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City Council - 03/01/1988 !APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, MARCH 1, 1988 7: 30 PM CITY HALL COUNCIL CHAMBERS 7600 EXECUTIVE DRIVE COUNCIL MEMBERS: Mayor Gary Peterson, Richard Anderson, George Bentley, Jean Harris, and Patricia Pidcock. CITY COUNCIL STAFF: City Manager Carl J. Jullie, Asst. to the City Manager Craig Dawson, City Attorney Roger Pauly, Director of Planning Chris Enger, Director of Community Services Robert Lambert, Director of Public Works Eugene A. Dietz, and Recording Secretary Sue Anderson. PLEDGE OF ALLEGIANCE ROLL CALL: All members were present. I . APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS The following items were added to the Agenda: X.A. l. Update on Light Rail Transit Meeting; X.A. 2. Consideration of Mr. Paul Redpath for the C. C. Ludes gg A—ward; X.A. 3 . Discussion on NSP; X.A. 4 . Public Utilities and Their Resp� onsIbilities; X.A. 5. Discussion on City Hall Extending Hours; X.B. 3 . Review of Board of Review Application Form. MOTION: Anderson moved, seconded by Pidcock to approve the Agenda and Other Items of Business, as published and amended. Motion carried unanimously. A II. MINUTES OF CITY COUNCIL MEETING HELD TUESDAY, FEBRUARY 2, 1988 The following changes were made: Page 1, Paragraph 4, Line 10, Word 1, change to: concluded; Page 6, Motion 1, Motion 2, Motion 3 and Motion 4, Line 1, change to read: Pidcock moved, seconded by Harris. . . ; Page 5, Paragraph 2, Line 3, should read: Council would deal with it at that time; Page 9, Paragraph 3, Line 1, change to: Council directed Staff to update Council at the next meeting. ; Page 10, Full Paragraph 1, Line 2, change to read: Bentley suggested this be passed on to City Manager Jullie. . . ; Page ll, Paragraph 10, Line 2, Word 2 , should read: should; Page 12, Paragraph 3 , Line 2, change to read: funding not to exceed $3500 to distribute Human. . . x MOTION: P�^ dcock moved, seconded by Anderson to approve the Minutes of the City Council Meeting held Tuesday, February 2 , 1988, as published and amended. Motion carried unanimously. l J Eden Prairie City Council 2 March 1, 1988 III. CONSENT CALENDAR A. Clerk' s License List B. Final Plat approval for Donnay's Round Lake Estates 2nd (located west of Evener Way, south of Lorence W�in the south half of Sect on Seven) Resolution No. 88-32� C. Change Order No. 2 for the Water Treatment Plant Expansion, Project 52-072A D. Recommendation to hire Consultant for Updating the Comprehensive Park & 02en Space Plan Pidcock inquired what was offered in the $22,000 bid. Lambert stated it was an inadequate proposal that did not address the request for proposal and was not worthwhile. Bentley asked Staff what went into the decision of a unanimous recommendation for Barton Aschman Associates. Lambert responded that a very thorough review of the existing park system and its needs were presented, and showed a strong desire to involve the citizens of Eden Prairie in the study process. MOTION: Harris moved, seconded by Anderson, to approve Items A-D on the Consent Calendar. Motion carried unanimously. IV. PUBLIC HEARINGS A. STREET AND UTILITY IMPROVEMENTS ON GOLDEN TRIANGLE DRIVE, I.C. 52-110 (Resolution No. 88-33) City Manager Jullie reported that the notice of this public hearing was published in the February 17th and 24th issue of Eden Prairie News and sent out to two property owners in the area of this project. Correspondence from Mr. Gary Gandrud representing his client Herliev Hello had been presented asking the Council to continue this item until the 1st meeting in April. Jim Stilen, 3300 Piper Building, Minneapolis, attorney for Hoyt Development, requested to speak. He stated that Mr. Dietz told him before the meeting the request for delay had been made. He asked the Council not to delay, because Hoyt had been waiting since last May to get this process completed. He stated that Hoyt was disadvantaged by not having that north-south connector go through. It was rumored to him that Helle was trying to complete a sale of his property, but that would not contribute to the merits of the project. He concluded that the project must be completed and was hopeful the Council would go forward with the hearing and not further delay the project. Eden Prairie City Council 3 March 1, 1988 Peterson inquired as to some reasons that this should be continued. Anderson agreed that this project has been talked about for years, and was not a new project. Jullie replied that Mr. Gandrud was not here this evening to participate in the hearing. Gandrud had suggested to Jullie that there may indeed be a new property owner and that being the case, there could be an easement dedication rather than condemnation process. Jullie said this could be a reasonable rationale to continue the hearing. As far as the project schedule was concerned, the delay would not impair the