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City Council - 02/14/2017 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, FEBRUARY 14, 2017 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 Engineer Rod Rue, 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. ACCEPT DONATION FROM PARK DENTAL EDEN PRAIRIE FOR CONCERT SERIES (RESOLUTION NO. 2017-21) Lotthammer said this is a donation from Park Dental Eden Prairie for the free concert series at Staring Park. He noted contributions from groups such as Park Dental enable Eden Prairie to offer such events. MOTION: Case moved, seconded by Aho, to adopt Resolution No. 2017-21 accepting the $1,000 donation from Park Dental Eden Prairie towards the Starring at Staring Concert Series. Motion carried 5-0. B. ACCEPT LIONS CLUB DONATION FOR OUTDOOR CENTER (RESOLUTION NO. 2017-22) Lotthammer said the Lions Club is another organization that continues to sponsor events. The Staring Lake Outdoor Center hosts classes and events for all ages, including several programs with school children. The Outdoor Center provides water studies programs with elementary school students, and this is a $400 donation from the Lions Club to purchase water testing equipment for the Outdoor Center. CITY COUNCIL MINUTES February 14, 2017 Page 2 MOTION: Aho moved, seconded by Butcher Wickstrom, to adopt Resolution No. 2017-22 accepting the gift in the amount of$400 from the Eden Prairie Lions Club for the purchase of water testing equipment for the Staring Lake Outdoor Center. Motion carried 5-0. C. ACCEPT BUSH FOUNDATION GRANT FOR$5,000 FOR CITY'S RECEIPT OF THE UNIVERSITY OF MINNESOTA LOCAL GOVERNMENT INNOVATION AWARD Ellis said, as announced at the January 3, 2017, City Council meeting, the City of Eden Prairie was the University of Minnesota's overall city category winner of the 2016 Local Government Innovation Award for the invention of the Vacuum Dredge Box (VDB). With this award comes a $5,000 grant from the Bush Foundation. The $5,000 grant will be used to help purchase a small tracked skid steer that is used in the operation of the VDB. MOTION: Butcher Wickstrom moved, seconded by Nelson, to accept the Bush Foundation grant of$5,000 in recognition of the City's receipt of the University of Minnesota Local Government Innovation Award. Motion carried 5-0. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Aho moved, seconded by Case, to approve the agenda as published. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,JANUARY 3, 2017 MOTION: Butcher Wickstrom moved, seconded by Aho, to approve the minutes of the City Council workshop held Tuesday, January 3, 2017. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY,JANUARY 17, 2017 MOTION: Nelson moved, seconded by Case, to approve the minutes of the City Council meeting held Tuesday, January 17, 2017, as published. Motion carried 5- 0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. ADOPT RESOLUTION NO. 2017-23 AUTHORIZING MINNESOTA WATER AGENCY RESPONSE NETWORK (MnWARN) MUTUAL AID AGREEMENT CITY COUNCIL MINUTES February 14, 2017 Page 3 C. AWARD CONTRACT TO KEYS WELL DRILLING TO SERVICE WELL 15 D. AWARD CONTRACT TO BERGERSON CASWELL TO SERVICE WELL 16 E. ADOPT RESOLUTION NO. 2017-24 CORRECTING RESOLUTION NO. 99- 215 VACATION OF A PORTION OF A DRAINAGE AND UTILITY EASEMENT LOCATED ON LOT 11, BLOCK 5, EDENVALE 6 ADDITION (14215 GREENVIEW COURT) F. APPROVE CONTRACT WITH INSITUFORM TECHNOLOGIES USA, LLC FOR INSPECTION, CLEANING,AND REHABILITATION OF WOODLAND/SUNSHINE DR. STORMWATER SEWER G. ADOPT RESOLUTION NO. 2017-25 APPROVING COOPERATIVE AGREEMENT WITH HENNEPIN COUNTY FOR CONSTRUCTION OF TRAIL ON VALLEY VIEW RD. FROM 9977 VALLEY VIEW TO WASHINGTON AVE. S. H. APPROVE CHANGE ORDER NO. 3 FOR SOUTHERN SEGMENT OF SHADY OAK ROAD IMPROVEMENTS I. APPROVE CHANGE ORDER NO. 2 FOR WEST 70TH ST. EXTENSION J. APPROVE CITY'S PURCHASING POLICY K. AWARD CONTRACT FOR MILLER PARK OUTDOOR HOCKEY RINK REPLACEMENT TO FINLEY BROS, INC. L. AWARD CONTRACT FOR ROUND LAKE TENNIS COURT RESURFACING TO FINLEY BROS. INC. M. AMEND PROFESSIONAL SERVICE AGREEMENT WITH WEITZMAN STUDIOS, INC. FOR FABRICATION OF BRIDGE PIER FORM LINERS N. ADOPT RESOLUTION NO. 2017-26 REGARDING PURCHASE OF TAX FORFEITED PROPERTIES O. ADOPT RESOLUTION NO. 2017-27 AUTHORIZING PREPAYMENT OF LEASE AND REDEMPTION OF OUTSTANDING BONDS OF THE HOUSING AND REDEVELOPMENT AUTHORITY P. APPROVE COOPERATIVE AGREEMENT WITH HENNEPIN COUNTY TO FURTHER GOALS OF THE GREEN LINE EXTENSION AND SOUTHWEST CORRIDOR INVESTMENT FRAMEWORK Q. APPROVE RENEWAL OF THE TOWING SERVICES AGREEMENT WITH MATT'S AUTO SERVICE CITY COUNCIL MINUTES February 14, 2017 Page 4 MOTION: Case moved, seconded by Aho, to approve Items A-G and I-Q on the Consent