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City Council - 07/20/2010 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JULY 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 Rick Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER Acting Mayor Aho called the meeting to order at 7:00 PM. Mayor Young was absent. II. COLOR GUARD/PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION IV. PROCLAMATIONS /PRESENTATIONS A. MONEY MAGAZINE RECOGNITION OF EDEN PRAIRIE Aho said he was pleased to announce that on July 12 the City of Eden Prairie was named Money Magazine's No. 1 Best Place to Live. He reviewed the reasons why the City received the award. Neal passed out copies of the magazine to Council Members. Case said he found it gratifying the Smith Douglas More house made the front cover of the issue because it shows our 150-year heritage as a City and the foresight of previous City Councils to preserve that heritage. B. DONATION FROM THE TOM AND KATHY MILLER FOUNDATION Lotthammer noted the four groups that have donated their time and funds tonight are representative of the many groups and organizations in the City that put money back into the community. Lotthammer said we received an additional $400 for Miller Park from the Tom and Kathy Miller Foundation. Mike Garvin was unable to be here tonight but he looks forward to continuing to help with additional fund raising for the park. MOTION: Nelson moved, seconded by Case, to accept the donation from the Tom and Kathy Miller Family Foundation in the amount of$400 to assist with funding for future development of the Miller Park Barrier Free Play Area. Motion carried 4-0. CITY COUNCIL MINUTES July 20, 2010 Page 2 C. DONATION FROM THE FRIENDS OF BIRCH ISLAND WOODS Lotthammer said the Friends of Birch Island Woods donated $2,636.92 to cover plant materials, fencing and a watering system for an area of Birch Island Woods that was in need of restoration. He said in addition to donating the funds they donated their labor for the restoration. Terry Picha said on April 17 the Friends of Birch Island Woods replanted an area that needed restoration. They worked with Stu Fox in the winter to plan the reforestation and then they replanted it this spring. They continue to help care for the new plantings. MOTION: Case moved, seconded by Nelson, to accept the donation from the Friends of Birch Island Woods in the amount of$2,636.92 to assist with funding of forestry supplies. Motion carried 4-0. D. DONATION FROM THE FRIENDS OF THE EDEN PRAIRIE ART CENTER Lotthammer said the Friends of the Eden Prairie Art Center are donating $2,000 to assist with funding for equipment at the Art Center. Ann Rorem said they held an event in April to raise funds for the Art Center. She said interest in the Art Center is growing and noted a family in Eden Prairie matched the amount the group raised at the event. MOTION: Nelson moved, seconded by Duckstad, to accept the donation from the Friends of Eden Prairie Art Center in the amount of$2,000 to assist with funding for equipment at the Art Center. Motion carried 4-0. E. DONATION FROM THE EDEN PRAIRIE BASEBALL AND SOFTBALL ASSOCIATIONS Lotthammer said Hennepin County recently awarded a grant through the Hennepin Youth Sports Program for improvements to Miller Park baseball and softball fields. In addition to the $110,000 grant funds from the County, $70,000 is being contributed from the Eden Prairie Softball Association and $50,000 from the Eden Prairie Baseball Association. He said no City of Eden Prairie funds are being used for this project. Rick Jundt, representing the Eden Prairie Softball Association, presented a check for$70,000 from the group. He noted the improvements will make this the finest facility in the state. He said the partnerships between the City and community groups here are one of the main reasons why Eden Prairie is the best place to live. Steve Rutledge and Mark Sperr, representing the Eden Prairie Baseball Association, presented a $50,000 check from the group. CITY COUNCIL MINUTES July 20, 2010 Page 3 MOTION: Nelson moved, seconded by Case, to accept the contributions from the Eden Prairie Baseball and Softball Associations as contributing funds towards the Hennepin Youth Sports Program Grant for Miller Park baseball and softball field improvements. Motion carried 4-0. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Nelson added Item XIV.A.3. Neal noted the item on goldenrod should be added as Item VIILF. Aho asked if the Council has seen that item in the past. Neal said they have. MOTION: Duckstad moved, seconded by Nelson, to approve the agenda as amended. Motion carried 4-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,JUNE 15, 2010 MOTION: Duckstad moved, seconded by Case, to approve the minutes of the City Council workshop held Tuesday, June 15, 2010, as published. Motion carried 4-0. B. CITY COUNCIL MEETING HELD TUESDAY,JUNE 15, 2010 MOTION: Case moved, seconded by Duckstad, to approve the minutes of the City Council meeting held Tuesday, June 15, 2010, as published. Motion carried 4-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS A. FLYING CLOUD AIRPORT ADVISORY COMMISSION SECURITY UPDATE Neal said the Flying Cloud Airport Advisory Commission (FCAAC),jointly with the Metropolitan Airports Commission (MAC), does a security review of the airport every other year. He said the Commission's Vice Chair, Jeff Larsen, is present to give the Council an update. Jeff Larsen said he will be giving the report because Chair Rick King was not able to attend tonight's meeting. He said the Commission gave their first review of security at Flying Cloud Airport in August of 2007 at the request of the Council. They have continued to do the reviews