ability to get the job done this year. Jullie felt work on plans and specifications could take place in the interim so as not to delay the project. Dietz replied that there were two possibilities in delaying the project. It would add 30 days to the process or it may be able to resolve some issues. The City has certain risks involved because of the opposition of Mr. Helle on the project. If the City can resolve some of those issues in 30 days, it may well speed the project up. It could give Helle more time to prepare arguments against the project. He felt it was in the City's best interest to continue this for 30 days. Harris asked if the issues on the table were known to the City and could they be addressed in 30 days. Pauly replied the issues have been defined and there were serious issues that may or may not be resolved. If they were resolved, it would make the decision to proceed much easier. Bentley requested a definition of the risks being taken in this proposal , and what amount of time would be saved if there was not a challenge whereby the City received dedication rather than go through condemnation. Dietz replied that the risks began in 1984-85 when the Norseman Industrial Park came through the City process. The City looked at requiring Hello to extend Golden Triangle Drive south to his south property line. Because that right- of-way was not encompassed within the platted area proposed at that time, the City determined that it could not require that. Instead, the Developer's Agreement for the project stated that with the next phase, any subdivision or development in the area, Hello would be required to dedicate the right-of-way and construct the roadway. Hoyt then proposed its Technology Park projects and there was some discussion of the roadway. Dietz replied that Helle's attorney stated that there was economic value in the dirt in the right-of-way, and economic value in the right-of-way itself, and that the contract with Eden Prairie City Council 4 March 1, 1988 the City allowed Helle to build the road at his pleasure. The risks were as follows: 1) if the City proceeds with the project, Helle would be able to argue the degree of benefit; 2) if Helle chooses to delay the project, the City would have to go through condemnation which would be approximately a 3- 1/2 month process; 3) the right-of-way costs are assessable, but what was proposed in the feasibility study was that right-of-way costs be added to Helle's assessment. The amount he could contest would increase and there would be the risk on the part of the City that whatever was not sustained through the assessment process, the City would have to pay. If these things were resolved and it was agreeable, Norseman Industrial Park could construct the roadway. Bentley commented that this was an extremely important roadway and the congestion in the area was getting worse. At present the north/south traffic flow was critical. He did not want to delay the process for another month, but at that same time, in delaying, the worse that would be done would be the lossof 30 days. Pidcock had a problem with Helle's letter being delivered just before the meeting, and asked Staff to reiterate the benefits of this project for the City. Dietz replied that the traffic circulation in the industrial parks would be f improved, as would emergency access into the industrial parks. There was a wide range of benefits for the project. Anderson inquired if the project was delayed for 30 days what was the anticipated completion date. Dietz replied that if the project were subsequently approved, it would be done 30 days later. If condemnation was the process, he felt a bid x opening would begin in mid to late August. Dietz indicated this was a very small project, only 330 ' long, and the time to construct it, making it passable for traffic, would take from 30 to 45 days. Harris stated her unhappiness regarding the hand-delivery of the letter the day of the meeting. She felt after hearing the pros and cons of moving ahead or delaying for 30 days, that the City would be better served by delaying 30 days. MOTION: Harrl—s moved, seconded by Anderson to delay consideration of Street and Utility Improvements on Golden Triangle Drive and continue the public hearing to April 5, 1988 . (Motion carried unanimously after discussion, see page 5. ) Bentley commented that he was not thrilled with the continuation and hoped Council was not being i:.dnipulated. Eden prairie City Council 5 March 1, 1988 Stilen stated he had listened to the Council 's concerns and understood the risks. He did not believe Helle had a buyer, and was concerned about what would happen in 30 days. If Helle did sell the property, what buyer would agree to dedicating the roadway until he had a project through there, which would take 3 or 4 months? Peterson stated if the new buyer did dedicate the land and agree to assessment, the City would not lose