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City Council - 04/20/2010 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,APRIL 20, 2010 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Ron Case, Jon Duckstad and Kathy Nelson CITY STAFF: City Manager Scott Neal, Parks & Recreation Director Jay Lotthammer, Public Works Director Gene Dietz, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Young called the meeting to order at 7:00 PM. All Council Members were present. II. COLOR GUARD/PLEDGE OF ALLEGIANCE Mayor Young thanked Cub Scout Pack 348, sponsored by the Eden Lake Elementary, for presenting the colors. III. OPEN PODIUM INVITATION IV. PROCLAMATIONS /PRESENTATIONS Council Member Case said with great sorrow and gratitude he wanted to acknowledge on behalf of the City of Eden Prairie the service of Major Randall Voas and to extend our deepest sympathy to his family. A. HENNEPIN COUNTY LIBRARY UPDATE Ali Turner, Senior Librarian, gave a presentation about the Hennepin County library system and reviewed the program highlights at the Eden Prairie Library. She noted they have many volunteers, and Friends of the Eden Prairie Library are doing a fundraiser to purchase shelving space for the children's books at the library. B. ARBOR DAY PROCLAMATION Mayor Young read a proclamation proclaiming May 1, 2010 to be Arbor Day in the City of Eden Prairie. C. RECOGNITION OF NEW CERT VOLUNTEERS Fire Chief Esbensen reviewed the history and mission of the Community Emergency Response Teams (CERT) program and noted there are now 110 CERT members in the City. He and the Fire Officers read the biographies of the new volunteers and Mayor Young presented them with certificates. CITY COUNCIL MINUTES April 20, 2010 Page 2 V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Neal said there is a new Item VIII.O. Anchor Bank on goldenrod paper that should be added to the Consent Agenda. Case added Item XIV.A.1. Proposed Airport Development. MOTION: Duckstad moved, seconded by Aho, to approve the agenda as amended. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, MARCH 23, 2010 MOTION: Case moved, seconded by Duckstad, to approve the minutes of the City Council Workshop held Tuesday, March 23, 2010 as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, MARCH 23, 2010 MOTION: Case moved, seconded by Nelson, to approve the minutes of the City Council Meeting held Tuesday, March 23, 2010 as published. Motion carried 5-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. APPROVE SECOND READING OF ORDINANCE NO. 5-2010 AMENDING CITY CODE CHAPTER 11, SECTION 11.05 —HERITAGE PRESERVATION SITES AND ADOPT RESOLUTION NO. 2010-30 APPROVING SUMMARY ORDINANCE C. AWARD CONTRACT FOR RECONSTRUCTION OF BITUMINOUS BIKE TRAIL ALONG PORTIONS OF DUCK LAKE TRAIL, VALLEY VIEW ROAD AND EDENVALE BLVD. TO NORTHWEST ASPHALT, INC. D. AUTHORIZE PREPARATION OF PLANS AND SPECIFICATIONS FOR THE MILLER PARK PLAY AREA IMPROVEMENTS E. AUTHORIZE PREPARATION OF PLANS AND SPECIFICATIONS FOR THE STARING LAKE TRAIL CONNECTION F. AUTHORIZE PREPARATION OF PLANS AND SPECIFICATIONS FOR THE RICE MARSH LAKE TRAIL CONNECTION G. AWARD CONTRACT FOR 2010 STREET STRIPING TO AAA STRIPING SERVICE COMPANY, I.C. 10-5766 CITY COUNCIL MINUTES April 20, 2010 Page 3 H. AWARD CONTRACT FOR 2010 BITUMINOUS CRACK SEALING TO PRECISION SEALCOATING INC., I.C. 20-5766 I. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH GOODPOINTE TECHNOLOGY FOR PAVEMENT EVALUATION SERVICES, I.C. 10-5771 J. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH BLUE WATER SCIENCE FOR 2010 WATER QUALITY MONITORING, I.C. 04- 5626 K. APPROVE GRANT AGREEMENT WITH HENNEPIN COUNTY FOR THE LOWER RILEY CREEK STREAMBANK RESTORATION PROJECT, I.C. 08-5717 L. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH WENCK & ASSOCIATES FOR THE 2010 STORMWATER POND INSPECTION PROGRAM, I.C. 10-5769 M. APPROVE PLANS FOR RIVERVIEW ROAD POND MAINTENANCE PROJECT, I.C. 10-5772 N. ADOPT RESOLUTION NO. 2010-31 DECLARING THE CITY'S OFFICIAL INTENT TO REIMBURSE ITSELF FOR PRIOR EXPENDITURES OUT OF THE PROCEEDS OF A SUBSEQUENTLY ISSUED SERIES OF BONDS O. ANCHOR BANK by Anchor Bank. Request for PUD District Review with waivers on 1.06 acres; Zoning District Amendment within the Commercial Regional Service Zoning District on 1.06 acres and Site Plan Review on 1.06 acres. Location: 12950 Technology Drive. (Ordinance No. 6-2010 for PUD District Review with waivers and Zoning District Amendment; Resolution No. 2010-32 for Site Plan Review) Regarding Item M, Riverview Road pond maintenance project, Case asked for clarification of what is normally done. He spoke with a landowner earlier today, and he has never been contacted by the City about proposed work on his land. He asked if we need the approval of the Lower Minnesota River Watershed District for this project and, if so,have we addressed all their concerns. Dietz said the plans have been given to the Watershed District's engineering firm, and they