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City Council - 01/03/2006APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, JANUARY 3, 2006 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Brad Aho, Sherry Butcher, Ron Case, 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 Deb Sweeney I. ROLL CALL / CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Neal added Items XII.K. and XII.L. to Appointments. MOTION: Case moved, seconded by Butcher, to approve the agenda as published and amended. Motion carried 5-0. V. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, DECEMBER 5, 2005 MOTION: Young moved, seconded by Aho, to approve the Council Workshop minutes as published. Motion carried 5-0. B. TRUTH-IN-TAXATION HEARING HELD TUESDAY, DECEMBER 5, 2005 MOTION: Aho moved, seconded by Butcher, to approve the Truth in Taxation Hearing minutes as published. Motion carried 5-0. C. CITY COUNCIL MEETING HELD TUESDAY, DECEMBER 5, 2005 MOTION: Case moved, seconded by Young, to approve the City Council minutes as published. Motion carried 5-0. D. COUNCIL WORKSHOP HELD TUESDAY, DECEMBER 13, 2005 MOTION: Young moved, seconded by Case, to approve the Council Workshop minutes as published. Motion carried 5-0. E. CITY COUNCIL MEETING HELD TUESDAY, DECEMBER 13, 2005 MOTION: Butcher moved, seconded by Aho, to approve the City Council minutes as published. Motion carried 5-0. VI. CONSENT CALENDAR A. RESOLUTION NO. 2006-01 AUTHORIZING CITY OFFICIALS TO TRANSACT BANKING BUSINESS B. RESOLUTION NO. 2006-02 DESIGNATING DEPOSITORIES C. RESOLUTION NO. 2006-03 AUTHORIZING USE OF FACSIMILE SIGNATURES BY PUBLIC OFFICIALS D. RESOLUTION NO. 2006-04 AUTHORIZING TREASURER OR DEPUTY TREASURER TO INVEST CITY OF EDEN PRAIRIE FUNDS RESOLUTION NO. 2006-05 AUTHORIZING TREASURER OR DEPUTY TREASURER TO MAKE ELECTRONIC FUND TRANSFERS FOR CITY OF EDEN PRAIRIE F. RESOLUTION NO. 2005-06 AUTHORIZING PAYMENT OF CERTAIN CLAIMS BY FINANCE DEPARTMENT WITHOUT PRIOR COUNCIL APPROVAL G. RESOLUTION NO. 2005-07 APPOINTING COMMISSIONERS TO THE EDEN PRAIRIE HOUSING AND REDEVELOPMENT AUTHORITY H. RESOLUTION NO. 2005-08 ESTABLISHING MEETING DATES AND TIMES FOR CITY BOARDS AND COMMISSIONS FOR 2005 I. RESOLUTION NO. 2005-09 DESIGNATING OFFICIAL CITY NEWSPAPER J. APPROVE CHANGE ORDER NO. 2 FOR CSAH 4 AND VALLEY VIEW ROAD INTERSECTION IMPROVEMENTS, I.C. 96-5405 K. APPROVE NATURE TRAIL MASTER PLANS FOR EDENBROOK, RILEY CREEK, AND LOWER PURGATORY CREEK CONSERVATION AREAS L. AWARD CONTRACT TO REMODEL FIRE STATION 1’S MAIN OFFICE SPACE TO MCFARLAND CONSTRUCTION M. APPROVE PURCHASE OF FURNITURE FOR RECONFIGURATION OF THE MAIN OFFICE SPACE OF FIRE STATION 1 ADOPT RESOLUTION NO. 2005-10 APPROVING AMENDED HENNEPIN SOUTH SERVICES COLLABORATIVE AGREEMENT AND BY-LAWS MOTION: Young moved, seconded by Case, to approve Items A-N on the Consent Calendar. Motion carried 5-0. VII. PUBLIC HEARINGS / MEETINGS VIII. PAYMENT OF CLAIMS MOTION: Butcher moved, seconded by Young, to approve Payment of Claims as submitted. The motion carried on a roll call vote with Aho, Butcher, Case, Young, and Tyra-Lukens voting “aye.” IX. ORDINANCES AND RESOLUTIONS A. ADOPT RESOLUTION NO. 2006-11 SUPPORTING PASSAGE OF PROPOSED AMENDMENT TO THE MINNESOTA CONSTITUTION REGARDING DEDICATION OF MOTOR VEHICLE SALES TAX REVENUE FOR TRANSPORTATION PURPOSES Neal presented a resolution supporting the passage of a constitutional amendment to dedicate all motor vehicle sales tax revenue to transportation. The Minnesota Transportation Alliance (MTA), an advocacy group to which the City belongs, crafted the resolution and is asking its members to adopt it. Tyra-Lukens and Aho added the resolution to the agenda. Neal and Dietz also recommend Council pass it. The referendum will be put before voters in the fall. Aho noted the I-494 Corridor Commission also supports the resolution. Infrastructure and transportation are vital and it is critical for the motor vehicle tax to be dedicated to this purpose, as was its original intent. Young said he supported the resolution but objected to the paragraph citing motor vehicle deaths. The issue is funding streams and this language plays too much to sympathies. Tyra-Lukens asked if the intent was for all groups to pass the same resolution. Neal said yes. Case noted the Southwest Metro Transit Commission also passed the resolution. There may be a change to the amendment’s wording before the referendum as it is somewhat confusing. Aho said he also had issues with some of the wording in the resolution but had passed it along with the I-494 group. MOTION: Case moved, seconded by Butcher, to adopt Resolution No. 2006-11 supporting passage of the proposed amendment to the Minnesota Constitution dedicating all of the motor vehicle sales tax revenue to transportation with at least 40% of the revenue for public transit assistance and not more than 60% of the revenue for highway purposes. Motion carried 5-0. X. PETITIONS, REQUESTS AND COMMUNICATIONS XI. REPORTS OF ADVISORY BOARDS & COMMISSIONS XII. APPOINTMENTS A. RESOLUTION NO. 2006-12 DESIGNATING OFFICIAL MEETING DATES, TIME AND PLACE FOR THE CITY OF EDEN PRAIRIE CITY COUNCIL IN 2005 AND APPOINTING ACTING MAYOR Neal said this item sets the meeting calendar and appoints the acting mayor. The March 6th meeting needs to change as statute prohibits Council from meeting after 6 p.m. on the day of party caucuses. Council agreed to meet Wednesday, March 8th at the normal time and place. MOTION: Butcher moved, seconded by Tyra-Lukens, to adopt Resolution No. 2006-12 designating the official meeting dates, time and place for the City of Eden Prairie Council in 2006 and appointing Councilmember Case the Acting Mayor. Motion carried 