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City Council - 11/16/2010 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, NOVEMBER 16, 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 479, sponsored by the Immanuel Lutheran Church, for presenting the colors. III. OPEN PODIUM INVITATION IV. PROCLAMATIONS /PRESENTATIONS A. HENNEPIN COUNTY COMMISSIONER JAN CALLISON Hennepin County Commissioner Jan Callison reviewed the proposed County budget, noting there will be no increase in the General Operating Levy for the first year of the budget and a$86,000,000 decrease in the second year of the budget. She said the demand for services is growing, and she reviewed the impact on services because of no increase in the budget. She said they have approved the schematic design for a new communications facility that will be built in Plymouth. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Duckstad moved, seconded by Nelson, to approve the agenda. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, OCTOBER 19, 2010 MOTION: Aho moved, seconded by Duckstad, to approve the minutes of the City Council workshop held Tuesday, October 19, 2010, as published. Motion carried 5- 0. CITY COUNCIL MINUTES November 16, 2010 Page 2 B. CITY COUNCIL MEETING HELD TUESDAY, OCTOBER 19, 201 MOTION: Duckstad moved, seconded by Case, to approve the minutes of the City Council meeting held Tuesday, October 19, 2010, as published. Motion carried 5-0. C. SPECIAL CITY COUNCIL MEETING HELD NOVEMBER 9, 2010 MOTION: Aho moved, seconded by Case, to approve the minutes of the Special City Council meeting held Tuesday, November 9, 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 16-2010 AMENDING CITY CODE SECTION 11.03 SUBD. 311, RELATING TO SPECIAL REQUIREMENTS FOR OFF STREET PARKING AND OFF STREET LOADING FACILITIES AND ADOPT RESOLUTION 2010-77 APPROVING SUMMARY ORDINANCE C. ADOPT RESOLUTION 2010-78 DECLARING ABANDONED PROPERTY D. ADOPT RESOLUTION 2010-79 RELATING TO ISSUANCE OF GENERAL OBLIGATION PERMANENT IMPROVEMENT REVOLVING FUND BONDS, SERIES 2010A FOR$1,190,000 (Singletree Lane Project) E. APPROVE AGREEMENT WITH HILDE INC. FOR ACTUARIAL SERVICES F. APPROVE PURCHASE OF THREE HP REPLACEMENT SERVERS G. APPROVE RELEASE OF AFFORDABLE HOUSING REGULATORY AGREEMENT BETWEEN THE CITY AND RYLAND GROUP H. EXECUTE AMENDED JOINT AND COOPERATIVE AGREEMENT FOR ACQUISITION AND USE OF FIREFIGHTING EQUIPMENT AND SERVICES I. APPROVE FIRST AMENDMENT TO LEASE BETWEEN THE CITY AND HENNEPIN HEALTH CARE SYSTEMS (HHCS) J. APPROVE EXECUTION OF PARTIAL RELEASES OF LOT 1, BLOCK 1, AUTO WORLD ADDITION FROM SOLOMON REAL ESTATE GROUP DEVELOPMENT AGREEMENT, EDEN ROAD MAINTENANCE AGREEMENT AND ENVIRONMENTAL INDEMNITY AND HOLD HARMLESS CITY COUNCIL MINUTES November 16, 2010 Page 3 AGREEMENT MOTION: Duckstad moved, seconded by Nelson, to approve Items A-J on the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. PRECIOUS METAL DEALER'S LICENSE FOR GOLD BUYERS AT THE MALL, LLC Lotthammer said official notice of this public hearing was published in the November 4, 2010, Eden Prairie News. He said Gold Buyers at the Mall, located at 8251 Flying Cloud Drive, Suite 125,has applied for a Precious Metal Dealer's License. A public hearing for the issuance of a Precious Metal Dealer's license is required by City Code Section 5.71, Subd. 10. A precious metal dealer is defined as any person engaging in the business of buying secondhand items containing precious metal, including,but not limited to,jewelry, watches, eating utensils, candlesticks, and religious and decorative objects. The Police Department has completed background investigations on the owners and business and recommends approval of this license. There were no comments from the audience. MOTION: Aho moved, seconded by Case, to close the public hearing and to approve the Precious Metal Dealer's License for Gold Buyers at the Mall, LLC, DBA: Gold Buyers at the Mall. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Nelson, 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 XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS A. BUDGET ADVISORY COMMISSION Lotthammer said there is an update for this item on goldenrod paper. He said the Council may want to consider adding a name to replace Don Uram, whose resignation from the Budget Advisory Commission (BAC) was received this past week. MOTION: Case moved, seconded by Nelson, to appoint to the Budget Advisory Commission Annette Agner, Daniel Funk, and Michael Morris with terms to begin January 1, 2011, and end December 31, 2014 and Chris Nylander with term to CITY COUNCIL MINUTES November 16, 2010 Page 4 begin January 1, 2011, and end December 31, 2012. Motion carried 5-0. B. BUDGET ADVISORY COMMISSION CHAIR AND VICE CHAIR Lotthammer said there is an update for this item on goldenrod paper. MOTION: Aho moved, seconded by Duckstad, to appoint Rick King - Chair and Jon Muilenberg - Vice Chair of the Budget Advisory Commission for 2011. Motion carried 5-0. XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER 1. 