since that time and had the 2010 security review at their May 15 meeting. He noted there have been several physical improvements including the installation of new security fence around the complete perimeter of the airport with locked key pad access gates. He said very few airports have the level of security that Flying Cloud Airport has. Nelson thanked Mr. Larsen for the report and commended them on the security improvements at the airport. She noted she was one of the ones who originally urged them to look into security at the airport. CITY COUNCIL MINUTES July 20, 2010 Page 4 B. RECOMMENDATION BY THE PARKS, RECREATION & NATURAL RESOURCES COMMISSION TO RECONSIDER TRAIL CONNECTIONS FOR STARING LAKE AND RILEY CREEK—RICE MARCH LAKE Neal said the Parks, Recreation and Natural Resources Commission has made a recommendation urging the City Council to reconsider the decisions made at the last Council meeting on June 20 concerning the Staring Lake and Riley Creek-Rice Marsh Lake trail connections. He said in order for this to be on the table tonight a Council Member from the prevailing side of the motion made at the last meeting would have to request the items be reconsidered. Lotthammer noted there were two separate items included in the motion at the previous meeting, one for the trail and the other for the limited use permit. Duckstad said we discussed the matter at considerable length at the last meeting and a number of Council Members felt strongly we need to pace our expenditures applied towards the trails and so did not approve the two items. After that meeting we heard from a number of people who live in the area who gave us additional information and requested we reconsider the matter. He said the new information revealed the trail at Staring Lake had an underpass that would allow children to pass under Hwy 212 and thus provide a safe route to school. He said he was willing to change position in light of the additional information. He asked if we have adequate funds left in the referendum account to go ahead with this project. Neal said we do have the funds. Duckstad said we do have other funds that are used to pay for trail maintenance and asked if Mr. Neal foresees any circumstances where we would run short of money this year as we did in 2009. Neal said he did not. Rosow noted the correct procedure would be first a motion made by one of the prevailing parties to reconsider the actions that were taken at the last meeting and then a motion on the question of authorizing the trail and the permit. MOTION: Duckstad moved, seconded by Nelson, to reconsider the motion that failed at the previous meeting. Motion carried 4-0. Nelson said she was very pleased that Council Member Duckstad has put this forth, especially with the additional information about the effect on children heading for Oak Point School. She also thought it is a good time to take advantage of lower costs for construction. Aho said he also had a chance to speak with a number of residents, and he believes this project is ready to come forward. He said he will support it. MOTION: Duckstad moved, seconded by Nelson, to award the contract for Staring Lake Park bike trail to Northwest Asphalt, Inc. in the amount of$169,866.06, and to adopt Resolution No. 2010-53 authorizing a limited use permit for non-motorized trail. Motion carried 4-0. CITY COUNCIL MINUTES July 20, 2010 Page 5 VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. APPROVE USE OF ES&S MODEL 650 CENTRAL BALLOT COUNTER FOR 2010 ELECTIONS C. AUTHORIZE PROFESSIONAL SERVICES AGREEMENT WITH HENNEPIN COUNTY FOR THE WAY 2GO WELLNESS PROGRAM D. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH HTPO FOR WATERMAIN REPLACEMENT AND EXTENSION PROJECTS E. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH SEH FOR THE TH 5 SANITARY SEWER REPAIR F. 78L'STREET MARKET by Oppidan. Second reading of Ordinance 2010-PUD-3 for Planned Unit Development District Review and Zoning District Amendment within the C-HWY on 1.22 acres. Resolution No. 2010-50 for Site Plan Review on 1.2 acres. Location: 8045 Flying Cloud Drive. (Ordinance No. 2010-PUD-3 for PUD District Review and Zoning District Amendment; Resolution No. 2010-50 for Site Plan Review) MOTION: Duckstad moved, seconded by Case, to approve Items A-F on the Consent Calendar. Motion carried 4-0. IX. PUBLIC HEARINGS/MEETINGS A. DON RICHARD REZONING by Awad & Koontz Architects Builders Inc. Request for zoning district change from Rural to R1-13.5 on 1.07 acres. Location: 12205 Sunnybrook Road. Contact Ali Awad. (Ordinance for Zoning District Change) Neal said official notice of this public hearing was published in the July 8, 2010, Eden Prairie News and sent to 29 property owners. This is a rezoning of a single family lot from Rural to R1-13.5 located at 12205 Sunnybrook Road. The proposed lot conforms to the requirements of the R1-13.5 zoning district for lot size and lot dimensions. The lot is a non-conforming rural zoned property since it does not meet the 10-acre minimum lot size. The owner wants to build an addition to the existing garage and connect the garage to the house. Since the property is zoned rural, the garage addition does not conform to the side yard setbacks for the rural zoning district. Neal said a staff report for second reading of the ordinance for rezoning is located under Ordinances and Resolutions on tonight's agenda. The 120-Day review period expires on September 18, 2010. The Planning Commission voted 4-0 to recommend approval of the rezoning from Rural to R1-13.5 at the June 28, 2010 meeting. CITY COUNCIL MINUTES July 20, 2010 Page 6 There were no comments from the audience. MOTION: Duckstad moved, seconded by Case, to close the public hearing and to approve