City Council - 10/03/1989 t EDEN PRAIRIE CITY COUNCIL
APPROVED MINUTES
'T'UESDAY , OCTOBER 3 , 1989 7:3 0 PM CITY HALL COUNCIL CHAMBERS
7600 Executive Drive
COUNCIL MEMBERS: Mayor Gary Peterson, Richard Anderson,
Jean Harris, Patricia Pidcock, and
Douglas Tenpas
CITY COUNCIL STAFF: City Manager Carl J. Jullie, Assistant
to the City Manager Craig Dawson, City
Attorney Roger Pauly, Director of
Planning Chris Enger, Director of
Parks, Recreation & Natural Resources
Robert Lambert, Director of Public
Works Eugene A. Dietz, and Recording
Secretary Deb Edlund
PLEDGE OF ALLEGIANCE
ROLL CALL: All members present.
I. APPROVAL OF AGENDA AND OTHER ITEMS OEBUSINESS
MOTION:
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Harris moved, seconded by Pidcock to approve the Agenda as
published. Motion carried unanimously.
II. MINUTES
A. Minutes of the City Coupcil Meeting held Tugsday.
September 12, 1989
MOTION:
Harris moved, seconded by Pidcock to approve the minutes
of the September 12 , 1989 Special Assessment Hearing as
published and amended.
CORRECTION
Page 9, Paragraph 2, Sentence 2 , should read: was unique
because it had not received that same benefit.
Motion carried 4-0-1. Peterson abstained.
III. OON,SENT CALENDAR
A. Eden Prairie Sogce C u.2 ProRosa l
�. B. Policy on Cancellation of RefUnds
City Council Minutes 2 October 3 , 1989
C. Mini Rinks/Skating Rinks
D. Willow Park Improvements
E. Community Center Membership Policy Change Request
F. 2nd Reading of Ordinance No 34-89 to Regulate Snowmobile
Operations
G. Lease for Winter Storage of Public Works and Parks
Maintenance Equipment
H. Grading Permit for Proposed Exipansion of Jubilee Church
I . Martin Luther King. Jr. Celebration
J. Finai, Agproval for S5. 985. 000 for Multi-Family Housing �
Donds fgr Prairie Villa Villagg apartments (Sterling Ponds)
Resolution No. 89-21.3
K. Clerk's License List
3
NOTION
Harris moved, seconded by Pidcock to approve Items A
through K on the Consent Calendar as published. a
ITEM C
Pidcock believedthat the skating rinks were a positive
activity for children and would like to see a few more
rinks opened. Peterson stated that the usage of the rinks
would be monitored. Lambert added that the two rinks
which had been petitioned would be maintained and
monitored this season. Pidcock stated that the City had
been criticized because it did not maintain the facilities
as well for the children as it did for the adult
activities. Pidcock added that she would like to see more
done for the youth and especially to reconsider opening
the two rinks which had been eliminated.
Anderson stated that the City had tried the mini-rinks in
the past with little success. Anderson concurred with
Staff's statements that maintenance was difficult.
Peterson believed that Staff was making a sincere effort
to improve the facilities available and would continue to
monitor them. Peterson requested that the City Council
and the Parks, Recreation, & Natural Resources Commission
be given reports of the monitoring process.
Pidcock asked if the other two rinks could be done on a
trial basis. Lambert replied that the 3rd rink at Outlot
C of Amsden Hills Second Addition had not been petitioned,
City Council Minutes 3 October 3 , 1989
( was not on City property, and unless the neighbors did
petition for the project Staff recommended that this
project not be done. Pidcock stated that residents would
not think about the rink until winter was actually here.
Tenpas stated that the neighbors did understand the
problem about getting the maintenance vehicles to the
water.
Motion to approve the Consent Calendar carried
unanimously.
IV. PUBLIC HEARINGS
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A. SPECIAL ASSESSMENT NEARING (Continues from September 12, tt
1989) Resolution No. 89-199 - Approving 1989 Special
Assessment Rolls
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Dietz referred to Exhibit A, Item I.C. 52-132 , which
showed that the two vacant lots on Franlo Road had the
lateral sewer and water assessments deferred with interest r
as discussed at the September 12, 1989 meeting.
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Dietz reported that Item I .C_ 52-147 had originally had 3
items continued. It was later determined that the first
two parcels noted on the revisions had been erroneously
classified as homesteaded properties. Mr. Brown and Mr.
Wendt had indicated they believed the front footage
calculations prepared by Staff to be incorrect; however, r
upon further investigation it was determined that Staff's
calculations were correct as originally proposed.
Dietz reported that the front footage for the Wagner
property had been recalculated. The original deferment
amount was approximately $12 , 000. The amount to be
deferred had been reduced to $6,149. Dietz stated that
the reduction in the assessment was calculated based on
the fact that if the right-of-way for Scenic Heights Road
were extended across the Wagner property the northern
portion, or approximately 324 feet, would not receive
benefit and, therefore, should not be assessed. Based on
this figure the total frontage to be assessed would be 500
feet, which reduced the total assessment from the original
amount of $15, 590. 08 to the current figure of $9, 460. 00.
Dietz stated that this proposal had been presented to Mr.
Wagner on the telephone.
Steve Wagner, 8430 Eden Prairie Road, stated that until
the past Friday, Staff had not notified him of the
proposal . Wagner requested that this item be continued
for an additional 30 days to allow him adequate time to
thoroughly investigate the legalities of this issue.
Wagner believed that the assessment was still too high
and, based on conversations and a recommendation from the
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City council Minutes 4 October 3 , 1989
( City of Minnetonka, wanted time to consider having an
outside appraiser evaluate this item at a cost shared with
the City.
Peterson asked if the City were under any time
constraints. Dietz replied that the assessments had to be
filed with Hennepin County by October 9, 1989 . Dietz
added that Mr. Wagner had been given the figures on
Friday. Wagner replied that he had not been given exact
figures and had only been told on Friday that the
assessment would be prorated.
Dietz believed that the original $15, 000 assessment would
be of benefit to the property. He added that without
utilities the property was farmland. Property in this
area was currently selling for approximately $40, 000 per
acre. Dietz further believed that Staff had made a good
faith effort to reach a compromise on this item and did
not believe that another 30 days would prove beneficial in
reaching an agreement. Dietz noted that the appeal fi
process was an option for Mr. Wagner. Dietz believed that
the assessment of $9,460 was a reasonable assessment for
this parcel .
Pidcock asked for an opinion from the City Attorney. City
Attorney Pauly replied that the appeal process was an
option for Mr. Wagner and that the appeal should be filed
within 30 days of this hearing.
Harris asked if within the 30-day period the City could
consider this item further and make corrections if so
determined. Pauly replied that the assessments would be
certified as adopted by the City. He added that the
landowner can preserve the rights for review by a court
appeal. Pauly stated that this would not preclude t:ie
City from determining if errors had been made.
Peterson stated that the Council had to either approve or
adjust the assessment amounts at this meeting in order to
be certified for the 1989 assessment roll .
Tenpas stated that this item could be held over for the
1990 assessment roll . Pauly noted that interest would not
begin until January 1, 1991 if the assessment were held
over until 1990. Tenpas stated that he appreciated the
Staff's efforts to reach a compromise; however, he was
unclear on the benefit or detriment to the property.
Tenpas recommended further review during a 30-day interim.
Dietz stated that if the assessment were approved and
certified, the City would at least have something on
C record; if the assessment was not certified by October 9,
1989, nothing could be assessed until 1990. Dietz added
that a correction could be made if an error was found
City Council Minutes 5 October 3 , 1989
after the assessment was certif ied, but if no assessment
was certified at this time, the assessment could not be
made until 1990.
Wagner believed that it would only be common courtesy for
the City to allow him adequate time to determine if this
assessment amount was a fair amount and time to get a
second opinion. Wagner added that he did not wish to get x
into a legal battle with the City.
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Dietz stated that the assessment figures had not changed
by more than $1,000 from the time of the feasibility
hearing which was held last fall.
Jullie asked Pauly that if Mr. Wagner had an appraisal
done prior to the 30-day limit for an appeal, could a
correction be made to the assessment if necessary. Pauly
replied yes.
Anderson believed that because Staff agreed that another
30 days would actually be available to Wagner to
substantiate the need for a correction he would support
approval of the assessment as proposed.