anything, and the goodwill would be there regardless. Brad Hoyt, of Hoyt Development, stated he would be comfortable with whatever the Council decided. He indicated he appeared before the Council February 4, 1987 regarding the feasibility study and was greatly disappointed that it took a full year to complete this report. He continued that he could not develop any more with the limited access that was available. The timing of his next project would be affected by the timing of this roadway project. He further stated that a year ago when everyone spoke of this matter, everyone was of the mind that the City would proceed with condemnation. Bentley stated he did not support the motion due to the fact that even if there was a buyer it would not change anything and every time the City does a project there was risk involved. He felt it was important that the road be built and to hasten the construction which would not be done by continuing the project. Anderson felt it may be advantageous for the City to wait and hear this issue completely. Harris made clear that she was not persuaded in making this motion that there were any significant risks to the City, but was persuaded to make the motion by the opportunity for consensus. Bentley stated four positive votes were necessary to approve the project and, assuming that there was a strong sentiment to continue, approval was not likely tonight. He stated that by not having a 4/5 vote the project would be rejected. No further discussion on the issue. Motion passed 4-1 (Peterson opposing) . a B. WEST 5 BUSINESS CENTER by John T. Smith. Zoning District Change from I-General to I-2 Park on 4. 68 acres with variances to be reviewed by the Board of Appeals, Preliminary Platting of 4 . 68 acres into two lots for construction of a 34 , 752 square foot office/warehouse l Eden Prairie City Council 6 March 1, 1988 building. Location: East of Fuller Road and Northwest of the Chicago & Northwestern Railway (ordinance No. 12-88 Rezoning; Resolution No. 88-34 - Preliminary Plat) . Jullie reported that notice of this public hearing was sent out to 24 property owners and published in the February 17th issue of the Eden Prairie News. Paul Neilson, with Smith Architects, representing the owner, reported that West 5 Business Center was designed to meet needs of small and growing businesses. It would consist of office warehouse spaces in small units, with access to support services such as clerical, telephone answering, and conference rooms. The applicant proposed to develop the facility and sought Zoning District Change from I-General to I-2 . The Developer would also seek a variance for lot frontage from the Board of Appeals. They would upgrade the landscape, parking and driveways in accordance With City Ordinances. Enger reported that this proposal was reviewed at the February Sth Planning Commission Meeting and was recommended for approval to the City Council for the rezoning and replatting. The Commission felt it was an improvement in the area A variance would be necessary because 200 ft. frontage was required in the I-2 zone, and the present frontage on the lot was 57 ft. From a practical standpoint, the site plan works very well with a 57 ft. frontage. The Coninission felt it was an improvement to the area and recommended approval. Enger stated an additional change had been made which was the proposed 3,200 square foot addition had been changed to only 2, 300 square feet. The addition would enbance the appearance of the structure and was consistent with the objectives of the Planning Commission. Enger concluded that Staff would run the numbers through for assurance that 30% ratio was in line. Bentley inquired about further additional parking requirements for the additional square footage. Enger replied it was not required. Bentley inquired about traffic generation and the impact on the intersection of Fuller Road and Highway 5. Enger responded that a slight traffic increase was expected but no impact would be felt. He added that the Fuller Road situation would be corrected with the Highway 5 upgrade. No comments were heard from the audience. i MOTION 1: Bentley moved, seconded by Anderson to close the Public Hearing. Motion carried unanimously. Eden Prairie City Council 7 March 1, 1988 MOTION 2: Bentley moved, seconded by Anderson to approve lst Reading of Ordinance No. 12-88 for Rezoning. Motion carried unanimously. MOTION 3 : Bentley moved, seconded by Anderson to direct Staff to prepare a Development Agreement incorporating Commission and Staff recommendations. Motion carried unanimously. V. PAYMENT OF CLAIMS NOS. 40666-41006 MOTION: Harris moved, seconded by Bentley, to approve the Payment of Claims Nos. 40666-41006. Roll call vote: Anderson, Bentley, Harris, Pidcock and Peterson voted "aye. " Motion carried unanimously. VI . ORDINANCES & RESOLUTIONS A. Resolution No. 88-31, Amending Resolution No. 88-09 Regulating Fees & Charges for Municipal Services Bentley inquired about the fee for tots 4 years and under being $1. 