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City Council - 05/18/2010 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, MAY 18, 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 Rick 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 Boy Scout Troop 342, sponsored by the United Methodist Church, for presenting the colors. III. OPEN PODIUM INVITATION IV. PROCLAMATIONS /PRESENTATIONS A. EDEN PRAIRIE RELAY FOR LIFE UPDATE Jody Russell, Chair of the 2010 Eden Prairie Relay for Life, gave an update on this year's relay. She said the 12-hour event will be held Friday and Saturday, July 16 and 17, from 6:30 PM to 6:30 AM at the Central Middle School. B. HUMAN RIGHTS AWARDS Pam Spera, Chair of the Human Rights & Diversity Commission, presented the Human Rights Awards. She presented the Non-Profit Organization award to City Hill Fellowship's Tutoring program; two Individual awards, one to Kerry Holtmeier Hallee, Coordinator of the FamiLink Resource Center, and the other to Gardner Gay, Executive Director, A Better Chance Foundation; and the Business award to SouthWest Transit. C. 2009 COMPREHENSIVE ANNUAL FINANCIAL REPORT Steve Wischmann, Partner in the accounting firm Kern Dewenter Viere Ltd., presented the 2009 financial report. He reviewed the details of the audit process and gave a Power Point presentation on the financial report. He noted their job is to provide an opinion on the City's financial statements, and this year they issued a clean (unqualified) opinion on the financial statements. CITY COUNCIL MINUTES May 18, 2010 Page 2 Neal said over the last couple of years the City has been making greater use of internal service funds as a management tool in an effort to spread our overhead costs over operating budgets. He said a question was raised to the City Council that perhaps the way we put together the internal service funds with projected costs was not consistent with Generally Accepted Accounting Principles (GAAP). He asked Mr. Wischmann to comment on that. Mr. Wischmann said as part of the audit process they provide assurances on all funds of the City including the internal service funds. They looked at the methodology used for the allocation and calculation of those internal service funds and believe them to be fully compliant with GAAP in the methodology and application being used. MOTION: Aho moved, seconded by Nelson, to accept the 2009 Comprehensive Annual Financial Report (CAFR). Motion carried 5-0. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Case added Items XIV.A.1 and 2. Rosow said there is a revised Certificate of Appropriateness for Item IX.A. Rosow said Item H. should be pulled from the Consent Calendar and discussed as a separate item. MOTION: Duckstad moved, seconded by Nelson, to approve the agenda as amended. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, MAY 4, 2010 MOTION: Duckstad moved, seconded by Case, to approve the minutes of the City Council workshop held Tuesday, May 4, 2010 as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, MAY 4, 2010 MOTION: Nelson moved, seconded by Aho, to approve the minutes of the City Council meeting held Tuesday, May 4, 2010 as published. Motion carried 5-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. RANDY'S BOBBY & STEVE'S AUTO WORLD by Randy's Bobby & Steve's Auto World, LLC. Second reading of Ordinance 8-2010-PUD-2-2010 for PUD District Review with waivers on 1.08 acres; Zoning District change from Highway Commercial and Office to Commercial Regional Service on 1.08 acres and Site Plan Review on 1.08 acres. Location: Southwest corner of Flying Cloud Drive and Singletree Lane. (Ordinance No. 8-2010-PUD-2-2010 for PUD District Review CITY COUNCIL MINUTES May 18, 2010 Page 3 with waivers and Zoning District Change; Resolution No. 2010-34 for Site Plan Review) C. APPROVE SECOND READING OF ORDINANCE NO. 9-2010 AMENDING CITY CODE SECTION 11.51 RELATING TO STANDARDS FOR PROTECTION OF WETLANDS AND ADOPT SUMMARY RESOLUTION NO. 2010-35 FOR PUBLICATION D. ADOPT RESOLUTION NO. 2010-36 APPROVING FINAL PLAT OF GRACE CHURCH FIRST ADDITION E. ADOPT RESOLUTION NO. 2010-37 APPROVING FINAL PLAT OF AUTO WORLD ADDITION (RANDY'S BOBBY & STEVE'S) F. ADOPT RESOLUTION NO. 2010-38 AWARDING CONSTRUCTION CONTRACT FOR SINGLETREE LANE IMPROVEMENTS TO NORTHWEST ASPHALT INC., I.C. 07-5690 G. ADOPT RESOLUTION NO. 2010-39 APPROVING GRANT AGREEMENT WITH MINNESOTA DEPARTMENT OF PUBLIC SAFETY FOR THE 2010-2011 SAFE AND SOBER COMMUNITIES PROJECT H. APPROVE AT&T LEASE AGREEMENT I. AWARD BID FOR TRAIL OVERLAY WORK TO BITUMINOUS ROADWAYS, INC. J. AWARD BID FOR FRANLO ROAD SIDEWALK CONSTRUCTION TO S.M. HENTGES & SONS, INC. MOTION: Aho moved, seconded by Case, to approve Items A-G, I and J on the Consent Calendar. Motion carried 5-0. Rosow said the approval of the license agreement between AT&T and the City of Eden Prairie for a telecommunications tower at 13708 Holly Road should include the requirement to change their plan for an eight-foot fence to conform to City code which is a six-foot fence. MOTION: Case moved, seconded by Aho, to approve the license agreement between AT&T and the City of Eden Prairie for a telecommunications tower at 13708 Holly Road, subject to changing the plan to conform to City Code with respect to a six-foot fence. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. RILEY-JACOUES DRIVEWAY & PARKING C.O.A. Certificate of Appropriateness for construction of a three-space parking area and driveway alterations for the Riley-Jacques farmhouse. CITY COUNCIL MINUTES May 18, 2010 Page 4 Neal said official notice of this public hearing was published in the May 7, 2010, Eden Prairie News and sent to 25 property owners. The Heritage Preservation Commission (HPC) has reviewed plans and application for a Certificate of Appropriateness (COA) for the Riley-Jacques Farmstead located at 9100 Riley Lake Road. The COA application is for site alterations, which include the addition of a three space parking area located south of the house, adjacent to the existing driveway, and termination of the driveway access points that currently merge onto the park trail west of the house. Parking is needed to accommodate off driveway parking for tenants. Termination of the driveway access points to the trail will eliminate using the driveway and trail as a driveway loop. Neal said the parking area plan and driveway alterations for the Riley-Jacques Farmstead were reviewed per City Code, Section 11.05, Subd. 5.C. The plan was found to meet General Preservation Standards and minimize adverse effects as follows: • Limit parking to three spaces • Maintain original grades where possible • Installation of sod/grass seed over existing driveway at trail intersections to limit access to driveway • Restore all areas affected by construction to original condition Neal said the Heritage Preservation Commission (HPC) reviewed the Certificate of Appropriateness application at its regularly scheduled meeting on April 19, 2010. The Commission voted in favor(5-0). The HPC recommends that the City Council approve Certificate of Appropriateness No. 2010-01-007. He said this is the first opportunity the Council has had to approve this kind of thing. It is from the new ordinance adopted earlier this year. Duckstad asked if there is an estimate of the cost to complete this project. Lotthammer said it will be a standard, gravel driveway that will use fill and a little bit of sod. The work will be done in-house. There were no comments from the audience. MOTION: Case moved, seconded by Aho, to close the public hearing, and to adopt the findings and approve Certificate of Appropriateness #2010-01-007 (Riley-Jacques Farmstead Parking Space and Driveway Alterations). Motion carried 5-0. B. WILLIAM HOAG by William Hoag. Request for Zoning District change from Rural to R1-13.5 on .55 acres. Location: 12005 Sunnybrook Road. (Ordinance for Zoning District Change) Neal said official notice of this public hearing was published in the May 7, 2010, Eden Prairie News and sent to 27 property owners. The Planning Commission held a public hearing on April 26, 2010 to discuss a request from William Hoag to rezone .55 acres from Rural to R1-13.5 and a front yard setback variance in order to rebuild a house that had collapsed. The commission was comfortable with the CITY COUNCIL MINUTES May 18, 2010 Page 5 rezoning, but needed more information on the variance. The commission continued the item until May 10. The commission did not have quorum on May 10, and the hearing was continued to May 24. MOTION: Duckstad moved, seconded by Case, to continue the public hearing to the June 15, 2010, City Council meeting. Motion carried 5-0. Nelson asked if the Planning Commission not having a quorum is becoming a common problem. Neal said it is not becoming a common problem. C. FIRST READING OF AN ORDINANCE AMENDING CITY CODE CHAPTERS 5, 9 AND 11, RELATING TO RECYCLING Neal said official notice of this public hearing was published in the May 7, 2010, Eden Prairie News. The proposed change to Chapter 5, Section 5.36 - licensing of collectors of solid, recyclable and/or yard waste - would require the Licensee (recycling service) to provide a quarterly written report. This is currently required for the licensee providing services to single family and multifamily households. The proposed change to Chapter 9, Section 9.01 - storage, deposit and collection of refuse, yard waste, recyclable waste and solid waste—lists the zoning districts in which owners, associations, and other management entities would make available to tenants the collection of recyclable wastes. These zoning districts are OFC, I-2, I-5, I-Gen, C-Reg, C-Reg-Ser, C-Comm, N-Comm, C-Hwy, and TC. It also requires that the licensee provide recycling information and containers for tenants. The proposed change to Chapter 11, Section 11.03 establishment of district, special requirements and performance standards—requires plans to show the location of trash and recycling enclosures. The enclosures would be required to meet architectural standards and setbacks. For the last 20 years, by development agreement, the City has required that development plans (330 properties) show the location of trash and recycling enclosures for screening purposes. Neal said in July 2009 the Conservation Commission began discussions about amending the City Code for recycling in commercial, office and industrial areas. Currently recycling services are available for single family and multiple family areas. At the December 11, 2009, Planning Commission meeting, staff presented an outline of the proposed changes to Chapters 5, 9, and 11 relating to recycling. The Planning Commission directed staff to work with the City Attorney to prepare a draft ordinance. On March 9, 2010, staff presented the draft ordinance to the Conservation Commission. The Conservation Commission voted 5-0 and recommended to move the proposed code amendment to the Planning Commission. On March 16, 2010, staff presented the proposed code amendment to the Chamber of Commerce Government Committee. The committee was pleased that the proposed code amendment would apply to new construction only. The Planning Commission CITY COUNCIL MINUTES May 18, 2010 Page 6 voted 6-0 to recommend approval of the code amendment at the April 26, 2010 meeting. There were no comments from the audience. MOTION: Aho moved, seconded by Case, to close the public hearing and to approve first reading of the ordinance amending City Code Chapter 5, Section 5.36, Chapter 9, Section 9.01 and Chapter 11, Section 11.03. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Aho, 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." XI. ORDINANCES AND RESOLUTIONS A. FIRST READING OF AN ORDINANCE THAT RENAMES CHARLSON ROAD TO ROBINSON WAY Neal said at the April 20, 2010 meeting, Council directed staff to prepare an agenda item to change the name of Charlson Road in response to the request from C. H. Robinson. Staff has conferred with C. H. Robinson and they wish to name the road Robinson Way and have agreed to pay the costs associated with the name change, including labor and materials to replace the street signs. If the first reading is approved, the second reading of the ordinance will be scheduled for June 15, 2010. Duckstad said at the last meeting he indicated that when it came to changes of road names he strongly favored tradition. He said after listening to the comments tonight he can't help but be struck that Mr. Charlson has a significant past in the City. He said he was not persuaded we should make the change, and in fact he thought the name ought to remain the same as it is. Case thanked Ms Freeman for her comments during the open forum. He said the Council Members have all expressed the tremendous value of C. H. Robinson to the City. The issue for him has always been the process of changing street names and the question brought up over this issue about what makes something historically significant. He thought we probably should have asked for a continuance at the last meeting to get a report back to the Council,but in the meantime he brought himself up to speed about Lynn Charlson. He said he agrees with Council Member Duckstad that we should not change the name. He is really concerned that the City not be faced with this situation again. Nelson said, after reading everything people wrote and listening to everything presented, she has come to the conclusion we need an overall process for changing road names. She thought we should have one of our commissions look into this. She was not convinced the name, Charlson Road, should be changed, but she would like to have City staff look to see if there isn't some way for C. H. Robinson CITY COUNCIL MINUTES May 18, 2010 Page 7 to put in a road just to the north of the building that could be named Robinson Way. The cost would be more than changing signs,but in the long run it might provide them with the name change they desire and a comprehensive and cohesive campus. She thought we could work with C. H. Robinson to achieve their objectives because they are a significant force for the community, as was Mr. Charlson. She hoped we can put together a clearer process about how we might move to this in the future and also maybe get some more historical names from developers. Aho said he appreciates the contributions C. H. Robinson makes to our community, both in terms of providing jobs to our residents and worldwide. He thought it is significant to have the name and address of corporate headquarters reflect the name of the company,but given the significance of Mr. Charlson in the community we should retain the name of Charlson Road and look for an alternative that would provide the same goal for C. H. Robinson. He thought the alternative solution may be something along the lines of Council Member Nelson's suggestion. Young said he apologized to C. H. Robinson for letting this go so far in a certain direction before we had this discussion. He asked Mr. Rosow how we would proceed, given the general consensus to not change the name. Rosow said the matter dies for lack of a motion or second if no motion is made. B. RESOLUTION 2010-40 ADDRESSING CONCERNS WITH LIGHT RAIL TRANSIT Neal said this is the item the Council reviewed at the last workshop when the Council directed staff to prepare a resolution expressing the City's concerns on behalf of some of the businesses located along the Technology Drive corridor. He said we have briefed the Chamber and several of the businesses that expressed their concerns in writing on this matter, and they have given it their vote of approval. MOTION: Nelson moved, seconded by Aho, to adopt Resolution 2010-40 addressing Eden Prairie Chamber of Commerce and business concerns with Light Rail Transit. Motion carried 5-0. XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. Issue of Historically Sisnificant Names— Council Member Case Case said he would like to have staff check the possibility of having the HPC look into the road name issue and come up with a couple of thoughts. He suggested we might develop a way of sending the issue to the HPC initially so they could check out the historical significance of the current name as well as the new one. He would also like to have the HPC discuss CITY COUNCIL MINUTES May 18, 2010 Page 8 what historical significance means,because it is clear that