5-0. B. RESOLUTION NO 2006-13 APPOINTING DIRECTOR AND ALTERNATE DIRECTOR TO THE SUBURBAN RATE AUTHORITY FOR 2005 MOTION: Butcher moved, seconded by Aho, to adopt Resolution No. 2006-13 designating Gene Dietz as the Director and Case as the Alternate Director to the Suburban Rate Authority. Motion carried 5-0. C. APPOINTMENT OF MAYOR TYRA-LUKENS AS DELEGATE AND COUNCILMEMBERS AS ALTERNATES TO THE ASSOCIATION OF METROPOLITAN MUNICIPALITIES MOTION: Case moved, seconded by Aho, to approve appointment of the Mayor as Delegate and Councilmembers as Alternates to the Association of Metropolitan Municipalities. Motion carried 5-0. D. APPOINTMENT OF MAYOR TYRA-LUKENS AS DELEGATE AND COUNCILMEMBERS AS ALTERNATES TO THE NATIONAL LEAGUE OF CITIES Young asked if Council intended to alter any appointments from the previous year. Tyra-Lukens said she had asked for change requests to be provided prior to the meeting. Young thought it might be beneficial to change them at times but said he had missed the memo and agreed to continue as planned. MOTION: Butcher moved, seconded by Case, to approve appointment of the Mayor as Delegate and Councilmembers as Alternates to the National League of Cities. Motion carried 5-0. E. APPOINTMENT OF MAYOR TYRA-LUKENS TO THE MUNICIPAL LEGISLATIVE COMMISSION MOTION: Case moved, seconded by Butcher, to approve appointment of the Mayor to the Municipal Legislative Commission. Motion carried 5-0. F. APPOINTMENT TO SOUTHWEST CORRIDOR COMMISSION MOTION: Case moved, seconded by Butcher, to approve appointment of Young to the Southwest Corridor Commission. Motion carried 5-0. G. APPOINTMENT TO SOUTHWEST CABLE TV COMMISSION MOTION: Butcher moved, seconded by Young, to approve appointment of Case to the Southwest Cable TV Commission. Motion carried 5-0. H. APPOINTMENT TO EDEN PRAIRIE FOUNDATION MOTION: Aho moved, seconded by Case, to approve appointment of Young to the Eden Prairie Foundation. Motion carried 5-0. I. APPOINTMENT TO I-494 CORRIDOR COMMISSION MOTION: Young moved, seconded by Butcher, to approve appointment of Aho to the I-494 Corridor Commission. Motion carried 5-0. J. APPOINTMENT TO CITY AND SCHOOL FACILITIES USE TASK FORCE MOTION: Butcher moved, seconded by Case, to approve appointment of Young to the City and School Facilities Use Task Force. Motion carried 5-0. APPOINTMENT TO SOUTHWEST METRO TRANSIT COMMISSSION MOTION: Young moved, seconded by Butcher, to appoint Case to the Southwest Metro Transit Board as the Eden Prairie Citizen Representative for a three-year term to end December 31, 2008. Motion carried 5-0. APPOINTMENT TO MINNESOTA LEAGUE OF CITIES INSURANCE TRUST MOTION: Young moved, seconded by Case, to appoint Butcher to the Minnesota League of Cities Insurance Trust. Motion carried 5-0. XIII. REPORTS OF OFFICERS REPORTS OF COUNCILMEMBERS REPORT OF CITY MANAGER 1. City Attorney Neal said this is a motion to appoint Rosow’s firm to both civil and criminal prosecution work. He asked Council to reconsider its previous decision to bring prosecution in-house. Neal presented cost data suggesting it would cost between $185,000 and $215,000 to provide prosecution in-house, which is close to the current contract cost. Given the current high level of quality, the strength of the relationship, and the satisfaction of police and other stakeholders, the City would have trouble achieving the desired level of savings with the same level of service. Options for the Council would be to approve the motion and continue the existing contract (there would be a budget issue to deal with down the road), or to take no action and revert to the previously moved plan to outsource prosecution. Rosow would still handle civil services in either case. Butcher said she had been very uncomfortable with the quick decision to outsource and was happy to see the new facts. Given the City’s past experience with the law firm, approving the motion would be in the best interests of the City. Aho said the salary figures in Neal’s memo were too high. He thought a competent attorney could be had for $70,000 to $80,000 rather than the $102,000 to $114,000 suggested. $100,000 would be the top number. He also questioned the need for a second part-time attorney. Perhaps a joint agreement could be reached with another city to provide backup coverage. Aho said he still felt strongly the in-house option should be tried. Young said he thought the budget was behind him and was not eager to revisit it, but proposed a solution to end the disagreement on costs. Council should pass the motion to continue services for now and issue an RFP to handle the City’s prosecution services, whether under contract or as in-house. Instead of speculating, this process would reveal what the market truly is. If the City finds competent service at a good price, it should take it. Neal supported Young’s idea and noted Edina is currently reviewing their RFPs. Neal said he would share what their experience had been when he knew more. Rosow’s firm has been notified the job may be terminated. Case approved Young’s idea to get more data. He was uncomfortable with Aho’s suggestion. The City may not be able to get a competent attorney for $80,000, and getting backup coverage from another city may not be feasible. Case recommended digging deeper and looking at cities across the state or even out of state to see how they handle this issue. It was never the intent to abruptly terminate the contract. There needs to be a transition. Case said a full year would even be fine to explore the issue, as the decision will affect cost and service levels for years to come. Aho said he felt fairly experienced in attorney salaries, as his wife is a 3rd year law student. The