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City Council - 10/21/1997 - Workshop APPROVED MINUTES CITY COUNCIL/STAFF WORKSHOP MEETING TUESDAY, OCTOBER 21, 1997 6:30 PM, HERITAGE ROOM IV 8080 Mitchell Road COUNCILMEMBERS: Mayor Jean Harris, Sherry Butcher- Younghans, Ronald Case, Ross Thorfinnson, Jr. and Nancy Tyra-Lukens CITY COUNCIL STAFF: City Manager Carl J. Jullie, Assistant City Manager Chris Enger, Director of Public Works Gene Dietz, Director of Parks, Recreation & Natural Resources Bob Lambert, and Council Recorder Jan Nelson ROLL CALL All members were present. I. CALL MEETING TO ORDER Mayor Harris called the meeting to order at 6:40 p.m. II. DISCUSSION ITEMS A. CONSERVATION EASEMENTS Referring to his memo of October 21, 1997, Lambert reviewed the two types of conservation easements the City uses. He said since the controversy in the Big Woods area they have had calls more regularly for conservation easements as people realize the value of establishing an easement in order to keep the trees. He said the easements that are used to preserve backyards between houses will probably disappear within ten years. The scenic easements that are not obvious to property owners will be difficult for the City to manage because most of the markers will disappear in a few years along with the conservation easement line. We would have to get a court injunction in order to enforce that type of easement. Lambert said it makes sense to put in carsonite markers but we cannot ensure the markers will remain in place. Staff has been encouraging developers to put hillsides or wooded slopes into an outlot with a scenic easement over the outlot because that means it will be more likely to be preserved. They also encourage the developer to gift the outlot to the City because the homeowners' association usually does not want to maintain the outlot and the property owner gets a tax write off that way. Harris noted that was the process we used most frequently over the last 6-8 years. She asked why we have begun to use the conservation easement more frequently. CITY COUNCIL/STAFF WORKSHOP MINUTES October 21, 1997 Page 2 Lambert said we have had scenic easements along the creek areas and they work there; however, they have had a problem with filing the scenic easement. It is generally required as part of the Developer's Agreement that a scenic easement be put over the area. We approve the document and ask them to file it with the final plat. The filing of the final plat may not occur before some of the lots have been sold, so those buyers are not aware of the scenic easement. They have considered having a signed scenic easement document at the time of final plat with the City in charge of filing it. Such a document would work in some occasions, but we still need a way to catch it before any lots are sold. Enger said we have 25 years experience in this area. He noted it is highly labor intensive and a lot of difficulties arise. He thought there is probably a technique that should be used in certain situations only, such as creek bluffs and Lakeshore. Those will take a lot of staff time to enforce. We need to determine what works and what will endure over the long haul. He thought we have had a huge success in tree preservation as a result of the process we went through to implement the Tree Preservation Ordinance. Case said the owners have a visual identification of the easement if you can keep the bulldozers off the area in the development phase. He met with 8 of 13 homeowners involved in the Big Woods issue, and no one there knew where the easement was. They had no concept from the initial plat map. He thought an easement still gives more of a chance to save some trees. Lambert replied that if a scenic easement is put in place for that purpose, then the property owner has a legal right to require enforcement. Case agreed that we need to use the easements very judiciously. He thought the Big Woods was an instance where the property owners did not know about the easement when they bought the property. He thought we need to enforce blatant cases such as the property owner who roto-tilled part of the Big Woods. Enger said if we had a test case we would know; however, it would depend on what the penalty would be as to whether it was worth it. Case asked if the City every enforces easements because he wanted to make sure it does what we want it to do. Lambert said if we want to test the issue we need to decide what would be a good court case, because it would put Staff in a difficult situation if we don't enforce. Case said City Attorney Pauly gave Stu Fox advice on establishing a legal process for enforcement. Harris thought going forward we need to select opportunities where there is a possibility of enduring conservation. She thought we need to examine very carefully the pros and cons of pressing the issue in the Big Woods. Enger said there was a Minnetonka court case with a woman who wanted her front yard to grow in a natural condition. They followed the letter of the law, and there CITY COUNCIL/STAFF WORKSHOP MINUTES October 21, 1997 Page 3 were no winners in that case. The City has used the strategy that the tree policy was adopted to try to make the discussion of the issue objective, not subjective. We wanted to have a policy and ordinance that would be enduring and that we would not have to test and possibly have it thrown out. He thought we may need to re-look at how we can get past the construction phase with the easements. Case said the big issue is the Big Woods. He thought it might be possible that the one property owner would settle before we went to court. Tyra-Lukens said we had a lot of discussion on tree mass