it could be more contemporary than something or someone from the 1800's. 2. Arts in the Park Event— Council Member Case Case said he attended the Arts in the Park Event recently and thought it was an amazing sight to have it in the Purgatory Creek Park. There were 20 or 30 vendors participating in the event. He thanked those responsible for organizing the event. Nelson said it was a very nice event and Purgatory Creek Park is a good location for it. B. REPORT OF CITY MANAGER 1. Summer Council Meeting Schedule Neal said after tonight we go into our summer schedule with meetings scheduled for June 15, July 20 and August 17. He noted there is the large celebration scheduled for the July 4th event, and August 3 will likely be Eden Prairie's Night to Unite event in which the Council Members have been involved in previous years. He said the Council's approving the schedule at the beginning of the year allows staff to do some advance scheduling, so he did not anticipate the need for special meetings. 2. International Visitors Neal said on Monday, May 24 there will be a small group from East Africa here with the Rotary Club on a group study exchange touring the City. They will have a lunch with City and school officials and Rotary Club members on Monday at 11:30 AM. He said Council Members are welcome to join the group for lunch,but he asked they let him know as soon as possible if they plan to attend. Neal said a group from Lodi, China will be here during the first week of July. They will be in the Minneapolis area and in Eden Prairie on July 6 and 7. The Chamber of Commerce is handling the details, so he didn't have an agenda for this event. There will be an opportunity for Council Member involvement in that, and he will keep Council Members advised as plans are made. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR CITY COUNCIL MINUTES May 18, 2010 Page 9 F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY 1. Joint Airport Zoning Board Ordinance and Indemnification & Cooperation Agreement Rosow said there are some considerations with respect to matters raised by two documents that have arisen out of the Joint Airport Zoning Board (JAZB): the indemnification & cooperation agreement and the draft Flying Cloud Airport zoning ordinance. He was asked to review both documents, and he made recommendations about the documents in his May 13 memo to the Mayor and City Council. He said the indemnification agreement summarizes the main issues in both documents. It states a city employee will be the zoning administrator. If the City chooses to not appoint someone, then the MAC will be the zoning administration. He said he recommends the City inform the MAC they will not appoint a zoning administrator because zoning for this ordinance is particularly within the expertise of MAC to regulate matters relating to airport safety. He said his recommendation has created some controversy at MAC. The question was raised as to why not just let the default remain; however,he thought we need to be up front with the MAC because the issue is obviously important to the MAC. He thought it is important to have that discussion, although we may want to see the final ordinance before taking a position. He has discussed this with Mr. Neal, Ms Jeremiah and her staff and his recommendation is we don't do this. Rosow said regarding the second item on the indemnification agreement the City has always said we want to be indemnified for any liability we might incur. The indemnification is contingent on adopting the JAZB zoning ordinance and adopting it as part of the City's comprehensive plan. There is nothing in the statute that requires the City to do this as part of the City zoning or the comprehensive plan. The JAZB is authorized by statute and is empowered to adopt an ordinance. He recommended that part be deleted from the agreement. He said the indemnification agreement also identifies a number of provisions under which the City will not be indemnified. Several of those are at the discretion and judgment of the MAC. He thought there was a reasonable alternative to the provisions they suggested. Rosow said his recommendation is that the statutory indemnification provision be substituted for what the MAC has in the agreement now. Rosow noted his fifth point with respect to indemnification is regarding the notice period. They put in a 21 day notice period. As was commented tonight, the Council has only one meeting in June and one in July, and he just wanted a reasonable period of time and to not define it so exactly. He said his last point has to do with the four reasons for which the MAC may CITY COUNCIL MINUTES May 18, 2010 Page 10 unilaterally terminate its defense and indemnification. Three of the points are within the purview of the MAC and their discretion, and the fourth one is that a court would determine the claim is not the type for which indemnification is required. His recommendation is that the Council takes the position only the fourth reason is a reason for MAC to terminate it, and that we have an impartial arbitrator determine if it should be revoked. Rosow said there are a number of items of definition he recommended be conformed to our ordinance. There are some questions about where their authority for this comes from. He reviewed the statute thoroughly, and there are a few things that don't come from statute. He recommended we enter into discussions about this rather than their just handing it to