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Home My WebLink About10-08-1990 Council Minutes• MINUTES OF THE REGULAR ORONO COUNCIL MEETING HELD OCTOBER 8, 1990 ATTENDANCE 7:00 P.M. The Council met on the above date with the following members present: Acting Mayor Callahan, Councilmembers Nettles, Goetten and Peterson. Mayor Grabek was absent. The following represented the City staff: City Administrator Bernhardson, Building & Zoning Administrator Mabusth, Public Works Director Gerhardson, Assistant Planning and Zoning Administrator Gaff ron, City Attorney Barrett, City Engineer Cook and City Recorder Vee. #1590 MINNEGASCO, INC. 530 OLD CRYSTAL BAY ROAD PUBLIC HEARING 7:02 TO 7:18 P.M. The Affidavit of Publication and Certificate of Mailing were duly noted. Tom Meyer was present representing Minnegasco. City Administrator reviewed this request for an up to 5 year conditional use permit on a piece of industrially zoned property on Old Crystal Bay Road. Minnegasco is looking to install a heat saving plant at this location. It is a fenced in area of 40 about 150' x 1501, which during the winter months will have a semi - trailer with a vaporizer located on this site. During critically cold times when their supply is low a liquified natural gas tanker will come in. The operation will be supervised by individuals during that time and once the need is passed, the tanker will be removed and just the vaporizer will remain on location. During the non - winter months the vaporizer will be removed. The Planning Commission has recommended approval with conditions regarding natural screening. Minnegasco feels because of the temporary nature that the screening will be cost prohibitive and are proposing an alternate type of false brickwork to meet the opaqeness requirement. Acting Mayor Callahan noted that the original application was also a public hearing but was for property located across the street. This public hearing is held to conform to the public hearing requirements. Goetten asked if the fencing issue had been resolved. Tom Meyer presented plans showing layout with fencing. He noted that this is a temporary use, a maximum of five years, and actually anticipating 1 to 3 years use. Distribution in this area is weak and would be used to forestall outages in extremely cold weather, below 15 degrees. The unit will sit in the middle of the property. Photos of a similar unit used in Spring Park last year were presented to Council for review. The vaporizer is mounted on a flatbed trailer and a tank truck would be pulled up in the cold weather for 3 -4 months per year. During the 1 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 PUBLIC HEARING #1590 14INNEGASCO CONTINUED • remaining months the property would basically be vacant except for the power pole. A map showing affected usage area was presented. A permanent installation will be piped from the ,Minnetrista area and connected to the distribution system on Crystal Bay Road. Nettles asked if neighbors had a fencing preference. Mr. Meyer responded that they had not heard from the neighbors. Goetten asked if the City had heard from any neighbors. Callahan answered by stating that the screening issue came spontaneously from Planning Commission while considering other concerns of this application. Mabusth also stated that the applicant proposed cyclone fencing which offers no opaqueness. The City code,requires 50% opaqeness. The Planning Commission was responding to the code requirements not the concern of neighbors. Goetten raised the point of 6' fencing. Mabusth stated code requires a minimum of 5' for any kind of outdoor storage. Goetten noted that an 8' fence would then have to be very solid. Tom Meyers replied, "This 8' fence is what is required by • the Federal regulations when we deal with the liquified natural gas facilities." Minnegasco feels the chain link fence provides best security with the screening required. It was moved by Acting Mayor Callahan, seconded by Nettles, to approve Resolution #2879, granting a conditional use permit for the temporary installation of a portable liquid natural gas vaporizer at 530 Old Crystal Bay Road with chain link fencing and wind screening defined as "open" type. Motion, Ayes -4, Nays -0. Motion Passed. CONSENT AGENDA* City Administrator Bernhardson asked to have item #6 added to the Consent Agenda and tabled. It was moved by Councilmember Goetten, seconded by Councilmember Peterson, to approve the Consent Agenda with the exception of item #6, which is to be tabled. Motion, Ayes -4, Nays -0, Motion passed. APPPROVAL OF MINUTES* It was moved by Councilmember Goetten, seconded by • Councilmember Peterson, to approve the Minutes of the September 24, 1990 Regular Council Meeting. Motion, Ayes =4, Nays -0, Motion passed. E ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 PARR COMMISSION COMMENTS Dick Flint, Chairman of the Park Commission, was present and • made a report to the Council of five areas of concern. 1. Planning - Park Commission has done an inventory of existing parks and have come up with preliminary recommendations regarding some inexpensive improvements, i.e. new signs and benches. They also have a colored map showing existing parks in Orono, including regional parks and private recreational facilities. 2. Neighbors - Park Commission is trying to work with neighbors surrounding parks. One difficult area has been Sandy Beach on Cherry Avenue. Late night use and harassment has been an extreme problem. The Commission is recommending that the dock at Sandy Beach not be put out next summer and the beach be closed at 6:00 p.m. If this does not help solve the problem, the police will be asked to patrol the area more closely. Bederwood Park has also been an active area. The Orono Baseball Association was authorized to build a hardball field. A soccer field is also available. The neighbors in this area have come up with a series of recommendations including a playground, kidney- shaped ice skating rink, tennis court and track (Vita course) around the outside edge. The Commission is in favor of many of these recommendations, however the tennis court is • probably too expensive and the need has not been established for it. The Commission would like to see the skating rink put in this fall. John Gerhardson states the City staff does not have available time. Nettles asked the dimensions of the ice skating rink. Flint did not have exact measurement, only that it would be kidney - shaped so it could not be used for hockey. Goetten asked if costs for these proposals were available. Flint replied the tennis courts would be $25,000- 30,000. The remainder would be less than $20,000. Playground equipment would be $5,000- 10,000. The small picnic shelter /pavil lion would be minimal. Nettles asked for an explanation of "Vita course ". Dick explained that there are stations with something to do at each stop, such as a horizontal ladder or calf stretch. 3. Park Fee Interpretation - There have been questions regarding the adopted ordinance. The first question was in regard to language in Subparagraph 7 which provided that "if land had not previously been subdivided and a fee previously paid, the fee would be paid at the time of the issuance of a building permit for the primary structure and this would occur if the subdivision had occurred prior to the time we had a park • dedication fee." Staff has indicated this creates difficulties because they have to check each building permit as it comes up to 3 • ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 PARR COMMISION COMMENTS CONTINUED see if a park dedication fee has already been paid. It also requires that the fair market value of the property be determined not at the time the building permit is issued but rather at the time the subdivision occurred. This means possibly going back 20 years in records. The City Attorney has expressed concerns over the legality of the ordinance. The State Statute under which the park dedication fee is adopted provides that at the time of subdivision land or money can be taken for park purposes. The Commission is recommending that this provision be deleted. Staff also feels the revenue lost will not be substantial since most property in Orono has had a park dedication fee paid with it or will have at the time of subdivision. PARR DEDICATION FEES ORDINANCE #89, 2ND SERIES It was moved by Acting Mayor Callahan, seconded by Peterson, to adopt the amendment to Ordinance #82, to eliminate Section 2 (F) relating to the development of land previously platted. Motion, Ayes -4, Nays -0. Motion passed. PARR COMMISSION COMMENTS CONTINUED The question of how to value a property that has an existing • structure on it is another matter in respect to the park dedication fee schedule. The value of the existing structure should not be taken into account. Should the value of the lot on which that structure is located also be excluded? More knowledge of previous actions is required before the Park Commission can make a recommendation. 