RFP is an excellent idea but a year is unacceptable. Young agreed, saying the current motion gives the City no incentive to act. MOTION: Young moved, seconded by Case, to amend the motion to include: “Staff will proceed with due diligence to issue an RFP to handle City prosecution on both a contract and in-house basis, and report back to Council as soon as practicable.” Case asked for a timeline. Young said no arbitrary date is needed. The language already indicates this is a priority. Butcher expressed concerns the Council is stepping outside its role as a governing body. Does Council wants to look at every RFP? The City issues many RFPs each year and many are much larger, for example, asphalt services. Butcher was concerned about micro-management. The Council needs a retreat to talk about its role. Neal noted this is not a “low bid wins” situation. Staff will need to evaluate competence as well as cost. Regarding micromanagement, Case said some issues do carry more resonance. That doesn’t mean Council will get involved in every issue at the same level of detail. The legal issue has been discussed for a long time and needs to be put to rest. Case said there seemed to be some level of mistrust of Staff on this issue, so the RFP would be a good compromise to find out the facts to everyone’s satisfaction. Tyra-Lukens expressed concern about the idea of the RFP. Usually the City has specifications for a job and takes the lowest bid, unless past dealings with the company have been negative. She did not want to be obligated to take the low bid. Everyone is pleased with the current provider and it is hard to place a value on that. If there were not significant savings, it would not be worth the risk of changing. Case noted Council would get to vote on the specifics. Butcher said Council could bring together all the past, disparate pieces of information on this issue and make a decision based on those. She felt frustrated to keep revisiting the issue. The Council is stepping outside a governance role. Butcher said the current arrangement is tried and true. An RFP may not be the best answer either. She did not support the amendment. MOTION: Young moved, seconded by Case, to amend the motion to include: “Direct Staff to proceed with due diligence to issue an RFP to handle City prosecution on both a contract and in-house basis, and report back to Council as soon as practicable.” The amendment carried 4-1 with Butcher voting nay. MOTION: Move to appoint Mr. Richard Rosow of the law firm of Gregerson, Rosow, Johnson & Nilan as the City Attorney for 2006; and direct Staff to proceed with due diligence to issue an RFP to handle City prosecution on both a contract and in-house basis, and report back to Council as soon as practicable. The motion carried 4-1 with Butcher voting nay. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. Edenvale PUD Neal said he had asked Rosow to present information on the Edenvale PUD due to resident concerns about the potential development of Bent Creek Golf Course. He emphasized that no proposal has been received. Rosow also noted no proposal is on the table, but if an application does come in, it is entitled to due process, including Staff review, presentation to the Planning Commission, and finally a public hearing and Council vote. He cautioned Councilmembers not to make up their minds before the public hearing and to be careful about their statements, as courts do not look kindly on these kinds of predeterminations. Rosow reviewed the area and history of the Edenvale PUD, showing a current aerial view and several maps based upon the 1968, 1977 and the existing Guide Plan. The 1968 guide plan shows an area roughly the same as today, including the golf course. A 1977 revision to the guide plan again showed the same golf course, again designated as “quasi-public” land. “Quasi-public” land is a common concept that is also used by other cities. The 1977 document contains more detail about the term. At the time, the City was debating its growth policy—no growth, restricted growth, or stimulated growth. The City settled on balanced growth, including public and quasi-public uses. The guide plan specifically references several areas as quasi-public, including the Minnesota River flood plain and several Eden Prairie golf courses, including Edenvale’s. The current guide plan also describes private but “quasi-public” land, again referencing golf courses. Rosow noted the City’s treatment of the golf course property has been absolutely consistent over time—zoned rural and designated quasi-public land. The Edenvale development and Eden Prairie as a whole are clearly a planned community, with the golf course as part of a well-integrated plan for both the neighborhood and the City. There has been no sea change or alteration in how the land is used and zoned. This consistency is key to defending the City’s zoning decisions. Rosow also reviewed files from the development process. A July 1970 report to the Planning Commission from Brauer and Associates noted that Eden Land Corporation will issue assurances on the golf course which will guarantee the golf course would be used as recreational land and prohibit its use as building sites. In a supplement to the PUD, Eden Land Corporation issues assurances that guarantee the golf course use as recreational land so that it will not be developed into building sites. The minutes from the August 1970 Village Council meeting confirmed the developer’s intent to maintain the land as a golf course. The resolution also contains language specific to the golf course. It is very clear the development was approved as a whole planned community, including the golf