Calendar. Motion carried 5-0. MOTION: Nelson moved, seconded by Butcher Wickstrom, to approve Item H on the Consent Calendar. Motion carried 4-0-1, with Case abstaining. IX. PUBLIC HEARINGS/MEETINGS A. FIRST READING OF ORDINANCE AMENDING CITY CODE CHAPTER 11 RELATING TO CELL TOWERS AND ANTENNAS Getschow said the Federal Communication Commission Act of 1996 established that antennas and cell towers are a permitted use in all cities and may not be discriminated against by zoning districts established in cities. To accommodate this new mandate, the Eden Prairie City Code was amended in 1996 to permit antennas and towers in all zoning districts. Since that time the City has added a few more zoning districts including Town Center(TC), Airport Commercial (A-C), Airport Office (A-OFC) and Golf Courses (GC). This is a housekeeping item to add the provision for antennas and cell towers as a permitted use in those additional zoning districts. The Planning Commission voted 7-0 to recommend approval of the amendment at the January 9, 2017 meeting., There were no comments from the audience. MOTION: Nelson moved, seconded by Case, to close the public hearing, and to approve first reading of the ordinance amending City Code Section 11.27, 11.28, 11.29 and 11.36 relating to antennas and towers as a permitted use in the Town Center, Airport Commercial, Airport Office and Golf Course Zoning Districts. Case said he assumed that FAA rules would preempt anything the City might do. Getschow replied that was correct. VOTE ON THE MOTION: Motion carried 5-0. B. BANEBERRY HOLLOW REASSESSMENT (RESOLUTION NO. 2017-28) Getschow said on October 19, 2010, the City Council approved the levying of a Special Assessment of$287.01 for tall grass/weed contract removal on Lot 11, Block 1, Baneberry Hollow, the parcel containing driveways and open space for the Baneberry Hollow Homeowners Association. The levy was certified to the 2011 property taxes, however, the taxes were not paid. Hennepin County and the Eden Prairie City Attorney have determined that,per the provisions of Minnesota State Statue Chapter 51513, the property of Lot 11, Block 1, Baneberry Hollow, is a "common element" parcel which may not be specially assessed. Instead, any special assessments must be evenly divided over the"units," those lots containing dwellings, of the Baneberry Hollow Homeowners Association. All other aspects of the assessment—interest rate of 5.25% and repayment period of one (1) year as established in Resolution 2010-70 -- will remain the same. CITY COUNCIL MINUTES February 14, 2017 Page 5 There were no comments from the audience. MOTION: Aho moved, seconded by Butcher Wickstrom, to close the public hearing, and to adopt Resolution No. 2017-28 approving the Baneberry Hollow reassessment. Case asked if the ten individual lots impacted by the assessment have been notified and if there have been any complaints. Ellis replied the Baneberry Hollow Homeowners Association did not mow the weeds, so the amount of the tall grass/weed removal was assessed back to the common property. After we researched the statutes, we found we cannot assess the common property,rather it must be assessed to the individual units. The City has not added interest to the amount. The property owners impacted were noticed of the hearing tonight. He said there have been no complaints about mowing the lot since 2010. Nelson asked if this will impact how we treat other associations that have common property. Rosow said it will, and common property will be treated in this fashion going forward. VOTE ON THE MOTION: Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Butcher Wickstrom moved, seconded by Case, 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. APPROVE FIRST AND SECOND READINGS OF ORDINANCE NO. 1-2017 AMENDING CITY CODE SECTION 6.03 RELATING TO CITY LICENSING OF TELECOMMUNICATION RIGHT-OF-WAY USERS Ellis said Chapter 6.03 of City Code allows for the use of any City-owned public utility structure in the public right-of-way for placement of commercial wireless telecommunication facilities, such as antennas, by telecommunications companies. This amendment will require the telecommunications companies to enter into a license agreement for placement of the telecommunication facility in any public structure. It spells out a lot of details that really don't belong in a City ordinance. We have a number of these telecommunication facilities on the utility structures now, and we have license agreements for those structures. We do expect there will be an influx of others. Case asked if there is any bonding piece included in the license. Ellis replied he did not believe the licensing agreements have that in the agreement. The license will be issued annually, and we would take down the equipment and return it to the company if necessary when a company did not renew the license. CITY COUNCIL MINUTES February 14, 2017 Page 6 MOTION: Case moved, seconded by Butcher Wickstrom, to approve first and second readings of Ordinance No. 1-2017 amending City Code Section 6.03 relating to City licensing of telecommunication right-of-way users. Motion carried 5-0. 