4. Bike /Hike Trail. This was a high priority by most residents in the Parks Survey of Orono residents a year ago. The Park Commission had hoped to "piggyback" on work being done by the County to construct a bike path at the time the County improves roads within the City. This is more difficult than originally envisioned. John Gerhardson, Dick Flint, Tad Jude and Pat Murphy, the Director of Public Works for the County, met to discuss County Road 6. The County is requesting a wider right - of -way. Could there be a place to work in a bike path? The rural roads require a ditch, thus making a total of 80' needed for the road. One option would be to use the shoulder of the road and mark it as a bike path. This would be unsatisfactory for children going to school as there would be traffic on one side and the ditch on the other. The other option would be to give the County a wider right -of -way, however the County could just forget about the bike path and use the extra footage for a wider road, etc. The Park Commission has concluded it would be better to have control over the bike path outside of the ditch area. This can be done by asking for a fee interest at the time • of the development or by asking for an easement at the time of development. 4 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 PARR COMMISSION C014MENTS CONTINUED The Park Commission has been working with Fullerton • Properties to build a bike trail in connection with Shadowood Farm development at County Road 6 and Willow Road. This is at the intersection of two trails designated on the conceptual plan. They also feel it could be used to connect with the school property and used to bring people from the Dickey Lane area, Sugarwoods area and the Shadowood area to the schools. There would be Willow Road and Old Orchard Road to cross. This makes an important area for the bike trails to begin. Callahan asked if Flint was satisfied with the current proposition with Fullerton. Flint replied there have been several problems. The Park Commission was brought into discussions very late. Callahan asked Flint to wait until developer was present for discussion of the matter before Council. 5. Long Lake - The Park Commission is involved with this lake because of Summit Beach Park. There are many jurisdictions involved in the management of the lake. The Freshwater Biological Institute made a presentation to the Park Commission regarding actions that could be taken to prevent milfoil in the lake. The Minnehaha Creek Watershed District also made a presentation regarding a study they are undertaking on watershed. The "Save Our Lake - Orono /Long Lake Partnership" also had several members represented at the Park Commission meeting. No milfoil is known to exist in Long Lake and the Park Commission will be working with these groups to preserve the • quality of the lake. The City of Long Lake has adopted an ordinance to restrict the use of jet skis on the Lake. This will restrict the time they can be used and also prevent them from coming within a certain distance of swimming facilities. That ordinance is currently being reviewed by the DNR which also must approve such an ordinance. The Park Commission has approved the concept but has not seen the final language of the ordinance. When they see this, it will be brought before the Council with their recommendations. PLANNING COMMISSION REPRESENTATIVE There were no comments from Jeffrey Johnson, Planning Commission Representative. PUBLIC COMMENTS Gabriel Jabbour reserved his rights to comment at the time of the LMCD Comprehensive Plan /Shoreland Regulations agenda item. ZONING ADMINISTRATOR'S REPORT: #1334 REBER CONSTRUCTION - SUGARNOODS PLAT RECONSIDERATION OF CONDITIONS OF PRD APPROVAL - RESOLUTION It was moved by Councilmember Goetten, seconded by • Councilmember Peterson, to table this request and add to the Consent Agenda. Motion, Ayes -4, Nays -0, Motion passed. 5 ,ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 #1532 FULLERTON PROPERTIES, INC. •2225 SIXTH AVENUE NORTH ROAD NAME APPROVAL FINAL SUBDIVISION OF PROPERTY RESOLUTION #2880 Mr. Joe Franks, Vice President of Fullerton Properties, Inc. was present for the review of this application. It was moved by Acting Mayor Callahan, seconded by Councilmember Nettles, to adopt Resolution #2880 approving the road names of Cox Farm Road and Shadowood Drive. Motion, Ayes -4, Nays -0, Motion passed. City Administrator Bernhardson explained that the other portion for consideration of final subdivision is the issue relating to contingency on the easement being granted over the drainage and utility easements for a bike trail. The application for this property was originally filed prior to new Park Dedication Fees going into effect. $200.00 for each lot was to go to City. After discussions, the City found the drainage and utility areas amenable to bike trails and the applicant indicated a willingness to allow trails under certain conditions. The developer would like no construction on this drainage and utility easement until such time as the City has acquired and is constructing a trail of equal length connecting to this property. The Park Commission reviewed this condition and it is their recommendation that this contingency not be included. Staff sees • that the proposal by the developer is not out of line with the development. The City will look at a proposal with all the bike trails, indicate where easements and property are availabe to construct trails, get quotations, study the budget of park dedication and come up with a proposal for constructing a trail in increments. This should help solve this impediment. Acting Mayor Callahan asked for clarification of "take and give back ". Bernhardson explained this is a separate issue that entails right -of -way dedication on the western boundary of this property exluding the Jim Cox parcel for the Outlots. This has been used as a yard by Mr. Cox over the years. The City asked for additional right -of -way dedication as part of this plat. Mr. Cox was concerned about this. There is a possibility that Willow Drive, if it is ever reconstructed probably by the County, would be moved to the west so that the additional 7' right -of -way would possibly not be needed. It was originally proposed that the City would automatically grant that back to property owner if not needed. However, because of various laws regarding vacation of roads, the proposal now is that the City would only, at his request, set up the necessary vacation hearings to possibly allow that to happen. Joe Franks addressed the Council. He reviewed the July 9, 1990 meeting at which time the Council granted the preliminary plat approval and issued a resolution with some 15 compliance • C r ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1532 - FULLERTON PROPERTIES, INC. CONTINUED items in it. All of these items have been satisfied after much • work and additional money to the seller to wait until the issue of the bike path has been resolved. Fullerton Properties and Mr. Cox have gone ahead based on that resolution and relied on promises by the Planning Commission and Council. After the resolution was passed, Mr. Franks was contacted by the Park Commission and asked to attend a meeting of the Park Commission. The invitation was received the day of the meeting and Mr. Franks was unable to attend. At that meeting, the Park Commission discussed and acted upon a request that Fullerton Properties grant an easement for the bike path. To this date he has not received official notification or a copy of the minutes of that meeting. At first Mr. Franks was against the bike path feeling that residents who will be affected should have an opportunity to provide input. After meeting with Mr. Gerhardson and Mr. Flint, he saw of their concerns for the master bike path and then agreed to work with them to resolve the bike path issue. The developer has done everything asked except for the bike path. He feels that if there is to be a bike path, it is only fair that it should go somewhere. If it does not, then it will not be used and subject to deterioration and will be an eyesore instead of a contribution to the City. After a lengthy conference call last Tuesday between all • participants, Mr. Franks thought an agreement had been reached. They backed off on a 2 -year moratorium and Mr. Flint agreed that the path should go somewhere. That was also the meeting night of the Park Commission. Mr. Franks was told in that conversation that there would be no reason to attend the Park Commission meeting and he didn't. The bike path issue was discussed again and the Commission decided that it could not live with that one restriction. To sum up, Mr. Franks requested the Council to act on the plat as it has been delayed and they would still like to start this year. He will live with whatever decision is made but would like to see that one restriction of the bike path leading somewhere included in the decision. Harry Martin, Old Long Lake Road, stated as a member of the private sector that it seems Mr. Franks has expressed a plaintive appeal to be informed and allowed to be involved in the process of investing in the community. It seems the Council should consider his plea because of the complicated and difficult process of bureacracy which is almost impossible to understand. Acting Mayor Callahan replied that both the developer and Park Commission have had a great deal of communication. He asked Mr. Flint to explain the Park Commission's view. Dick Flint explained that the bike path was conceptually approved by the City Council 2 years ago. This developer is 40 doing a development in one of the key corners of