2011 Budget Update Lotthammer said the Council heard the BAC's recommendations for the 2011 budget tonight at the workshop session. He noted there is more time in which to discuss the budget after tonight,but the item was placed on tonight's agenda in order to have time to respond to any wishes of the City Council. He said in October Mr. Neal provided correspondence to the Council with quite a bit of comparison data. If the Council wants additional data, staff will provide that before December 7th when the budget discussion will again be on the agenda. He said we would still have the December 21st meeting if the budget isn't passed on December 7. Aho said, as we talked about in the workshop,he would like to see scenarios with a zero levy increase to see what that looks like in terms of service levels and staffing. He said that is a very important point to evaluate. Duckstad said he would also like to see that. Nelson said she would like to see an option with a 2% increase instead of 2.6%. She wanted to make sure the duty crew is included in that option. Young asked if Council Members Aho and Nelson were talking about the budget, not the levy. Nelson and Aho said that was correct. Case said his concern is that we need a 2.6% increase so we don't deficit spend. He was concerned that we have been propping up our budget with deficit spending the last couple of years, and he felt there are certain budget pressures that are necessary to add to this budget, including the 2% salary increase and some of the social security and health costs. He would like to see what it would look like if we have the 2.6% levy increase with a few of the given increases in the budget but keep the budget at zero. He thought there are some possibilities out there to add some items and cut some others. We will have a surplus from 2010, and he suggested we use the CITY COUNCIL MINUTES November 16, 2010 Page 5 surplus revenue in the budget. He said he believes the duty crew is a necessary component of the future,but he thought we could slide that and the two new police officers to another year. Young said we are in challenging times, and he is hearing we should do less with less, not do more with less. He thought that needs to be a theme in our budget discussion. He said we left it to staff to present a budget to us within the parameters we set for them. In the past one of the reasons we used the Budget Stabilization Fund (BSF) was because they recommended it. He thought that is a short term strategy only and we need a staff budget that does suggest some cuts if we are resolved to have a zero percent budget or a zero percent levy. He thought this will be a difficult process because we cannot rely as much on the BSF as we have in the past to get the budget passed. He said staff needs to show us what some service reductions are, and the Council will have to make the decision to make the cuts. Nelson agreed some cuts have to be made along with some increases in funds. She would like to know what those cuts are going to be and what programs will be slashed. She understood that is quite a bit to ask of staff in three weeks,but she wanted to see specifics for the cuts being proposed. She thought the idea of using the surplus for next year as Council Member Case suggested was not a bad idea. Aho said we heard from the Hennepin County Commissioner that the county did a zero levy increase, and to do that they relied on a 5.2% budget decrease. He said no one likes to talk about cuts but he thought it is important to be very mindful of the economy. He wants to see the zero levy increase and what that looks like. He thought there are programs that we like and want to continue but residents may not be willing to pay for those. We need to see what our budget looks like with cuts in places other than our core services. Duckstad agreed with the comments of Mayor Young and Council Member Aho given the state of the economy. He said we owe it to our citizens and taxpayers because this is a time for belt tightening. He noted the State is continuing its wage freeze for the third straight year. He said there are many in our community who appreciated what City Manager Neal did last year when he made cuts including eliminating twelve employees. He said Mr. Neal commented in his blog there was no recognizable loss in services as a result of the cuts. Nelson said she didn't want to see us cut basic services to people and she will never vote for that. We need a combination of increase and decrease, and she would like to do it at the 2% rate rather than 2.6%. She was not sure we can absorb another$1,000,000 worth of cuts and still have what the people in the community want from their City. We are looking into a new benefit system, and she hoped we will keep looking at new innovations that cost less and work those into our budget over the next two years. She CITY COUNCIL MINUTES November 16, 2010 Page 6 encouraged staff to take any potential innovations from staff members because with planning we may be able to do the same things for people at the same cost. Case agreed with Council Member Nelson. It isn't as easy as feeling that government is bad and an organization that is out of control. Government spends money on its own citizens, and citizens have demanded the programs and services in the past. As an example, he said this week he received emails of concern about the late plowing last weekend. Cuts start to impact services when we push on that side. Everything has a cost implication and cuts are okay as we get feedback from residents about what are the most important services. We need to hold those conversations with residents, and we need to be cognizant we did not become the No. 1 city by not providing these services. 