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 1. Receive Feasibility Report and Direct Staff to Include Utility Improvements with Eden Prairie Road Street and Utility Improvements (Resolution No. 2017-29) City Engineer Rod Rue said this would normally be a Consent Calendar item,but, due to the nature of the project, staff will present a summary of the feasibility report as a separate item. He said the feasibility study for the southern portion of Eden Prairie Road was authorized by the Council in June of 2013. In June of 2015 the City Council authorized a feasibility study for utility improvements to serve the Lions Tap site and adjoining parcel, based on a petition received from property owners. The feasibility study addresses providing sanitary sewer and water utility connection options to serve the commercial restaurant site and adjoining rural property. The Metropolitan Council and Eden Prairie City Council have previously approved serving the Lion's Tap site with city utilities since the restaurant site is outside the Met Council's Metropolitan Urban Service Area (MUSA) line. Since the two projects (Eden Prairie Road and Lions Tap utilities) are interconnected, these projects need to be combined into one project. Rue gave a PowerPoint presentation describing the four options considered for the street and utility improvements and summarizing the costs for each of the options. He said Option 4 is the recommended option. That option would include a gravity system for the utilities and would be routed around the existing right-of-way so there would be no need for easements. The lift station would be located on the west side of Lions Tap. He said the cost of this option would be $1,730,000, the least costly of the four options and also the most reliable. CITY COUNCIL MINUTES February 14, 2017 Page 7 Rue said the Eden Prairie Road Extension to Flying Cloud Drive Street and Utility Feasibility Report is expected to be received by the City Council at the March 7, 2017 City Council meeting, and a Public Hearing date will be set, probably for April 4, 2017. The report will describe the proposed combined street and utility improvements, the estimated project costs, and the methodology used to calculate the assessments for the benefitting properties. Prior to the public hearing, we would schedule a neighborhood meeting(s) to discuss the feasibility report and proposed assessments. At the April 4th public hearing, we will be requesting that the City Council order the combined improvements. Tyra-Lukens asked if there is some issue we are missing about selecting Option 4 if that option is the cheapest and probably the most effective and reliable. Rue replied the gravity system used in Option 4 is more reliable and is what people are used to dealing with in most areas of the City. The low pressure systems used in the other options do exist in some areas of the City; however, the grinder station for that type of system requires the property owner to own and maintain it, so there can be some replacement and maintenance issues. Case said the Notermann's came before the City Council a few years ago and discussed some pre-zoning for development of their property. He asked if they might, therefore, be more interested in having easement access included as part of the development agreement as would be provided by Options 2 and 3. Rue replied the City has been discussing the improvements to the Lions Tap site with the Notermann's and their representatives. He noted Spring Road is being realigned as part the County's CSA No. 61 reconstruction project. As part of the realignment, a remnant piece of right- of-way will be sold to Lions Tap so they will have additional acreage. A representative of the Notermann's, said Option 4 is the Notermann's preferred option and would provide more of an opportunity to spread the assessments over the property. Dean Edstrom, 10133 Eden Prairie Road, said Options 2 and 3 would disrupt his property, and he thought Option 4 was the best option. MOTION: Nelson moved, seconded by Case, to adopt Resolution No. 2017-29 to receive the feasibility report and to direct staff to include the recommended Lions Tap utility improvements (Option No. 4) into the Eden Prairie Road extension to Flying Cloud Drive street and utility