first reading of the ordinance for zoning district change from Rural to R1- 13.5 on 1.07 acres. Motion carried 4-0. B. PROPOSED PARK & RECREATION FEES FOR 2011 Neal said official notice of this public hearing was published in the July 8, 2010, Eden Prairie News. Staff is submitting the proposed changes to fees and charges for inclusion in the 2011 budget. This item was reviewed and discussed by the Parks, Recreation and Natural Resources Commission and was unanimously recommended for City Council approval. A notice of the public hearing appeared in the July 8th Eden Prairie News. These fees and charges are a part of the annual operating budget within the Parks and Recreation Department and help offset operating expenses. Neal noted as a new custom a few years ago we started to bring these to the Council now so we can use the new fees when we prepare our budget and marketing materials. Lotthammer said there are just a few changes proposed, and most of the fees will stay the same. He said the Council will see this again as part of the budget resolution in December. Case asked if we have called some of the neighboring cities to compare their rates. Lotthammer said we have done that, and our fees are very comparable. Nelson asked how much the 3% increase in the membership rate at the Community Center is in dollars. Lotthammer said the rates range from $24 to $70. Nelson said she wanted to make sure these costs are manageable for virtually everyone. Duckstad asked if the larger rooms at the Community Center are rented out a lot. Lotthammer said all the rooms at the Community Center are very busy in the prime time hours, but a little less busy during the daytime and on the weekends. The meeting rooms are sometimes used for our programs and are sometimes used as a rental. He said State and County organizations often rent the rooms for training or certification sessions. Duckstad asked if the $50 increase for rental of the Cambria room will scare people away. Lotthammer said that is a clean up fee for those who have food. It covers the amount of staff time needed to clean up after the group. The hourly rate has not been changed; rather we are charging a fee to recoup the cleanup costs if the group brings in food. Basil Wissner, 8293 Mitchell Road, asked if the rooms at the Community Center are ever made available to non-profit groups free of charge. Lotthammer said our relationship with athletic associations is that they do receive one free use of a room per month. After that they pay for a room at the non-profit rate. Wissner asked if a non-profit could donate money to Parks and Recreation and then get a free room rental. Lotthammer said the condition is that they are a non-profit youth sports organization. Wissner asked if that means a non-profit like the PROP Shop could CITY COUNCIL MINUTES July 20, 2010 Page 7 not use the facility free of charge. Lotthammer said they would have the lower, non-profit rate to rent it. MOTION: Case moved, seconded by Nelson, to close the public hearing and to approve the proposed Park and Recreation fees and charges for inclusion in the 2011 budget. Motion carried 4-0. C. VACATION OF DRAINAGE AND UTILITY EASEMENT—LOT 2,BLOCK 1, WHISPERING RIDGE (Resolution No. 2010-52) Neal said official notice of this public hearing was published in the July 1, 2010, Eden Prairie News and sent to 7 property owners. The property owner has requested the vacation of the drainage and utility easement over a part of Lot 2, Block 1, Whispering Ridge, to facilitate the building of a swimming pool. There were no comments from the audience. MOTION: Case moved, seconded by Duckstad, to close the public hearing, and to adopt Resolution No. 2010-52 vacating a portion of the drainage and utility easements lying over, under and across Lot 2, Block 1, Whispering Ridge, according to the recorded plat thereof, Hennepin County, Minnesota. Motion carried 4-0. D. MITCHELL/LONE OAK SAA 06-04 SIGNAL LIGHT REASSESSMENT (Resolution 2010-51) Neal said official notice of this public hearing was published in the May 27, 2010, Eden Prairie News and sent to five property owners. On May 16, 2006, the City entered into Special Assessment Agreement 06-04 with Lone Oak Center, LLC, regarding traffic signal improvements to the Mitchell Road and Lone Oak Road intersection, which have been completed. The City received a deposit in the amount of$12,500 from the Developer of the property at the time the Developer petitioned the City to complete the above-referenced public improvements. The City proposed to apply the afore-mentioned deposit to the assessment and to reduce the amount of the assessment accordingly. All other aspects of the assessment— interest rate and repayment period as established in Resolution 2009-28 —will remain the same. There were no comments from the audience. MOTION: Duckstad moved, seconded by Case, to close the public hearing and to adopt Resolution No. 2010-51 approving Mitchell/Lone Oak SAA 06-04 Signal Light Reassessment. Motion carried 4-0. X. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Nelson, to approve the payment of claims as submitted. Motion was approved on a roll call vote, with Case, Duckstad, Nelson and CITY COUNCIL MINUTES July 20, 2010 Page 8 Aho voting "aye." XI. ORDINANCES AND RESOLUTIONS A. DON RICHARD REZONING by Awad & Koontz Architects Builders Inc. Second Reading of the Ordinance for Zoning District Change from Rural to R1- 13.5 on 1.07 acres. Location: 12205 Sunnybrook Road. (Ordinance for Zoning District Change) Neal said first reading of this ordinance occurred earlier in this meeting, therefore a unanimous vote of the City Council is required for final approval at the same meeting. MOTION: Duckstad moved, seconded by Nelson, to approve second reading of Ordinance 13-2010 for a single family lot from Rural to R1-13.5 on 1.07 acres and approve summary ordinance. Motion carried 4-0. XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. Staring Lake Trail—Council Member Case Case said this item was taken care of earlier tonight. He said at the time of our June meeting the School District had not made the decision for Oak Point to become a boundaried school. 