2. City Manager Search Update Lotthammer said Greg Albrecht from M&A Executive Search is here to give an update on the City Manager search. Mr. Albrecht said we have had very good response to our search for the next City Manager. He said we are actively interviewing people and we have a very strong slate. He is prepared to meet with the City Council on November 30 to review the top 10-12 candidates. He said he would like to get agreement on our interview timetable and how we will proceed with that. He thought it was imperative the new City Council members be included in the process as the new City Manager will be working for the newly elected Mayor and Council Member. He said the selection process most likely will be unable to identify and hire a candidate prior to the new Council being seated. December 11 was tentatively set as the date for the Council to interview the top five candidates,but we heard from Mayor- Elect Tyra-Lukens that she isn't available on that date. He said part of the process is to have the top candidates have an interview with a group of civic leaders and staff members and have an opportunity to meet and greet City workers and citizens at an open house. They had planned that for December, but that is open for discussion. Young asked what will be accomplished at the next scheduled meeting on November 30. Albrecht said we will review the top 10-12 candidates. The City Council would then select the top five or six to call back at a later date. Young asked at what point in the process the group of civic leaders would become involved. Albrecht said it would be at the latter end when the top two or three candidates would meet with staff, civic groups and citizens. That would occur after the City Council identified the top two or three candidates. The finalists would be introduced to the public and the City Council would interview them in an open meeting. The Council would take that information after the interviews and make a decision on who would be selected as the next City Manager. CITY COUNCIL MINUTES November 16, 2010 Page 7 Case said his preference would be to have this City Council do the labor in helping speed things along so we have some continuity. However, when it comes down to the top four to six candidates, the next City Council would be the ones who would work it down to two or three and proceed through the process. He would like to see the process to work it down to two or three take place in January. Young thought this is a process we should neither rush nor delay. He thought it is hard to predict beyond the next meeting what will happen. He thought we could come back on the 30th, see the top ten candidates, reduce the number and then talk about the next step at that time. Aho said he liked the idea of meeting on the 30th to narrow it down and we are not excluding the newly elected Mayor and City Council Member. He would like to see the process move forward, and he didn't think we have to set the next meeting beyond the 30th. We should start talking about when we are available so plans can be made as there will be a lot of coordinating required. Young said we should have the schedules of the ten candidates and the Council Members available to us on the 30th so we can establish the next step. Nelson agreed with meeting on the 30th. She wanted to be able to concentrate on the budget and have staff concentrate on the budget between now and December 7. She was comfortable with beginning on the 30th and setting the next interviews very shortly after the New Year at the latest. Albrecht thanked the Council for their time and said there is a very strong display of candidates from the local, state and even federal government levels. 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 1. Flyins! Cloud Joint Airport Zoning Board Ordinance Rosow said last time he presented the ordinance that the Joint Airport Zoning Board (JAZB)put together that contains their proposal for each of the cities to appoint a zoning administrator to administer the ordinance. The CITY COUNCIL MINUTES November 16, 2010 Page 8 City Council at that time was somewhat hesitant about the recommendations made with respect to administration and there were questions the Council asked us to resolve with the Metropolitan Airports Commission (MAC). Rosow said we have met a number of times with MAC and they have told us there are tools to help the zoning administrators do their tasks. He said the first task of the zoning administrator is to determine whether a proposed structure will protrude into air space higher than is allowed by the ordinance. He said there is a program on the MAC website that allows the user to bring up a description and display of the site by entering the address or PID number. It displays the property outline with a height number in the middle of the property, gives the height