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City Council - 08/16/2005 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,AUGUST 16, 2005 7:00 P.M., CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Brad Aho, Sherry Butcher, Ron Case, and Philip Young CITY COUNCIL STAFF: City Manager Scott Neal, Parks & Recreation Director Bob Lambert, Public Works Director Eugene Dietz, City Planner Mike Franzen, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Carol Pelzel 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. RECOGNITION OF IVAN ROSARIO AND DAN JARED George Esbensen, Fire Chief, introduced residents Ivan Rosario and Dan Jared and explained that they are being recognized as Eden Prairie outstanding residents for an incident that occurred on August 3. As a result of a thunderstorm, two Eden Prairie homes were set on fire and Mr. Rosario and Mr. Jared went to the homes and alerted the occupants of the fire. Mayor Tyra-Lukens presented a plaque to the gentlemen for their heroic efforts. On behalf of the City Council and the entire City, Mayor Tyra-Lukens expressed her appreciation for their getting involved. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Neal explained that a revised Annotated Agenda had been distributed. Items I and J, approval of Edenbrook Conservation and Riley Creek Conservation Area Trail Plans, under the Consent Calendar have been moved to Report of Parks and Recreation Director. Neal said he also has a couple information items to be included under the Report of City Manager. Case asked that the Council be provided with an update on the Scenic Heights/212 realignment on Dell Road. Tyra-Lukens said she would like to add an item under Reports of Councilmembers regarding management of waste. Motion: Aho moved, seconded by Case, to approve the agenda as published and amended. Motion carried 5-0. CITY COUNCIL MINUTES August 16, 2005 Page 2 VI. MINUTES A. CITY COUNCIL WORKSHOP HELD TUESDAY,JULY 26, 2005 MOTION: Butcher moved, seconded by Young, to approve as published, the minutes of the City Council Workshop held July 26, 2005. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY,AUGUST 2, 2005 MOTION: Young moved, seconded by Case, to approve as published, the minutes of the City Council meeting held August 2, 2005. Motion carried 5-0. VII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. DUCK LAKE KNOLL by Epic Development, LLC Second Reading of the Ordinance for Zoning District Amendment within the R1-13.5 Zoning District. (Ordinance No. 14-2005 for Zoning District Amendment) C. MCCALL BLUFF by McCall Construction Company. Second Reading of the Ordinance for Planned Unit Development District Review with waivers and Zoning District Amendment in the Rural Zoning District(Ordinance No. 16-2005 PUD-10-2005 for PUD District Review and Zoning District Amendment) D. ADOPT RESOLUTION NO. 2005-102 APPROVING FINAL PLAT OF MCCALL BLUFF E. AWARD CONTRACT FOR BUILDING ENVELOPE REPAIRS TO 17 CITY-OWNED BUILDINGS F. REJECT BIDS FOR REBUILDING PARKING LOTS AT CITY HALL AND FIRE STATION#2 G. REALLOCATE 2005 FACILITIES CIP BUDGET H. AUTHORIZE SUBMISSION OF A PERMIT APPILCATION FOR THE 2005-2006 WINTER SEASON FOR USE OF THE LRT TRAIL I. ADOPT RESOLUTION NO. 2005-103 DECLARING THE CITY'S OFFICIAL INTENT TO REIMBURSE ITSELF FOR PRIOR EXPENDITURES OUT OF THE PROCEEDS OF A SUBSEQUENTLY ISSUED SERIES OF BONDS J. ADOPT FUND BALANCE POLICY CITY COUNCIL MINUTES August 16, 2005 Page 3 K. APPROVE AMENDMENT TO LEASE AGREEMENT WITH FRIENDSHIP VENTURES L. APPROVE AMENDMENT TO PETITIONS OF THE RILEY- PURGATORY-BLUFF CREEK WATRSHED DISTICT Young asked that Items C, D and J be held from the motion of approval for further discussion. MOTION: Butcher moved, seconded by Case, to approve Items A, B, E-I, K and L of the Consent Calendar. Motion carried, 5-0. With regards to Items C and D, Young said he would be abstaining from both issues. MOTION: Case moved, seconded by Aho, to approve Items B and C of the Consent Calendar. Motion carried,4-0-1 with Young abstaining. Regarding the approval of the Fund Balance Policy, Young said he feels this policy addresses concerns he had raised last year. He will support this policy but believes the City could reduce their Budget Stabilization Fund from 15 percent to 10 percent. In supporting this policy,he hopes this is something the Council will look at in the future. Young questioned if any excess in the Budget would go to the CIP automatically or if it would be at the discretion of the City Council. Butcher pointed out that the current policy requires Council approval when money is transferred from one fund to another fund. MOTION: Young moved, seconded by Case, to adopt the Fund Balance Policy with the understanding that the City Council will periodically review the Policy and that the Council would annually take a look at any excess of Budget Stabilization Funds and appropriate those funds as necessary. Motion carried, 5-0. VIII. PUBLIC HEARINGS/MEETINGS