improvements. Motion carried 5-0. F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF CITY COUNCIL MINUTES February 14, 2017 Page 8 H. REPORT OF CITY ATTORNEY 1. ERS Estates Lake Access and Dock Appeal Rosow said in 2016 the City received a request from the owner of the property at 12551 Beach Circle to confirm that the non-conforming use of a second dock serving property not abutting the lake remained as a protected non-conforming use. After conferring with the City Attorney, City staff provided a determination to ERS Development LLC (the property owner) that the non-conforming use status of the easement had been lost due to the discontinuance of use. ERS Development LLC then filed an appeal of that determination. At the December 12, 2016 meeting, the Planning Commission, acting as the Board of Adjustment and Appeals,held a public meeting on the appeal of the staff determination. After hearing information presented by staff, the appellant, and nearby property owners, the Commission voted on a 5-2 vote to direct staff to prepare findings and an order upholding staff s determination. On January 12, 2017, an appeal of the Planning Commission determination was filed. Rosow said the provision of the Minnesota statutes that deals with non- conforming uses states that a legal non-conforming use can be continued, improved, replaced and repaired unless the occupancy is discontinued for a period of more than one year. Eden Prairie's City Code contains the same provision. hi 2005 the City Code was amended to be consistent with the provision in State law with respect to when a use would be considered to be discontinued. Before the code amendment in 2005, the standard for non- conforming use was intent to abandon. The current provision regarding non- conforming use has been upheld in several cases around the State. Rosow said the property is located off the lake and, since 1965,has had a 20-foot easement to the lake across another property that abuts the lake. In 2005 a new owner, Dr. Elmer Salovich, purchased the property. The issue is whether there was a discontinuance of the non-conforming use and whether the position of the City planner was correct. Mr. Paradis, the owner of the property that the easement is across, testified before the Planning Commission at one point that he removed the dock from the easement more than ten years ago after asking the previous owner to remove the dock as it was in a state of disrepair after it had been crushed by winter ice. That came as news to the new owner of the subject property. The issue for the City, however, is not who removed the dock from the lake but rather it is whether there was a discontinuance. The evidence showed the dock was not put back in over the ten-year time period from 2006 to 2016. Rosow said Dr. Salovich, the owner of ERS Development, states that, in 2006 after he acquired this property, he applied to replat the property. The staff report on the re-platting of the property notes the non-conforming use and states it may continue. Dr. Salovich's argument is that he was not told by City staff he would have to maintain the dock in the lake every year. That CITY COUNCIL MINUTES February 14, 2017 Page 9 argument caused two of the Planning Commission members to vote against the staff recommendation. Rosow said Mr. Beck, the attorney for ERS Development, argues that, in a duplex situation, you couldn't lose the non- conforming use when the house was remodeled. However, the City's position is that use of the dock is what is non-conforming. In his letter of February 8, Mr. Beck argues that this is an issue of intent to abandon, and no dock was put in because there was no need for one while the renovation was going on. Rosow noted the easement did not provide for storage of the dock. Peter Beck, representing Dr. Salovich and ERS Development, said the right of easement was given in 1964, and Dr. Salovich bought the property in November of 2005. The issues that have emerged are whether Dr. Salovich should have put the dock in every year during the time of renovation and whether City staff told him about the new requirement regarding discontinuance of use. He noted it does make a difference if the dock was taken out by someone else. The only recourse they could follow was to appeal the decision by the Planning Commission because it will make it difficult to sell the property. Tyra-Lukens asked if Mr. Beck made the statement that it is significant whether the dock was removed or stolen. Mr. Beck said he did and asked how the use could be discontinued if someone else stole the dock. Tyra- Lukens then asked if the non-conforming use is the existence of the dock or the easement allowing the dock. Rosow replied the