course in that context. Rosow presented a 1972 letter from Edenland to golf course neighbors, notifying residents of course completion and hoping residents would enjoy the scenery and enhancement of their property values. Finally, Rosow presented a letter from the developer requesting further development, which identified the developer’s $1,000,000 investment in the golf course is to provide an amenity to serve the community and enhance the value of the adjacent property. The developer clearly understood the golf course was an integral part of the development. Rosow then presented a brief review of state law regarding zoning. Councils have discretion to zone and re-zone areas, but are required to act on a rational basis. If the decision is found to have a rational basis, the zoning is upheld. In the key case of Hann vs. the City of Coon Rapids, the Council denied a request to re-zone based on increased traffic, safety hazards, impacts on existing homes, and adverse impacts on open space, home values, and consistent land practices. Though the basis appeared rational, the Court ordered a new trial to see if the facts were substantiated. The key lesson to learn from this case is that the Council cannot rely on hearsay or unsworn testimony. Studies, facts, and figures are needed to make findings. Assuming the Council is found to have acted rationally in its zoning decision, the burden then falls on the applicant to either prove a mistake was made in the zoning, or that the area has changed so dramatically that no reasonable use of the land is possible in the current zoning classification. The standard is not “optimal” use from a monetary standpoint, but “reasonable” use. Rosow noted little is known about the operations and profitability of the golf course, but if a proposal were brought, Staff might have to confirm this information. The review process could be very complicated depending on the proposal. The City must also consider federal law. The key point under federal law is whether a zoning decision amounts to “taking” of property. In the key case of Penn Central vs. the City of New York, the court upheld the City’s regulation of the property. In a constitutional challenge, the Supreme Court said interference with expectation and economic impacts on the owner must be considered. The key question is whether the property owner had “actual knowledge” of restrictions on development (for example, a clause in the purchase agreement) or “constructive notice” (i.e., the restrictions are outlined in title documents or the law, whether the property owner was aware of them or not.) To prevail, a claimant would have to show an interference with an investment-backed expectation to a degree that merits government compensation—for example, the owner relied on a certain zoning regulation and had a reasonable expectation of being able to go ahead with his plans. Reahard vs. Lee County outlines the information the City would need to present—the economic impact, when the property was purchased, the purchase price, the composition, the initial use, the history of development, the classification and any changes to it all being pertinent to the question of the reasonable expectations of the owner and neighboring owners. To qualify as a “taking,” there must be a change in the fair market value caused by regulations—for example, a 5% decrease in value does not constitute a “taking.” In the case of the golf course, the value in 1978 was listed as $879,000; the present taxable market value is $2 million. While is it hard to be definitive without a specific proposal, it is unlikely the owner could successfully argue that a denial of rezoning caused a decrease in property value unless new facts come forward. Throughout the history of the PUD, the City has been very consistent. The applicant made statements that the Village Council relied on in its approval. This consistent land use planning is good governance. Rosow noted he is still going through the nearly 175 applications within this area. Should an application be submitted, Staff will meet with the developer to gather information in an impartial way. The Planning Commission would hear the proposal and make recommendations, followed by presentations and public hearing before the Council. The Council should not make up its mind until it has taken into account all information provided by the applicant, Staff, residents, and speakers at both public hearings. He invited Council’s questions on that basis. Case said although he recognized no proposal is before the Council, his personal preference would be to maintain the area as open space. He asked if there was anything Council could do to prepare before a proposal is brought. Rosow noted Staff was already undertaking a major review of the guide plan this year. Council can listen to residents’ concerns and relay them to Staff so Staff can collect pertinent information. Young said he understood the ban on predetermination to apply to the Council as a body, not to Councilmembers as individuals. Rosow acknowledged Councilmembers are elected to have opinions. The key is to make it clear that the public hearing is open to all, and to decide based on all the information, not a personal preference. Aho and Tyra-Lukens thanked Rosow for his thorough presentation. D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XIV. OTHER BUSINESS XV. ADJOURNMENT MOTION: Butcher moved, seconded by Aho, to adjourn the meeting. Motion carried 5-0. The meeting adjourned at 8:29 p.m. CITY COUNCIL MINUTES January 3, 2006 Page 11 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JANUARY 3, 2006 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Brad Aho, Sherry Butcher, Ron Case, 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 Deb Sweeney I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Neal added Items XILK. and XILL. to Appointments. MOTION: Case moved, seconded by Butcher, to approve the agenda as published and amended. Motion carried 5-0. V. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, DECEMBER 5, 2005 MOTION: Young moved, seconded by Aho, to approve the Council Workshop minutes as published. Motion carried 5-0. B. TRUTH-IN-TAXATION HEARING HELD TUESDAY, DECEMBER 5, 2005 MOTION: Aho moved, seconded by Butcher, to approve the Truth in Taxation Hearing minutes as published. Motion carried 5-0. C. CITY COUNCIL MEETING HELD TUESDAY, DECEMBER 5, 2005 MOTION: Case moved, seconded by Young, to approve the City Council minutes as published. Motion carried 5-0. CITY COUNCIL MINUTES January 3, 2006 Page 2 D. COUNCIL WORKSHOP HELD TUESDAY, DECEMBER 13, 2005 MOTION: Young moved, seconded by Case, to approve the Council Workshop minutes as published. Motion carried 5-0. E. CITY COUNCIL MEETING HELD TUESDAY, DECEMBER 13, 2005 MOTION: Butcher moved, seconded by Aho, to approve the City Council minutes as published. Motion carried 5-0. VI. CONSENT CALENDAR A. RESOLUTION NO. 2006-01 AUTHORIZING CITY OFFICIALS TO TRANSACT BANKING BUSINESS B. RESOLUTION NO. 2006-02 DESIGNATING DEPOSITORIES C. RESOLUTION NO. 2006-03 AUTHORIZING USE OF FACSIMILE SIGNATURES BY PUBLIC OFFICIALS D. RESOLUTION NO. 2006-04 AUTHORIZING TREASURER OR DEPUTY TREASURER TO INVEST CITY OF EDEN PRAIRIE FUNDS E. RESOLUTION NO. 2006-05 AUTHORIZING TREASURER OR DEPUTY TREASURER TO MAKE ELECTRONIC FUND TRANSFERS FOR CITY OF EDEN PRAIRIE F. RESOLUTION NO. 2005-06 AUTHORIZING PAYMENT OF CERTAIN CLAIMS BY FINANCE DEPARTMENT WITHOUT PRIOR COUNCIL APPROVAL G. RESOLUTION NO. 2005-07 APPOINTING COMMISSIONERS TO THE EDEN PRAIRIE HOUSING AND REDEVELOPMENT AUTHORITY H. RESOLUTION NO. 2005-08 ESTABLISHING MEETING DATES AND TIMES FOR CITY BOARDS AND COMMISSIONS FOR 2005 I. RESOLUTION NO. 2005-09 DESIGNATING OFFICIAL CITY NEWSPAPER J. APPROVE CHANGE ORDER NO. 2 FOR CSAH 4 AND VALLEY VIEW ROAD INTERSECTION IMPROVEMENTS, I.C. 96-5405 K. APPROVE NATURE TRAIL MASTER PLANS FOR EDENBROOK, RILEY CREEK,AND LOWER PURGATORY CREEK CONSERVATION AREAS CITY COUNCIL MINUTES January 3, 2006 Page 3 L. AWARD CONTRACT TO REMODEL FIRE STATION FS MAIN OFFICE SPACE TO MCFARLAND CONSTRUCTION M. APPROVE PURCHASE OF FURNITURE FOR RECONFIGURATION OF THE MAIN OFFICE SPACE OF FIRE STATION 1 N. ADOPT RESOLUTION NO. 2005-10 APPROVING AMENDED HENNEPIN SOUTH SERVICES COLLABORATIVE AGREEMENT AND BY-LAWS MOTION: Young moved, seconded by Case, to approve Items A-N on the Consent Calendar. Motion carried 5-0. VII. PUBLIC HEARINGS/MEETINGS VIII. PAYMENT OF CLAIMS MOTION: Butcher moved, seconded by Young, to approve Payment of Claims as submitted. The motion carried on a roll call vote with Aho, Butcher, Case, Young, and Tyra-Lukens voting "aye." IX. ORDINANCES AND RESOLUTIONS A. ADOPT RESOLUTION NO. 2006-11 SUPPORTING PASSAGE OF PROPOSED AMENDMENT TO THE MINNESOTA CONSTITUTION REGARDING DEDICATION OF MOTOR VEHICLE SALES TAX REVENUE FOR TRANSPORTATION PURPOSES Neal presented a resolution supporting the passage of a constitutional amendment to dedicate all motor vehicle sales tax revenue to transportation. The Minnesota Transportation Alliance (MTA), an advocacy group to which the City belongs, crafted the resolution and is asking its members to adopt it. Tyra-Lukens and Aho added the resolution to the agenda. Neal and Dietz also recommend Council pass it. The referendum will be put before voters in the fall. Aho noted the I-494 Corridor Commission also supports the resolution. Infrastructure and transportation are vital and it is critical for the motor vehicle tax to be dedicated to this purpose, as was its original intent. Young said he supported the resolution but objected to the paragraph citing motor vehicle deaths. The issue is funding streams and this language plays too much to sympathies. Tyra-Lukens asked if the intent was for all groups to pass the same resolution. Neal said yes. Case noted the Southwest Metro Transit Commission also passed the resolution. There may be a change to the amendment's wording before the referendum as it is somewhat confusing. Aho said he also had issues with some of the wording in the resolution but had passed it along with the I-494 group. CITY COUNCIL MINUTES January 3, 2006 Page 4 MOTION: Case moved, seconded by Butcher, to adopt Resolution No. 2006-11 supporting passage of the proposed amendment to the Minnesota Constitution dedicating all of the motor vehicle sales tax revenue to transportation with at least 40% of the revenue for public transit assistance and not more than 60% of the revenue for highway purposes. Motion carried 5-0. X. PETITIONS, REQUESTS AND COMMUNICATIONS XI. REPORTS OF ADVISORY BOARDS & COMMISSIONS XII. APPOINTMENTS A. RESOLUTION NO. 2006-12 DESIGNATING OFFICIAL MEETING DATES, TIME AND PLACE FOR THE CITY OF EDEN PRAIRIE CITY COUNCIL IN 2005 AND APPOINTING ACTING MAYOR Neal said this item sets the meeting calendar and appoints the acting mayor. The March 61h meeting needs to change as statute prohibits Council from meeting after 6 p.m. on the day of party caucuses. Council agreed to meet Wednesday, March 8h' at the normal time and place. MOTION: Butcher moved, seconded by Tyra-Lukens, to adopt Resolution No. 2006-12 designating the official meeting dates, time and place for the City of Eden Prairie Council in 2006 and appointing Councilmember Case the Acting Mayor. Motion carried 5-0. B. RESOLUTION NO 2006-13 APPOINTING DIRECTOR AND ALTERNATE DIRECTOR TO THE SUBURBAN RATE AUTHORITY