Dietz reported that I.C. 52-149 had a correction: the
Nelsons had connected to the watermain and, therefore, the
{ deferment was changed from the deferment column for 1995
to be assessed in 1990. Dietz stated that on the
supplement page under trunk, sewer and water, both the
Michabee and the Nelson properties should be deferred with
interest until development. Dietz stated that under
lateral exclusion, the Northwest Racquet Club had
purchased the property and the exclusion was being picked
up by the club.
There were no further comments from the audience.
JJOTIQN:
Anderson moved, seconded by Harris to close the public
hearing and adopt Resolution No. 89-199 approving the 1989
Special Assessment Rolls to include Staff recommendations.
Tenpas asked Pauly for clarification that Wagner would
have 30 days to try to justify a modification to the
assessment roll before beginning the appeal process.
Pauly replied that this was correct.
Wagner requested that he be provided with a copy of the
information which had been provided to the Council
regarding the assessment.
Motion carried 4-0-1 . Peterson abstained.
City Council Minutes 6 October 3 , 1989
! B. SHORES OF MITCHELL LAKE by Mr. USHOT. Request for Zoning
District Change from Rural and R1-22 to R1-13 . 5 on 94 .8
acres with Shoreland variances to be reviewed by the Board
of Appeals, Preliminary Platting of 94 . 8 acres into 175
single-family lots, 3 outlots, and road right-of-way,
Environmental Assessment Worksheet Review on 94.8 acres as
part of a 450-acre phased action E.A.W for construction of
residential development. Location: South of State
Highway #5 and west of Mitchell Lake. (Ordinance No. 37-
89 - Rezoning; Resolution No. 89-210 - Preliminary Plat;
Resolution No. 89-211 - Finding of No Significant Impact
for EAW)
Jullie reported that notice of the public hearing had been
mailed to 18 surrounding property owners and published in �
the September 20, 1989 issue of the Eden Prairie News.
Jack Buxel, representing the proponent, presented the
plans for the 95-acre site and the topography of the
property. The tree inventory showed that the vast
majority of the property was open, with the trees being
clustered in a stand and along the knoll. There would be
3 basic market types of homes with the most expensive
homes being developed along the lakeshore, then a tier of
lots approximately 15, 000 square feet, and the third tier
approximately 13, 500 square feet. A trail would be
provided to connect the City's trail systems. The south
point, 100 feet of lakeshore, and 1/2 of the north knoll
would be dedicated to the City. This dedication on the
south bay would complete the park for the City and would
allow the City to control the bay area. This dedication
would also allow for preservation of the trees and the
knoll. Two lots would share a driveway to save additional
trees. The proposed tree loss would be 22%. The
replacement of the trees would occur mainly along Highway
5 along with a sound abatement berm. The total project
consisted of 174 lots. The lakeshore lots did not meet
the minimum shoreline ordinance of 40, 000 square feet;
however, the proponent believed that because of the
dedication of the property to the City and the remainder
of the lakeshore property, it would meet the objective of
the ordinance. Buxel said that out of the 5000 feet of
lakeshore, approximately 2600 feet would be dedicated to
the City. A connection to Dell Road would also be made.
Lee Johnson, representing the proponent, stated that he
did not agree with the City on two points. Johnson
believed that the sequential staging of development should
be modified. He believed that the development
construction work should be able to be done concurrently
with the highway construction. Johnson did not believe
that the Final Plat was the proper place to have the
(� controls for development.
City Council Minutes 7 October 3, 1989
Enger reported that this item was reviewed by the Planning
Commission on June 12 , July 10, August 14 , and finally on
September 11, 1989 . The plans had gone through revisions
during this process. The Planning Commission recommended
approval of the request for zoning district change with
shoreland variances to be reviewed by the Board of Appeals
and Adjustments based on the plans submitted September 11,
1989. The additions to the Staff Report recommendations
were that:
1 . The design of the fence to be reviewed by and meet
EPA standards.
2 . The developer should work with City Staff as to
the design and the aesthetics of the fence.
3 . The maintenance of the temporary road shall be
the responsibility of the developer.
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The Planning Commission approved the proposal with a 4-0-0
vote. Enger reviewed the main points presented in a
summary memo from Senior Planner Mike Franzen dated
September 28, 1989 . Enger emphasized that according to
the Southwest Area Study no more than 100 units would be
allocated for this project and 250 units total for the
entire lA Section. Enger stated Staff recommended that a
fair way to determine the number of units for each
developer was to prorate the number of units based on a
per acreage allotment at approximately 1 unit per acre.
Based on this calculation US Homes which had 96 acres
could be allocated 100 units until Dell Road was
completed. The 1st Phase would have 55 units and the 2nd
Phase would consist of 45 units when the temporary
connection was made to Bell Road; however, because Dell
Road was not extended into this area presently, it would
require that Dell Road construction be completed.
Enger noted that cooperation was required of the developer
for the frontage road construction to connect to Highway
5. This would require that some grading would be
necessary within the project prior to the completion of
Highway 5 and the intersection of Dell Road .
Enger stated that Staff was concerned about the control
the City would have if based on occupancy as Johnson
recommended as to who the City would deal with regarding
Final Plats, the builders or homeowners. The builders and
homeowners would need to be made aware of the restrictions
on the parcels. Enger stated that if a special document
could be prepared and the number of units was limited,
this could be a workable situation for US Homes. The
final details for this recommendation had not been worked
out at this time.
Lambert reported that the major issues for this project
were trees and trails. Lambert viewed the plan positively
as it provided an extension to Miller Park, preserved a
City Council Minutes 8 October 3, 1989
significant number of trees, and provided an 8-foot trail
connection. The Parks, Recreation, and Natural Resources
Commission recommended approval unanimously at its
September 18, 1989 meeting based on the September 15, 1989
Staff Report.
Tenpas asked when Dell Road would be completed. Dietz
replied that the bid opening was scheduled for March 1990
and that the intersection could be completed in December
1990. Tenpas then asked when the loop with Scenic Heights
Road would be completed. Dietz replied that County Road 4
needed to be improved before Dell Road was completed.
Dietz added that Hennepin County was reluctant to make any
commitments on County Road 4 . Tenpas stated that t?iis
could near: that the completion of Dell Road could be 4 to
5 years away. Dietz replied ;des. Tenpas asked if a
temporary outlet could be made to County Road 4. Dietz
replied that if the marketing of these homes progressed as
expected, the City would probably be pressured to do
something prior to 1993 .
Harris asked for further details on the recorded document
to be filed on these lots. Enger replied that the
proponent and Staff had discussed the possibility of
construction of a few units with special recorded
documents because additional parties other than the City
and the developer could be involved in the Final Plat
process. These documents would allow for the construction
of model homes and would also apply to the subdivision
proposed by Tandem Properties. Enger noted that Staff
recommended that these special recorded documents be
allowed for no more than 10 units. Harris was concerned
about this because more than one developer was proposing
development in this area at the same time. Enger
recommended that no occupancy permits be issued until
significant completion of the intersection of Highway 5
and County Road 4 .
Peterson was concerned about control by certificates of
occupancy because residents had been known to move into
homes without these certificates. Peterson was concerned
that an orderly, staged development in the best interest
of the City had not been agreed upon at this time.
Johnson replied that he believed that an agreement was
close to being reached. Johnson added that an interim
proposal was to install a turn lane onto Highway 5 at Dell
Road prior to the full upgrading of the intersection.
Johnson recommended that no building permits be allowed
until completion of the turn lane and that the permits be
limited to 10 until the intersection was totally upgraded,
Johnson requested that 55 lots be platted with 10 building
r permits being issued, but no occupancy permits issued.
Peterson was concerned that once 55 lots were final
platted, what control the City would have to limit the
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City Council Minutes 9 October 3 , 1989
amount of construction. Peterson noted that this area was
special because of the contingency for improvements prior
to development. Johnson replied that occupancy could not
take place prior to utilities and paved streets being
provided.
Enger stated that an agreement was close. The issue was
actually the degree of control desired by the City. Enger
recommended approval of the preliminary plat of all lots,
and approval of a final plat with 55 lots but a covenant
with the final plat to include construction on only 10
lots.
A brief recess was held to allow Staff and the proponent a
arrive at an acceptable solution regarding platting and
permits.
Enger reported that the consensus was that a Final Plat be
granted for 55 lots, that the Final Plat not be released
by the Engineering Department to Hennepin County until the
proponent had determined which 10 lots would be sold to
the builders, and the restrictive covenants which would A
preclude building permits from being issued until the Dell
Road intersection had been completed on the remaining 45 y
lots. Enger added that no occupancy permits would be
issued for the 10 lots until the Dell Road intersection
was completed.