IX. PAYMENT OF CLAIMS MOTION: Butcher moved, seconded by Case, to approve the Payment of Claims. The motion was approved on a roll call vote, with Aho, Butcher, Case, Young and Tyra- Lukens voting "aye". X. ORDINANCES AND RESOLUTIONS XI. PETITIONS, REQUESTS AND COMMUNICATIONS XII. REPORTS OF ADVISORY BOARDS & COMMISSIONS CITY COUNCIL MINUTES August 16, 2005 Page 4 XIII. APPOINTMENTS XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS 1. REALIGNMENT OF SCENIC HEIGHTS AND 212 Public Works Director Eugene Dietz provided the Council with an update on the realignment of Scenic Heights and 212. He explained that Staff will be meeting with MNDOT on Wednesday, August 17, and at that time they would be provided with the details on what is planned for this area. MNDOT has met independently with the neighborhoods and have shown them a proposed plan. Dietz said they are not certain about the redesign and what the City has seen was not constructible because of wetland impacts and the significant amount of costs due to poor soils, etc. He explained that they need one course of action and Staff will work with MNDOT to develop a constructible plan and once that is accomplished, they will work to get the consensus of the neighborhood. 2. TRASH HAULING Mayor Tyra-Lukens said she had received a call from a resident asking if the City has ever considered looking into the issue of how trash hauling for residents is handled in the City. Dietz explained that currently the City has a free open system for trash haulers and the City does not contract with any one hauler. However, there are two major haulers in the City. There are other haulers in the community but they tend to service office- industrial and multiple-family homes. Mayor Tyra-Lukens indicated that the resident asked if homeowners could get a better rate if the City contracted with a trash hauler for the community. This would also eliminate the issue of having multiple trucks on the road and going through neighborhoods. With two major haulers, there is the potential for five or six trucks going through a neighborhood any one day. Mayor Tyra-Lukens said it would be nice to have a report from Staff on what other cities have negotiated for trash hauling rates for their residents. B. REPORT OF CITY MANAGER Neal distributed to the Council the September City newsletter. He also distributed the proposed referendum piece that will be mailed to citizens explaining the Parks and Recreation referendum. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR CITY COUNCIL MINUTES August 16, 2005 Page 5 1. L. G. Everist Transfer Facility,by L. G. Everest. Second reading of the Ordinance for Planned Unit Development District Review with waivers and Zoning District Amendment in the I-General Zoning District. (Ordinance No. 12-2005-PUD-8-2005 for PUD District Review and Zoning District Amendment) City Attorney Rosow explained that the City has reached the 120-day rule on this item. If action is not taken this evening, the item will be deemed approved. Mayor Tyra-Lukens pointed out that there have been a number of issues presented to the Council at this evening's Open Forum. It was suggested that the distance for notification of residents be extended. When something is taking place in the I-General Zone the area of notification should be extended to within 2,000 feet of the property. Also, if there is a request for a change in that Zone a town meeting for the residents in the area should be held. It was also recommended that there be continuing dialogue between the citizens and the businesses in that area including Midwest Asphalt, L.G. Everist and the City. Mayor Tyra-Lukens said she was surprised to hear that there are some concerns with Midwest Asphalt regarding noise. She thought these issues had been taken care of previously and didn't realize there were still some issues out there regarding this business. This would be an example of where it would be helpful to have continuing dialogue so that the City can monitor this business since it is a non-conforming use. Mayor Tyra-Lukens asked the City Attorney to address the issue of whether or not the use of the L.G. Everest property for storage falls within the City Code guidelines or if this is an expansion of a non-conforming use. City Attorney Rosow explained that during the Open Forum, a resident had identified sections of the City Code that weighed on this issue. There is a section of the Code that specifically addresses industrial zones and permitted uses and outside storage was not mentioned as a permitted use. Rosow stated that Section 11.03 of the City Code applies to all districts specifically in I-General Districts. Outside storage is permitted as long as the property is screened. When looking at the Code, you must take into consideration the entire Section as a whole and interpret it from there. Rosow said in his opinion, outside storage in this District is a permitted use and not a non-conforming use. Rosow