this plan and the Park Commission had no notice until after the preliminary 7 ORONO REGULAR COUNCIL FETING HELD OCTOBER 8, 1990 ZONING FILE #1532 - FULLERTON PROPERTIES, INC. CONTINUED • approval. Procedures of the City need to be improved so this doesn't occur repeatedly. Mr. Franks should have been invited to the August Park's Commission meeting, but wasn't. This was the first discussion of this matter. The conclusion of the Park Commission is that they would like to build the bike path while the preliminary work is being done in order to show what can be done. The Commission feels it can get approvals to the west of the trail to connect it to City property. There are three private residences to the west which would need their assent to an easement across that property or a condemndation which the Council would need to approve. This is a good segment to begin construction of the bike trail and would like to connect it up as quickly as possible. The Park Commission needs the City's cooperation to build any of the trails. Mr. Flint stated that the current form of easement negotiated with Mr. Franks is not the norm. Most are clean, not subject to other restrictions. There is an existing easement for utilities along the north and west edge stated "you have an easement for utilities ". Under the new as well as the old ordinance, the City had the right to request a reasonable portion of land to be dedicated for park purposes rather than $200.00 per lot. This could have been requested at the time of the initial application but was not. The request is for an easement over an • area that is already subject to a drainage and utility easement. That would mean that telephone poles could be put up without restrictions. If a bike path were there, restrictions would be needed. The concern of the Commission is that it will take a long time to get the cooperation of the City staff to get the bike path pushed through the rest of the way; whereas if the path were built first, more cooperation would happen and the project could move forth. Acting Mayor Callahan responded by stating that this is the first time the City has gone out to get specific land for park purposes even though land may have been given to the City. It seems there is some justification for the developer in this case to want to have or not have a bike trail system go into his property from one corner to an empty field. It seems what the developer is essentially asking is that he knows there is a plan that will occur in a set time frame so that the path ties in somewhere. Depending on how the easement reads and if there are technical restrictions, problems could occur. Under the circumstances, a bike trail that goes somewhere does not seem too bad. Mr. Franks replied, "There need be no restrictions on the easement. Again, if we are both honorable groups here, I will accept your say so that when the bicycle path along 6 gets done that you are in the process to do the same thing somewhere else • that it connects to, whether it be east, west, or whatever direction." 8 i ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1532 - FULLERTON PROPERTIES, INC. CONTINUED Mr. Flint stated that they would like to connect to the west. What is needed is instructions for the staff to assist in going forward with this connection. This must be discussed at another time. Mr. Franks brought up the point that Outlot A is not being purchased by Fullerton Properties. It remains Cox property but it is part of this development. He does not feel it totally fair that he be giving easement to a property that he does not intend to purchase. At a better time this could have been negotiated with the Cox family. Callahan stated that there is no point in having an easement if there is a "hole in the middle" Mr. Franks said there will be a number of "holes" as the Cox residence is also not part of the subdivision. Mr. Franks does not disagree with the easement and does not need any restrictions. Glenn Cook, City Engineer, stated that if the Council elects not to allow the path to be constructed to at least indicate that the grading plan shall incorporate a grading plan for that strip. Regrading at a later date will be much more expensive to install. Part of the grading plan should incorporate provisions for a pathway 8' wide. Mr. Franks stated this a new condition and could impact drainage, etc. Mike Gaffron could comment on this. Goetten stated this is one of many things that comes up as a surprise to somebody. If we ask other people to make good faith efforts in what they are doing in response to us, that in return we made a good faith effort with Mr. Franks and we approved this subdivision. Are we being fair if we push this through because of the lack of attention that he received on this particular project? Acting Mayor Callahan reviewed the series of facts relating to the bike path and this particular property. After all of the trouble getting to this point, Mr. Franks is in agreement with the proposal except for the fact that the bike path tie into a trail. The decision tonight is whether to approve the final subdivision which will contain in it a provision for the easement, Exhibit F in packet. The bike trail plan is a consideration but the City cannot decide in the future to have a bike trail just on the Frank property. Nettles then questioned the grading suggested by Mr. Cook. He asked Mr. Franks if he had any idea how much more this grading plan would cost. Mr. Franks had no idea. Goetten asked if these costs could be obtained. It was moved by Acting Mayor Callahan, seconded by Goetten, to adopt Resolution #2880 granting the approval of the subdivision as is and requesting the developer to work with the 9 • • • ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1532 - FULLERTON PROPERTIES, INC. CONTINUED staff and Park Commission on the problem of grading. The bike trail easement is included in the resolution. Motion, Ayes -4, Nays -0. #1535 KENNEDY /BDTTERFIELD 3745 -3765 WATERTOWN ROAD SUBDIVISION OF A LOT LINE REARRANGEMENT RESOLUTION #2881 Mr. Timothy Fafinsky, representing Mrs. Kennedy, was present for the review of this application. City Administrator Bernhardson explained this application was for a lot line rearrangement in a 5 acre area to place an existing garage totally within the boundaries of the appropriate parcel. The Planning Commission recommended unanimous approves. It was moved by Acting Mayor Callahan, seconded by Councilmember Peterson, to adopt Resolution #2881 granting a lot line rearrangement to place an existing garage within the property boundaries of 3765 Watertown Road. Motion, Ayes -4, Nays -0, Motion passed. #1555 LANDSTAR, INC. 2501 OLD BEACH ROAD PRELIMINARY SUBDIVISION Mr. James MacKinnon, representative for Mr. Blanch, was present. City Administrator Bernhardson provided a brief explanation of this application. This is a subdivision that straddles the Orono and Minnetonka Beach line. There would be 3 lots proposed in Minnetonka Beach and 6 lots within Orono, 5 of which would be residential and 1 would be commercial. Both the Minnetonka Beach and Orono Planning Commissions have recommended approval. One of the original parts of this application was that there would be some filling of wetlands in Minnetonka Beach and do some compensation removals in Orono. The Corps of Engineers has denied them the ability to do this so there will be no alteration of wetlands in this proposal. As part of the approval, water and sewer capacity is available, however sewer and water lines would have to be extended to the north in Minnetonka Beach. There should be a connection or looping into the Lafayette Ridge portion, extending to serve Lot 1 by County Road 15. Additionally, there would be the overlay and the engineer's recommendation of curb and gutter for improvements to Old Beach Road. The Park Commission has reviewed this application and would like the cash valued at 8% of $136,000. Jeanne Mabusth reviewed the wetland elevation of 932 outlined in yellow on a map displayed. The building envelopes have been designed so they are 26' from the elevation of wetland. The contiguous dry area is determined above the 932 elevation. There is an area of'Glencoe soils and a drainageway that connects 10 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1555 - LANDSTAR, INC. CONTINUED to it. This drainageway area is not included in the dry buildable. Each envelope well exceeds the 1 acre in area. The applicant does not need to apply for the wetland credits under Section 10.55 because he meets the dry buildable area above the 932. She noted the B -4 area. This lot will go back to the foundation for a possible future building or may go to the University. Mr. MacKinnon raised the issue of the City upgrading Old Beach Road. The City is asking the developer to share in the cost which is consistent with all previous information. However, in the Memo dated October 5, 1990, Page 5, 3 (D), the applicant is asked to be responsible for the whole upgrading of Old Beach Road. Mabusth stated that this is a conflict in what staff has presented to Landstar. In early reviews, a leveling and 2" bituminous covering of Old Beach Road had been proposed as upgrading by the City. Since that time the City Engineer has recommended a 32' wide curb and gutter typical urban section for this roadway. If