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City Council - 09/06/1983 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, SEPTEMBER 6, 1983 7:30 PM, CITY HALL COUNCIL MEMBERS: Mayor Wolfgang H. Penzel , Richard Anderson, George Bentley, Paul Redpath and George Tangen CITY COUNCIL STAFF: City Manager Carl J. Jullie, City Attorney Roger Pauly, Finance Director John D. Frane, Planning Director Chris Enger, Director of Public Works Eugene A. Dietz and Recording Secretary Karen Michael INVOCATION: Mayor Wolfgang H. Penzel PLEDGE OF ALLEGIANCE ROLL CALL: Councilman George Bentley was absent I . APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Item III . B. 2nd Reading of Ordinance No. 35-83 zoning from Rural to R1-13.5 for Nigh Trai Is Estates-2nd i t on fo untry i e Investments , Inc'., approval of Developer's A reement for High Trails states nd Addition, and adoption of Resolution No. 83-207, approving summary of Ordinance No. and -ordering the ublication of said summaryof Hi h Trails Estates-,2nd Addition, and item III . C. Final Plat approval for High Trails Estates 2nd Addition (Resolution No. 33- 12 were removed from the Agenda and continued for two weeks. a MOTION: Redpath moved, seconded by Tangen, to approve the Agenda and Other 3 Items of Business as amended (deletions as noted) and published. Motion carried unanimously. II . MINUTES A. Minutes of the City Council Meeting held Tuesday, Au2ust 2, 1983 MOTION: Anderson moved, seconded by Tangen, to approve the Minutes of the City Council Meeting held Tuesday, August 2, 1983, as published. Motion carried unanimously. B. Minutes of the City Council Fleeting held Tuesday, August 16, 1983 Page 4, para. 2, fine 6: change "defeated" to "deleted" Page 5, para. 9, last line: change "what had" to "that might have" Page 6, para. 11, line 2: change "permissable" to "permissible" MOTION: Redpath moved, seconded by Anderson, to approve the Minutes of. the City Council Meeting held Tuesday, August 16, 1983, as amended and published. Motion carried unanimously, City Council Minutes -2- September 6, 1983 III . CONSENT CALENDAR ' A. Change Order Number 1 , Lavonne Industrial Park, I .C. 52-048 B. 2nd Reading of Ordinance No. 35-83, zoning from Rural to R1-13.5 for High Trails Estates 2nd Addition—for Countryside Investments , Inc. , approval of Developer's Agreement for High Trails Estates 2nd Addition, and adoption of Resolution No. 83-207, approving summary of Ordinance No. 35-83, and ordering the publication of said summary of High Trails Estates 2nd Addition. 21 lots at 6451 Duck Lake Road. Removed from the Agenda and continued for two weeks. C. Final Plat apt roval for High Trails Estates 2nd Addition (Resolution No. 83-212) . Removed from the Agenda and continued for two weeks. D. Final Plat approval for Hidden Glen (Resolution No. 83-213) E. 2nd Reading of Ordinance No. 39-83 zoninq from Rural to Office for CRC by ! Ryan Construction Company, and approval of Resolution No. 83-206, approving development, 21,000 square feet of office on 1.5 acres at City West Parkway in City West Planned Unit Development. F. Approval of Amendment to Developer's Agreement for Shady Oak 5th Addition by MN-TX G. Clerk' s License List ' ( H. Final approval for Municipal Industrial Develo meat Bonds in the amount of $3,950,000.00 for Shady View Business Center Resolution No. 83-214 MOTION: Redpath moved, seconded by Tangen, to approve items A, D - H on the Consent Calendar. Motion carried unanimously. IV. PUBLIC HEARINGS A. REQUEST FROM SCOTT AND STEPHANIE FELDMANN for Council review of Board of Appea s & Adjustments decision on Variance No. 83-23 City Manager Jullie stated notice of this Public Hearing had been published and property owners within the affected area had been informed. Jullie re- viewed action taken by the Board of Appeals & Adjustments and noted the provision in the City Code from which the Feldmann' s appeal was taken. Scott Feldmann, 18865 Pheasant Circle, stated the reasons for the request; he also reviewed the objections voiced by the Cronks and addressed the issues raised by those objections. David Cronk, 18895 Pheasant Circle, said he felt the Ordinance was a good one and spoke to the reasons the request should be denied. Penzel noted that because there are 55 other cases in Hidden Ponds where the driveway return is closer than ten feet to the lot line and this condition exists because of a misinterpretation by Staff, does not mean that this (� practice should be continued. He asked City Attorney Pauly about the issue that a precedent may have been set. City Council Minutes -3- September 6, 1983 Pauly said it is fairly clear that the past practice or history of violations does not compel a result that the violations can continue. The City Council does not have to take that as a binding precedent. A history of non observance of certain provisions doesn't compel that a variance be aranted. Redpath asked if the land exchange which had been referred to in the materials distributed to the Council had been explored further. Feldmann said Cronks had submitted a proposal to them in July which