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City Council - 05/05/2015 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, MAY 5, 2015 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Ron Case, and Kathy Nelson CITY STAFF: City Manager Rick Getschow, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, City Attorney Ric Rosow, and Council Recorder Jan Curielli I. CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 PM. All Council Members were present. II. PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS A. SENIOR AWARENESS MONTH PROCLAMATION Tyra-Lukens read a proclamation proclaiming May 2015 as Senior Awareness Month. Members of the Senior Advisory Council accepted the proclamation. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve the agenda as published. Motion carried 5-0. VI. MINUTES A. COUNCIL PLANNING SESSION HELD TUESDAY,APRIL 8, 2015 MOTION: Aho moved, seconded by Case, to approve the minutes of the Council planning session held Tuesday, April 8, 2015, as published. Motion carried 5-0. B. COUNCIL WORKSHOP HELD TUESDAY,APRIL 21, 2015 MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve the minutes of the Council workshop held Tuesday, April 21, 2015, as published. Motion carried 5-0. CITY COUNCIL MINUTES May 5, 2015 Page 2 C. CITY COUNCIL MEETING HELD TUESDAY,APRIL 21, 2015 MOTION: Case moved, seconded by Nelson, to approve the minutes of the City Council meeting held Tuesday, April 21, 2015, as published. Motion carried 5-0. VIL REPORTS OF ADVISORY BOARDS & COMMISSIONS VIIL CONSENT CALENDAR A. CLERK'S LICENSE LIST B. SECOND READING OF ORDINANCE NO. 4-2015 AMENDING CITY CODE CHAPTER 11, SECTION 1.03, SUBD. 3 RELATING TO THE HEIGHT OF FENCES C. SECOND READING OF ORDINANCE NO. 5-2015 AMENDING CITY CODE CHAPTER 11, SECTIONS 11.20 AND 11.30 BY ADDING SUBD. 4 RELATING TO MEDICAL CANNABIS DISPENSARIES & RESOLUTION NO. 2015-46 APPROVING PUBLICATION OF SUMMARY ORDINANCE D. DECLARE SURPLUS PROPERTY E. AWARD CONTRACT TO J&N WEED HARVESTING FOR AQUATIC WEED HARVESTING IN MITCHELL AND RED ROCK LAKES F. AWARD CONTRACT FOR 2015 CRACK SEALING PROJECT TO NORTHWEST ASPHALT & MAINTENANCE G. AGREEMENT WITH TRUE FRIENDS FOR PLAY AREA DESIGN, CONSTRUCTION AND GRANT ADMINISTRATION H. CHANGE ORDER FOR CONTRACT FOR FIBER DR LOOP BETWEEN THE COMMUNITY CENTER AND FIRE STATION 3 I. ADOPT RESOLUTION NO. 2015-47 ACCEPTING DONATIONS FROM FRIENDS OF RED ROCK LAKE AND MITCHELL LAKE ASSOCIATION FOR AQUATIC INVASIVE SPECIES HARVESTING MOTION: Nelson moved, seconded by Butcher Wickstrom, to approve Items A-I on the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. CROSSROADS CENTER by Tim Cashin. Request for Planned Unit Development Concept Review on 2.9 acres; Planned Unit Development District Review with waivers on 2.9 acres, Zoning District Amendment within the Commercial-Regional-Services District on 2.9 acres and Site Plan Review on 2.9 acres (Resolution No. 2015-48 for PUD Concept Review; Ordinance for PUD District Review with waivers and Zoning District Amendment) CITY COUNCIL MINUTES May 5, 2015 Page 3 Getschow said the project is for an exterior remodel and landscaping improvements. The site experienced hail damage in 2013, and the property owner is pursuing exterior improvements to the overall building facade, including adding definition, color and interest to the roof line, installation of canopies, and improved landscaping. The PUD waiver requested is related to construction materials on the north elevation of the building that does not meet the requirements for City Code. The proponent will add additional landscaping, screening and bike racks. Official notice of this public hearing was published in the April 23, 2015,Eden Prairie News and sent to 10 property owners. The Planning Commission voted 5-0 to recommend approval of the project at the April 13, 2015 meeting. Scott Nelson, representing DJR Architects, reviewed the project and showed photos of the property with the proposed improvements. He noted the property sustained serious hail damage in 2013. The property owner decided to do drastic exterior and landscape improvements which will include improvements to the canopy and new signage. Tyra-Lukens commented it is a great improvement. She liked the natural landscaping, the enhancements to the berm and the bike parking. Nelson asked if the stucco material would water stain as stucco often shows stains over the years. Mr. Nelson said they have not had that issue with the material, and the color is darker so it should not show stains as readily. There were no comments from the audience. MOTION: Aho moved, seconded by Butcher Wickstrom, to close the public hearing; to adopt Resolution No. 2015-48 for Planned Unit Development Concept Review on 2.9 acres; to approve first reading of the ordinance for Planned Unit Development District Review with waivers, and Zoning District Review within the Commercial Regional Service Zoning District on 2.9 acres; and to direct staff to prepare a development agreement incorporating staff and commission recommendations and Council conditions. Motion carried 5-0. Tyra-Lukens asked when the project will start. Mr. Nelson replied