this is the case, a share by the applicant may be requested and possible assessing benefiting property owners. This was not discussed by the Planning Commission. City Administrator Bernhardson replied that first the Council has to decide if the subdivision is acceptable and then negotiate the type of upgrading. Goetten added that an informational public hearing would have to be held for those residents already on Old Beach Road. Mabusth asked for input from JoEllen Hurr as to the type of improvements being discussed for the City of Minnetonka Beach. Hurr replied that initially an overlay was discussed. Acting Mayor Callahan reviewed the history of the Old Beach Road area in which this subdivision is proposed. He questioned the building of homes in this swamp area. Nettles replied that he was not comfortable considering this application without knowing what may happen in terms of the road development He states the sewer may be a consideration because of the water quality. Mabusth stated that the developer has always been aware that he will be paying the costs for the extension of sewer and water. John Gerhardson was asked by Mabusth to comment on the kind of road improvement expected in this area. Gerhardson responded by saying that overlay had been planned for this summer but held off to see what would happen with this application. The neighbors are not being asked for any payment nor is it 11 • is ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1555 - LANDSTAR, INC. CONTINUED • appropriate to ask Landstar for payment. Callahan stated that as the area develops, more boats will be involved and there will be problems with the riparian area along the beach and the LMCD, DNR, etc. will become involved. Mr. MacKinnon said, "I believe our engineer and the City Engineer have looked at some of the questions raised and both have passed on them." Mr. Callahan agreed. Goetten replied that .she has also questioned the buildability of this area. Mabusth stated that the facts indicate this is a buildable area. Goetten has concerns over the houses falling into the wetlands, then who is responsible. Callahan notes that all the engineers have said it wouldn't happen and all these things have passed. Goetten said, "But we have found sometimes engineers aren't correct." . Acting Mayor Callahan stated that a few Council meetings ago that it became apparent this issue would be forthcoming and we look into the matter of wetland protection. The response of the staff seems to be that we don't need any more wetland protection because we have all these codes. It also seems to Callahan that as more of the development gets into poorer land, we are not doing right by the land or community. • Goetten states these are definitely marginal tracts and questions if the Council would be responsible in approving this application. Nettles asked where 26' came from. City Administrator Bernhardson replied that it has been in the City Code for many years and may be a DNR requirement. Mabusth stated that in earlier proposals of PRD's of this property there were up to 20 some units taking credit of the wetlands areas and that would have been a major impact on this property. It would have beeen difficult to deny coming in under Section 10.55 seeking credit of the wetland area. Mabusth suggested Acting Mayor Callahan may be interested in amending code to not give credit to wetlands in sewered area. That may be a way to get control. This developer has proposed a development with 1 acre lots above the 932 elevation. Bernhardson states that one of the concerns is the quality of the soils it is built on. There have been no soil borings actually done within the building pads at this point and is usually determined at a later time. This may address Councilmember Goetten's concerns about buildability of this property. Even though it is outside the wetlands, the soils may • be such that they may not be buildable. 12 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1555 - LANDSTAR, INC. CONTINUED Mabusth reminds that this area received 1979 with the Lafayette Dredging project. outlined in Exhibit N. Proposed house sites fill areas. Soil borings will be required wi permit to determine the types of foundations to fill in 1978 and • Those areas are are not in these th every building be installed. Mr. MacKinnon replied that many of these concerns had been raised with the Planning Commission at previous meetings. Because of that, additional engineering work had been done including total recalculation of the watershed area. The Corps of Engineers, the City Engineer and their engineer were all involved. Even if you go to the 934' mark there is still dry contiguous soils well in excess of the requirement. Nettles asked Mabusth if the building envelope that is separated by a drainageway is treated as a contiguous envelope. She replied yes, because it is a drainageway and it is not defined as a designated wetland. However, if someone wanted to build on that site it would require a conditional use permit and variance because you would be crossing over drainageways. The drainageway would also require a 26' setback. The dry buildable, area calcs, are everything above the 932 elevation. The building envelope is not the area calcs and is much more restrictive. Nettles replied, "I don't see any way we can turn it down." • Goetten asked if we have a history on this property. Mabusth replied the only history we have is the Old Lafayette Dredging project and they filled in areas with the dredged spoils. No building envelopes are shown within that filled area, but there is nothing that says they could not build in that area if they want to pay for the expensive foundation that would have to be built. Mabusth states both she and the applicant seek direction from the Council regarding the improvement of Old Beach Road. Councilmember Peterson asked, "Isn't that two separate issues ?" Goetten replied not really because it all comes along with the whole subdivision process. Peterson states that if you are going to assess adjacent property owners, they would also have to be notified. Mabusth states that's why John Gerhardson was asked to address this issue. Goetten asked, "If the road would have to be repaired and upgraded purely because of the fact that the developer is putting • in these houses if that is approved, then explain why the adjacent property owners would have to pay for it." 13 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE 11555 - LANDSTAR, INC. CONTINUED • Bernhardson states that regardless of whether this property is developed or not, the City intended to do an overly. With this property in for subdivision, it was appropriate to wait until afterwards. It was not the intent that any of the abutting property owners help the developer pay for it. The only issue might be that if the road were upgraded to include curb and gutter and staff may explore that. Bernhardson's recommendation is to give the developer conceptual approval at this point and bring back to Council the road information as to what would be proposed, the costs and the developer's share. Acting Mayor Callahan states that Mr. MacKinnon is very justified in feeling that he has met the preliminary requirements. However, Callahan still thinks houses should not be built there, period. He would like to have this set over for two weeks and see if there is any information that suggests houses should not be built there. " Goetten added that some of the other information needed would also be provided at that time. It was moved by Acting Mayor Callahan, seconded by Councilmember Goetten, to table this application to the October 22, 1990 Council Meeting. In that time, staff will gather • information on the questions that have been asked. Motion, Ayes - 4, Nays -0, Motion passed. #1579 GARRY EVERSON 4755 NORTH SHORE DRIVE VARIANCE Mr. and Mrs. Everson were present for this matter. Bernhardson reviewed this application and noted that this request was conceptually denied at the September 24, 1990 meeting. The applicant has worked with staff and is willing to remove the deck so that there is a 10' setback from the property line, bringing hardcover down to 49.9 %. The applicant asks that this be considered in the denial resolution. Mrs. Everson stated, "We have less hardcover now than before the deck went up. We think that is reasonable based on the fact that the Council approved our neighbor's request to have 51/52% hardcover based on the big driveway required to service both houses." Acting Mayor Callahan asked if the neighbors request was for an after-the-fact variance. Mrs. Everson answered no. • Nettles replied that it seems they have made a good faith effort realizing it is after - the -fact. "We are pursuing -our stated goal to reduce hardcover and are moving in that direction 14 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1579 - GARRY EVERSON CONTINUED so I would be inclined to give them conceptual approval on the • application as varied by the changes they proposed." Callahan thinks it should be sent back to the Planning Commission as they have more time to develop the views on this and to consider the neighbors. Goetten asked if the Planning Commission initially denied this request and it had been. Acting Mayor Callahan indicated that the matter of the removal of plastic and the method of