have given us preliminary indications of the things they are seeing. The Watershed District will have it on their next agenda. We have a deadline to have a contract under way by May 15 as part of our schedule for compliance agreement, so we indicated to the Watershed District we would be willing to make last minute changes if necessary. We have not finalized the design and have not had any real conversations with the land owner at this stage. Case asked if we would typically contact the landowner. Dietz said we would have a conversation with the landowner,but there is an easement for this to be accomplished. We will be putting in an underground pipe CITY COUNCIL MINUTES April 20, 2010 Page 4 system across his property and will not impact his property when it is all done. MOTION: Nelson moved, seconded by Duckstad, to approve Items A-O on the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. FIRST READING OF AN ORDINANCE AMENDING CITY CODE CHAPTER 11, SECTION 11.70, RELATING TO NON-COMMERCIAL SPEECH (CAMPAIGN SIGNS) Neal said official notice of this public hearing was published in the April 8, 2010, Eden Prairie News. The primary election date has been changed from the second Tuesday after the second Monday in September to the second Tuesday after the second Monday in August, or August 10, 2010. As a result, the city code relating to signs must be changed. The code change is as follows. "Notwithstanding any other provisions of this Section, all signs of any size containing Non-Commercial Speech may be posted from August 146 days before the state primary in any general election year until ten (10) days following the general election and thirteen (13) weeks prior to any special election until ten (10) days following the special election." The Planning Commission voted 6-0 to recommend approval of the code amendment at the March 22, 2010 meeting. Neal said this provision is simply a modification of our code to reflect the change the state legislature recently adopted. Case asked why we are having this in the form of a public hearing since it complies with the state statute. He asked what it would mean if we actually turned it down. Neal said it is protocol when we are adopting an ordinance. Rosow said by turning this down the City's ordinance would be in conflict with state law but, since this is part of the zoning ordinance, we have to have a public hearing on it as required by state law. There were no comments from the audience. MOTION: Duckstad moved, seconded by Aho, to close the Public Hearing, and to approve 1st Reading of the Ordinance amending City Code Chapter 11, Section 11.70, Subdivision 3.H, relating to non commercial speech. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Case, to approve the Payment of Claims as submitted. Motion was approved on a roll call vote, with Aho, Case, Duckstad, Nelson and Young voting "aye." CITY COUNCIL MINUTES April 20, 2010 Page 5 XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. Proposed Airport Development— Council Member Case Case said all the Council Members were notified that there is a possible discussion or negotiation with the MAC over the proposed development of the southeast corner of Mitchell Road and Pioneer Trail, where our proposed ball field extension would go. Per the 2002 agreement with the MAC he believes both sides continue to be dedicated to the belief we will have 25 acres of possible ball field there. The MAC is suggesting they would like to have a corner for possible commercial development. He was concerned from what he is hearing there is a possibility the MAC will not proceed through our normal Planning Commission process to the City Council, but rather will choose to by-pass our process and use their power as a higher zoning authority. He said politically we have some leverage and we owe it to our residents to do due diligence and represent them as best we can. We would be pretty picky about what would go in there if there were a development proposal. He was suggesting that staff develop something that expresses the Council's concern about development without representation and take that concern back to the MAC. Young asked if he was suggesting we authorize staff to direct a letter to the MAC. Case said he was asking that staff take the Council's concerns back to the MAC. He would like to have the statement say the City Council discussed it and are very concerned about our having no input on this project. Young said he was not sure we can control this,but he had no objection to sending that message to the MAC. Nelson said she would be very concerned if they didn't bring it through the process. We try to stick to the letter of our agreement with them, and they should be respectful of any community's zoning plans. She was also concerned about the fact the ball fields seem to be up in the air. Once again those were part of what was agreed to and it looks like they are now backing off from them. She thought