it will start in June. B. PUBLIC HEARING TO CONSIDER CABLE FRANCHISE APPLICATION Getschow said the City of Eden Prairie is part of a group of cities forming the Southwest Cable Commission. Earlier this year the Council approved a transfer of the cable franchise from Comcast to Greatland Connections. Recently the merger deal between Comcast and Time Warner was not approved by the Federal government; however, there will be no changes to the franchise transfer the Council approved earlier this year. This city and many others in the metro area have been approached by CenturyLink, a competitor of Comcast, to provide cable television services. He said there is nothing that precludes Eden Prairie from having more than one cable franchise agreement. We recently sent out an RFP on the cable franchise, and CenturyLink responded. Tonight's action does not request any specific action at this time. There would be a future public hearing to consider that particular franchise agreement. CITY COUNCIL MINUTES May 5, 2015 Page 4 Brian Grogan, representing Moss & Barnett and the Southwest Suburban Cable Commission, said we are here to talk about a competitive franchise and to discuss some of the issues regarding State and Federal law. Today we received a letter from Comcast stating their concerns about the competitive franchise, and that letter will be provided to the Council at a subsequent meeting. The Federal act of 2007 was, in part, trying to promote competition in the cable industry. A franchising authority can award more than one franchise in the jurisdiction but may not grant an exclusive franchise. Mr. Grogan said the franchise application timeline in Minnesota is fairly detailed. It requires a public hearing to consider the application and ultimately to consider the franchise. Now that one application has been received before the closing date the next step will be to prepare a report for the Southwest Cable Commission and bring back their recommendation to the City Council. The City Council stands as the decision body for Eden Prairie no matter what other cities do. When the Comcast franchise was approved two years ago, Comcast required in the agreement that the City would not grant another franchise contract that would be more favorable. He said they would expect to present an identical copy of the Comcast franchise to CenturyLink for their comment. Mr. Grogan said Minnesota statutes require that the initial franchise construction must be made throughout the franchise area within five years of granting the franchise, and that would most likely present the biggest hurdle for CenturyLink. CenturyLink relies on an FCC provision that says it is unlawful to include such a provision. We would have to grapple with the question as to which provision would apply, because there is somewhat of a conflict between State and Federal laws regarding the build out. It is not clear whether the FCC order preempts state or local statutes. Tyler Middleton, Vice President of Minnesota Operations for CenturyLink, said Comcast and its predecessors have had a monopoly on cable service in this area for over thirty years. CenturyLink would bring choice and competition to the market, and he believed all consumers would benefit because Comcast will have to react in terms of price and services they offer. CenturyLink currently offers Prism, a television service which is a different kind of technology called IPTV and which provides a very high quality digital picture. They support all the pay programming and local channels. They have wireless connectivity to each television set. They lay fiber to the home phone network or rely on their existing networks. CenturyLink is an $18 billion company and has the financial wherewithal to bring this service to a community. The Prism product is a very significant investment in their connectivity, and they expect to turn on that product in several Twin Cities markets as early as June 2015. Patrick Haggerty, representing CenturyLink, addressed the question of the Minnesota statute versus the FCC statute. He said CenturyLink agrees with the concept of competition but is concerned about the five-year deadline to provide service to the entire franchise area. He noted the FCC statute was passed in 2007 as a way to incent competition in the industry. Case said the last franchise agreement with Comcast resulted in their laying fiber between our public buildings and asked if any new group would be held to that commitment. Mr. Grogan said we have had discussions with CenturyLink Their technical representatives CITY COUNCIL MINUTES May 5, 2015 Page 5 have reviewed the connections between Eden Prairie and Edina so they are aware of how we distribute our paid programming. They are committed to matching those obligations. Case asked if this duplicates the Public Access studio concept. Mr. Grogan said we subcontract the studio to Bloomington, and they would have to match the funding for that service. Case asked if CenturyLink would supply the same services, such as the Comcast bundled packages. Mr. Middleton said they would provide similar options. Case noted he saw an article that stated this