offsetting hardcover is of concern. It was moved by Acting Mayor Callahan, seconded by Councilmember Nettles, to send the application, back to the Planning Commission for further reconsideration as a new proposal. Motion, Ayes -3, Nays -1. Councilmember Goetten voted Nay. Motion passed. #1585 C. ARNOLD CARLSON 855 FOREST ARMS LANE AFTER -THE -FACT CONDITIONAL USE PERMIT RESOLUTION #2882 Mr. and Mrs. C. Arnold Carlson were present. • City Administrator Bernhardson explained this application for an after - the -fact conditional use permit for a wooden seawall constructed in 1988. The Planning Commission has recommended approval. Goetten stated that this seems like a fairly straightforward application. It was moved by Acting Mayor Callahan, seconded by Councilmember Peterson, to adopt Resolution #2882, approving the after - the -fact conditional use permit for a wooden seawall constructed in 1988. Motion, Ayes -4, Nays -0, Motion passed. #1586 JAMES BURANEN 1085 BROWN ROAD SOUTH AFTER -THE -FACT VARIANCE RESOLUTION #2883 James Buranen and Lori Reineking were present. City Administrator Bernhardson provided the Council with a brief summary of this application. This was for construction of an addition to the garage. The variance needed is for a side yard setback. John Gerhardson, Public Works Director, advises that a turnaround would be appropriate. The Planning Commission has recommended unanimous approval. In addition, Mr. Buranen is • requesting that he not have to pay the double fee on the building permit as he has already paid a penalty fee for the 15 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1586 - JAMES BURANEN CONTINUED • variance ($350.00). The work on the garage was stopped as soon as he was notified. Mr. Buranen asked why there is provision for a firewall on the north side when all there is on that side are horses. Mabusth replied that the building code requires that when you are in a substandard setback from a lot line, a firewall is requied as there could be a structure within 10' at some future time. Therefore, it makes no difference what is on the adjacent lot. Peterson clarified that the Public Works Director advised that there should be a turnaround even though the Planning Commission did not recommend this. Mabusth agreed but stated that a member of the Planning Commission did ask for the review of the Public Works Director and a recommendation to Council. Callahan asked if stretch limos were longer than average vehicles. He also verified that they turn around by backing out onto Brown Road. He asked where a turnaround would be placed on the lot. • Gerhardson replied it would have to be on the front yard, somewhere between the house and the road. Peterson noted that this is a 30 m.p.h. zone and on a curve. Bernhardson stated that the turnaround could be as little as a backup apron and Gerhardson agreed. Callahan reviewed the suggestion that in connection with granting this variance that Mr. Buranen be required to build a backup apron. Mr. Buranen replied, "I don't feel that is necessary. I've backed up onto the road and never had a problem or caused a problem. It is a 30 m.p.h. zone with a corner coming up to it. I've driven an 18- wheeler for 7 years over the road and I know how to back up." Callahan stated that the Engineer believes this is an unsafe thing to continue to do. Gerhardson added that it would be consistent with just about every other property to the south as they also have backarounds. Callahan noted that Mr. McCourtney was forced to have one so • that he would not be backing out onto Ferndale Road. Ms. Reineking asked for clarification of the surfacing and 16 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1586 - JAMES BURANEN CONTINUED placement of the turnaround. Gerhardson stated that it would not • have to be cement, that a gravel surface is acceptable. Mabusth added that it would also need to be maintained in the winter. Gerhardson also, added that it would need to be an all- weather surface, not just grass. Ms. Reineking asked, "Would we be required to make the turnaround even if we don't want the building permit ?" Callahan responded that the general feeling of the Council and Engineer is that backing the limousines out onto South Brown Road is not a safe way of exiting. Many times hardcover variances have been granted just so that the person will have a space to turnaround safely. It was moved by Councilmember Nettles: seconded by Councilmember Goetten, to adopt Resolution #2883, granting the after - the -fact variance, waiving the double fee on the building permit, but also requiring a turnaround to be approved by staff of sufficient size and all- weather surface to accomodate limousines. Motion, Ayes -4, Nays -0, Motion passed. #1587 RUBY SIFORD 96 HACRBERRY HILL AFTER -THE -FACT VARIANCE RESOLUTION #2884 • Mrs. Ruby Siford was present for the review of this application. City Administrator Bernhardson reviewed this request for an after - the -fact variance regarding a separation between a principal structure and accessory structure for a deck. City Inspectors had noted that there was siding work being done without a permit and put a stop work order on the project. While they were out there, discussion regarding a deck took place. The contractor went ahead and built the deck without a permit after being told to stop within 51. Although the building code only requires a 5' separation, the zoning code requires a 10' separation. Given the fact that the contractor did not come in for a building permit, there was no zoning review. The property owner was not apprised of all of this by the contractor. The Planning Commission recommended approval of the 5' setback. Mabusth noted that Mrs. Siford has not paid the penalty fee yet and she is asking for special consideration of the Council. Mrs. Siford stated that she and her son had discussed putting a firewall in the garage and would put one in the shed. Mabusth stated that there is a shed that has not been noted • on the survey that is not 10' from the existing garage. The Planning Commission has asked in their considerations that the 17 .ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1587 - RUBY SIFORD CONTINUED . Council direct the building staff to look at the substandard nature of the shed for possible firewall construction. The applicant had agreed to this at the Planning Commission meeting. Mrs. Siford noted this shed is between the bottom garage and the house and is really the foundation of the upper garage which is attached to the house. Acting Mayor Callahan asked, "What did the Planning Commission actually permit ?" Mabusth replied, "They approved the 5' setback and asked that when the building staff was reviewing the need for a firewal l in the detached garage to also look at the shed to determine if this has impacted safety or fire needs of the shed, house, and garage." Mabusth also explained that the contractor built the deck while waiting for a permit for the siding, forgetting that he also needed a building permit for the deck. Rather than getting the building permit, the contractor quickly finished everything based on what he thought he heard from the building staff and got his payment. This is the problem for Mrs. Siford. Callahan stated that considering the size of the lot and the • location of the buildings, if the garage is fire - proofed and the shed is either fire - proofed or removed, there is no practical damage done. Mabusth agreed. Goetten states there is an issue here of what kind of recourse the City has to a contractor who knowingly disregards notices. Mrs. Siford stated that the contractor had told her on two different occasions that he was going for the permit. He said maybe she should get it but Mrs. Siford told him it was up to the contractor because he would know measurements and answers to any questions the City would have. She assumed he had the permit. Goetten asked what could be done about these situations. Mabusth replied, "We can issue citations immediately to the contractor." Bernhardson stated we could still issue citations if we can locate him. It was moved by Councilmember Nettles, seconded by Councilmember Peterson, to adopt resolution #2884, granting an after-the-fact variance to the required separation between the • principal structure and accessory structure. Motion, Ayes -4, Nays -0. Motion passed. 18 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1587 - RUBY SIFORD CONTINUED Counciimember Nettles also noted that penalty fees are being • included. He sees this as a civil matter between Mrs. Siford and the contractor. A citation should be issued to the contractor. #1588 US WEST NEW VECTOR GROUP 850 WAYZATA BLVD. CONDITIONAL USE PERMIT The following representatives were present for US West New Vector Group: John Uban, Consulting Planner Oscar Grainger, Seattle, WA, Headquarters Dave Hellerman, Technical Engineer Tim Marx, Attorney, Briggs and Morgan City Administrator Bernhardson summarized this request for a conditional use permit to allow the construction of a cellular phone tower and antenna and accessory building on a property that is owned by Vineyard of the Lake. The issues are whether this constitutes a public service structure under our ordinance and if the antenna structure meets the criteria of our code. The Planning Commission recommended denial. John Uban stated that he would be addressing the issues of alternative sites explored in the Search Area and perceived impact of the tower through elevation and perspective sketches. • US West would also like to comment and ask questions on the ordinance and procedures of the City to cooperate with the City. Mr. Uban presented an aerial photograph showing the search area and the Church property where the antenna would be located. He noted that on both sides of Highway 12 there is a church and day care center, both occupying sites that are typically commercial in character and where single family houses would not normally be found. Residential areas, golf courses, right -of -way and cemetery /church /day care areas were pointed out on a map. Wetlands were noted as well as the historical alternate Highway 12 alignments. Mr. Uban reviewed the various sites that were considered. 