50 accompanied by adult. Does the $1.50 pay for the tot and the adult; or was it just the tot, and if so why would the tot be more expensive than a youth 5 to 18 years. Jullie stated the $1. 50 was for tot and adult. MOTION: Harm-moved, Pidcock seconded to approve the fees in Resolution No. 88-31. Motion carried unanimously. VII. 2STITIONS, REQUESTS & COMMUNICATIONS r A. James Zahler 17200 Cedar Crest Drive, reggest for Grad nq Pet for Excavat a of an Existing Pond Jullie reported that James Zahler excavated a portion of the pond on his property to maintain a constant water level from what was experienced as seasonal drying of the pond. Staff prepared a memo of chronological events surrounding the matter which came to an issue in the courts. Zahler was charged with land alteration without a permit. He has now submitted his plans for completion of the work. Zahler did not wish to speak when asked to present the issue. Anderson inquired if this was designated wildlife area requiring a permit from the DNR. Dietz responded that the DNR indicated it was not a protected wetland. Eden Prairie City Council 8 March 1, 1988 Peterson, referring to the topographic survey prepared by Carderella and Associates, which depicted the excavated area was 40' wide and 60 ' long and adjacent to the property line, inquired if Staff had been able to determine the results of the excavation on the swamp or lowland area. Dietz replied that the dotted line on the topography was within the swamp area. The swamp was on Zahler's land and the adjacent property. Dietz stated Zahler excavated a portion of the swamp to create some open water on a more permanent basis. Peterson inquired what effect that would Aave on the swamp area to the east. Dietz did not see a negative effect but that there would always be water standing in the pond when the rest of the swamp was dry. Discussion followed on the method of configuring water level on the overall swamp area. Peter Lilly, 17120 Cedar Crest Drive, describing the situation from his viewpoint, stated a 6 ' deep hole was dug on Zahler' s property east of his property line. The water level diminishes earlier as a result and the Zahler property looks great with the pond, while he was left with swamp. Lilly concluded by asking Council why does the City have permits and rules if a person can get a permit after the fact. If this were the procedure, then he would follow this procedure in the future as well . Pauly stated that water rights to a shared parcel of water or pond were subject to reasonable use by those who have access. Charles Webber, 17249 Valley Road, stated the marsh was dry before Zahler did his excavating. He thought it was a drainage ditch prior to the dispute. He did not see that 1 there was damage or why it was such a big issue. Lilly responded that on the Webber's side it was a swamp, but on his side it was a pond. Webber inquired if he bought some of Zahler's land, would he have to do the restoration. Bentley stated the essence of the issue was a question of the validity of the Council issuing an ex post facto land alteration permit. The question of water rights and the impact on the pond area, etc. could be argued by the engineers; however, do people have the right to make land w alteration without a permit. The courts have agreed with the City and now the question was does the City issue a permit on an after-the-fact basis. If the City denies the permit, q Eden Prairie City Council 9 March 1, 1988 restoration would be required to fill in the pond and bring it back to the original contour. Pidcock inquired about the trees. Zahler replied only one substantial tree was cut down the rest were dead trees. Lilly disagreed and stated he witnessed whole trees being placed in the pond, as well as a number of trees, scrub trees and stumps with roots. The stumps on the land were covered up with dirt. Harris inquired to Zahler as to why he not do this excavation in a legal way. He had no answer, but explained that when City Staff informed him that a permit was required, they instructed him to clean up the area and make it presentable. Zahler stated he told them that was his intent but that they stopped his. His intent was to dig about 3 feet deep into the pond but the backhoe worked so quickly, J.t was 6 feet before he realized it. He stated the dirt was used to cover up the trashy area along the bank. Peterson stated the Council wanted to be fair but Council was struggling with this due to the fact that he had continued with the work despite the notification by City and court decisions. MOTION 1: Anderson moved, seconded by Bentley to deny the permit and order restoration of the land to its original condition. Pidcock inquired if the original condition was recorded. Anderson replied the original condition would be the 60 