is not about cable but rather is about the internet. Mr. Middleton said it is about both, and they are building out a fiber network as part of their ability to attract and retain customers. Their offerings will be very similar to what Comcast offers. Case noted we have wanted competition for a long time. Aho asked what percentage of Eden Prairie residents are now served by CenturyLink. Mr. Middleton said they have 99-100%for voice and internet. Aho asked what percentage they would be able to provide with Prism service in the beginning before they would decide it would be a viable business format. Mr. Middleton said their initial commitment is set at 15%within the first two years. Aho asked if any of the capacity to bring fiber to households is available in Eden Prairie now. Mr. Middleton said they will leverage their existing infrastructure but will have to do some things to the existing network to provide capabilities for video. It would be their intent to get as many homes as possible. Aho said he was trying to get an understanding of whether the infrastructure would have to be completely new to deliver the services. Mr. Middleton said they need to upgrade the existing infrastructure in order to get fiber capability into homes. Nelson asked where in town that service would be available. Mr. Middleton said there is no overt plan they can share in an open forum because of competitive issues. Tyra-Lukens thanked the CenturyLink representatives and Mr. Grogan for the presentation and Council Member Case for his service on the Southwest Cable Commission for many years. She noted Council Member Nelson is now serving on that commission. MOTION: Case moved, seconded by Butcher Wickstrom, to close the public hearing. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve the payment of claims as submitted. Motion was approved on a roll call vote,with Aho, Butcher Wickstrom, Case, Nelson and Tyra-Lukens voting "aye." XI. ORDINANCES AND RESOLUTIONS A. FIRST READING OF AN ORDINANCE AMENDING CITY CODE CHAPTER 4 RELATING TO ALCOHOL, TAPROOMS AND BREW PUBS CITY COUNCIL MINUTES May 5, 2015 Page 6 Getschow said staff has been looking at amendments to our code relating to alcohol for a number of reasons. The City has received inquiries concerning taproom, brew pub and growler liquor licenses. The City Code currently authorizes the issuance of brew pub licenses but not taproom or growler licenses. In addition, there are some housekeeping updates needed because of changes in State law. Rosow reviewed the proposed amendment with a PowerPoint presentation. He noted the legislature just passed legislation last Friday, and staff was able to incorporate those changes in the goldenrod copies given the Council Members tonight. He reviewed the types of licenses issued to brewers and the definitions of the facilities that receive the licenses. Tyra-Lukens asked if the change authorizes the sale of growlers as she thought we had allowed that in one instance. Rosow replied the change is the Sunday sale of growlers. Rosow said the days and hours of sale have been extended by the legislature to permit an 8:00 AM opening on Sunday. The City Council does not need to do that and would have to specifically allow extended hours. The current requirement states a hotel or restaurant must have a percentage of 50/50 for food sales and liquor sales. With the proposed amendment that would be changed to 40/60%food to liquor in order to reflect the demand for new beers that are higher priced which makes it difficult for the business to meet the 50%food sales requirement. He said the amendment would authorize taprooms and would allow Sunday sales. Rosow said there is an issue regarding the taproom and food. A taproom does not need to be a restaurant so it would be able to sell food without meeting the 50/50 rule. Most taprooms operate with the understanding that customers may bring their own food or provide menus for customers to order food from nearby restaurants. Getschow noted the taproom is a new phenomenon, and it is very atypical that they serve food. Nelson asked if a small brewer that brews on site could offer a couple of types of malt liquor. Rosow said they could as long as it is manufactured on site. Nelson asked if this would ever apply to a winery. Rosow said that would require a change to the law as this code applies to malt liquor only. Getschow noted Council Member Nelson's question touched on another area as to whether a winery or a distillery could be included, which is a future possibility. Butcher Wickstrom thought a small business like a taproom should be able to decide to offer food. Rosow said they had that debate today as to what is fair with respect to a small taproom. If they are allowed to bring in food, then that may cut into the mid-market restaurant business. Butcher Wickstrom said she wanted to make sure we are not restricting a business model for any small business. Aho asked if the definition means that a taproom could never become the classic definition of a bar because they are limited to the sale of malt liquor produced on site. Rosow said that was correct. Aho said he understood not wanting