1. Excess right -of -way. This has been secured as some possible future use for the alignment of Highway 12. This is not available to US West. 2. Woodhill Country Club. The Board of Directors would not agree. 3. Day Care Center. There were technical reasons making it difficult to use that site, such as no good access and sloping ground making it not practical to use. • 19 'ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 - US WEST NEW VECTOR GROUP CONTINUED 4. Wayzata Country Club. Topographic situation was not good and the owners were not interested in having a tower located on their property. 5. Conference Center to north. Technical difficulties were present. 6. Wayzata Water Tower. This has an existing antenna system for the other cellular system in the area. There are technical difficulties in cohabiting on a single tower. It is also significantly out of the search area. With the remainder of the area being divided into single family lots, the best location would be Vineyard of the Lake Church. Mr. Uban then addressed the issue of views." Views and site lines pertaining to the homeowners of Wells, Gopinath, Holliman and Anderson were presented. Photographs were also shown indicating views from the Church entrance, along the Luce Line, from the Anderson residence, the Gopinath residence and the Wells residence. The Hollimans did not want any photographs from their property. The tower is a light gray color to keep it from being very noticeable. The view of the tower for anyone will be the silhouette on the horizon above the tree line. The view is not • significant, does not impair property values, does not create any impairment to the health, safety and welfare of the community and it has been located in similar situations all over. Mr. Uban summarized that the tower is nicely secluded for most people. They think the City's ordinance allows the tower. The process of a conditional use permit addresses public service structures in residential zones. Many sites have been studied and this one was found to be the best. Views have been analyzed and found to be reasonable. They feel it is appropriate to approve this proposal. He asks the Council to strongly consider this proposal because it needs to be here to complete the communications system they are licensed to take on. Tim Marx stated that a court reporter was present in case a transcript would be required. A Minnesota Supreme Court case states that if, for any reason, there should ever be litigation on this matter, a record of the proceedings would be required. There was some discussion as to whether having a court reporter present was threatening and if a transcript was going to be made. Acting Mayor Callahan asked Mr. Grainger if US West would have a transcript made and available to the City Council. Mr. Grainger replied that if that would help in getting on with the case, the trascript would be supplied. Mr. Grainger then agreed to supply the transcript. • Mr. Marx reviewed the memo he submitted by fax to -the Council and Mr. Barrett on 10/8/90. It is their feeling that the 20 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 US WEST NEW VECTOR GROUP CONTINUED current zoning code allows that a conditional use permit could be • granted for this communication tower. The first provision he refers to is allowing a conditional use permit to be granted for "essential services ". These are traditional public utility services.such as gas lines and utility poles. They believe the communication tower fits in that structure. The Federal Communications Commission has determined that cellular phone systems are in the public interest, regulated at the Federal level and have many of the attributes of a public utility.. Callahan asked, "Is it your impression and belief that the company is a public utility with the rights of condemnation? Mr. Marx replied, "It is not a public utility with rights of condemnation, but we think for the purposes of your zoning code and the way it uses the term essential service, that it qualifies as a public utility for the purpose of your zoning code, that's what we contend. Under that provision, unless it is demonstrated that there is damage to the health and welfare of the community, then the conditional use permit is to be granted." Callahan asked if it isn't the responsibility of the applicant to demonstrate that there is not any damage, not that the City has to demonstrate that there is damage. Mr. Marx agreed. A second provision which would allow the granting of this • conditional use permit is under the public service structure provision. They don't believe this tower will be an accessory use or another principal use on the Church property. This is similar to other utility type uses such as telephone wires and poles and gas lines in that they function along with and are often a part of other types of lots. Callahan asks, "If this is not a principal structure, then it must be an accesory structure." Mr. Marx replied, "We believe it is a public service structure as defined by your zoning code and is not accessory. It is a separate and independent entity defined as a public service structure." Acting Mayor Callahan states, "The public service structure relates to the fact that the principal or accessory structure, as such, is engaged in public service activities, not whether it is a principal structure or an accessory structure and the third category, public service structure, but whether or not the public service structure is an accessory or principal structure. Which of the two do you think it is ?" Mr. Marx does not think the use of principal or accessory • fits in to the definiton of public service structure as' it applies to this situation. For example, power lines running 21 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE 11588 - US WEST NEW VECTOR GROUP CONTINUED is through a lot are not viewed as principal or accessory, it just is the public service structure. Nettles asked how big this structure is at its base. Mr. Uban explained that the base of the tower is 151, triangular. It tapers to about 3' at the top. It is an open lattice -work structure, 150' tall. There is a companion building that is 12' wide, 36' long and approximately 9 1/2' tall. Mr. Marx stated that US West is willing to work with the City. Callahan asked if the applicants understand that they are seeking to get a conditional use permit on top of a conditional use permit that the church already has and isn't that a little unusual to "piggyback" conditional use permits Mr. Uban replied that it is usual to have this type of structure to accompany a church building or activity. One is being installed right now that is part of the steeple of the church. Goetten asked again how a conditional use permit could be • issued twice for the same area. Mr. Marx replied that he had not reviewed the Church's conditional use permit so could not give any direction on that. This type of public service structure, or essential service structure, is a permitted conditional use in this zone and how it affects the existing conditional use permit would have to be discussed with the City Attorney. Bryson Hollimon, 60 Myrtlewood Road, referred to the petition opposing the tower signed by 34 residents of Orono. He stated that he was shocked to hear of a 15 story structure going up on this site and impacting the residential area. It is also his understanding that the Church is also a residential area with a conditional use permit. He states, "I can't believe this is being brought to Council to be put in a residential area. It is not why our family or other families that signed this petition moved to Orono." Other neighbors feel similarly. He views this as a competitive business situation. Cellular One services this area presently. He does not believe this will hit the framework of essential services, particularly when one company is already providing that service. He opposes this and believes it is not in keeping with the zoning. Anand Gopinath, 705 Old Long Lake Road, is an electrical engineer teaching at the University with an area of research in high frequency techniques. Mr. Gopinath states that there are other plans which might be used. It could be sited in a commercial area. The tower may need to be higher, may need more 22 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 - US WEST NEW VECTOR GROUP CONTINUED power, the beam may have to be shaped and they may need a . secondary tower in another