Pidcock asked what would happen if Dell Road were not
completed as anticipated. Enger replied that only the
Dell Road intersection was being considered. Enger. added
that the risk was that of the developer and if the
improvements were put off indefinitely the developer would
need to return to the City Council.
Randy Capeski, Box 243, Afton, Minnesota, stated that he
owned property adjacent to this development. Capeski
asked for clarification on the alignment of Dell Road and
who would be responsible for the construction. Dietz
explained the location of the alignment for Dell Road and
added that the first section of construction was the
responsibility of MnDOT; the City of Eden Prairie would be
responsible for the next section, for which a fea- '.bility
study was being prepared by Staff. Dietz clarified that
the construction would not go through Capeski's property.
Dietz recommended that Capeski come into the City offices
and discuss this further with Staff.
Jim Ostenson, partner of Tandem Properties, stated that he
was in agreement with the proposal this evening and the
allocation of the building permits. Ostenson stated that
he was concerned about the future development of this
whole area and the timing of the development. He added
that the land can only be partially developed, yet sewer
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City Council Minutes 10 October 3, 1989
i and water would be installed and assessments would begin.
All of the landowners had petitioned the City to have the
improvements made. Ostenson was concerned that the
frontage road would be constructed, the maximum number of
units developed, and the remainder of the property would
be sitting with assessments and taxes accumulating and not
be allowed to develop. Ostenson stated that he would like
be allowed to develop. Ostenson stated that he would like
to see the City look at alternative ways to connect Scenic
Heights Road and Dell Road. Ostenson believed that this
portion of Eden Prairie was being held hostage by other
government bodies.
There were no further comments from the audience.
MOTION:
Harris moved, seconded by Pidcock to close the Public
Hearing and approve lst Reading of Ordinance No. 37-89 for
Rezoning. Motion carried unanimously.
MOTION:
Harris moved, seconded by Pidcock to adopt Resolution No.
89-210 for Preliminary Plat approval . Motion carried
1 unanimously.
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Harris moved, seconded by Pidcock to adopt Resolution No.
89-211 Finding No Significant Impact for the Environmental
Assessment Worksheet and direct Staff to prepare a
Development Agreement incorporating Commission and Staff
recommendations, that the Final Plat be approved for 55
lots, that the recording of the lots not be released by
the Engineering Department until the proponent determined
which 10 lots would be sold to builders, that restrictive
covenants be placed on the remaining 45 lots until the
completion of the intersection of Highway 5 and Dell Road,
and that no occupancy permits be issued for the 10 lots
until completion of the intersection of Highway 5 and Dell
Road. Motion carried unanimously.
Peterson commented that the City appreciated the
proponents' dedication of the property for the parks and
trails to the City and the cooperation of the proponent.
C. SCHBQEE,S PUD by BDD Partnership. Request for
Comprehensive Guide Plan Amendment for the relocation of
the Metropolitan Urban Service Area (MUSA) Line to include
an additional 32 .2 acres of property, Planned Unit
Development Concept Review on 129.8 acres, Planned Unit
Development District Review on 129.8 acres with waivers,
Zoning District Change from Rural to R1-9. 5 on 24 acres
and from Rural to R1-13. 5 on 8 . 2 acres, Preliminary
City Council Minutes 11 October 3 , 1989
Platting of 129.8 acres into 77 single-family lots, 3
outlots, and road right-of-way, Environmental Assessment
Worksheet Review on 129 .8 acres as part of a 450-acre
phased action E.A.W. for construction of a residential
development. Location: North of Rice Marsh Lake, just
east of the Chanhassen-Eden Prairie City limits.
(Resolution No. 89-215 - Comprehensive Guide Plan
Amendment; Resolution No. 89-216 - PUD Concept for
Schroers PUD; Ordinance No. 40-89-PUD-8-89 - PUD District
and Rezoning; OHSchroers PUD; Ordinance No. 40-89-PUD-8-89
and Rezoning; Resolution No. 89-217 - Preliminary Play:;
Resolution No. 89-218 - EAW Finding of No Significant
Impact)
Jullie reported that official notice of the public hearing
was nailed to 7 property owners and published in the
September 27, 1989 issue of the Eden Prairie News.
Don Patton, representing the proponent, stated that the
proposal had been reviewed by the Planning Commission at
four separate meetings and also reviewed by the Parks,
Recreation & Natural Resources Commission. Patton said
that the project was very complex and that the plans had
been revised in accordance with the recommendations of
Staff and the Planning Commission. Patton believed that
this project would be important to the City for the
location of Dell Road and stated that a portion of this t
parcel would be dedicated for the construction of Dell
Road. Patton stated that the Zoning District requests had
been changed for the R1-9. 5 to 13. 9 acres with 40 lots and
the R1-13.5 zoning to 18.9 acres with 40 lots. Because of
the above-referenced changes the Preliminary Plat request
was for a total of 8O lots, not 76 lots as originally
proposed. Patton- presented a brief history of the
location of the MUSA Line. He stated that the proponent .
could have requested to develop areas within the MUSA
Line; however, it had chosen to develop the property
outside the MUSA Line , which was adjacent to Dell Road.
Mike Black, representing the proponent, presented the plan
details for the project. The proponent would be
requesting a variance from the Shoreland Ordinance for
smaller lot frontages along Rice Marsh Lake, and proposed
to offer in trade the dedication of Outlot B to the City
for park land and a public trail system. Outlot A would
be platted for future development. Berming along the
northern boundary would be approximately 6 feet high to
provide a transition between the industrial area and the
single-family units and the berms along Dell Road would be
approximately 4 to 8 feet high to provide a buffer for the
single-family units. Black stated that the tree inventory
had been completed for Phase I . The depth of the lots
along the Rice Marsh lakeshore had been increased based on
the recommendation from the Planning Commission. Black
City Council Minutes 12 October 3 , 1989
noted that the berming issue adjacent to DataSery was
critical and the details were yet to be determined.
Enger reported that the Planning Commission had reviewed
this item at the June 12, July 10, August 14 , and
September 11, 1989 meetings. The Planning Commission had
voted for denial of the project at the September 11, 1989
meeting with a 4-0 vote. Enger noted that the majority of
discussion centered on the MUSA Line change because the
Planning Commission believed that without an expansion of
the MUSA Line, the development could not proceed as
proposed. The Planning Commission did make suggestions on
all of the requests so that if the City Council decided to
approve the MUSA Line change that the project could
proceed with the zoning and platting requests. The State
Law only required that the Planning Commission had
reviewed the zoning and platting issues in a Public
Hearing process and did not require that positive action
be taken. Enger reviewed the reasons for denial which
were outlined in the September 11, 1989 Planning
Commission minutes. Enger reviewed the possible MUSA Line
issues which had been outlined in the Planning Staff
V
Report dated September 8; 1989 . Enger stated that the
City needed the cooperation of the Tandem and the US Home
projects to construct the frontage road in this area.
Enger noted that the recommendation of Staff and the
Southwest Area Study regarding phasing of this project did
not agree with that which was being proposed by the
proponent at this time.
Dick Feerick, representing the proponent, stated that Mr.
Schroers and his two sons were available to answer
questions. Feerick stated that this was an inf ill piece
of property. Feerick said that the Metropolitan Council
supported the development of Highway 212 and Highway 5 and
that Dell Road would serve as a collector road between
these two major roads. Feerick believed that Metropolitan
Council would look favorably on a minor amendment for
under 40 acres, which was what would be presented.
Feerick believed that Dell Road was needed for the logical
development of this area. Feerick noted that to be
allowed to continue working with the Metropolitan Council
the proponent needed a supportive decision from the City
of Eden Prairie. He added that a private property owner
could not go to Metropolitan Council on its own without
the support of the City. Feerick believed that the
phasing issues could be worked out with Staff.
Lambert reported than the Parks, Recreation, & Natural
Resources Commission did not make a recommendation
regarding the MUSA Line expansion.
Peterson asked the proponent to address the issue of
possible further requests for expansion of the MUSA Line.
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City Council Minutes 13 October 3, 1989
Patton presented the Council with a construction schedule_
Patton added that the proponent would like to begin
construction in 1990. This 32 .8 acres of property would
be developed first and then the Jacques/Delegard parcel .
Peterson asked what was proposed for development further
to the west. Patton replied that the proponent would
return to the Council at a later date with additional
phases. Feerick stated that as a logical sequence of
development would need to be substantiated to the
Metropolitan Council, an additional request for 30 acres
could be done in 1992 and another 30 acres in 1995 .