foot hole be filled to original level, and concern regarding stumps not be addressed. Duane Cable, 17181 Cedarcrest Drive, stated that Zahler solved the soil erosion in the area by diverting the water. The City refused to do anything about the problem, but it chastises the man who did something about the drainage into the pond. Dietz understood that a 40 ' x 600 x 6 ' pond was dug and was not aware that it aided a problem in the area. Lilly stated that Cable did not live on the pond, but was south of his property on Cedarcrest. x Anderson inquired how many residents live directly on the pond. Lilly replied five. Anderson felt the Council could r respond if they heard from those people directly affected. Peterson requested that in the next 30-45 days that the people in the neighborhood most and attempt to come up with a a Eden Prairie City Council 10 March 1, 1988 solution speaking to the issuers, the Council could continue this matter. Bentley felt the Council had the authority to deny a permit and not ask that any restoration work be done. The Council had that capability because of one mitigating condition and that was that restoration would be more disruptive than leaving it in the present stage. Council should leave the option open for possible restoration in case there was indeed damage to the system that was present. Harris stated that Council can deny a permit where damage has been done and not order restoration. Anderson stated he would like within 30-45 days, for Staff and neighbors to agree upon what they want to see and make a report for Council to make a recommendation. He encouraged them to seek what was best for the pond and the neighbors. Bentley felt Council could not require neighbors to get together, and saw no value in continuing this matter. Zahler stated everyone would be happy if he would do what they wanted and he would put it in their way. Anderson asked to withdraw his motion and requested that Council review in 30-45 days what the Staff and neighbors have agreed upon. Pidcock stated she could not condone work without a permit or vote on restoration without knowing what the restoration consisted of. MOTION 1: Bentley made a motion to deny the permit and mandate that no restoration work be done. The motion died for lack of a second. Peterson asked for a motion to continue this for 30 days and on April 5, Council would review anything heard from the residents, and the reasonable parameters of restoration from Mr. Dietz. MOTION 2 : Pidcock moved, seconded by Harris, to continue this until the April 19th meeting when Staff would present report and recommendations for handling the restoration that would be warranted. Motion carried unanimously. VIII . REPORTS OF ADVISORY COMMISSIONS None Eden Prairie City Council 11 March 1, 1988 IX. APPOINTMENTS None X. REPORTS OF OFFICERS, BOARDS & COMMISSIONS A. Reports of Council Members 1. Update on Light Rail Transit Meeting Peterson reported on the progress of the downtown committee regarding discussion of tunnel versus surface. Some persons had reported that equipment for underground method was least expensive. Bentley inquired as to the Council 's position on light rail, and if Council felt this was not in the best interest of the City if they were being taxed for it. Peterson stated Council agreed that no light rail would probably run through Eden Prairie for some time. Harris felt the Cou=il should make a decision as to its position and be prepared when the time arises to make a final decision. 2 . Consideration of Paul Redpath for C. C. Ludwig Award MOTION: Anderson, moved, and Pidcock seconded to nominate Mr. Paul Redpath for the League of Minnesota Cities' C. C. Ludwig Award. Motion passed unanimously. 3. Discussion on NSP Pauly, as a private citizen and resident of the City, reported that the Board of Appeals limitation ran out on January Sth, 1988 for NSP to complete the work. He has not ordered a stop order due to his position in representing the citizens of Eden Prairie. Bentley inquired of Staff if there had been any building permits granted relative to the land construction. Staff responded that the Board of Appeals permit allowed that 95 ' poles could be constructed. Jullie reported that NSP prepared a plan and submitted it for City review and approval. NSP feels the project was proper and states it has permits from the State. NSP has acquired easements from private property owners; however, the City was not aware it gave permission for NSP to place the pales. Eden Prairie City Council 12 March 1, 1988 Pauly reported that if the variance expired, the City would need legal advice on this, and felt the City should retain a disinterested lawyer. A stop order was needed and this could result in a lawsuit. Pidcock stated she was in court on Friday and witnessed NSP' s cavalier attitude about pole height. She felt the City did not have two weeks to wait on this matter, and a