen. He said there is some sense in Minnesota that
communities should in some way look at this favorably and help each other.
Case said he does not see that looking at a special unique project that would
benefit our people by receiving special funds is connected necessarily to who
the developer is or the fact that he has done other projects in the City,however
he does appreciate the sensitivity to it.
CITY COUNCIL MINUTES
September 7,2004
Page 7
Case said the cash park fees are to build the City's park system and he is
assuming the neighborhood will not be using Eden Prairie's park system or
the city will not feel the need to supply this neighborhood with a
neighborhood park. Case said he assumes Chanhassen will meet that need for
the neighborhood. Lambert said not really,because of how the neighborhood
is situated and accessed, they will be using Eden Prairie's park system. Case
asked if it is the City's ethical responsibility to supply the neighborhood with
park and recreation facilities. Lambert said he does not know if it's our ethical
responsibility,but he would say as a practical manner the nearest parks would
be Eden Prairie's. Young said in incorporating the park fees, there is a
guideline to justify the expense.
Young said it worries him that his message is saying that maybe if a developer
has an unusual project not otherwise granted and that if the money is right, we
will accommodate the developer.
Butcher said this is a valuable conversation to have and there are many
attributes connect with the notion of a"gift." She said ever since she has been
on the council, developers have given gifts through conservation easements
and also through land that was actually developable,but it was a tradeoff
because it benefited the city in some way. She said if we are going to have this
discussion, we need to look at it overall because the city has been given gifts
many times with each one having a dollar figure associated with it. She said
she thinks the public is delighted when actions such as this are taken for the
good of the whole.
Rosow said he originally understood the concept was the developer was
volunteering to make the payment to the City and there were various
discussions on costs to the City for extending water, etc. and it was understood
there would be an overage. Rosow said he thought it was important to protect
the City to put it into the developer's agreement protection against nonpayment
because he didn't want an expectation that the City would be receiving the
funds over time that the City was then counting on that it could not enforce. He
said it was also to remove the contingency on how the monies are spent.
Young said gifts can take various forms,but there needs to be a connection
between what we're asking and the benefit the development will receive.
Mosman said the trading seems logical,being able to develop two pieces of
property and have a contiguous development that would not otherwise not be
able to be developed. She said she can't see anything in this project that would
be considered undesirable for the City.
Case said the council is always looking for tradeoffs that benefit the City and he
does not see this as any different. He said the ultimate goal of the council would
be to make a better Eden Prairie and there should be a tradeoff that tips the
balance that we did better for our people than what it would have been otherwise.
Dietz said staff did not think much of the idea of providing utility service for
CITY COUNCIL MINUTES
September 7,2004
Page 8
this development outside the City but the development would bring an early
closure to the rifle range and would eliminate the possibility of a road
connection from Hwy. 212 to Pioneer Trail through a property that would be
beyond our control. He said Eden Prairie will also probably be the first
responder because of its proximity and full time police department. Dietz said
it worked out and there was benefit to everyone and staff looked at it as a
separate thing never to be looked at to benefit future projects.
Tyra-Lukens asked if the dollar amount is in the developer's agreement.Neal
said it is. Tyra-Lukens said councilmembers should think about this discussion
and maybe not do a motion. Neal said there is not a need to take an action
tonight on this item; it is more of an early signal on the direction that staff
would intend to advise the council to go in once we begin receiving the funds.
2. Notice of Conference and Meeting Dates
Neal reported that the League of Minnesota Cities 2004 Conference will be in
Duluth, October 10-12 and those interested in attending should let Lorene
McWaters know.
He said the Metropolitan Council will host an open house style meeting on its
transportation policy plan Thursday, September 23 at Southwest Metro Transit
in Eden Prairie from 4:00-5:30 p.m. with Peter Bell making the presentation,
and those interested should also contact Lorene McWaters.
Neal said the Chamber of Commerce is sponsoring an education forum
program on September 22 from 7:30-9:00 a.m. called Education Funding, It's
Your Business. He said the City has a table with 10 spots reserved. Neal said
those interested in attending should let Lorene McWaters know.
C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR
1. Adopt Resolution No. 2004-130 Authorizing Execution of Documents
Relating to Sale of Property to West Hennepin Affordable Housing Land
Trust(formerly Item J. on the Consent Calendar)
Rosow said this item is the approval of various agreements between the City,
Hennepin County and the West Hennepin Housing Land Trust. He said his
recommendation is not to change any of the recommended approvals,but the
environmental report received last week exposes that there is contamination
from an underground storage tank on an adjacent property. He said the
environmental consultant is concerned about vapor migration to the property
and whether the MPCA will require the developer to install a vapor barrier.
Rosow said state environmental laws would hold anyone who is an owner of
property at the time contamination is present responsible for the contamination
even though they may not have caused it. Therefore,he is recommending that
council's approval be contingent upon satisfactory resolution of the
environmental issue at no cost to the City.
CITY COUNCIL NIINUTES
September 7,2004
Page 9
MOTION: Case moved, seconded by Butcher,to adopt a resolution
authorizing execution of documents relating to sale of property to West
Hennepin Affordable Housing Land Trust contingent upon satisfactory
resolution of environmental issue at no cost to the City of Eden Prairie.
Motion carried 5-0.
D. REPORT OF PARKS AND RECREATION DIRECTOR
1. Hockey Rink Update
Lambert provided an update on the progress of Hockey Rink I at the
Community Center. He said over the last week there have been many emails
sent to the City Council and staff with concerns regarding this project and it is
important for the City Council and staff to reassure residents that the project is
proceeding as quickly as possible.