Feerick added that the: City Staff and Council would be in
control of further phasing. j
Tenpas believed that other developers within the MUSA Line
would be handicapped if this proposal was approved due to
the restricted number of homes allowed. Ostenson,
representing Tandem Properties, replied that Tandem
Properties would be the first development along Highway 5.
Ostenson added that it was important to have the
cooperation of all the land owners in this area to make
the road, water, and sewer connections. Ostenson believed
that if Dell Road were to be extended that it would only
be fair to allow development of this property because of
assessments, whether it was inside or outside of the MUSA
Line.
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Peterson asked what the current inventory was for
developable lots and how the addition of these lots would
affect development within the MUSA Line. Enger replied
that Staff suggested that a development rights trade be
negotiated so that the proponent would forego its right to
develop its land holdings in Section 1A of the Southwest
Area Study for the right to develop this 32. 8-acre parcel.
The cap for unit development in this area is 250 units at
this time. Peterson asked the proponent if this type of
trade would be acceptable. Feerick replied yes.
Anderson asked the exact location of the lots to be
involved in the trade. Enger replied that the lots were
to be within Section lA of the Southwest Area Study.
Anderson asked if a letter of agreement for the land trade
was available at this time. Enger replied that a letter
from the attorney representing the mortgagees only stated
that they were considering the request.
Pidcock questioned if it would not be appropriate to have
a letter of agreement regarding a 16-acre land trade in
hand before taking action on this proposal. Feerick
replied that it would helpful in dealing with the
Metropolitan Council if the City's position was known on
the issue of the MUSA Line Change first.
6
City Council Minutes 14 October 3, 1989
Peterson believed that the benefits for a MUSA Line change
as noted in the Staff Report were significant. Peterson
asked if there could be precedent-setting issues that the
council was not aware of. Enger believed that all the
issues were addressed in the Staff Report.
T°enpas believed that this was a unique parcel in that the
City' s trunk sewer line was outside the MUSA.
Anderson asked how much extra traffic would be added to
Highway 5 by this proposal . Enger replied approximately
800 trips. Anderson then asked if there would be any
adverse affect for the water and sewer lines. Dietz R
replied that the waternain would not be available until.
August 1990. Anderson asked if this would put an extra
strain on the City. Dietz replied no, not once the
Highway 5 project was completed.
Harris believed that a sufficient case could be presented
to the Metropolitan Council . Harris added that the
information regarding the 16-acre trade should be included
in the presentation to the Metropolitan Council .
Peterson stated that the proponent would have to impress
upon the Metropolitan Council the importance of this
trade. Peterson believed that the risk would be for that
( of the proponent. Peterson added that he would like more
assurance that the City would not be pressured next year
to extend the WA SA Line again or to increase the amount of
lots allowed for development. Patton replied that the
phasing after this proposal would be to develop within the
MUSA Line.
Tenpas believed that the MUSA Line should match the trunk
sewer line. Peterson stated that this would represent too
large of an amendment and would probably not be approved
by the Metropolitan Council and secondly that the City
would lose control regarding requests for further
development.
Mr. Schroers, 8080 184th Avenue West, explained the
history of the MUSA Line from his involvement starting in
1946. Schroers believed that since the MUSA Line had been
changed once it should be able to be changed again.
Anderson asked the price range of the homes. Patton
replied that the homes would be constructed by New Concept
Homes and would be priced between $125, 000 and $200 ,000.
Anderson was concerned about the size of the home on a R1-
9 . 5 lot. Anderson believed that a $12 5, 000 home on a Ri-
9 . 5 lot defeated the purpose of R1-9. 5 zoning. Anderson
further believed that it was important to provide
affordable housing.
City Council Minutes 15 October 3 , 1989
Peterson asked how many square feet could be built in a
house for $125, 000. Bob Bjorkland replied that the houses
would be approximately 1300 to 1600 square feet in floor
space. He added that it would be difficult to construct a
quality home priced below $125, 000 on these lots.
Tenpas stated that the land cost factor for Eden Prairie
needed to be taken into consideration in the price range
of the homes.
Patton stated that the proponent had been requested to
install sidewalks, which increased the price of the lots.
Patton added that if the City's requirements were lessened
the cost of the lots could be reduced.
Peterson stated that in Eden Prairie a $125, 000 home was a
starter home. He added that 1300 to 1600 square feet was
not a large home.
Anderson stated that he would like to see a footprint plan
for the houses. Anderson was concerned that this section
of the City would be concentrated with. R1-9. 5 housing. He
added that the R1-9.5 zoning seemed to be concentrated in
the western and northern sections of the City. Anderson
believed that careful placement of the R1-9.5 zoning
needed to take place in order to provide a good mix.
Peterson asked Enger if the Planning Commission would like
t review
o re ze the plans again if the MUSH Line change were
approved by the Council. Enger replied no.
Randy Capeski, Box 243 , Afton, believed that the WJSA Line
expansion would not be in best interest of the City.
Capeski was concerned about the increase in traffic. He
believed that this should be continued until it was
determined exactly what would be done with Dell Road.
Capeski was concerned about who represented the private
landowners in this area. Peterson recommended that
Capeski meet with Staff to discuss these issues further.
George Bentley, 1080D Fieldcrest Road, believed that in
the long term the MUSA Line should be moved all the way to
the City limits; however, this was not appropriate at this
time. He believed that the MUSA Line was an arbitrary
line. Bentley believed that Dell Road needed to be
constructed and assessments were necessary to accomplish
this. He added that upgrading County Road 4 needed to be
addressed as soon as possible and that the City needed to
take a strong position ; however, the entire development of
this area should not be contingent on the upgrading of
County Road 4 . Bentley commented that regarding the R1-
9. 5 zoning issue, many of the lots in the Preserve area
were zoned R1-13 .5 but through density transfers were
developed as R1-9. 5 or less.
3
i
4
City Council Minutes 16 October 3 , 1989
Lambert reported that the Parks, Recreation & Natural
Resources Commission had discussed the possibility of a
trail along the lakeshore and accepting land in lieu of
park fees. He added that the City would obtain permits
needed to construction are 8' asphalt trail. Lambert
believed that this was a valuable piece of property for
Cash Park Fees. The proponent would be getting credit for
the land dedication to the City for the trail by having
the lot frontage sizes reduced from the requirement of the
Shoreland Ordinance. The Parks, Recreation & Natural
Resources Commission recommended approval of the
development proposal with the condition that the Cash Park
Fees be reduced by $100 at the park fee in effect at the
time of building permit issuance as a credit for the strip
of land for trails.
Enger stated that the proponent still needed to provide
Staff with information on a number of items, including a
revised buffer plan for the lots in the northern section
and an architectural variety plan for the RI-9.5 area.
Enger noted that it was important that the proponent
adhere to the phasing schedule outlined in the Staff
Report. Enger added that the Council needed to consider
if an 80 lot trade would be acceptable for the Southwest
Area Study. He noted that the Planning Commission in
general had concurred that a full trade as originally
proposed by the proponent would be favorable, and further
that the case presented by the proponent to the
Metropolitan Council should be able to support a full 32-
acre trade. Enger stated that this development would set
a precedent for development of the remainder of the
Schroers property.
Peterson asked if the three remaining issues could be
resolved during a short break. Enger replied that the
proponent had agreed to provide the architectural variety
plan and revised buffer plan; however, the remaining issue
was the phasing schedule. The proponent currently planned
to request 10 occupancy permits by the fall of 1990;
however, according to the Southwest Area Study, no final
platting of lots was to occur prior to the completion of
improvements of the intersection of Trunk Highway #5 and
County Road 44 , which was not expected to be completed
until late 1990 .
Pidcock stated that the Council had just approved the
issuance of 10 occupancy permits for the Shores of
Mitchell Lake Project. Enger replied that what had been
approved was the issuance of 10 building permits for the
full of 1990, with no occupancy permits issued prior to
the completion of the Dell Road intersection. Enger noted
that this accelerated program had been approved because of
the need for the frontage road.
City Council Minutes 17 October 3, 1989
Tenpas asked if this proposal would accelerate the
extension of Dell Road. Enger replied that it accelerated
the need for extension of Dell Road further south than
would otherwise be necessary. Enger added that with or
without this proposal Dell Road would be extended south of
the US Homes development. Dietz stated that Dell Road
needed to be a City project in this area because the
right-of-way was on other private property. Dietz added
that the schedule for construction would be part of the
feasibility study.