2. Request for Update on State Auditor's Investigation—Council Member Case Neal said there is a review being conducted of the City's travel expense reimbursement process. Rosow said it is required under State law to report to the State Auditor the matters regarding the Mayor's expense reimbursement request. The status of the Auditor's review is "under review," according to the State Auditor's office. Duckstad said he has had some familiarity with state auditors in the past and asked if the State Auditor indicated when they would start and if they knew what would be the width or breadth of their review. He asked if it would include the records of all City Council members or just those of the Mayor. Rosow said they originally told him they wouldn't start until the prior investigation was completed. They have not told him any details about the extent of the review. CITY COUNCIL MINUTES July 20, 2010 Page 9 Case said he had prepared a statement. He noted throughout this ordeal the City Council members have remained quiet, and he thought that was the best role as the process has proceeded. He said he will continue his silence on the specifics, and he believed the City Council should continue to remain quiet especially in regard to the Mayor's role in the matter. He had concerns for the reputation of our City and our staff and wanted to underscore that Scott Neal has been found by all investigative authorities to have thoroughly and appropriately followed all internal and external procedures. Our City Manager has been faultless in performing his duties under the law and he appropriately sought legal advice as the matter escalated. Mr. Neal has performed his duties appropriately and in a timely and proficient manner and has earned the complete respect of the City Council as he has conducted himself and managed others during the ordeal. Case said some in our community have questioned whether our procedures were adequate, and he believes the State Auditor's report will weigh in on that. Duckstad said he agreed in part. The Hennepin County Attorney has reviewed the matter and has determined there was no fraud. At this time he was not aware of any accusations about our City Manager. He did not think the Council should engage in any sort of fact finding or resolution of this matter until the State Auditor has completed the investigation and submitted the report. He didn't think we should weigh in on this with respect to the Mayor, the Council or the City Manager until this process plays out. He thought it would be premature to make any statements or act at this time. He noted some people have suggested the possibility of a recall; however, we have an election coming up in 95 days which will provide a ballot box for the citizens to decide on the matter. Nelson agreed that the City Council was requested to keep silent on this and we have done that. She thought the whole matter has gone according to law. She believes the City Manager and staff have worked in good conscience and she applauded their professionalism. She agreed we need to let this go through the State Auditor's process. Aho said it is appropriate for the State Auditor's office to review our procedures to make sure they are in line with general accounting procedures in order to avoid situations like this in the future. 3. Public/Private Partnerships in Eden Prairie—Council Member Nelson Nelson said this is a good time to talk a little about all the public/private partnerships in Eden Prairie. It is a big piece of our being able to keep taxes under control while providing necessary services. It is one of the ways our City stays strong. We have a very active citizenry willing to give to the City. She thought we often don't talk enough about just how active many people and organizations are in our City and how they are helping to make us the No. 1 place to live. CITY COUNCIL MINUTES July 20, 2010 Page 10 Aho agreed and thought we are extremely blessed to have so many active citizens who help make our City great. B. REPORT OF CITY MANAGER 1. Xcel Transmission Line Replacement Project Neal said we are beginning to have some interaction on an Xcel project to replace transmission lines from the Westgate substation. They are planning to replace wooden poles with galvanized metal poles on the line that goes from the substation north to Deephaven and then on to Chanhassen. He showed a map with the path of the transmission lines. He noted Xcel says an Environmental Assessment Worksheet will have to be prepared for the project, so a lot of analysis will have to go into it. There are public hearings required so there will be some direct contact with residents. The project will add to the energy carrying capacity of the lines and the reliability of the system in the City. He said the project will not start until the middle of 2013. Case asked if there will be any opportunity for the City to weigh in to help mitigate some of the impact or to suggest moving some of the poles. He has often wondered if there might be an opportunity to move the line by the High School to the south by Valley View. Neal said there will be plenty of opportunity for that kind of input and suggestion making. He said we will have to create some mechanism to give Council Members more detail on the project. He thought we might put this item on the agenda for later this year and have a formal list of suggestions to forward to Xcel. Aho asked if they are just replacing the existing line without changes in the path or route. Neal said that is what they told staff. 