the Feldmanns had countered and which had finally been rejected by the Cronks on Monday. Feldmann noted the proposal had been based on the fair market value of the 350 square feet of land which the Cronks would gain, the Cronks would have assummed the cost for resurveying the land and replattino and the fees incurred. Cronk said the survey fees were going to be $800 - $1000 and they felt this should be a shared cost. Feldmann said the fair market value for the property would be in the vicinity of $400. Redpath said he would like to see the parties go back and work on a solution to this problem. i Fred Koppelman, 18890 Deerfield Trail , said his backyard backs up to the backyards of Cronk and Feldmann. He said he has tried to determine who would be the least inconvenienced by the variance request. He said he thinks that the driveway should be left as it is and the variance should be granted. Gary Thoreson � 189?0 Pheasant Circle said he felt that the layout of the subdivision does not meet the intent of the Ordinance. He said if the vari- ance is not issued it will not be fair to those who have the remaining unbuilt lots; the other residents of the subdivision have had the opportunity to place their driveways where they have desired. Gary Nelson, 18129 Valley View Road, builder, said he was unaware of the Ordinance and had spoken with a black-topper who has done many of the drive- ways in the area and he, too, was unaware of any such ordinance either in Eden Prairie or any of the other suburbs in which he works. He said this is not an appropriate ordinance when applied to cul-de-sacs. Cronk said he did not feel is was such a great hardship to comply with this Ordinance; he again stated he thought the Ordinance was a good one. Penzel asked what might be the conditions under which the variance could be granted. Pauly said, according to the statute, the purpose is to provide variances from the literal provisions of an ordinance in instances where their strict enforcement would create undue hardship because of circum- stances unique to individual property under consideration and to grant variances when it is demonstrated that such action would be in keeping with the spirit and intent of the ordinance. He noted that undue hardship as used with the granting of a variance means that the property in question cannot be put to a reasonable use if used under circumstances allowed by the official controls. City Council Minutes -4- September 6 , 1983 Redpath again stated he would like to see the two property owners • attempt to settle this problem. Tangen said he would find it difficult to approve the variance because he does not feel undue hardship has been demonstrated. He said he felt granting of variances should be limited. Tangen noted it might be proper to continue this matter and allow the residents time to work things out. Anderson said he lives on a cul-de- sac and understands the problems they pose. He said he concurs with Tangen and Redpath and would like to see the neighbors work out their problem. Penzel concurred. Feldmann said since it appeared that the variance would not be granted, he wished to have the matter continued. MOTION: Redpath moved,seconded by Tangen, to continue the Public Hearing to September 20, 1983, to allow the parties additional time to negotiate. Motion carried unanimously. B. BURGER KING RESTAURANT. Request for zoning district change from Community Commercial to Highway Commercial for a restaurant. Location: southeast quadrant of State Highway #5 and County Road #4. (Ordinance No. 43-83 - zoning district change) x City Manager Jullie said notice of this Public Hearing had been published and property owners within the project vicinity had been notified. Dave Sellegren, attorney with Larkin, Hoffman, Daly & Lindgren, spoke to the proposal . Also present were Dennis Trissler, Burger King project development engineer, Jim Benshoof, traffic consultant, Jim Nunn, regional construction manager, Larry Gadola , director of development, Jay Van Velzen, area operations manager and David Pauly, district operations manager. Planning Director Enger stated the Planning Commission had reviewed this request at its meeting on August 8, 1983, at which time it voted to recommend approval (4-1-0) subject to the recommendations included in the Staff report of August 5, 1983, and the additions and amendments as noted in the Minutes of the August 8th meeting, Enger noted this item will be reviewed by the Board of Appeals & Adjustments at its meeting on September 8, 1983, as a variance on exterior materials has been requested. Redpath asked what the possibility will be for a frontage road along TH 5. Enger said it is not likely that one would be built on the south side of TH 5 but more likely on the north side. All individual driveway accesses would be eliminated and would be consolidated instead. Penzel asked if there were any right-of-way dedications being made in con- junction with this proposal . Enger said some had been made in the past, but he did not contemplate any now. Enger noted that Hennepin County has studied this and feels there is adequate right-of-way. Redpath asked if there would be a median break extended to Terrey Pine Drive. Enger said if one were to be built it would still allow for turns onto and from Terrey Pine Drive both east and west of C.S.A.H. 4. There were no comments from the audience. City Council Minutes -5- September 6, 1983 MOTION: Tangen moved, seconded by Redpath , to close the Public Hearing r and to give 1st Reading to Ordinance No. 43-83, zoning. Motion carried unanimously. MOTION: Tangen moved, seconded by Redpath, to direct Staff to draft a Developer's Agreement taking into consideration the recommendations included in the Staff Report dated August 5. 