A brief recess was taken for Staff and the proponent to
discuss further the phasing schedule.
Enger reported that the proponent had agreed to accept a
similar plan as US Homes in that no occupancy permits
would be issued, 10 building permits would be issued, and
final plat would not be released until restrictive
covenants had been filed on the balance of 70 lots. He
added that this would further be contingent on approval of
the MUSA Line change by the Metropolitan Council.
There were no further comments from the audience.
MOT ION:
Pidcock moved, seconded by Harris to close the Public
Hearing and adopt Resolution No. 89-215 for Comprehensive
Guide Plan Amendment. Motion carried unanimously.
MOTION:
Pidcock moved, seconded by Harris to adopt Resolution No.
89-216 for PUD Concept for Schroers PUD. Motion carried
unanimously.
MOTION
Pidcock moved, seconded by Harris to approve 1st Reading
of Ordinance No. 40-89-PUD-8-89 for PUD District and
Rezoning. Motion carried unanimously.
NOTION
Pidcock moved, seconded by Harris to adopt Resolution No.
89-217 for Preliminary Plat approval . Motion carried
unanimously.
MOTION:
Pidcock moved, seconded by Harris to adopt Resolution No.
89-218 for the Environmental Assessment Worksheet Finding
of No Significant Impact and direct Staff to prepare a
Development Agreement incorporating Staff recommendations
5
City Council Minutes 18 October 3 , 1989
and further conditions that no occupancy permits be issued
until 1991, that 10 building permits may be issued in
1990, the balance of the permits to be issued upon
completion of the intersection at Dell Road and County
Road 5.
Enger asked the Council if it chose to recommend support
of the 80 lot trade as outlined in the Staf f Report dated
September 8, 1989, Item 4 . The Council concurred that
this recommendation should become part of the developers
agreement.
Motion carried unanimously.
a
D. NEW HORIZON CHILD CARE by New Horizon Child Care. Request
for Zoning District Change from Rural and. Public to C-Reg-
Ser on approximately 2 acres, and Site Plan Review on
approximately two acres for a day care center. Location;
North of Prairie Center Drive, east of Arby's restaurant.
(Ordinance No. 38-89 - Rezoning)
Jullie reported that notice of the Public Hearing had been
mailed to 6 adjacent property owners and published in the
September 20, 1989 issue of the Eden Prairie News.
Mr. Peterson, representing the proponent, stated that this
was a pilot project for Homart Development. The daycare
center inside the mall would be moved outside and the Kids
Club would be constructed inside the mall and an extensive
promotion program was planned. The proponent would like
to complete the project as soon as possible so that the
Kids Club could be ready for this holiday season and,
therefore, was requesting an early grading permit and
early foundation construction permit.
Enger reported that the Planning Commission had reviewed
this item at its September 11, 1989 and recommended
approval unanimously based on the recommendations outlined
in the Staff Report. Enger stated that regarding the
early grading permit and foundation work, this same
proponent had requested an early permit in May 1989 and
all requirements were met.
Harris believed that daycare services were needed in the
community.
MOTION:
Harris moved, seconded by Pidcock to close the Public
Hearing. Motion carried unanimously.
t
City Council Minutes 19 October 3 , 1989
MOTION•
Harris moved, seconded by Pidcock to approve 1st Reading
of Ordinance No. 38-89 for rezoning; and to direct Staff
to prepare a Development Agreement incorporating
Commission and Staff recommendations. Motion carried
unanimously.
MOTION:
Harris moved, seconded by Pidcock to grant an early
grading and foundation permit, with the understanding that
the proponent is proceeding at its own risk. Motion
carried unanimously.
E. TECH 10 by Hoyt Development Company. Request for Zoning
District Change, from Rural to I-2 on 5 .6 acres,
Preliminary Plat of 5.6 acres into one lot, Site Plan
Review of 5.6 acres for construction of a 73, 367 square
foot office warehouse. Location: 74th Street and Golden
Triangle Drive. (Ordinance - No. 39-89 - Rezoning; z
Resolution No. 89-212 - Preliminary Plat)
Jullie reported that notice of this public hearing was §
mailed to 6 property owners and published in the September
20, 1989 issue of the Eden Prairie News.
Bob Smith, representing the proponent, presented the plans
for 73 , 367 square-foot office/warehouse complex. A tenant
had signed a 20 year lease agreement for the building.
The potential tenant had 52 employees. 90 parking spaces
would be provided with additional proof-of-parking. Mass
grading would occur on the site with 479 caliper inches of
trees being removed. The tree replacement would take
place on both Tech 9 and Tech 10. Three loading docks
would be located on the north side of the building.
Berming would be placed close to the building to reduce
the mass appearance. The lighting proposed would match
that of the existing Technology Park projects. Because of
the tenant's wish to obtain occupancy in December the
proponent was requesting an early grading permit, a
foundation permit, and a shell permit. The proposal was
in compliance with all zoning requirements.
Enger reported that this issue was reviewed by the
Planning Commission at its September 11 and September 25,
1989 meetings and recommended approval of the project with
a 4-0-0 vote subject to the recommendations outlined in
the September 8, 1989 Staff Report.
Lambert reported that the Parks, Recreation and Natural
( Resources Commission reviewed this item at its October 2,
t 1989 meeting and recommended approval of the proposal
unanimously.
F
City Council Minutes 20 October 3, 1989
Dietz reported that the proponent had a debt of
approximately $30,000 to the City for the design of the
creek crossing for Golden Triangle Drive and out like to
have a stipulation attached to the Developer's Agreement.
Smith replied that he would have to defer this item to Mr.
Hoyt. Peterson replied that the issuance of early permits
could be contingent on this matter being cleared up.
Tenpas asked for further details on what had occurred.
Dietz replied that as Vantage Companies owned the property
to the north of the creek and the Hoyt Companies the
property to the south, it appeared that the only way to
accomplish a crossing of the creek was for this to be a
City project and apply assessments. During the design
phases, which were extensive, Hoyt and Vantage came to an
agreement to do the project themselves. Engineering costs
had been incurred and the bills had been paid by the City,
and the City would like to be reimbursed. Tenpas asked
why only Hoyt would be held liable for the costs: Dietz
believed that monies were held in joint tenancy between
Hoyt and Vantage for these costs. Dietz added that this
was a petitioned project.
Jullie added that there was a dispute during the design
process; however, there is still a legitimate bill which
needs to be addressed.
Tenpas believed that the responsibility should be partly
Vantage's as well as Hoyt. Dietz replied that an escrow
account was established between Hoyt and Vantage.
Smith stated that there was litigation in progress
regarding Golden Triangle Drive and urged the Council not
to allow the $30, 000 to influence a decision on this
project. Peterson believed that this was an appropriate
time to have the issue resolved.
Tenpas asked if this would come as a complete surprise to
Hoyt. Dietz replied that he had had conversations with
Hoyt regarding this issue; however, he probably would be
surprised that it might be a condition of approval of this
project.
Peterson recommended that this item be resolved prier to
2nd Reading.
Anderson asked if any of the flood plain would be filled.
Smith replied that a small area would require fill and
that this had the approval of the Watershed District.
There were no further comments from the audience.
F
City Council Minutes 21 October 3 , 1989
MOTION•
Pidcock moved, seconded by Tenpas to close the Public
Hearing and approve lst Reading of Ordinance No. 39-89 for
Rezoning. Motion carried unanimously.
MOTION:
Pidcock moved, seconded by Anderson to adopt Resolution
No. 89-212 for Preliminary Plat Approval and direct Staff
to prepare a Development Agreement incorporating
Commission and Staff recommendations and Council
conditions that prior to 2nd Reading an agreement be
reached regarding the resolution of the $30, 000 debt.
Tenpas asked City Attorney Pauly if this was a legitimate
action. Pauly replied that he did not know enough about
the details to give an answer at this time. Peterson
asked if the wording of the motion was acceptable. Pauly
replied yes.
Motion carried unanimously.
V. PAYMENT OF CLAIMS
MOTION:
Pidcock moved seconded b Barris
y to approve Payment of Claims
No. 54330 through No. 5467 1. ROLL CALL VOTE: Anderson,
Harris, Pidcock, Tenpas, and Peterson all voting "AYE".