2. Flying Cloud Fields and Community Gardens Lease Proposals from Metropolitan Airports Commission Neal said there were provisions in the Final Agreement with the MAC for expansion of the airport in December of 2002 that contemplated expansion of the Flying Cloud fields. The expansion area would be immediately to the west of the existing Flying Cloud fields. That was an important provision in the agreement, and we have been working with the MAC since December of 2002 to realize those provisions of the agreement. He said tonight we have a couple of lease agreements that put this into play. It is a result of many years of asking MAC for this as we move forward, understanding they had issues they needed to contend with. Lotthammer said we have always had a lease for the soccer and small baseball fields as well as the community gardens. This proposal is three separate leases: one is for the current ball fields; one for the expanded ball fields; and one for the community gardens. The amounts per year are CITY COUNCIL MINUTES July 20, 2010 Page 11 $1,000 for the existing fields, $2500 for the new fields and $1.00 for the gardens. We would get an additional 26 acres for a term of three years with a renewal. It is very similar to the previous lease. Some of the fields will be larger fields and it will help us with wear on the existing fields. These are important additions to the park system and something we have looked forward to for a long time. If we sign the leases and go ahead with the design now, we would be able to do the design this fall and then go out for bid. We would anticipate starting construction in May of 2011. The fields would grow and become sustainable in 2012, so we could then begin to use the fields in 2013. Aho said he was glad we are finally at this point in the process. He asked how many fields we are talking about. Lotthammer said we have a preliminary site plan for the fields. Case said he understood the three-year lease term is something that is needed from the MAC perspective,but, with the length of time it will take to develop the fields and begin to use them, the worst case scenario could be that we would only have one year to use it. Lotthammer said that is a possibility but would definitely be the worst case scenario and one we have been in for many years with the current year-to-year lease. Duckstad asked if the cost for grading and installation of the ball fields would go over$1,000,000. Lotthammer said the current estimate is approximately $1,200,000 for construction, and we have slightly more than that in the referendum budget. Duckstad asked how much money came from the 2005 referendum. Lotthammer said it was $1,200,000 for this portion of the project. Duckstad said he was concerned with Mr. Lotthammer's statement regarding the worst case scenario. The lease terms run three years, and the City of Eden Prairie would have the right to renew it for another three years. The problem with the lease is that it specifically says the MAC may at any time take the land back after giving a one-year written notice to Eden Prairie. Lotthammer said it states either party could vacate with a year's notice. Duckstad said the lease also states it would be considered subordinate so the lease between Eden Prairie and the MAC would be of no avail if the MAC or the United States decided that they wanted to expand or improve the airport for purposes of aviation. He said that suggests we have a bad investment risk of our $1,200,000 in the event the MAC or the U.S. government wants to recapture the land. Duckstad said the information included the fact that the MAC was interested in having the opportunity to develop three acres of the land near the ball fields for commercial development. He asked if we have any idea what they have in mind for that. Neal said we believe they have an interest in doing some small commercial development at that location,possibly with food or gasoline; however they have not proceeded very far with any potential developers and we have received no formal proposal or plans. Duckstad noted the area proposed for commercial development would be CITY COUNCIL MINUTES July 20, 2010 Page 12 across from residential property and asked if this matter has gone to the Planning Commission. Neal said it has not. Duckstad said the MAC is a public state corporation that has been enabled by statute to conduct aviation business. He was not so sure that development by them of commercial property has anything to do with aviation and may fall outside the purview of the statute. Rosow said he has looked at that issue and will be prepared to address it as he understands it. He said the proposal before the Council tonight does not give approval to the proposals the MAC has under consideration and they have not presented formal proposals to us. Rosow said the lease gives the MAC rights to a three-year renewable lease and they have the right to cancel at any time. We have been under this situation with respect to the current lease for as long as that lease has been in operation since the 1970's. The MAC has informed us that their 20-year plan does not have any development going on in these areas. The statute under which they operate prohibits them from using their property for any purpose other than aviation. An exception is they can rent land for non- aeronautical purposes at less than fair market value to promote positive community relations. This is the type of use which would fall within that