stop order should be placed immediately. Peterson also believed if things are moving fast for construction, the City should act quickly. Jullie reported that NSP stated it would be done in May 1988, and now was wanting an extension until July. Pauly reviewed the history of the easements of the property owners, of which he was one, with regard to the placement of the poles and cutting of the trees. NSP failed to indicate on plans to the Board of Appeals the location of the poles and the homes on the property. Enger stated the placement of the poles should have been discussed with property owners. MOTION: Bentley moved, and seconded by Harris to direct City Manager Jullie to procure the services of an independent outside attorney to deal with this matter and give him ; the authority at this point, if it becomes necessary, to ' file a temporary restraining order or an injunction prior p to Special City Council Meeting on March 8, 1988 . Motion f carried unanimously. Bentley indicated that the variance had expired and NSP should appear again before the Board of Appeals. 4. Public Utilities and Their Responsibility Anderson reported that the City has made the developers responsible for the damage to trees, but the City does not hold public utilities, and governments responsible in the same wanner. There has never been restoration done to areas disturbed by public utilities. He requested that an amendment to the code be made to include all governmental agencies. Pauly stated that the tree replacement policy was not a part of the City Code, but rather was a policy. He inquired if Council wanted to explore that as a part of the City Code, or an amendment to the policy. Eden Prairie City Council 13 March 1, 1988 MOTION: Bentley moved, seconded by Anderson to direct staff to prepare a an amendment to the tree replacement policy to include governmental agencies and private concerns. Motion carried unanimously. 5. Extended Hours for City Hall Pidcock invited discussion regarding additional open hours on Saturday or possibly evenings for a couple of hours for people to take care of City Hall business. Jullie replied that the homestead registration was the only thing that has to be done in person. Everything else can done by mail. Jullie stated he would discuss it with Staff and get back to Council with recommendations. Bentley stated there could be a potential budget consideration for adding 1,ours. Peterson asked that Pidcock with discussion with Jullie and Jullie with discussion with Staff present options to the Council for consideration at a later date. B. Report of City Manager 1. Bid Award for Self-Contained Breathing Apparatus Jullie reported that bids were received for 32 self- contained breathing apparatus units for firefighters. The units are necessary for firefighting response and safety. He recommend to Council to award the bid to Conway Fire and Safety for a total cost of $30,400. MOTION: Council awarded the bid for 32 self-contained breathing apparatus units to Conway Fire & Safety for a total cost of $30,400. Motion passed unanimously. 2 . Approval of Local 49 Addendum Jullie reported that City management and representatives of the International Union of operating Engineers Vocal No. 49 have been negotiating a local addendum to the contract for several months. The union membership has voted to approve the changes to the contract language per the memorandum from the Director of Human Resources & Services. He asked Council to approve the contract addendum and authorize its execution. He further recommended that Council approve the addendum with respect to the vacation schedule that it be adapted to other employees. Manage-ment was attempting to bring benefits in line with other communities. r; Eden Prairie City Council 14 March 1, 1988 MOTION: Harr moved, and seconded by Pidcock to accept and authorize the execution of the local addendum to the contract for the International Union of Operating Engineers Local No. 49. Motion carried unanimously. 3 . Board of Review Application Form Jullie reported that Staff was directed to prepare an application form to be used for those folks wishing to appeal their property values. The form requests enough information to justify their rationale, and are open to changes if Council so chooses. Peterson was pleased with introductory paragraph, it was clear, distinct and brief. MOTION: Anderson moved, Bentley seconded to approve the Board of Review Application Form. Motion carried unanimously. C. Report of City Attorney Pauly requested a closed session regarding landfill litigation contests. D. Report of Director of Planning None E. Report of Director of Community Services None F. Report of Director of Public Works None G. Report of Finance Director None XI. NEW BUSINESS None a X. ADJOURNMENT MOTION: i Bentley moved, seconded by Harris to adjourn at 10: 40 PM. Motion carried unanimously. Executive Session Followed.