reported that a letter had been received from an attorney referring to increased traffic for Aggregate Action. Rosow said he was not clear if the letter was referring to the L.G. Everist site or the Midwest Asphalt site. The concept of increased traffic does not constitute criteria for determining a non-conforming use. There is no regulation in the Zoning Code that regulates how many trucks can come in or out of the site in an I-General District. CITY COUNCIL MINUTES August 16, 2005 Page 6 Rosow explained that the L. G. Eveist property is non-conforming but the lots were established,platted and approved by the City prior to the adoption of the zoning ordinance. These lots were legal sized lots when they were established under Ordinance 8 and it is a legal non-conforming use and may be continued as such. The City cannot deny a legal non- conforming use that is reasonable use of the property. If the plat is approved, two lots will be made into one non-conforming lot but it will be a legal non-conforming lot. Rosow said it is his opinion that this is a legal non-conforming use and that the City Code has to be read as a whole and outside storage specifically is permitted. Case said that in discussions with the neighbors near the L.G. Everist property, some concerns were brought forward and he would like to have the testimony from those neighbors included in the public record. He would also like the e-mails and written statements that were sent to the Council included with the public record. Rosow responded that the concerns noted would become a part of the official record of the City. Case indicated that it appeared that the neighborhood group was seemingly successful in discussions with Midwest Asphalt and the City should also have discussions with them so that the recommended changes to their operation remains in tact even if management changes. Rosow explained that Midwest Asphalt's permit comes up for review approximately every two years and that would be a good time to take those verbal commitments and see if Midwest Asphalt is willing to incorporate them into their permit approval. Case asked where the City was with respect to the development of this I-General District. City Planner Mike Franzen responded that this site involves approximately 30 acres. He presented a brief history of the I- General District and said that the City probably doesn't want to lock itself into any particular kind of development at this time. They may want to do some studies and look at what that area should be used for. It could be any number of things that would provide a better relationship to the neighborhood. Neal explained that the City is about ready to begin a major updating process of the Comprehensive Plan and they will be looking at long-term changes at that time. Mayor Tyra-Lukens asked if citizens would have any input to this Plan. Neal said they have not yet developed the process but the standard operating procedure for the Comprehensive Plan update would call for public input. Aho expressed his appreciation to the neighbors for their input regarding this project and for the respectful way in which they presented themselves. He felt they presented a positive force for this project and for other projects. CITY COUNCIL MINUTES August 16, 2005 Page 7 MOTION: Motion was made by Butcher, seconded by Aho, to approve the 2nd reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Amendment in the I-Gen Zoning District on 2.74 acres; and to approve the Development Agreement for L. G. Everist Aggregate Transfer. Motion carried, 5-0. Aho said he agrees with Case and asked Staff to incorporate as much testimony as they can into the regulations regarding this project and the development hours restriction and anything else they can do legally to help the citizens in this area D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Edenbrook Conservation Area Trail Plan Jeff Schoenbauer of Brauer and Associates, consultants for the project, summarized the planning process for this trail plan as well as the end result of the plan. He presented a brief overview of the area trail plan and explained that one of the first things they did in developing this plan was to establish a neighborhood task force. Once this task force was established, field reviews were done and concepts were created for task force review. A series of open houses were held to review the plans and security and safety issues were addressed at those meetings. Schoenbauer stated that once the open houses were held, the task force met to consider the input from the individuals and residents. They are now in the formal approval process. This plan has been before the Parks and Recreation Commission and the Watershed District. Schoenbauer introduced members of the Task Force that were in the audience and walked the Council through the results of the planning process. He explained that the overall cost estimates for the entire development, including contingencies, is