VI. ORDINANCES & RESOLUTIONS
A. RED SOCK SHORES by Scenic Heights Investment. 2nd Reading
of Ordinance No. 13-89, Zoning District Change from R1-22
to R1-13 . 5 on 22.97 acres; Approval of Developer's
Agreement for Red Rock Shores; Approval of Land .Alteration
Permit for Red Rock Shores; and. Adoption of Resolution No.
89-214, Authorizing Summary of Ordinance No. 13-89 and
Ordering Publication of Said Summary. 22. 97 acres into 20
single family lots, two outlots, and road right-of-way .
Location: East of County Road #4, north and east of Lake
Shore Drive. (Ordinance No. 13-89 - Rezoning; Resolution
No. 89-214 - Authorizing Summary and Publication)
Jullie reported that this was a 2nd Reading for the Red
Rock Shores proposal . He added that the proponent had
signed the Developer's Agreement and Staff would recommend
approval .
City Attorney Pauly stated that the proponent had signed
the agreement; however, there was a recommended change to
Item 1 of the Developer's Agreement. The paragraph should
read: "Developer shall develop the property in
City council Minutes 22 October 3 , 1989
conformance with the materials revised and dated June 15,
1989, reviewed and approved by the City Council on June
20, 1989, and attached hereto as Exhibit B, subject to
such changes and modification as provided herein and
further subject to and as modified by the provisions of a
land alteration permit relating to the property. "
Pauly noted that both Item VI.A and B. should be
considered together. The materials presented in the
Council package related to the Developer's Agreement, the
2nd Reading of the Rezoning Ordinance and Resolution for
Final Plat approval, and the approval of a land alteration
permit. Pauly believed that the proponent was in
agreement with the City regarding the Developer's
Agreement and the rezoning and final plat items; however,
the land alteration permit had been signed with two
sections stricken. The sections stricken were Section 7
which related to the tree replacement and the last
paragraph of Section 9, which related to security for the
trees addressed in Section 7. Pauly stated that the
proponent believed that the City did not have the
authority to impose the requirement that the trees be
replaced on the property, and if the City did have the r
authority to require the replacement of the trees, it did
not have the authority in respect to the building pads as
opposed to the streets and utilities.
George Hoff, attorney representing the proponent, stated
that at the last review of this project by the Council, .
two issues were discussed: zoning and subdivision a
approval . The zoning was approved without conditions and
the subdivision approval was adopted subject to land swaps
being arranged and a land alteration permit being obtained
subject to the City's tree policy. The proponent received
a Developer's Agreement and signed that agreement without
reservation with the exception of one typographical error.
The signing of the agreement was consistent with what the
Council had directed. There were no impediments based on
the record before the Council todate in respect to the
rezoning that did not now have R1-22 zoning.
Hoff stated that the only issue which remained unresolved
was the Land Alteration Permit. The proponent had excised
Section 7 , which parroted the tree policy of the City
(which was not in ordinance form) . Hoff understood the
land alteration permit to prescribe that the proponent
would in good faith perform all grading and restoration of
the site, would post an $11,000 bond, and would not damage
any trees outside of the construction zone. Hoff stated
that City Attorney Pauly was correct that it was the
proponent's position that the City was without authority
to impose the tree policy through the land alteration
permit. The standards of judgment of the land alteration
permit and on which a denial could be based included
City Council Minutes 23 October 3 , 1989
whether a safety risk were present, undue destruction of
vegetation occurred, proper methods for restoration were
not used, and the land was not zoned for proper use. Hoff
noted that no safety risk was present, additional
conditions were agreed to limit the amount of construction
traffic in the area, and the property was zoned for
appropriate use. Hoff noted that half of the property was
already zoned R1-22 . Hoff believed that the. Land
Alteration Permit's purpose was to cover regulations for
land alteration for development reasons. The Land
Alteration Permit stated that destruction of vegetation
outside the construction area was not permitted and would
be considered undue destruction of vegetation; Hoff added
that the proponent agreed with this condition.
Hoff said that as he had previously discussed with Staff
and the Council, he did not believe that the City had the
authority to enforce the Tree Replacement Policy based on
State Statue #462 . 358, which stated the sole authority for
subdivision regulations. The Tree Replacement Policy was
not in ordinance form at this time.
Hoff requested that the Council approve the rezoning based
upon the execution and submission of the Developer's
Agreement as developed by Staff, executed by the
proponent, and tendered to City Attorney Pauly; that the
Land Alteration Permit be approved as amended by the
proponent with the exclusion of Section T referencing the
Tree Policy; and that the Final Plat be approved in its
present form.
Dietz reported that the grading plan submitted by the
proponent dated May 11, 1989 did not show the Strawberry
Hills portion of the subdivision, the plan did show some
of the grading necessary on the individual lots and an
asterisk with a notation that stated that initial grading
on lots pads 1 through 6, Block 2, and 1 and 2, Block 3,
would be graded to allow for custom homes, street right-
of-way to be graded only. A new grading plan was
submitted for Council review at the June 20, 1989 meeting,
which depicted the Strawberry Hill subdivision, some of
Red Rock Shore Estates, and removed the grading on the
individual lot pads. Staff understood that the proponent
did not propose to do the initial grading on the lot pads;
however, in all of the other projects to date a grading
plan is submitted and approved which shows the ultimate
grading of the site, such that Staff would have a master
plan of how the development would occur. The Land
Alteration Permit makes reference to both the June 23,
1989 and the May 11 , 1989 plans. Staff was asking that
the proponent submit as part of the Land Altowratior. Fermis
an overall grading plan, which would be a Master Plan as
to how the land would be ultimately developed. The
addition of language to the Developer's Agreement was
City Council Minutes 24 October 3 , 1989
intended to recognize that the grading plan dated June 15,
1989 was not the ultimate plan for the site and that a
master plan would be required.
Pauly asked Dietz how Staff determined the grading on
individual lots. Dietz replied that when a building
permit was requested, Staff reviewed the permit, which
included a lot survey and grading plan, for conformance to
the master grading plan. Pauly then asked if there were
separate grading plans issued for individual lots. Dietz
replied no, the grading plan for the overall site was the
typical way to see the grading of the site. Pauly stated
that the overall grading plan for the site carried the
authority to grade the individual lots. Dietz stated that
this was correct.
Stuart Fox, City Forester, reported that the Tree
Replacement Policy was based on information from the US
Forestry Department and Agriculture Department. A 20%
random survey of the site was conducted. The tree
inventory was 968 trees, with 3022 diameter inches total
for the one acre surveyed. Fox stated that the entire
site had been traversed. Based on the site review and the
survey the tree inventory for the entire 5. 2 acre site was
5,034 trees over 1" in diameter for a total of 16, 650
diameter inches. Fox then reviewed the Staff report
prepared by the Planning Department, which depicted a tree
loss of approximately 1, 041 diameter inches of significant
trees, or those of 12 inches or better in diameter. Fox
showed the Council a plan which depicted the areas to be
impacted by the road construction or by building pads.
The area to be disturbed by construction activity totaled
1 .9 acres. Based on the calculations the total tree loss
would be 1,843 trees, 5, 664 diameter inches. Sixty-one
trees, or a total of 1, 024 diameter inches would be
considered significant. These figures were within 20
diameter inches of the original estimates. The original
count did not include trees under 12 inches in diameter.
The proposed replacement request was for 462 diameter
inches , which represented only 8% of the total trees which
could be removed from the site.
Peterson asked Fox if there were any state or national
standards to support the formula for replacement
calculations used by Staff. Fox replied that the method
used to determine the tree loss was a common method used
in forestry practices.
Pauly asked Fox if the estimated tree loss for the entire
5. 2-acre site was to be 5,034 trees over 1 inch in
diameter. Fox replied yes. Pauly then asked if the total
diameter of the trees would be 16, 650 inches. Fox replied
yes. Pauly asked if this amount represented the amount of
destruction to the trees resulting from the development of
City Council Minutes 25 October 3, 1989
f the site. Fox replied yes. Pauly asked if the total
number of trees to be lost due to construction was
estimated at 1,843 trees over 1 inch in diameter, which
represented a total of 5,664 caliper inches. Fox replied
yes. Pauly then asked Fox if he had an opinion of the
effect of the tree loss on the surrounding properties.
Fox replied that the existing subdivision to the south
would be affected by the removal of these trees. Fox
added that the winds from the north, which were now
currently blocked by the existing tree cover, would be
channeled to the homes to the south. A significant amount
of the canopy would be removed. Pauly then asked Fox to
identify the area on the map. Fox showed the location of
the 20-foot-wide canopy of trees in relation to the
subdivision to the south. The print being used was dated
April 18, 1989, prepared by Ron Krueger & Associates, for
the Red Rock Shores Subdivision. Pauly noted that the
print was color-coded and asked Fox for an explanation.