to limit a small business, but he also thought we have to be fair to the businesses we currently have. A taproom could become a brew pub if they wanted to sell food. CITY COUNCIL MINUTES May 5, 2015 Page 7 Case noted there is always a conflict between individual rights when we pass any ordinance. Every law limits and gives rights at the same time. He noted there are several issues involved in this discussion, not just brew pubs versus taprooms, because we have municipal liquor stores, and we don't allow other businesses to sell liquor in the City. It does not seem fair to let those facilities sell off-sale growlers. He thought the taproom could have food menus available for restaurants that deliver for customers who want food. Getschow said the off-sale growler situation is a unique one because we are one of the few cities with a municipal liquor store. He said it doesn't seem consistent and fair to have growler sales in Eden Prairie. Rosow said he did some math about what kind of impact this would have on our liquor store. From an operating point of view it is important for a taproom to be able to sell off their excess product. Case asked if it would have to be an all or nothing situation so that we might cap the sales of growlers. He noted we receive 3% of our City's revenue from liquor sales and that is part of our tax structure. Tyra-Lukens said it is an interesting point, and it will have an impact on the liquor stores. She thought we also need to consider why we allow restaurants to sell liquor when we have the municipal liquor stores. Rosow noted the zoning is different for a restaurant than for a taproom which would be located in an industrial zone. Nelson said she liked the idea of potentially limiting the number of growlers sold, and, if a taproom has food, then maybe it should have a food/liquor percentage as well. Tyra-Lukens asked if a taproom could put out food if they don't charge for it. Rosow said we could probably define it in a way to allow the offering of free food. We could also include the other suggestions such as no growler sales, a limit to the hours of growler sales or a cap on the percentage of food sold. Butcher Wickstrom believed the taproom is a model that Gen Xers and millennials like. She said she liked Council Member Nelson's idea to have a certain percentage of food to alcohol sales for taprooms so they could have appetizer-type food available. She also thought it would be good to put some restrictions on growlers but didn't think it is a problem to have municipal liquor stores and allowing taprooms to sell growlers. Getschow said we are somewhat treading new ground here, and he would like to check with other cities in the same situation. He could see it as a value added to the community. He noted the one group that has approached us about opening a taproom is not interested in serving food. Tyra-Lukens asked if most taprooms don't have food. Rosow replied it was his understanding that taprooms don't offer their own food but do allow customers to bring in food or post menus for restaurants that provide take-out or delivery. CITY COUNCIL MINUTES May 5, 2015 Page 8 Aho noted we have a lot of questions, and this is a new issue. There are a lot of changes with the State statutes, and he did not think we are going to come to a resolution tonight. We need to have a meaningful discussion and weigh each of the issues, perhaps at a workshop session. Case said he would like to have reasons to support the growler sales. We have raised a lot of questions tonight, and he liked Council Member Aho's suggestion for a workshop on the issue. Tyra-Lukens said her big concern is that we have a business that would like to come in. She asked if we could pass the ordinance and continue to make changes before coming back for second reading. Getschow said City Attorney Rosow had asked that second reading be made some time in June or July if a first reading passed tonight. Aho said his concern is that a potential business would not want to make plans if they get word we are passing the ordinance tonight but will be reconsidering it at a later date. Rosow said the ordinance requires a first reading and it has been introduced to the Council. We have had a first reading of the ordinance but the Council is not voting on it. The Council could then have first reading pass at a later meeting and have second reading at the same meeting. Rosow also noted the ordinance amendment changes the 50/50 percentage to 40/60. The consensus of Council Members was to change the percentage to 40/60. Tyra-Lukens summarized that no action will be taken tonight. She asked Council Members to get their questions and comments to the City Manager or the City Attorney. Case said it would be helpful to have an outline of the key issues involved at the next session. XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER 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 CITY COUNCIL MINUTES May 5, 2015 Page 9 G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVL ADJOURNMENT MOTION: Butcher Wickstrom moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Tyra-Lukens adjourned the meeting at 8:35 PM.