commercial industrially zoned area. He feels this is not the only answer. He also states, "We were told by the City that this is a 2 acre residentially zoned area and I never thought I would come to a Council meeting to see the big guns of US West, especially the attorney, threatening us to say we will put this tower here and litigate if you guys don't approve. I don't think this is the way US West should go about it's business." Bruce Clark, 625 Old Long Lake Road, states he has just spent thousands of dollars on a deck overlooking a very scenic marsh and this tower is unacceptable. Cathy Hollimon added that there was never a neighborhood meeting. The first they heard about this was when someone wanted to take pictures in their back yard and stressed the point that this would be done by the end of this year. Callahan stated that it seems an attempt had been made to contact residents. Mabusth stated that the applicant was using tax records that were about a year old and the Hollimons were new homeowners and didn't get the notice. Steven Champlin, 50 Myrtlewood, also opposes the tower, • primarily for aesthetic reasons. He expressed concern over seeing the tower on the Luce Line as well as from his home. He expressed concern over the hazard of towers to birds. He complimented the US West group in their handling of this matter but does not want to see this tower in their neighborhood. JoEllen Hurr, 930 Partenwood Road, asked if the Church would not lose their tax - exempt status if a commercial operation were on their site. Acting Mayor Callahan responded that it is possible that the income from the project may be taxable but the Church would probably not lose it's status but does not know for sure. Betty Wells, 70 Myrtlewood Road, stated that the Church has changed hands three times since it was built and this group may leave once the tower is built also. Ray Wells, 70 Myrtlewood Road, stated that they do look directly in that direction and would be looking directly at the tower at all times. Gabriel Jabbour, 985 Tonkawa Road, indicated that he and JoEllen Hurr had worked on the original draft of the ordinance in the early 1970's. The intent of the people who wrote the code was that antennas of this kind would not be allowed in Orono. He 23 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 - US WEST NEW VECTOR GROUP CONTINUED • referred to the after - the -fact variance for an antenna at Russell Lund's even though Mr. Lund has since moved. If the City allows such a tower, a precedence will be set. Dave Hellerman, US West Engineer, commented on Mr. Gopinath's theory. If a taller, more powerful tower were built, the signal would interfere with phone used in other parts of the City. One of the criteria of this site was to keep it down in the bowl as Wayzata forms a topographic bowl. Callahan asked for clarification as to whether this cellular system could, in certain locations, interfere with telephones. Mr. Hellerman responded that it could interfere with other cellular telephones. The key to cellular systems is to site these towers in such a way so they don't interfere with other areas. You have to keep them down close to what you want to serve. Callahan asked how large the service area is for this tower. Mr. Hellerman responded roughly a 2 -3 mile radius from the tower. Mr. Hellerman also commented that the bird interference would apply to tall towers over 9001. Short towers are not having this problem. Mr. Gopinath stated that he still maintains that this location is not the only possible site. Alternatives still exist and feels the tower should be located in an industrial commercial zone, not a residential zone. Harry Martin, Old Long Lake Road, asked if the City has an obligation to US West to provide such a facility under the existing law or does the City have the discretion to decide on this issue based on the best interest of the citizens of the City. Mr. Marx replied that generally a landowner has the right to do with their land as they see fit. In this case, the City has done this through the Zoning Code. The issue is whether it is permissible under Orono's Zoning Code. They believe it is permissible under the zoning code and therefore cannot deny the landowner the right to use the property for a communication tower without sufficient reason like the public health and welfare. If this location were not approved, another location in the City could not be prohibited unless danger to the health and safety of the public were demonstrated. • Mr. Marx was asked if they had been turned down by the Planning Commission and on what basis. 24 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 - US WEST NEW VECTOR GROUP CONTINUED Mr. Uban responded that the Planning Commission wanted US • West to explore alternate sites and they didn't feel it was compatible in a residential district. However, no specific health, safety or welfare issues were indicated. Callahan also stated that in the Planning Commission meeting the public service interpretation being given was not the correct interpretation. Ray Wells asked why the Highway Department would not be concerned about this structure being close to the highway. No answer was known. He also is concerned about the value of his property. City Administrator Bernhardson followed up with comments on the Planning Commission meeting and issue of. public service definition. Even if the tower were construed to be a public service structure, a conditional use permit would also be required in this zone for the intent. The test for this under Section 10.20,. Subdivisions 3 is that the antenna has to be "subordinate to and servicing the principal use or structure on the same lot ". It would be questionable that this antenna structure would be servicing the Church. A bigger issue may be the commercial nature of the tower. Since this is a residential zone compatible items are normally allowed under conditional use permits such as churches and day cares. There is service already available by a competing company. This is not in the same category as electrical, telephone, sewer or water lines to service that property. Acting Mayor Callahan agreed with a previous statement that despite the conversation, the applicant was not present in an attempt to threaten future litigation although there is no doubt that there is preparation for the eventuality that it may be necessary. The Council needs to be aware of this. The Council does not seem to favor the applicant, however the applicant is a reputable business entity and entitled to consideration as making a reasonable request. Callahan believes that the zoning ordinances would make it difficult, if not impossible, to grant the conditional use permit as they now stand. In the alternative, if some of the interpretations about this not being either an accessory structure or a principal structure but some other kind of structure are considered, then we have a situation ambiguously covered by the code. Considering the explanation of this being new technology since the zoning code was written, the commercial nature of the site chosen principally to be a competitor of the site at the Wayzata tower and because none of the landowners want it on their property, he advises that a 6 month moratorium be put in effect while consideration is given to the way this new and different entity should be regulated. Goetten stated that she feels this is something that should • be in an industrial commercial zone, not residential. Based on 25 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 - US WEST NEW VECTOR GROUP CONTINUED • concrete evidence, it could be denied without having a moratorium. In Orono Code, churches and day care centers are not commercial and approved in residential zones on a conditional use permit. They have no where near the impact that a tower of this nature would have. Nettles favored a conceptual denial. The "piggybacking" of conditional use permits is a concern. He stated that although the application cannot be denied because of aesthetic reasons, US West seems to be going in the wrong direction. People are out in Orono because they want as much pristine living as possible. They have paid a lot of money for the lots and this may adversely affect the value because people don't want to see the tower. Under the Code, there are ways to deny the application which is how this should be approached. A point of interest noted was that US West says Orono cannot turn them down because of aestheic reasons and yet that is the reason Woodhill and Wayzata Country Clubs have been eliminated. Nettles agrees with Mr. Gopinath that other alternatives could be found and encourages US West to pursue those. Because there is an existing tower in Wayzata, the service is available and therefore doesn't mean the City is denying an integral public utility service. He asked US West what they are currently doing to service this area. • Dave Hellerman replied that there is some signal. They have to build the capacity of the system. As there are more and more users, the quality deteriorates without adding additional facilities. • Nettles asked about using the water tower in Wayzata which already has a competing tower and if it is technically impossible. Hellerman stated that it is technically impossible. Peterson asked if this system is to serve Wayzata. Mr. Hellerman responded by saying that what is being proposed is part of a larger system. There are 37 cells functional within the Minneapolis area in 6 years of growth. In another 2 years of growth there will be approximately 50 cells. These need to be located to take advantage of frequency reuse. As cell sites get closer together, they will try to lower the antennas. They are trying to do what the community wants as well as service the present market of tens of thousands of phone users. The people who use the phones do not necessarily live or work in this area but travel throughout the area. It is not an issue of competiton or cost, but of the many people currently using both systems who rely of the best possible service and quality. 