FOR 2005 MOTION: Butcher moved, seconded by Aho, to adopt Resolution No. 2006-13 designating Gene Dietz as the Director and Case as the Alternate Director to the Suburban Rate Authority. Motion carried 5-0. C. APPOINTMENT OF MAYOR TYRA-LUKENS AS DELEGATE AND COUNCILMEMBERS AS ALTERNATES TO THE ASSOCIATION OF METROPOLITAN MUNICIPALITIES MOTION: Case moved, seconded by Aho, to approve appointment of the Mayor as Delegate and Councilmembers as Alternates to the Association of Metropolitan Municipalities. Motion carried 5-0. D. APPOINTMENT OF MAYOR TYRA-LUKENS AS DELEGATE AND COUNCILMEMBERS AS ALTERNATES TO THE NATIONAL LEAGUE OF CITIES CITY COUNCIL MINUTES January 3, 2006 Page 5 Young asked if Council intended to alter any appointments from the previous year. Tyra-Lukens said she had asked for change requests to be provided prior to the meeting. Young thought it might be beneficial to change them at times but said he had missed the memo and agreed to continue as planned. MOTION: Butcher moved, seconded by Case, to approve appointment of the Mayor as Delegate and Councilmembers as Alternates to the National League of Cities. Motion carried 5-0. E. APPOINTMENT OF MAYOR TYRA-LUKENS TO THE MUNICIPAL LEGISLATIVE COMMISSION MOTION: Case moved, seconded by Butcher, to approve appointment of the Mayor to the Municipal Legislative Commission. Motion carried 5-0. F. APPOINTMENT TO SOUTHWEST CORRIDOR COMMISSION MOTION: Case moved, seconded by Butcher, to approve appointment of Young to the Southwest Corridor Commission. Motion carried 5-0. G. APPOINTMENT TO SOUTHWEST CABLE TV COMMISSION MOTION: Butcher moved, seconded by Young, to approve appointment of Case to the Southwest Cable TV Commission. Motion carried 5-0. H. APPOINTMENT TO EDEN PRAIRIE FOUNDATION MOTION: Aho moved, seconded by Case, to approve appointment of Young to the Eden Prairie Foundation. Motion carried 5-0. I. APPOINTMENT TO I-494 CORRIDOR COMMISSION MOTION: Young moved, seconded by Butcher, to approve appointment of Aho to the I-494 Corridor Commission. Motion carried 5-0. J. APPOINTMENT TO CITY AND SCHOOL FACILITIES USE TASK FORCE MOTION: Butcher moved, seconded by Case, to approve appointment of Young to the City and School Facilities Use Task Force. Motion carried 5-0. K. APPOINTMENT TO SOUTHWEST METRO TRANSIT COMMISSSION MOTION: Young moved, seconded by Butcher, to appoint Case to the Southwest Metro Transit Board as the Eden Prairie Citizen Representative for a three-year term to end December 31, 2008. Motion carried 5-0. CITY COUNCIL MINUTES January 3, 2006 Page 6 L. APPOINTMENT TO MINNESOTA LEAGUE OF CITIES INSURANCE TRUST MOTION: Young moved, seconded by Case, to appoint Butcher to the Minnesota League of Cities Insurance Trust. Motion carried 5-0. XIII. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER 1. City Attorney Neal said this is a motion to appoint Rosow's firm to both civil and criminal prosecution work. He asked Council to reconsider its previous decision to bring prosecution in-house. Neal presented cost data suggesting it would cost between $185,000 and $215,000 to provide prosecution in-house, which is close to the current contract cost. Given the current high level of quality, the strength of the relationship, and the satisfaction of police and other stakeholders, the City would have trouble achieving the desired level of savings with the same level of service. Options for the Council would be to approve the motion and continue the existing contract(there would be a budget issue to deal with down the road), or to take no action and revert to the previously moved plan to outsource prosecution. Rosow would still handle civil services in either case. Butcher said she had been very uncomfortable with the quick decision to outsource and was happy to see the new facts. Given the City's past experience with the law firm, approving the motion would be in the best interests of the City. Aho said the salary figures in Neal's memo were too high. He thought a competent attorney could be had for$70,000 to $80,000 rather than the $102,000 to $114,000 suggested. $100,000 would be the top number. He also questioned the need for a second part-time attorney. Perhaps a joint agreement could be reached with another city to provide backup coverage. Aho said he still felt strongly the in-house option should be tried. Young said he thought the budget was behind him and was not eager to revisit it,but proposed a solution to end the disagreement on costs. Council should pass the motion to continue services for now and issue an RFP to handle the City's prosecution services, whether under contract or as in-house. Instead of speculating, this process would reveal what the market truly is. If the City finds competent service at a good price,it should take it. Neal supported Young's idea and noted Edina is currently CITY COUNCIL MINUTES January 3, 2006 Page 7 reviewing their RFPs. Neal said he would share what their experience had been when he knew more. Rosow's firm has been notified the job may be terminated. Case approved Young's idea to get more data. He was uncomfortable with Aho's suggestion. The City may not be able to get a competent attorney for$80,000, and getting backup coverage from another city may not be feasible. Case recommended digging deeper and looking at cities across the state or even out of state to see how they handle this issue. It was never the intent to abruptly terminate the contract. There needs to be a transition. Case said a full year would even be fine to explore the issue, as the decision will affect cost and service levels for years to come. Aho said he felt fairly experienced in attorney salaries, as his wife is a 3rd