estimated to be $429,000. An unidentified member of the audience explained that he was a member of the Edenbrook Conservation Area Trail Plan Task Force and they did stress as part of the consensus that the path through the church property be viewed as future development. They did not want to encourage people to cross private property. Frank Sherwood, a member of the Task Force, said he felt City Staff did an excellent job in reviewing the issues and listening to the citizen's concerns and helping to develop a plan that will serve the community. Schoenbauer said he felt the process was very successful and is very comfortable with their recommendation. CITY COUNCIL MINUTES August 16, 2005 Page 8 MOTION: Motion was made by Aho, seconded by Young, to approve the Edenbrook Conservation Area Trail Plan as per the recommendation of the Edenbrook Conservation Area Trail Planning Committee and the consultant. The motion carried, 5-0. 2. Riley Creek Conservation Area Trail Plan Jeff Schoenbauer , of Brauer and Associates, consultants for the project, reviewed the plan with the Council explaining that the process was the same as that used for the Edenbrook Trail Plan. They did receive good citizen responses and they were satisfied with the plan. MOTION: Motion was made by Case, seconded by Butcher, to approve the Riley Creek Conservation Area Trail Plan as per the recommendation of the Riley Creek Conservation Area Trail Planning Committee and the consultant. The motion carried, 5-0. E. REPORT OF PUBLIC WORKS DIRECTOR 1. Petition Nine Mile Creek Watershed District for Funding of Water Ouality Improvement Projects for Anderson, Bryant, Birch Island and Smetana Lakes (Resolution No. 2005-104) Public Works Director Eugene Dietz explained that the Nine-Mile Creek Watershed District recently completed four Use Attainability Analyses (UAAs) and Staff is now asking the Council to approve a petition to the District that would make water quality improvements to Anderson, Bryant, Birch Island and Smetana Lakes. Dietz said the issue he would like to bring before the Council is that the Three-Rivers Watershed District would like to manage Anderson Lakes as a wildlife sanctuary. This would require shallower waters. Dietz explained that the best way to eliminate some of the weeds that have infested this area is to drain the lake for a one to two year period. After that period of time, the lake would be brought back to an elevation 1.5 feet shallower than what it is today. Dietz pointed out that there are no residential properties in Eden Prairie immediately adjacent to the lake. Dietz explained that the UAA is in draft form. Once the feasibility studies are completed, a public hearing process will be held and the property owners would have an opportunity to address the issues of draining the lake for a period of time. There will also be some installation of ponds to improve water quality. With regards to Bryant Lake, Dietz said there is a plan to restore County Ditch 34 that runs through the Cardinal Creek Area. In addition to the UAA completed for Birch Island Lake, there was also a water level investigation report completed. One of the things that needs to be done is CITY COUNCIL MINUTES August 16, 2005 Page 9 to implement a plan to restore the water levels of Birch Island Lake. Dietz stated that there are no planned improvements to Smetana Lake. Aho said he noticed there appeared to be some dissent in terms of treatment options for Bryant Lake. Dietz said that a consensus needs to be reached between the City, Three Rivers Park District and the Watershed District. He indicated that the proposal before the Council this evening has been modified to be consistent with an agreed upon approach by all three agencies. Aho said that as a result of the study of the Round Lake area they might be able to apply some of the same concepts to other waterways as appropriate. Dietz said that with this petition, there would be a one-time treatment with alum. MOTION: Motion was made by Butcher, seconded by Aho, to adopt a Resolution to petition the Nine Mile Creek Watershed District to commit to funding the Water Quality Improvement Projects for Anderson, Bryant, Birch Island and Smetana Lakes. The motion carried, 5-0. F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY Rosow explained that the City Council would meet in closed session to discuss the City Manager's performance review and to discuss settlement of litigation for a civil litigation matter and the settlement or restitution claim in a criminal matter. Young indicated that his law firm represents the employer in one of the litigation cases and he would like to be excused from consideration of that matter. XV. OTHER BUSINESS A. CLOSED SESSION 1. City Manager's Performance Review 2. Discussion of Litigation XVI. ADJOURNMENT MOTION: Aho moved, seconded by Case, to adjourn the meeting and to go into closed session. Motion carried 5-0. The meeting adjourned at 8:20 p.m.