there needs to be some responsibility to the agreement from all parties, and we need to go after that agreement with them in all sense of the word because we have kept our side of it. Duckstad said he would like to have Mr. Neal address this issue. Neal said we did have this discussion with the MAC staff last week, so this is the first City Council meeting since that discussion. When they told us it was not CITY COUNCIL MINUTES April 20, 2010 Page 6 their intent to pursue their project through our planning and zoning ordinances, we clearly let them know staff had some concerns about that and the Council might have some as well. With this direction from the Council we can go back to the table to tell them the Council has had that discussion and we are here to convey that official concern. Duckstad then asked him to address whether he believes the MAC feels obliged to go through our planning services. Neal said he didn't know if he could speculate on what they might do,but at the meeting they were pretty clear they had no intention of going through our process. They do intend to have a public meeting and will ask the developer to conform to our building design standards and such things. Aho asked if they have a project and a developer in mind for this area. Neal said they do have a developer in mind, and staff has actually met with that developer to hear their ideas. Aho asked if we have worked with them in the past. Neal said it is someone we currently have a good working relationship with. Aho said that was good to hear but he would also add his concern to the other Council Members that they go through the process. He asked if we have any ability to at least work with the developer informally and keep open those lines of communication if the MAC refuses to abide by our process. Neal thought we would be able to do that. Case thought maybe a letter would not be a bad route to follow. He was concerned because they are breaking new ground with this process. Up to this point the MAC's zoning control has only been used for aviation-related construction. If this project goes through without our input, it opens the door to unregulated development on 200 more acres. There are things we could do to push back on this and it is almost an affront to our sovereignty when a higher governmental authority subjects us to this without paying attention to our concerns. He would highly encourage we look carefully at this and not let this precedent go by. He thought the letter idea is a great one, and he thought we could let Mr. Neal take back our deep concern. He could come back to the next meeting and we can look at other options. Young said the MAC is a higher level of government, and we can send our concerns and write our letters but this is an uphill battle. Case said we do have some political leverage with them, so we have something we can do to represent our residents. Nelson asked what kind of development they are proposing. Neal said at this point it is too early to say. Nelson asked if this will be taxable property to the City. Rosow said we collect personal property tax from the businesses that are currently on the airport, and he thought this development would be the same. Nelson asked if that would mean they would be at an advantage over other Eden Prairie businesses. Rosow said they will pay based upon their building use, but he was not sure how our Assessing Department determines that. Dietz said he recently talked to Mr. Sinell about that, and personal property taxes are computed exactly the same as property taxes. CITY COUNCIL MINUTES April 20, 2010 Page 7 Case asked if the land would not be counted so the value would only be the building. Dietz said each of the tenants on the MAC property pay personal property taxes on the building and the land that upon which the building sits in the same way they compute property taxes. Nelson asked if they also don't have to go by our guide plan so they could put in almost anything so long as it conforms to FAA guidelines for airport property. Rosow said we have dealt for many years with the issue of the zoning and the authority, and in 1992 his office requested an opinion from the Attorney General's office with respect to this question. The Attorney General analyzed the statutes under which the MAC has authority and analyzed that the Supreme Court would apply a balancing of interests test, and looked at the powers granted to the MAC for aviation purposes and the other factors that govern them such as the power to acquire property for purposes of operating the airport. The MAC is required to have a comprehensive plan that is consistent with the Metropolitan Council's development plan. With respect to the question of whether the MAC or the City had zoning authority over land acquired by the MAC for airport uses, the Attorney General concluded that the MAC would be deemed exempt from local zoning and subdivision ordinances purporting to regulate such activity