1983, (with the exception of 1. f. ) as well as the recommendations of the Planning Commission. Motion carried unanimously. w Penzel requested that the radius of the right-out driveway be further looked at to preclude someone backing into the parking. lot. Ben shoof said this is the standard which was requested by Mn/DOT and is Mn/DOT'S standard design. Benshoof said he would look into the matter. Penzel asked City Staff to do likewise. C. VACATION OF UTILITY EASEMENT: Lot 4 Block 1 Prairie East 4th Addition Resolution No. 83-209, Eric Anderson, property owner, asked for clarification as to what this action would accomplish. Penzel noted the easement would be removed since it was no Longer necessary. Director of Public Works Dietz concurred and explained why this was necessary. MOTION: Redpath moved, seconded by Tangen, to close the Public Hearing and to adopt Resolution No. 83-209. vacating the utility easement, Lot 4, Block 1, Prairie East 4th Addition. Motion carried unanimously. D. VACATION OF UTILITY EASEMENT: Lot 8, Block 1, Edenvale 14th Addition Resolution No. 83-210 r MOTION: Redpath moved, seconded by Anderson , to close the Public Hearing and to adopt Resolution No. 83-210, vacating the utility easement, Lot 8, Block 1, Edenvale 14th Addition. Motion carried unanimously. E. VACATION OF UTILITY EASEMENT: Lot 2 Block 3, Creekview Estates ; Resolution No. 83-211 E MOTION: Redpath moved, seconded by Anderson, to close the Public Hearing and to adopt Resolution No. 83-211, vacating the utility easement, Lot ? 2, Block 3, Creekview Estates . Motion carried unanimously. F. REQUEST FOR LIQUOR LICENSE FOR FIDDLER'S DELI City Manager Jullie said notice of this Public Hearing had been published and a positive recommendation had been received from the Public Safety Department. Jerry Milenberg, Eagan, area supervisor for the Fiddler's Deli , was present to answer questions . MOTION: Redpath moved, seconded by Tangen, to close the Public Hearing and to grant the request for a liquor license for Fiddler's Deli . Motion carried unanimously. City Council Minutes -6- September 6, 1983 V. PAYMENT OF CLAIMS NOS. 9310 - 9649 MOTION: Tangen moved, seconded by Anderson, to approve the Payment of Claims Nos. 9310 - 9649. Roll call vote: Anderson, Redpath, Tangen and Penzel.voted "aye." Motion carried unanimously. VI . REPORTS OF ADVISORY COMMISSIONS There wE •e no reports. VII. PETITIONS, REQUESTS & COMMUNICATIONS A. TIMBER BAY MANOR HOMES by Richard Miller Homes , Inca Request for preliminary plat of 14.8 acres into eight 8 lots. Location: Timber Lakes Drive and County Road 4 (Resolution No. 83-215 - preliminary plat) Jim Carver, Richard Miller Homes, addressed the request. Planning Director Enger said the Planning Commission had reviewed this request at its meeting on July 25, 1983, at which time it continued the discussion to August 8, 1983, tl_� allow the proponent time to prepare a landscaping plan which would buffer the proposal from the exisiting single family homes. At the August 8th meeting action was continued to August 22 at which time the Planning Commission recorrynended approval subject to the conditions included in thy! July 22, 1983, Staff Report. Penzel asked what the intent of the developer was regarding the grading which had been done and had left a "scar" on the northern portion of the property. Carver said this is yet to be worked out with the City. Enger said definite instructions, were given when this project was begun. He said he was surprised when the grading happened -- the watershed district was notified as well , He said he does not know what the proponent's inten- tions are Enger said he had expected a comprehesive plan of this area by now. Penzel asked whet the time schedule was . Mel Ford, general manager of Richard Miller Homes , said they wi11 be coming before the City within a month or two and hope to begin building in the Spring. MOTION: Redpath moved, seconded by .Anderson, to adopt Resolution No. 83-215, approving the l.)reliminary plat of Timber Bay Manor Homes for Richard Miller Homes, Inc. Penzel asked if there will be access to the lake from these lots. Ford said access would be via Outlot F. Pat Benton, 7994 I s',and Road, said this is working out very well and he recommended the City Council approve the plat. VOTE ON THE MOTION motion carried unanimously. City Council Minutes -7- September 6, 1983 VII1 . ORDINANCES & RESOLUTIONS t A. 1st Reading of Ordinance No. 