when she served on the committee to review the ordinance. She thought we may need to specify no grading in a specific area, because she doesn't see developers attempting to maintain tree mass. Case said he liked the outlot idea. Harris agreed and said she thought we need to revisit the legal issues. She remembered the long discussions about the Big Woods and how we need to preserve this as a unique area of Eden Prairie. In the current issue in the Big Woods, she thought we will be inserting ourselves into the middle of a dispute between two home owners. Case thought we need to get back to whether we want to direct Staff to take the early steps to pursue legal action against the one homeowner in the Big Woods. He did not want to put this on the back burner. Jullie noted a letter did go out to the homeowner. Dietz said he didn't think there would ever be a big penalty or fine. He thought we could put in a requirement for a metes and bounds survey early in the development process. That would mean more work for the developer but would help establish the easement early on. B. COMMUNICATIONS REGARDING DEVELOPMENT PROPOSALS Harris said we talked to Staff about the need to understand the unique and difficult proposals that are coming up. Her experience is that Councilmembers attending meetings with the developer have not been productive, partly because the activity takes place on the front end of a long process. She thought we disenfranchise the commissions and our Staff as a result of those meetings. She would like to receive a one page sheet with bullets describing problematic projects that are coming through. Thorfinmson hasn't found the meetings particularly useful either. With the development on the corner of Pioneer Trail and Hwy 169, he had people telling him what other Councilmembers said and trying to play one against the other. He was equally concerned about what we are doing to the commissions by usurping the process. CITY COUNCI USTAFF WORKSHOP MINUTES October 21, 1997 Page 4 Tyra-Lukens agreed with the points made, especially the issue of subverting the commissions. She thought a lack of disapproval for a proposal was taken as approval. She thought there are always issues brought up at commissions and public forums that we hadn't thought of. She thought having a sheet of information on a development proposal would be sufficient. Butcher-Younghans thought the tacit approval issue is a problem. She asked what the benefit is to the meetings with the developers. Enger said Staff began recommending neighborhood meetings and, if Councilmembers received calls after the meetings, they did not know anything about the proposals. He thought the developers can't resist the urge to get approval up front. Case thought the meetings came out of the Pulte project where we got 20-30 calls before we saw anything. He thought we need to be able to say we know about the project and get the information up front. He thought a plat map would be helpful to have, especially if the development is controversial. Thorfinnson suggested a one-page summary of everything going through the system that would list the number of units and potential issues. Tyra-Lukens noted it would have to be timely. Enger said we have a Project Profile that has been used to provide a chronological list of projects from the point where we have just heard about them. He suggested starting with that as a tool and see if that would provide the kind of information needed. Harris would like to see three or four lines on the status of a project so that we can be aware of developments. We could then ask for more information. Dietz suggested asking developers to provide a summary paragraph in the developer's package that would describe the project. Enger noted this would not address the problem of the developer having the neighborhood meeting and then Councilmembers getting calls about the development. Case thought in that case he would at least have an idea of what the project is about; however, he thought we still have a problem with long-time residents who are developing their property. Harris thought we are talking about the routine processes at this point. Thorfinnson thought it was okay to meet with the developer but we should make it clear that anyone there is speaking on his or her own and is not speaking on behalf of the entire Council. Harris thought Staff has to carry that message to the developers. Tyra-Lukens thought we were talking about the importance of not circumventing the whole process by meeting with developers up front. We have to be very CITY COUNCIU/STAFF WORKSHOP MINUTES October 21, 1997 Page 5 careful that we don't circumvent the process in any way. We need to let groups work, deal with it when it comes to the Council level, and not get over-involved prior to it coming before the Council. Harris thought there is an undercurrent of commission concern about City Council confidence in them. It is important that we understand it is perceived as the Council position when we speak as individuals. She thought it should be one of the rules of conduct for Councilmembers that we be circumspect about what we say to commission members as well as developers because we want unbiased recommendations from the Commissions. Butcher-Younghans thought the group process with the commissions is a better process anyway. Harris said the intent is not to gag Councilmembers but rather to organize things in a manner that Council is informed and commissions are able to operate in an unbiased manner which assures that Council gets the best advice and recommendations from Staff and citizens. M. OTHER BUSINESS IV. ADJOURNMENT Mayor Harris adjourned the meeting at 7:25 p.m.