non-conforming use is the second dock on the lake property. The ordinance allows only one dock per lot. The non-conforming use was created when there were two docks, but in this case one dock was discontinued for more than one year. Nelson asked if we have rules about keeping a dock in good repair. Rosow said we don't have rules that deal with maintenance of a dock, and that is not covered by our exterior maintenance code. Dr. Elmer Salovich, 12551 Beach Circle, said the dock that was on the property was made of steel and was not in need of repair. He said he did a lot of improvements on the house and told staff he was not putting in a dock because he had to renovate the house first. He also asked staff if Eden Prairie has some requirements about docks, and staff told him that Eden Prairie does not have a specific ordinance for docks and follows the Minnesota State requirements. Staff told him to come and see them when he was ready to put in a dock and did not tell him about any time constraints to put in a dock. Rosow said Mr. Beck asked why, of the two docks, this dock would be considered the non-conforming one, and noted that dispute would be between the two property owners. He reviewed the options available for the City Council to make a decision. CITY COUNCIL MINUTES February 14, 2017 Page 10 Case said this situation reminds him of past discussions by the Council about billboards in the City. When the ordinance against billboards was passed, we grandfathered in the use of existing billboards even though we did not want them in the City. In this case, we don't want to have two docks on each parcel around our lakes. The moment someone walks away from a non-conforming use of a dock, that non-conforming use goes away. The dock would have been grandfathered in if the dock had stayed there, but it didn't. He said he will not vote for continuance of the non-conforming use. Butcher Wickstrom agreed with Council Member Case and said it is a question of consistency. Nelson was bothered that the owner came in to talk to staff about when he could put in a dock. He got a response from the staff that he could put in a dock again, and that is what he went away with. Aho agreed with Council Member Nelson that we need to apply the ordinance fairly across all properties; however, it is not a fair application of the ordinance if City staff tells someone to come back when he is ready to put in a dock after he has asked staff what must be done to continue the use of the dock, and then when he does come back he is told he can't continue to use it. He said he would vote in favor of the property owner. Jeremiah said the only documentation found about this situation is a staff report from 2006 that says a dock is existing at the time and may continue; however, the report assumes a dock was in place at the time of the report. She said it is unclear who on staff had reviewed the situation, and there is no documentation that the dock was there at the time. We said the dock could continue here,but not that it could be abandoned or discontinued and then come back to request the use be continued. Case said we know that ignorance of the law is no excuse, and we hear a lot of things that staff"claims." We have our rules and ordinances, and a decision based on perception of how someone interpreted that would set a dangerous precedent. We have an ordinance, and there is a reason we don't allow two docks per parcel around the lakes. We allow certain docks to be grandfathered in, but we get rid of the non-conforming uses as soon as they are no longer there. Aho said he could see if this were a new non-conforming use, but this is an historical one that was already in existence. He thought that is different and would not be setting a precedent. Nelson said there is an expectation that an owner would maintain his property rights, and it would be reasonable to expect someone to walk down to the lake to see if the dock was there. It appears that was never done in this situation. CITY COUNCIL MINUTES February 14, 2017 Page 11 MOTION: Butcher Wickstrom moved, seconded by Case, to uphold the determination of the Planning Commission that the non-conforming use of a dock on Lot 8, Block 1, The Cove, for the benefit of Lot 2, Block 1 ERS Estates, as a nonconforming legal use has terminated. Motion carried 4-1, with Aho opposed. XV. OTHER BUSINESS XVI. CLOSED SESSION TO DISCUSS POTENTIAL LITIGATION MOTION: Case moved, seconded by Butcher Wickstrom, to move to closed session. Motion carried 5-0. At 8:29 PM the Council moved to closed session. XVII. ADJOURNMENT MOTION: Aho moved, seconded by Butcher Wickstrom, to adjourn the meeting. Motion carried 5-0. Mayor Tyra-Lukens adjourned the meeting at 9:17 PM.