year law student. The RFP is an excellent idea but a year is unacceptable. Young agreed, saying the current motion gives the City no incentive to act. MOTION: Young moved, seconded by Case, to amend the motion to include: "Staff will proceed with due diligence to issue an RFP to handle City prosecution on both a contract and in-house basis, and report back to Council as soon as practicable." Case asked for a timeline. Young said no arbitrary date is needed. The language already indicates this is a priority. Butcher expressed concerns the Council is stepping outside its role as a governing body. Does Council wants to look at every RFP? The City issues many RFPs each year and many are much larger, for example, asphalt services. Butcher was concerned about micro-management. The Council needs a retreat to talk about its role. Neal noted this is not a"low bid wins" situation. Staff will need to evaluate competence as well as cost. Regarding micromanagement, Case said some issues do carry more resonance. That doesn't mean Council will get involved in every issue at the same level of detail. The legal issue has been discussed for a long time and needs to be put to rest. Case said there seemed to be some level of mistrust of Staff on this issue, so the RFP would be a good compromise to find out the facts to everyone's satisfaction. Tyra-Lukens expressed concern about the idea of the RFP. Usually the City has specifications for a job and takes the lowest bid, unless past dealings with the company have been negative. She did not want to be obligated to take the low bid. Everyone is pleased with the current provider and it is hard to place a value on that. If there were not significant savings, it would not be worth the risk of changing. Case noted Council would get to vote on the specifics. Butcher said Council could bring together all the past, disparate pieces of information on this issue CITY COUNCIL MINUTES January 3, 2006 Page 8 and make a decision based on those. She felt frustrated to keep revisiting the issue. The Council is stepping outside a governance role. Butcher said the current arrangement is tried and true. An RFP may not be the best answer either. She did not support the amendment. MOTION: Young moved, seconded by Case, to amend the motion to include: "Direct Staff to proceed with due diligence to issue an RFP to handle City prosecution on both a contract and in-house basis, and report back to Council as soon as practicable." The amendment carried 4-1 with Butcher voting nay. MOTION: Move to appoint Mr. Richard Rosow of the law firm of Gregerson, Rosow, Johnson & Nilan as the City Attorney for 2006; and direct Staff to proceed with due diligence to issue an RFP to handle City prosecution on both a contract and in-house basis, and report back to Council as soon as practicable. The motion carried 4-1 with Butcher voting nay. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. Edenvale PUD Neal said he had asked Rosow to present information on the Edenvale PUD due to resident concerns about the potential development of Bent Creek Golf Course. He emphasized that no proposal has been received. Rosow also noted no proposal is on the table,but if an application does come in, it is entitled to due process, including Staff review,presentation to the Planning Commission, and finally a public hearing and Council vote. He cautioned Councilmembers not to make up their minds before the public hearing and to be careful about their statements, as courts do not look kindly on these kinds of predeterminations. Rosow reviewed the area and history of the Edenvale PUD, showing a current aerial view and several maps based upon the 1968, 1977 and the existing Guide Plan. The 1968 guide plan shows an area roughly the same as today, including the golf course. A 1977 revision to the guide plan again showed the same golf course, again designated as "quasi-public" land. "Quasi-public" land is a common concept that is also used by other cities. The 1977 document contains more detail about the term. At the time, the City was debating its growth policy—no growth,restricted growth, or stimulated growth. The City settled on balanced growth, including public and quasi-public uses. The guide plan specifically references several areas as quasi-public, including the Minnesota River flood plain and several Eden Prairie golf courses, including Edenvale's. The current guide plan also describes private but"quasi-public" land, again referencing golf courses. Rosow noted the City's treatment of the CITY COUNCIL MINUTES January 3, 2006 Page 9 golf course property has been absolutely consistent over time—zoned rural and designated quasi-public land. The Edenvale development and Eden Prairie as a whole are clearly a planned community, with the golf course as part of a well-integrated plan for both the neighborhood and the City. There has been no sea change or alteration in how the land is used and zoned. This consistency is key to defending the City's zoning decisions. Rosow also reviewed files from the development process. A July 1970 report to the Planning Commission from Brauer and Associates noted that Eden Land Corporation will issue assurances on the golf course which will guarantee the golf course would be used as recreational land and prohibit its use as building sites. In a supplement to the PUD, Eden Land Corporation issues assurances that guarantee the golf course use as recreational land so that it will not be developed into building sites. The minutes from the August 1970 Village Council meeting confirmed the developer's intent to maintain the land as a golf course. The resolution also contains language specific to the golf