exception. When they approached the FAA that exception provision was not used because the lease of this property was part of a larger memorandum of understanding in which there were many agreements back and forth dealing with such things as sewer and water. When we tallied up what was being given and what was being received, they were in fact getting fair market value and that is how they presented it to the FAA. The FAA agreed and gave their approval for the leasing of this property. They could still pull the plug on the lease,but there are no present plans to do that and he didn't think they would be negotiating with us with the idea they would need this in five years. Duckstad asked if there is no consideration of reimbursement of the $1,200,000 in the ball parks if they decide to pull the plug. Rosow said there is not. With regard to the commercial property Duckstad asked if that is part of the consideration by the MAC in giving us this deal. Rosow said it has nothing to do with this. Nelson said she was glad to know this has finally moved forward and we have come to some kind of agreement with MAC. Case said he appreciated Council Member Duckstad's concerns. The MAC has always had zoning authority power over Eden Prairie. The only power we have had is the leverage of being active politically. It would be very unlikely they could take this away in four years without experiencing considerable grief from the public. CITY COUNCIL MINUTES July 20, 2010 Page 13 Lotthammer reviewed the preliminary site plan that showed the layout of the ball fields and the access roads. MOTION: Nelson moved, seconded by Case, to approve lease agreements with the Metropolitan Airports Commission for the current and expanded athletic fields and the community garden plots at Flying Cloud Airport. Rosow said negotiations have been ongoing and we recently submitted some minor revisions to the lease agreement that the MAC has not had time to act upon. He asked that the approval be made subject to the changes to the matters of indemnification and other small maters presented to the MAC. Duckstad said he would like to see the City Attorney go back and try to obtain a strengthened lease agreement that would permit us to keep the property for a longer period of time if we are going to spend over $1,000,000 on the property. AMENDMENT TO THE MOTION: Nelson moved, seconded by Case, to approve the lease agreements subject to the changes to the matters of indemnification and other small matters presented to the MAC. Motion carried 3-1-0, with Duckstad opposed. VOTE ON THE MOTION AS AMENDED: Motion carried 3-1-0, with Duckstad opposed. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. Metropolitan Council's Housing and Affordable Goals Jeremiah said the Metropolitan Council requested that we adopt by resolution the goals for housing by September. The range for the affordable housing goal is 1200-1800 units and is 1800-2500 for life cycle housing. She said by adopting the goals we retain our ability to receive grants and loans that are administered by the Met Council. She said there are no sanctions for a community's not reaching the goals. She said staff will bring the draft resolution on August 17 and will work on the housing action plan which is already noted in our Comprehensive Plan. Duckstad asked if the resolution will ask the Council to adopt in principal the parameters of these guidelines or that we will be bound by them as written. Jeremiah said they are goals only and the resolution will state that. The Met Council has indicated there will be no sanctions if we don't meet the goals. Duckstad said we all want adequate affordable housing and asked if at the present time the Met Council feels Eden Prairie has met the quota of expected affordable housing they recommended in the past. She said we are in good standing with the Met Council in regard to affordable housing; however, we did not meet the goals in our last Comprehensive Plan. CITY COUNCIL MINUTES July 20, 2010 Page 14 Duckstad asked if that meant we are below average. Jeremiah said we are at the lower end of the scale of percentage of affordable housing compared to other communities. Nelson asked if the units Ms Jeremiah mentioned are new units or total units. Jeremiah said those are new units. Nelson asked if there will be enough new units added to the City to have a possibility of meeting these as we get closer to being built out. Jeremiah said it will be challenging. This represents 34-53% of the anticipated growth over the next ten years. We are trying to make it affordable to the average worker in Eden Prairie. Nelson asked if the goals also included life cycle housing such as senior housing, disability-style housing and multi-family housing. Jeremiah said the intent is to have a healthy mix of housing for all age, ability and economic levels. D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Professional Services Agreement with Hansen, Thorp, Pellinen, Olson, Ltd., for Desisn Services for the Flyins! Cloud Fields Expansion - Fields 2. Professional Services Agreement with Hansen, Thorp, Pellinen, Olson, Ltd., for Desisn Services for the Flyins! Cloud Fields Expansion— Commercial Site—MAC Site Lotthammer said these two items are closely tied together and relate to the site plan he showed the Council in Item XIV.B.2. He said the next step is to enter into a professional services agreement with Hansen, Thorp, Pellinen, Olson Ltd. (HTPO) for design services so we can then go out for bid. He said the 26 acre ball field site and the 3 acre commercial site should have the grading done together. In order to identify costs that would be borne by the MAC we have done two separate agreements, and they will pay for all the