when applying the balancing of public interest test here by taking into account the nature and scope of the MAC and its legislative grant of authority and the extent of the recognized public benefit of the development of the airport system and the potential of land use regulation to severely restrict such enterprise. The relevant language is regulating such activity, and the courts of Minnesota have consistently used the balancing of interest test as opposed to a single shot test. He said our question in 1992 was related to zoning property they were acquiring for airport uses. Whether using their property for commercial development was consistent with airport uses is an item to be explored with them. They have taken the position that they are not going to discriminate between the types of uses on their airport property, so clearly the City would not have the authority to zone their purposes. He thought there might be an opportunity to press the issue. Duckstad thought there seems to still be an open question as to whether the MAC can use property for non-aviation purposes. They had a specific narrow aviation goal by statute. It may be they are not authorized to enter into a determined non-aviation project. Rosow said they are subject to certain restrictions from the FAA. Their leasing of land to an entity such as a commercial development is similar to their leasing land to the City for ball fields. They most likely would have to seek federal permission for a lease longer than three years,but that is a federal question and not a state question. Airports across the country lease property to commercial uses so they do have that authority. B. REPORT OF CITY MANAGER CITY COUNCIL MINUTES April 20, 2010 Page 8 1. Road Name Chance Neal said there has been some interest from C.H. Robinson in changing the name from Charlson Road to something with the name "Robinson" in it. Dietz said there are three examples where we have done this in the past: Gelco Drive, Lee Drive and Anagram Drive. He couldn't think of any other situation where we have done it. It is in the City Council's purview to make the policy on street names. It is difficult to do it for everybody,but in this case only C. H. Robinson would have an address change. Young said this matter came up with meetings with their CEO and Vice President of Public Affairs. This is a growing Eden Prairie business that has been adding property. They have a lot of clients who come to their place of business and that is currently the only property that has the Charlson Road address, so we wouldn't be inconveniencing other property owners. Case said he agreed because of the size of the business. In the past it has been wonderful to acknowledge historical significance of original landowners and important families from the 1800's. This is a fairly new road acknowledging the most recent owner. As long as we have a sense of what precedents we are setting he thought it is fine. Aho said he didn't have a problem with it, and he was very happy to have C. H. Robinson as a part of our community. They are a big benefit to the City of Eden Prairie, and this is a small thing to grant. Duckstad said he was normally not in favor of changing names routinely and he thought we should recognize historic names,but in this case he was in favor of doing this. Nelson said she had no problems with it but hoped they would make the name appropriate. Neal said he will confer with the company and will get the item ready to go for a future Council meeting. 2. Pioneer Trail—Cummins Grill House—Riley Lake Park LAWCON Exchanse Update Neal said the U.S. Department of the Interior responded to Mayor Young's request for a waiver. He said it was apparent in their response that they are not going to waive their policy, so staff brought it back to the Council tonight. In February the Council wanted to pursue whether we can get a waiver, and it doesn't appear we can. The county is interested in moving forward with the project, and they need our consent. Nelson said it does seem like a trivial amount,but they don't feel that way so it seems we don't have any alternative. CITY COUNCIL MINUTES April 20, 2010 Page 9 Case thought the county doesn't have a choice to spend the money somewhere. This seems to be a pressing need in the park system, and the money looks good. In a sense we are paying '/a of the value for the two lots so we should move on it. Young thought it was a lousy deal but we are stuck. Neal asked if the Council would like to authorize the county to take the action requested on February 16 or put this on the May 4 Council agenda. Case said he didn't see any advantage in waiting. MOTION: Case moved, seconded by Nelson, to authorize Hennepin County to acquire the private property which is contiguous to Riley Lake Park, per the agreement. Motion carried 5-0. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Duckstad moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 7:58 PM.