Fox replied that the green area depicted the extent of the
wooded area as indicated by the developer. He added that
the orange area was the tree area to be lost due to
construction of the roads or building pads. Pauly asked
Fox if the destruction of the 1, 084 trees would result in
the undue destruction of the environment and, therefore,
would cause harm to the environment. Fox replied that the
loss of the trees would change the wind patterns in this
area. Pauly asked Fox if he would consider this harmful
to the environment. Fox replied yes. Pauly asked Fox if
he would consider the removal of the 1,084 trees to be
undue destruction of vegetation. Fox replied yes.
Hoff asked Fox if the proponent had received a copy of
this report. Fox replied no. Hoff asked Fox when the
report was prepared. Fox replied Friday, September 29,
1989. Hoff then asked Fox if he was aware that this was a
matter in controversy. Fox replied yes. Hoff asked why
the report had not been presented to himself, or the
proponent. Fox replied that the report was submitted
through the Planning Department and Director Chris Enger.
Hoff asked Fox if he had recommended that the report be
submitted to the proponent. Fox replied no. Hoff asked
what type of trees were located on the site. Fox replied
oaks, red oaks, sugar maples, etc. Hoff asked if these
were not considered deciduous trees which lost their
leaves in the winter. Fox replied this was correct. Hoff
asked if the loss of the leaves did not cut down on the
amount of wind blockage significantly during the winter.
Fox replied that it did affect some of the blockage;
however, by opening up the corridor the amount of blockage
would be reduced significantly. Hoff asked if the wind
blockage effect was reduced when the leaves from the trees
f were lost. Fox replied yes . Hoff asked Fox what the
property was zoned.
City Council Minutes 26 October 3 , 1989
Tenpas stated that he did not wish to make light of the
wind issue ; however, he did not consider this to be of
vital importance to this proposal . Tenpas requested that
the presentation move forward.
Hoff concurred with Tenpas that this was a non-issue;
however, Staff believed that it was an issue and proved
undue destruction of vegetation. Hoff believed that this
was proceeding along the lines of a "Swanson hearing".
Pauly replied that this was a proceeding designed to have
issues become part of the record.
Peterson stated that he did not agree that this was a non-
issue item, it was an issue which related to land
alteration. Peterson noted that Hoff had stated at the
beginning of the presentation that this was a legal issue.
Peterson believed that a good- faith effort had been made
by City Staff to work with the proponent to make
modifications, which have not been acceptable to the
proponent. Peterson did not believe that more questions
or cross-examination were necessary in this setting.
Peterson was prepared to ask for the court's opinion
regarding the City's authority to enforce the Tree
Replacement Policy. It
Hoff asked Peterson if he was stating that he did not have
the right to cross-examine Staff any further on this
issue. Peterson replied that he the right to do this;
however, he believed that this should take place in a
legal setting. Pauly recommended that Hoff should be
allowed to ask further questions. Hoff stated that the s
Chair viewed the cross-examination as supercilious.
Peterson replied no.
Hoff asked Fox again if he knew what the property was
zoned. Fox replied that he did not know. Hoff then
asked if one of the notations in the Land Alteration
permit standards was the underlying zoning and use of the
property. Fox replied that he did not know. Hoff asked
Fox if he had read the Land Alteration permit standards
prior to preparing his report. Fox replied that his
report was prepared as a supplementary report. Hoff asked
Fox if he would disagree that the property was zoned Rl-
2 2 . Fox replied that he did not know the zoning. Hoff
then asked if he understood R1-22 zoning to be residential
zoning. Fox replied yes. Hoff asked Fox is it was not
necessary to provide a road and utilities to serve
residential properties not previously developed. Fox
replied yes. Hoff asked Fox if in providing the roads and
utilities in a heavily wooded area the result would be the
loss of some trees. Fox replied yes. Hof f asked Fox if
the construction of homes and building pads resulted in
the destruction of some trees. Fox replied yes. Hoff
then asked Fox if the construction of roads, utilities,
City Council Minutes 27 October 3, 1989
and house pads, would be considered a permitted use within
that zoning district. Pauly replied that City Forester.
Fox might not know the answer and should only answer if he
was sure of the response. Fox believed that the
requirements would be outlined in the Developer's
Agreement. Hoff restated the question to Fox: would the
development of a residential project in a heavily wooded
area result in the destruction of some trees. Fox replied
yes. Hoff asked if that was true of this particular site
outlined in green on the exhibit. Fox replied yes, with
the proper clearance. Hoff asked Fox if it was correct
that he believed that the property owners to the south
would be impacted as a result of northern winds. Fox
replied yes. Hoff asked Fox if to his knowledge the
property owners to the south had any easement or any other
type of interest in real-estate to grant them the right to
maintain the trees on the proponent's property. Fox
replied not to his knowledge.
Pauly asked Hoff if his referral to the rights of the
property owners to the south was direct or through the
City's Land Alteration permit code. Hoff replied
directly. Pauly asked Hoff if he disputed the City's
authority to control land alteration. Hoff replied that
he did not dispute the City's authority to issue Land
Alteration Permits nor did he dispute that the City was :
obligated to follow the standards as set forth in that
portion of the City Code. Hoff believed that the
standards were clearly stated.
Hoff asked Fox in respect to the tunneling effect, would
the roadway being constructed run in a direction from
northwest to southeast. Fox replied yes. Hoff asked Fox
if the total number of trees in the entire area was 5, 034 .
Fox replied yes. Hoff asked how large an area this
covered. Fox replied 1.9 acres. Hoff then asked how many
residential lots would be created in the green area. Fox
replied 6 lots. Hoff asked if the 6 lots were located on
the 1.9 acres. Fox replied that 1.9 acres of property
would be disturbed. Hoff asked Fox if 1,843 trees would
be disturbed in the wooded area. Fox replied that he
would need to refer to his memorandum. Hoff asked Fox if
the environmental harm would be the wind destruction to
the property to the south. Fox replied that was one
consideration; there were several others.
Harris questioned what this line of questioning had to do
with the City's Tree Replacement Policy. She added that
the City Council would continue to support the current
Tree Replacement Policy as written.
Peterson questioned if it was appropriate to continue the
public hearing discussion along these lines. Hoff replied
that a Swanson hearing meant that ghat would happen in a
City Council Minutes 28 October 3 , 1989
court of law was limited to the record before this
Council. Hoff added that he did not have prior knowledge
of this tree report memorandum, and, therefore, had done a
cold cross-examination of Mr. Fox, which he did not
believe was fair to himself or the proponent. Hoff
stated, if City Attorney Pauly would agree that this was
not to be considered a Swanson hearing and the issue on
this matter was not closed with respect to the Tree
Replacement Policy and undue harm to the environment, he
would be willing to conclude after one additional question 4
to Mr. Dietz. Pauly replied that he was interested in
hearing the points to be made before going to court.
Pauly added that he would not concede that this was not a
Swanson hearing and believed that Hoff should continue
with questions. Hoff stated that he did not view this as
a Swanson-type hearing due to the failure on the City's
part to provide the necessary underlying documentation.
Hoff asked Dietz for clarification on the Land Alteration
Permit: was the plan as submitted to Staff incomplete.
Dietz replied yes. Hoff then asked Dietz if the need for
additional information had been submitted to Ron Krueger &
Associates prior to this meeting. Dietz replied that
Staff had met with a representative from Ron Krueger &
Associates last Thursday and had requested that the
grading plan include all of the contemplated grading to
r take place on the site for both road and utility
construction and home construction. Hoff stated that he
did not know the impact of this at this time. Hoff asked
if the City was requesting only that a master grading plan
be submitted. Dietz replied yes, and added that the two
separate plans needed to be combined into one master plan
so that Staff could see the individual grading for the
pads as well as the road and utility grading to take
place. Hoff asked Dietz if Staff was aware that the
proponent would not be doing the grading on the individual
lots . Dietz replied that it was noted on the May 11, 1989
plan that the grading would be done by others.
Hoff stated that he would like to comment on the findings
and requested a copy.
Pauly stated that a memorandum dated September 27, 1989.
from Stu Fox had been provided to the City Council and
attached to this was a summary of the value of trees and
forest lands and which spoke in general of the urban
forest. Pauly asked Fox for an opinion as to whether the
values expressed in the memorandum would be present in the
forests under consideration. Fox replied that the values
of the forest on the Gilk property would be similar to
those described in the memorandum.