construction on their three acres. MOTION: Case moved, seconded by Nelson, to approve the Professional Services Agreement with Hansen, Thorp, Pellinen, Olson, Ltd., for design services for the Flying Cloud field expansion. Motion carried 3-1-0, with Duckstad opposed. MOTION: Case moved, seconded by Nelson, to approve the Professional Services Agreement with Hansen, Thorp, Pellinen, Olson, Ltd., for design services for the MAC site of Flying Cloud field expansion. Motion carried 3-1-0, with Duckstad opposed. E. REPORT OF PUBLIC WORKS DIRECTOR 1. Professional Services Agreement with SL-SERCO Inc. for Phase 2 I & I Services Home Inspections CITY COUNCIL MINUTES July 20, 2010 Page 15 Dietz said the Metropolitan Council Environmental Services (MCES) established a surcharge program approximately 4 years ago, which created a mandate for cities with a high contribution of infiltration and inflow (I&I) into their system to remove it by 2012 (5 year program). The MCES estimated the cost to do that in Eden Prairie to be $2.7 million. The mandate specifies that the City shall spend 20% of the total each year on prescribed activities to meet this goal. We have been working towards doing that over the last four years. We had to measure the flow in 104 service areas to determine what impact we have on their system during rainfalls. We began a pilot program to go into 1400 homes to look for illegally connected sump pumps. We concluded the only cost-effective way to deal with this in the residential area is to remove the illegally-connected sump pumps. Dietz said the next phase is the professional services agreement with SL- serco to inspect homes for sump pump connections at a cost of$599,000, with a completion date of early summer of 2011. Staff will also bring an agreement to the next meeting to have our standard consultant, SCH, complete the smoke testing process that will check for improperly connected roof and storm drains. Nelson asked what it means to remove the sump pump connections. Dietz said most homes built from the 1970's have a sump pit in the basement. Most of those have a pump and most have a hard pipe to the outside of the home; however, some have a flexible tube connected to a laundry tub or a floor drain and that clear water goes into the sanitary sewer system. That is the primary culprit in residential areas. Nelson asked about the process that will occur when a sump pump is found to be improperly draining. Dietz said we are going to give them a copy of the proper way to plumb a sump pump, and will also give them a list of plumbers working in the City during the past three years. SL-serco would walk them through the process and give the homeowner information on obtaining a permit to do this work. Nelson asked if we have any control over the group we are hiring to do this to make sure they are respectful and helpful to people. Dietz said we have been assured of that, and we will have final approval on firing people involved in the project. This company's business is going in and doing this in people's homes, and we have every confidence they understand the whole thing. We will have a training session with their staff before they start. He said the Council Members will get complaints about this because people don't want others in their homes. We have added a $100 per month surcharge to the utility bills to encourage people to let us in. Duckstad asked Mr. Rosow if he was satisfied that we have a legal basis for engaging in this kind of conduct. Rosow said the right to enter the home is the homeowner's option, and, as Mr. Dietz has indicated, most homeowners allowed that to happen with the initial pilot program. Without the homeowner's permission to enter we would need an administrative search CITY COUNCIL MINUTES July 20, 2010 Page 16 warrant to enter the home. Dietz said the ordinance that the Council passed allows for a private party inspection as an option. We will allow the homeowner to have a third party inspect their home and provide a certificate of compliance at the homeowner's expense. Duckstad asked if we have used this company before and if they come highly recommended. Dietz said this is the first time we have used them, but we believe they will do a good job. Duckstad asked if the $599,000 for the home inspections is part of the $2,700,000 estimate. Dietz said it is. Duckstad asked if Mr. Dietz was concerned this project will not work and we will run into problems. Dietz said he was fearful of that. The MCES requires we spend the money towards the kinds of things that will solve the problem. We spent 3-1/2 years evaluating this and came to the conclusion that these are the things that can be cost effective to solve our problem; however, we cannot guarantee they will. It is the standard practice to solve the problem. Duckstad said we are really at the mercy of the MCES to do the work without recognition that we will accomplish it with what seems to be a monetary nightmare. Dietz said there is a high probability that this will resolve the issue. The MCES has tested the flows in their entire system and have found approximately 40 cities that have excess I&I. They can either expand their waste water treatment plants or they can tell us to fix it. If we knew exactly where this was coming from, we could more accurately spend the money. Aho asked if we have an estimate of the percentage of the 1400 homes in the pilot project where there were problems due to roof drains and sump pumps. Dietz said there was something on the order of 100 out of 1400. One sump pump can cause a huge amount of water pumped into the system. He said he also suspects some of the 80 homes that haven't let us in may have some issues. Aho asked where the $599,000 for the project