40-83 Zoning from Rural to Commercial Re Tonal. Service and adoption of Resolution No. 83-202 approving the preliminary plat for Menard's. Located east of existing Menard 's building and adjacent to Plaza Drive. Mary Prochaska, proponent, addressed the revised proposal . Planning Director Enger noted the modification as requested by the City Council . He added that the change should break up the southern elevation of the building and has the potential to look attractive. Prochaska asked if he might be able to do the project in two steps since he has a prospect who is "ready to go" . Enger said this possibility had been discussed with Prochaska by City Staff and the concensus was it would be all right since this would be the approved plan and any additions would have to conform to it. Tangen said he appreciated the fact that Prochaska addressed the City Counci 1 's concerns. Anderson expressed concern about the materials which are displayed and stored on the sidewalk in front of the Menard's store. He asked if some- thing could be done to make the sidewalk useable to pedestrians . Penzel said the City Code includes a provision covering outside display of promo- tional materials. Enger said this amounts to 10% of the floor area which can be used for outdoor displays. Prochaska said he would check on this tomorrow to make certain Menard' s is in conformance. Penzel said it was his thought that, given the present ordinance, there is nothing the City can do at this time to rectify the situation. City Attorney Pauly said the present ordinance would have to be modified if Anderson's concerns were to be addressed. MOTION: Redpath moved, seconded by Tangen, to give 1st Reading to Ordinance No. 40-83. Motion carried unanimously. f MOTION: Redpath moved, seconded by Tangen, to adopt Resolution No. 83-202, approving the preliminary plat for Menard's. Motion carried unanimously. MOTION: Redpath moved, seconded by Tangen, to direct Staff to prepare a draft summary Resolution of approval per Commission and Staff recommenda- tions including reference to the sidewalk in front of Menard's and the condition that it be cleared for use by "cross-traffic. " Motion carried unanimously. IX. REPORTS OF OFFICERS, BOARDS & COMMISSIONS A. Reports of Council Members MOTION: Redpath moved, seconded by Tangen, to adopt a Resolution C wishing Councilman George Bentley a happy birthday. Motion carried unanimously. City Council Minutes -8- September 6, 1983 Anderson expressed concern about the outside display of materials ' such as was previously discussed regarding Menard's. He said he was not satisfied with how this is presently handled. Penzel said the Council can request Staff to investigate the matter further. MOTION: Anderson moved, seconded by Tangen, to refer the matter of outside display of materials to Staff for study and recommendations. Motion carried unanimously. B. Report of City Manager 1. Receipt of Draft 1984 City Budget City Manager Jullie distributed copies of the Draft 1984 City Budget to members of the City Council . MOTION: Redpa th moved, seconded by Anderson, to hold a Special Meeting of the City Council on Tuesday, September 13, 1983, at 7:30 p.m. to discuss the 1984 City Budget. Motion carried unanimously. Councilman Tangen noted he will be out of town on September 13th but would like to have information on what happens at that meeting prior to the Council meeting on September 20th. There was discussion as to space needs in City Hall . City Manager Jullie noted the School Board has offered the use of the Board Room on Mondays and Tuesdays should the Council so desire. MOTION: Anderson moved, seconded by Redpath, to hold the Special Meeting of the City Council scheduled for 7;30 p,m, on Tuesday, September 13, 1983, in the Board Room of the School Administration Building at 8100 School Road. Motion carried unanimously. C. Report of City Attorney City Attorney Pauly stated he had furnished members of the Council with copies of a court order which issued a temporary injunction on Terry Douglas enjoining him from further grading or land alteration. This order provides for grading only for purposes of restoration or control of erosion which might occur. It also requests that the Chief Judge assign the matter for an early trial. f Pauly said he has followed up on the Supreme Court ruling regarding campaign signs. He said he has been advised this will be on for oral arguments on October 12th or 13th. He said he will be monitoring this decision and hopes it will set forth more definitive guide lines on local authority regulations. t City Council Minutes -9- September 6, 1983 D. ' Report of Director of Public Works . 1. Award 1983 Seal Coat Project (Resolution No. 83-216) MOTION: Redpath moved, seconded by Tangen, to adopt Resolution No. 83-216, accepting the bid for I.C. 52-055, Seal Coat Project for 1983. Roll call vote: Anderson, Redpath, Tangen and Penzel y voted "aye." Motion carried unanimously. X. NEW BUSINESS There was none. X1. ADJOURNMENT MOTION: Redpath moved, seconded by Anderson, to adjourn the meeting at 9: 52 p.m. Motion carried unanimously. 1