Pauly asked Dietz to clarify the reference to the
Strawberry Hill project as being encompassed in this plat.
City Council Minutes 29 October 3 , 1989
Dietz replied that at the initial public hearings on June
6, 1989, the Council reviewed 3 separate projects for this
area. The projects were Red Rock Estates, Strawberry
Hill, and Red Rock Shores. Dietz added that during the
interim the proponent for Red Rock Shores had purchased
the Strawberry Hills property and, therefore, the
preliminary plat reviewed as Strawberry Hill would now be
part of the Final Plat for Red Rock Shores. Pauly then
asked if the original property for Red Rock Shores
consisted of 19.77 acres and the property for Strawberry
Hill 3. 2 acres, making the total plat now 22 . 97 acres.
Dietz replied that he did not know the exact figures and ?
referred that question to Director of Planning Enger. ?
Enger replied that the figures as stated were correct.
Pauly noted that a copy of the material which had been
provided to the City Council was available at this meeting
and to the public at any time during the meeting. Pauly
referenced pages 2832 through page 2935 from the Council
packet.
a
Hoff asked Fox how many trees would be removed in the
development of the residential project zoned as R1-22 .
Fox repl ied that the number of trees to be removed over 1
inch in diameter would be 1,843. Hoff then asked Fox if
the lots were developed as single-family homes, would it
f be possible to replace the trees lost on the lots in
question. Fox replied not as they exist. Hoff asked if
Fox would recommend replanting the trees in another area
of the plat. Fox replied that the recommendation was to
replace the trees in the entrance areas, outlot areas, and
steep slope areas based on the requirements of the City's
Tree Replacement Policy. Hoff then asked if the
replacement would take place away from the heavily wooded
area . Fox replied yes. Hoff asked if some of trees would
actually be replaced on a site not part of this plat. Fox
replied that was not being recommended in this case and
without looking further at the site he could not make a
determination.
Pauly believed that Hoff had implied that by virtue of
platting and/or zoning a property owner had the right to
alter the land. Pauly asked Dietz if he understood the
City Code to allow for such rights without a Land
Alteration Permit. Hoff believed that this would require
a legal opinion from Dietz . Hoff did not believe that the
Land Alteration Permit section of the Code was relevant.
Pauly believed that Hoff had argued previously that by
virtue of zoning and plat approval the City did not have
the authority over land alteration. Hoff replied that his
point had been that if the City Code provision were
interpreted in plain English, tr.e City Code talked about
undue destruction of trees based upon the underlying
zoning of the property. Hoff added it would be necessary
City Council Minutes 30 October 3 , 1989
to remove trees to develop the property in question with
R1-22 zoning. Hoff believed that "undue•' was the key
word. Pauly did not see any reference to "undue".
Pauly read and reviewed the "Findings, Conclusions, and
Decision" . Pauly noted that this draft had been prepared
based on approval of rezoning and platting. Pauly stated
that regarding Item 4 it was the proponent's contention
that there would be no grading other than for the streets
and the utilities. Pauly suggested that this argument
would be similar to the argument that a storm sewer would
only apply to the water which rushes down the streets and
not that which flows off the property which was developed.
Pauly emphasized the conclusion stated on Page 3 , "The
functional, aesthetic, and economic values of trees
enhance not only the land on which they are grown, but
adjacent lands and neighborhoods as well . " . Regarding
Item 7 , Subsection 2, Pauly stated that the word "undue"
would not necessary qualify all harm to the environment.
Pauly requested that a new paragraph be added as Item 8 to
read as follows: "The destruction of the 1, 843 trees by
the alteration of the property will cause undue
destruction of vegetation and trees on the property and
will cause harm to the environment. " Pauly added the
addition would address the criteria of the City Code. The
remaining paragraphs would be renumbered. Pauly stated
that the a correction should be noted in the. Decision
Section, •'herein•• should be changed to "therein" .
Hoff stated that there was no reference shown that the
City had a conservancy easement nor fee or other ownership
interests in the property. He added that there had been
no recommendations shown to develop this property in
accordance with zoning without destruction of some
vegetation. Hoff questioned the finding that the trees
should be replaced on the property in light of Fox's
testimony that it would be difficult to replace all of the
trees on the property. He added that Senior Planner, Mike
Franzen, had also made reference in other meetings that
the trees would have to be replaced off-site. Hoff
believed that the Council needed to view the intention of
the Land Alteration Permit as a whole in which it dealt
with the utilization of the property as contemplated in
zoning. Hoff believed that the way the Land Alteration
Permit was signed, undue destruction of vegetation would
be avoided with the provision of construction limits.
Hoff requested that the Land Alteration Permit be issued
as submitted by the proponent with the amendment.
Pauly described the Swanson case, as containing criteria
for subdivision of property in Bloomington, which was
based on language close to that of Eden Prairie's
ordinance. He added that the Swanson case went before the
Supreme Court because of a denial by Bloomington of a
i
City Council Minutes 31 October 3 , 1989
( request for subdivision of property based on tree lose and
harm to the environment. The Supreme Court upheld the
decision by Bloomington to deny the subdivision.
Peterson asked Pauly if the motions prepared in the Agenda
packet were properly worded and would cover all the
necessary items. Pauly replied yes and added that the
order of approvals should be to approve the rezoning: the
Developer's Agreement with the amendment to the first
paragraph, first sentence, to read: and further subject to
and as modified by the provisions of the Land Alteration
Permit relating to the property; the adoption of
Resolution No. 89-214 ; the adoption of Resolution No. 89--
206; and the adoption of the Findings, Conclusions, and
Decision as presented to the Council with amendments
suggested by the City Attorney.
Tenpas asked the proponent if the dispute was the amount
of trees to be replaced or the bonding required by the
City. Hoff replied that the proponent did not believe the
City had the authority to require the replacement. Hoff
added that the original objection was that because the
proponent was not developing the building pads himself;
as a compromise position only the trees in the road right-
of-way would be replaced by him.
Pidcock stated that she did not agree that the City did
not have the authority to enforce the tree replacement
policy.
MOTION:
Pidcock moved, seconded by Anderson to approve 2nd Reading
of Ordinance No. 13-89 for Zoning District Change. Motion
carried unanimously.
MOTION:
Pidcock moved, seconded by Anderson approval of Developers
Agreement for Red Rock Shores subject to modifications as
referred to during the proceedings. Motion carried
unanimously.
MOTION:
Pidcock moved, seconded by Anderson to adopt Resolution
No. 89-214 Authorizing Summary of Ordinance No. 13-89 and
Ordering Publication of Said Summary. Motion carried
unanimously.
MOTION:
t Pidcock moved, seconded by Anderson to adopt the Finding,
Conclusions and Decision RE: Land Alteration Permit for
City Council Minutes 32 October 3, 1989
Red Rock Shores as amended during the proceedings. Motion
carried unanimously.
B. Final PlAt AQWroval for Red Rock Shores (located east of
Eden Prairie Road and South of Scenic Heights Road
(Resolution No. 89-206)
MOTION:
Pidcock moved, seconded by Anderson adoption of Resolution
No. 89-206 granting Final Plat approval for Red Rock z
Shores. Motion carried unanimously.
5
VII . pETITION ,. REOUEST,S & _QQKIUNICATIONS
VIII . REPORTS OF AQyISORY COMMISSIONS
I X. APPOINTMENTS
x
A. Tj2ree X22ointmen&s ro the Citizens Advisory gomnittee for
T.H. ,212 (,C_A.C. )
MOTION:
Anderson moved, seconded by Pidcock to nominate Sidney
Pauly, Anne Boline, and Jim Ostenson to the Citizens
Advisory Committe for T.H. 212 . Motion carried
unanimously.
X. REPORTS OF OFFICERS` BOARDS & COMMISS,IONS
A. Rgyorts of Council Members
B. Rggort of City Managgr
C. deport of City A&torney
D. Regort of Director of Planning
E. Directgr of Parks, RecreatioI2 & Natural Rgsources
F. Bepojtof Dirgctox of, Public Works
1. NOP Underg round ing proposal
NOTION:
Harris moved, seconded by Pidcock to continued this item
to the October 12, 1989 Council meeting. Motion carried
unanimously.
G. Report of Finance Dir!gcto
XI . NEW DUSINESS
city Council Minutes 33 October 3 , 1989
XII . APiOURNMENT
The meeting was adjourned at 12: 50 AM.
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