is coming from. Dietz said it all comes from the utility fund. We are in the process of doing a rate study for sewer, water and storm water that will come to the City Council later this fall. We will be looking at some rate modifications for this and other capital projects for possible inclusion in the January 1 fee resolution. MOTION: Nelson moved, seconded by Case, to approve Professional Services Agreement with SL-serco, Inc. for Phase 2 I&I Services, Home Inspections. Motion carried 4-0. F. REPORT OF POLICE CHIEF 1. Chicken Policy CITY COUNCIL MINUTES July 20, 2010 Page 17 Chief Reynolds said we have received inquiries about keeping chickens in residential areas. He said they found a lot of communities are looking into this. The main reasons for wanting to keep chickens are the local food movement, concerns over food safety and collecting chickens as exotic pets. He said our neighboring cities do not allow this in residential areas, although Bloomington is considering it. The primary concerns are that the chickens will attract vermin, spread diseases and cause odors. He thought we could regulate those concerns with ordinances,but he believes the heart of the issue is the concern about managing the expectations of residents living in the area. They don't expect farm animals in residential areas and are concerned about diminishing property values. He said we can regulate the conditions for housing chickens,but it is still a chicken coop. He said tonight staff is looking for direction from the Council. Nelson asked if residents of any home that is still zoned rural could keep chickens. Chief Reynolds said they can keep them if it is zoned rural and there is an agricultural purpose or a nonconforming use. Nelson said she has heard from a few people that aren't interested in having chickens allowed in their neighborhoods and only one family that is interested in having chickens. She said she was not excited about having large numbers of chickens in the community,but she could understand the concerns of those who want them. Case said he was not prepared to weigh in on this tonight. He felt he was missing the sense of what is happening in suburban communities across the nation. He empathized with the food issues but he didn't have a comfort level tonight to know what our people would want on this issue. He said in the past we have formed a committee or task force of community members and sent them out to gather information on an issue such as this. If this is something we feel that we may change,he was not comfortable in saying no to it. He would like to have a lot more information about the issue. Chief Reynolds said we could set up a task force;however there is no definite path or trend that is easy to identify. Neal said it is important for Council Members to know that until we make a change in the ordinance we feel compelled to enforce the ordinance as it stands. We have informed some people involved with chickens that we would be having this discussion tonight. Nelson said the other piece of information she would need if we consider this is exactly how other kinds of pets are dealt with and how our rules would relate to outdoor pets. Chief Reynolds said in communities that have this, most of them are gearing up for this being an outside animal. Aho said he heard from one family that is in favor of this and more people that are opposed to it. His concern is for all of our residents, and a policy like this would require a lot of complicated legislation in terms of setbacks CITY COUNCIL MINUTES July 20, 2010 Page 18 and types of housing for the animals. It would be onerous to administer something like that. He thought we would have to have more clear direction from residents that they want this. 2. Night to Unite Chief Reynolds said August 3 is the Eden Prairie Night to Unite event where we get together with neighborhoods to build relationships with the community. He said we will send out teams from the Police and Fire Departments with equipment to the neighborhoods and will talk to them about how to build a safe community. He invited Council Members to ride along with them. He said they will also do a collection for PROP as part of the event. G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY 1. Standards for Granting Land Use Variances Rosow said there will be a change in the way variances are considered and approved or denied across the State of Minnesota. The law with respect to variances in our zoning has not changed. The law states in order to get a variance you must show an undue hardship. The law has defined an undue hardship as meaning the property in question cannot be put to reasonable use if used under the conditions allowed. He said the one test that causes the most difficulty in compliance is the one that says the property cannot be put to reasonable use without the variance. Cities have struggled with that over time and a lot of guidance came from the Court of Appeals in 1989 when they said the property owner has to show that he is proposing to put the property to a reasonable use but is not allowed to do that by the ordinance. On June 24 this year the Supreme Court said the ordinance does not say that, and you can't get the variance if the property can be put to reasonable use. Nelson said it does sound like it is going to make it more difficult for people to come and ask for a variance. Rosow said the situation in the Supreme Court case arose because Minnetonka granted the variance under the less stringent test and the neighbor appealed the variance. XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Duckstad moved, seconded by Nelson, to adjourn the meeting. Motion carried 4-0. Acting Mayor Aho adjourned the meeting at 9:42 PM.