course. It is very clear the development was approved as a whole planned community, including the golf course in that context. Rosow presented a 1972 letter from Edenland to golf course neighbors, notifying residents of course completion and hoping residents would enjoy the scenery and enhancement of their property values. Finally, Rosow presented a letter from the developer requesting further development, which identified the developer's $1,000,000 investment in the golf course is to provide an amenity to serve the community and enhance the value of the adjacent property. The developer clearly understood the golf course was an integral part of the development. Rosow then presented a brief review of state law regarding zoning. Councils have discretion to zone and re-zone areas,but are required to act on a rational basis. If the decision is found to have a rational basis, the zoning is upheld. In the key case of Hann vs. the City of Coon Rapids, the Council denied a request to re-zone based on increased traffic, safety hazards, impacts on existing homes, and adverse impacts on open space, home values, and consistent land practices. Though the basis appeared rational, the Court ordered a new trial to see if the facts were substantiated. The key lesson to learn from this case is that the Council cannot rely on hearsay or unsworn testimony. Studies, facts, and figures are needed to make findings. Assuming the Council is found to have acted rationally in its zoning decision, the burden then falls on the applicant to either prove a mistake was made in the zoning, or that the area has changed so dramatically that no reasonable use of the land is possible in the current zoning classification. The standard is not"optimal" use from a monetary standpoint,but"reasonable" use. Rosow noted little is known about the operations and profitability of the golf course,but if a proposal CITY COUNCIL MINUTES January 3, 2006 Page 10 were brought, Staff might have to confirm this information. The review process could be very complicated depending on the proposal. The City must also consider federal law. The key point under federal law is whether a zoning decision amounts to "taking" of property. In the key case of Penn Central vs. the City of New York, the court upheld the City's regulation of the property. In a constitutional challenge, the Supreme Court said interference with expectation and economic impacts on the owner must be considered. The key question is whether the property owner had "actual knowledge" of restrictions on development(for example, a clause in the purchase agreement) or"constructive notice" (i.e., the restrictions are outlined in title documents or the law, whether the property owner was aware of them or not.) To prevail, a claimant would have to show an interference with an investment-backed expectation to a degree that merits government compensation—for example, the owner relied on a certain zoning regulation and had a reasonable expectation of being able to go ahead with his plans. Reahard vs. Lee County outlines the information the City would need to present—the economic impact, when the property was purchased, the purchase price, the composition, the initial use, the history of development, the classification and any changes to it all being pertinent to the question of the reasonable expectations of the owner and neighboring owners. To qualify as a "taking," there must be a change in the fair market value caused by regulations—for example, a 5% decrease in value does not constitute a "taking." In the case of the golf course, the value in 1978 was listed as $879,000; the present taxable market value is $2 million. While is it hard to be definitive without a specific proposal, it is unlikely the owner could successfully argue that a denial of rezoning caused a decrease in property value unless new facts come forward. Throughout the history of the PUD, the City has been very consistent. The applicant made statements that the Village Council relied on in its approval. This consistent land use planning is good governance. Rosow noted he is still going through the nearly 175 applications within this area. Should an application be submitted, Staff will meet with the developer to gather information in an impartial way. The Planning Commission would hear the proposal and make recommendations, followed by presentations and public hearing before the Council. The Council should not make up its mind until it has taken into account all information provided by the applicant, Staff,residents, and speakers at both public hearings. He invited Council's questions on that basis. Case said although he recognized no proposal is before the Council, his personal preference would be to maintain the area as open space. He asked if there was anything Council could do to prepare before a proposal is brought. Rosow noted Staff was already undertaking a major review of the guide plan this year. Council can listen to residents' concerns and CITY COUNCIL MINUTES January 3, 2006 Page 11 relay them to Staff so Staff can collect pertinent information. Young said he understood the ban on predetermination to apply to the Council as a body, not to Councilmembers as individuals. Rosow acknowledged Councilmembers are elected to have opinions. The key is to make it clear that the public hearing is open to all, and to decide based on all the information, not a personal preference. Aho and Tyra-Lukens thanked Rosow for his thorough presentation. D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XIV. OTHER BUSINESS XV. ADJOURNMENT MOTION: Butcher moved, seconded by Aho, to adjourn the meeting. Motion carried 5-0. The meeting adjourned at 8:29 p.m.