restriction and shows the safety zone it is in. Case asked why there is a height restriction on something outside of the safety zone. Rosow said the website gives the height assigned to it but it may not be restricted, depending on the location. Rosow said any structure in the City can be displayed with the MAC program. He said this is how this portion of the program works, and it is a matter of making sure you have the right address or PID number to pull up the correct information. Rosow presented a graphic showing the limits of airspace and the safety limits for Zones A, B and C. He said Zone C is primarily where the administration would take place to make sure there are no violations of the height restrictions and the general restriction that there is nothing that could interfere in aviation from an electronics point of view or from light emissions. The first duty of the zoning administrator is to determine if it exceeds the height. Then the zoning administrator would determine if it causes interference with radio or electronic facilities of the airport or if the lights will cause confusion or glare to airplane operations. He said in order to make that determination we can request the MAC provide an advisory opinion to us about a proposed use. If there is anything out of the ordinary the zoning administrator can request guidance from the MAC. The zoning administrator position may be filled by more than one person because the job may involve both planning and zoning. We need to have a number of people in the City aware of these requirements. Rosow said the third duty of the zoning administrator is to enforce the ordinance. The City would request direction from the MAC prior to enforcement. The MAC would like to provide that assistance and give us direction as to whether enforcement action should take place. He said there has to be a high degree of cooperation between the two organizations. Rosow said the pros for the zoning administrator position would be one stop shopping for property owners and we would maintain local control. The cons would be the liability for decisions, administrative cost and burden, and the responsibility for decisions that affect airport operations. He said CITY COUNCIL MINUTES November 16, 2010 Page 9 the Council has been concerned about the JAZB because of liability for the decision in the area of taking of land. In the cooperative agreement they undertake to indemnify the City for those decisions and actions. He said the indemnification doesn't go as far as he would like it to. The proposal from the MAC with respect to indemnification is sufficient with respect to the major concern we have of liability for a taking. Rosow said a Court of Appeals determined that the actions of a JAZB in Bloomington constituted a taking, and we will hear more about that. They have it under advisement but there is also pending before the Supreme Court a similar case arising out of Rochester. We should see what the Supreme Court does within the next three to five months. The MAC worked with Bloomington and followed through with their indemnification and defense agreement for the City of Bloomington. Rosow said the MAC has requested that they be allowed to send the ordinance back to the JAZB and then send it on to the Commissioner of Transportation. Aho said it sounds like Mr. Rosow's opinion is that it is a very low risk for the City of Eden Prairie to be the zoning administrator given the indemnification we are being provided. Rosow said he believes it is a low risk with respect to the functions of the administrator. He thought we have the right people available who will not hesitate to consult with MAC on any issues regarding the subjective determination of interference with airport operations. Duckstad said regarding the issue of liability there are cases pending that haven't reached final conclusion. He asked if there have been any cases where a zoning administrator has been sued and where a court has compelled them to pay money damages. Rosow said there are cases that have decided that regulations in zoning ordinances have gone too far and have amounted to a taking of property. The courts have given the option of withdrawing the regulation in some cases. Duckstad asked if he was suggesting a zoning administrator doesn't possess the usual immunity that other decision makers have. Rosow said these are two different things, and he knows of no cases where the person making the decision has been held personally liable for the regulations. Case said he believes this is a greatly improved agreement, and he agreed it does not expose Eden Prairie to an inordinate amount of risk. He remains convinced that this is not in Eden Prairie's best interests,but it seems to be in the MAC's best interests. He said he remains against this proposal. MOTION: Aho moved, seconded by Nelson, to advise the Flying Cloud Airport Joint Airport Zoning Board that the City consents to forwarding the JAZB Ordinance to the Commissioner of Transportation for review. Motion carried 4-1-0, with Case opposed. XV. OTHER BUSINESS CITY COUNCIL MINUTES November 16, 2010 Page 10 XVI. ADJOURNMENT MOTION: Duckstad moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 8:10 PM.