Lambert said the timeframe to remove frost from under the rink took nearly
three weeks longer than originally anticipated and the estimated time for
opening the rink is now November 8. Prior to starting the project, the City met
with representatives from the Hockey Association, Figure Skating Club, and
High School Hockey Teams and discussed the estimated timeframe for this
project. The best-case scenario was for an October 15 opening; worst-case
was December 1. Staff did not sell any ice time prior to November 1,
anticipating there might be some causes for delay,which happens more often
than not during any construction project.
Lambert said staff tries to put daily photos on the website so citizens can
check the progress of the project online or they may also visit the site and talk
to staff about the progress.
Mosman noted that his project was originally planned for 2005 and the City
had to go ahead with it because of the condition of the piping of the
refrigeration system. Lambert said the system was in a concrete instead of
sand floor, and there were more leaks than anticipated. He said he is confident
that staff and contractors are doing everything they can and we will have a
very good product when it's finished.
E. REPORT OF PUBLIC WORKS DIRECTOR
F. REPORT OF POLICE CHIEF
G. REPORT OF FIRE CHIEF
H. REPORT OF CITY ATTORNEY
1. Bryant Lake Subdivision (formerly Item 2.)
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September 7,2004
Page 10
Rosow said he has an amendment to the developer agreement for Bryant Lake
Heights. He reported that Bryant Lake Heights is composed of three lots: Lot
1 owned by James and Ranelle Perkins; Lot 2 owned by Mr. Berglund; and
Lot 3 owned by Steven Longman Builders who purchased the lot and has a
residence under construction.
Rosow said Berglund previously had an easement across the Longman lot that
allowed him to drive across the property to access his lot,but real estate
records reflect that he entered into an agreement with Perkins that
relinquished that easement and entered into a license agreement that he retain
that easement until his driveway was built. Rosow said the license agreement
was never recorded with the county so when Longman searched records for
marketable title to the lot,he would not have discovered the license
agreement,he would have seen the easement was vacated.
Rosow said the other part of their lawsuit was against the City as they said the
City should not have issued a permit based on the premise that you need to
have the plans for all lots in front of the city before permits can be issued on
any of the lots. Rosow said that is not ever the way the City has approached
this and it is not the intention of the development agreement.
Rosow said the City's practice has been that there is an overall development
plan and when projects come in they are evaluated against that and permits are
issued. He said what is before the council tonight is an amendment to the
development agreement, but only for Lot 3. He said every paragraph in the
original development agreement is retained in the amendment but tailored to
this lot. He said Mr. Longman signed the agreement today and Rosow
recommends council approve the amendment to the development agreement
for Bryant Lake Heights with respect to Lot 3, Block 1.
MOTION: Mosman moved, seconded by Case, to approve the amendment to
the development agreement for Bryant Lake Heights with respect to Lot 3,
Block 1.
Case commented that he is hoping to be filled in more about this in closed
session and he is voting tonight somewhat in ignorance,but in full confidence
that this is the right thing to do.Rosow responded that by having a
development agreement that addresses all the particulars with respect to Lot 3,
we are protecting the City's interest in the proper development of that lot and
that is an extra benefit from having a separate development agreement that
references the exact plans that have been submitted and approved by your
chief building inspector. He said it is not a process normally done with respect
to every building permit,but because of the many questions about this
particular development, he thinks it's appropriate to have this agreement.
Rosow said there is one more lot, Lot 1, and we're not dealing with that
tonight; Lot 2,which is Mr. Berglund's lot, and is not subject to the agreement
because he purchased it before the development agreement was filed.
CITY COUNCIL AUNUTES
September 7,2004
Page 11
Motion carried 5-0.
2. Approve Grading/Land Alteration Permit For Lot 2,Block 1,Bryant
Lake Heights (formerly Item I. on Consent Calendar)
Rosow said this deals with an accommodation to Mr. Berglund. He said there
were two emergency court hearings held by a judge, one Friday evening, and
another hearing Wednesday last week, at the site, to view it himself to make
sure there was emergency access available to Mr. Berglund's lot. Rosow said
the judge determined there was adequate emergency access to the site.
In a separate lawsuit between Berglund and Perkins,the judge in that suit
issued a judgment in favor of Berglund and awarded judgment to Berglund,
and Berglund waited to put in a driveway until that case was tried.Rosow said
as they were at the site discussing what could be done, all the judge was
concerned about was emergency access. Rosow said in discussing it with
defense counsel appointed by the league, it was decided to recommend to staff
that the city would allow them to go ahead with their grading permit at their
own risk subject to confirmation of the permit by the council at tonight's
meeting. He said staff has reviewed the plans for the driveway and found them
to be acceptable and are not recommending any changes.
MOTION: Butcher moved, seconded by Case, to approve and ratify the
grading/land alteration pen-nit for Lot 2,Block 2, Bryant Lake Heights.
Motion carried 5-0.
3. Closed Session to Discuss Litigation (formerly Item 1.)
MOTION: Case moved, seconded by Mosman, to enter into closed session,
under Minnesota Statutes 13D.05, Subdivision 3B, for the purpose of
discussing litigation strategy and be advised as to the nature and issues being
raised in the litigation and receive legal counsel's recommendations with
respect to the litigation.
Motion carried 5-0. Council entered into closed session at 8:15 p.m.
XV. OTHER BUSINESS
XVI. ADJOURNMENT