us. Some items in the ordinance would cause expense, and he wanted the ordinance to clearly identify that those matters would be taken care of by the MAC. There is a provision with respect to variances that does not track to statutes, and he recommended the City request we track the statute or provide an explanation why it is not appropriate. Rosow said there is the zoning administrator provision that he already discussed, and there is a section on appeals. He recommended the section on appeal from a decision of the Board be conformed to the statute to allow an appeal from a decision by the Commissioner of Transportation. He said Mr. Neal has discussed Mr. Rosow's memo with the Deputy Director of the MAC, and it was sent it to legal counsel for the MAC last week. He noted we need to deal with them in an above board manner and have good discussions about this. Duckstad asked if the MAC would still have jurisdiction even if Eden Prairie established a zoning administrator and that individual did anything at all. Rosow said the ordinance is set up so that if we don't appoint a zoning administrator, then the Executive Director of the MAC is the zoning administrator. If a property owner appeals a decision, they appeal to a Board of Appeals that is appointed by the MAC. Duckstad said he was in agreement with Mr. Rosow's recommendation and would accept it as stated. Case said he was not in favor of this zoning board from day one, but as we are part of the group he would defer to Mr. Rosow's recommendations. He asked what the downside is if we were to not agree with the agreement. Rosow said at this point we are part of it, and, unless the agreement is changed or a compromise reached, we won't have a written indemnification from the MAC. Rosow said the MAC has informed him they have a lawsuit relating to MSP Airport going on now at the Court of Appeals, so there is some potential liability. He didn't know how great the liability would be for a member city if the MAC were making the decision. If the Council just does not approve the agreement, we don't get the indemnification. The other option he thought about was to formally withdraw from the JAZB,but there is no procedure for that. CITY COUNCIL MINUTES May 18, 2010 Page 11 Case asked why there is a separate paragraph about indemnification for Rick King. Rosow said he was appointed by the Board and not by the MAC or the City. Aho said he appreciated the City Attorney's looking into this, and he thought these are prudent recommendations. He would like to accept the recommendations and try to achieve the indemnification. He said it would be up to Council Member Duckstad and himself to push for achieving that indemnification because they sit on the JAZB. He said they will do that on behalf of the City. Neal said it would be fair to communicate what the MAC officials have told staff are their reasons for our assuming the zoning administration position. They believe if the City is the zoning administrator, it would serve residents and business owners better. It would provide a one-stop shop in terms of development rights or questions regarding real estate development. We might have opportunities to have some input on what they need to do here at City Hall. However,he has discussed this position with Mr. Rosow, and he would concur with Mr. Rosow's recommendation. Duckstad asked what the status is, in light of our conversations with the MAC. Rosow said at this point we have not had substantive discussions with them about the agreement or the ordinance. This is the first step and it was incumbent on him to find out the Council's will on what should be done. If the Council agrees, we will need to engage the MAC and Council Members Aho and Duckstad could bring that discussion with the other members of the Board. We will need substantive discussions on the Board as well as between the cities and the MAC to arrive at a solution. He said the discussions should be open and up front because we have made such an effort to have good relations with the MAC. They have their interests they are trying to protect, as do we,but we need to get the ball rolling on those discussions. Nelson thought we do need to have these discussions. She said her main concern as a Council Member is for the needs of the people of Eden Prairie when it comes to this. Too often the people who live around the airport get forgotten, and she wanted to make sure we do what we can to ensure that doesn't happen. Neal said the purpose of raising this tonight was to be able to answer the question from the MAC of what the City thinks about this. That is what the recommendation is about and what the motion is about. MOTION: Aho moved, seconded by Nelson, to adopt recommendations of the City Attorney, as amended by Council, with respect to the draft Joint Airport Zoning Board (JAZB) Ordinance and Indemnification and Cooperation Agreement. CITY COUNCIL MINUTES May 18, 2010 Page 12 Regarding the principle of indemnification, Duckstad asked why the MAC should be able to dictate to us circumstances as to when we are justified to some measure of indemnification. The law ultimately exists that pertains to indemnification, and that decision would get determined by a court if a dispute arose. VOTE ON THE MOTION: Motion carried 5-0. XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Case moved, seconded by Nelson, to adjourn the meeting. Motion carried 5- 0. Mayor Young adjourned the meeting at 8:21 PM.