26 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 - US WEST NEW VECTOR GROUP CONTINUED An objection was raised to having a tower in this neighborhodd when it services someone driving by and not this neighborhood. Mr. Hellerman explained that this is to build out a system. Cellular One and US West systems are not interchangeable. They look for areas that will have the least impact possible but it is not always possible to locate in commercial areas. Cells are currently being located as little as .6 mile apart. They try to "hide" the cells as much as possible. Churches and schools are not residential per se but may exist in residential areas and may provide a spot for the system. They do need to exist within a grid or framework and these spots help in residential areas. Goetten asked, "Would you step back if you feel you are creating difficulty for the community ?" . Hellerman answered, "If you will help us to find a site that meets the engineering criteria that we have to deal with and recognizing that we have a site in Wayzata. We'll have another site in Long Lake. We'll have another site south and a site in Medina. We've got sites around here. We can't move the site a mile to the east or west or north because it interferes with other sites. As the system continues to grow out, we'll continually need to get more and more sites. Hopefully, we will be able to locate some of those sites in commercial industial • areas. Right now the need is in the particular area we are looking at." The search area is a relatively large area but the available properties are a small number. Peterson asked why this tower could not be placed somewhere in close proximity to the Wayzata tower even though not on the same site. Hellerman answered that at some point they will have to be in Orono and surrounding areas. Cellular One will be looking for similar sites. Callahan referred to the move to widen Highway 12 into #394 and decide on corridors. No matter where these corridors run, the starting point would be at the base of the proposed tower. His feeling is that there should be a moratorium on any kind of development on all land involved in this area until it is determined where the highway will go and the corridor selected. He suggests that the placement of the tower may not be in the best location regarding this. Acting Mayor Callahan suggests, in view of the fact of the possible expansion of US West and Cellular One and that the zoning code is not organized in dealing with tower, that an interim moratorium be placed in effect on the granting of • building permits, land subdivisions, rezoning applications, -and other things relating to the siting of wireless telecommunication 27 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 ZONING FILE #1588 US WEST NEW VECTOR GROUP CONTINUED • facilites in all zoning districtis in Orono for a period of 6 months to one year. The City can then properly consider what should be done and what impact there will be from these telephone companies. Acting Mayor Callahn moved, seconded by Concilmember Peterson, to adopt the resolution prepared by staff granting a moratorium ordinance. Motion, Ayes - 4, Nays - 0. Motions passed. Goetten noted that she was appalled at the request for this application and can't imagine ever voting for it. Mr. Hol limon requested this study be done in an expeditious fashion and reach a conclusion in a reasonable timeframe. Callahan stated that the moratorium was not moved in order to solve the issue of the tower although it has that effect. It was moved in view of the comments of the applicant as to what is really facing the City and the view that the current zoning code does not permit or is ambiguous about this situation. Mr. Marx Council chose • and would like Callahan opinion of wha commented that they are disappointed that the not to grant the permit and enact the moratorium some direction on how this issue can be resolved. asked for an overall plan from US West and an t Cellular One might be doing in the area. City Administrator Bernhardson stated that within a month some information will be brought back. Both Cellular One and US West will be contacted about their current locations and plans for the future. #1589 MARCUS AND JUDY BLUE 2160 CRYSTAL AVENUE VARIANCE RESOLUTION # 2885 Marcus and Judy Blue were present for this review. City Administrator Bernhardson reviewed this variance request for a side set setback for a house addition and garage requiring a side and front yard setback and a minor lot coverage variance. The Planning Commission recommended unanimous approval. Mabusth stated that the applicant had submitted the appropriate drawings regarding elevation. It was moved by Acting Mayor Callahan, seconded by • Councilmember Nettles, to adopt Resolution #2885, granting a front and side street variance and lot coverage variance. Motion, Ayes -4, Nays -0. Motion passed. 28 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 WETLANDS PROTECTION Callahan did not think that the staff's report was very is useful. He reviewed this by noting that if we assume the wetlands are previously defined and if we assume that we have 26' setback requirements, then if we wanted to change that it would be very upsetting and affect the current application. There are some major wetlands within the City that are now going to come under developmental impact. Bernhardson referred to the issue Jeanne Mabusth brought up of taking wetlands credit and being able to place up to 20 some dwelling units on the property. Nettles asked if we should eliminate that credit by ordinance. Bernhardson stated that the City should look.at that. It does not affect the Blanch application because they qualify. Mabusth noted that she did not know where the 26' setback came from. Discussion continued regarding inclement weather and special concerns in the areas where building is done near wetlands. Callahan suggested looking at the wetland credit and see if it is a good idea. • Mabusth states that the wetlands credit may be the way to go after studying the situation with the Old Beach Road application. Goetten also felt this a good place to begin especially with Orono's concern with environmental issues. Nettles questioned if there was some type of relationship between the type of soil and the 26' distance. Mabusth was not aware of any. Glencoe soils are often considered wetlands and would not allow construction within 261. Mabusth was not aware of any zoning code which does not allow building in certain types of soils. MAYOR /COUNCIL REPORT: There was no Mayor's report for this meeting. ENGINEER'S REPORT: REQUEST POR PAYMENT #6 - WELL #3* It was moved by Goetten, seconded by Peterson, to approve Pay Request #6 for Orono Well Number 3 to Keys Well Drilling Company in the amount of $10,022.50 for work completed through September 28, 1990. Motion, Ayes -4, Nays -0. Motion passed. • 29 •.ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 CHANGE ORDER #3 - 6 INCH TEST WELL* • It was moved by Goetten, seconded by Peterson, to approve Change Order # 3 to add $3,116.70 to the amount due on 6 Inch Test Well for a total of $66,356.70. Motion, Ayes -4, Nays -0. Motion passed. PAYMENT #4 FINAL PAYMENT - TEST WELL* It was moved by Goetten, seconded by Peterson, to approve Payment #4 and Final for the Water Well Test Drilling in the amount of $4,788.08 to Keys Well Drilling Company. Motion, Ayes - 4, Nays -0. Motion passed. CITY ADMINISTRATOR'S REPORT: LAFAYETTE RIDGE - REQUEST FOR PUBLIC STREET JoEllen Hurr, Sally McCabe, John Larson, and Dennis Burgess, Jr. were present for this request. City Administrator presented a summary of the request for this 5 lot cul -de -sac to be made a public street and that they be given credit for hardcover split between the 5 lots. This subdivision was done between Minnetonka Beach and Orono. In 1978, a private street was made, however in the 1980 Comprehensive Plan it said that anything in the urban area, of which this was part, should be public streets. As far as the hardcover credit, most of the properties in Orono are outside of • 1000' but there are substantial wetlands. This credit could allow them to put hardcover on almost the entire lot because they are in a 35% zone. The City's lot coverage zone may govern this and may not make any difference. JoEllen Hurr spoke representing the people of Lafayette Ridge. They requested action at this meeting rather than tabling. Bernhardson referred to the listing of private streets. John Gerhardson noted the streets that were private within the urban zone including Casco Cove, Church Lane, Herrick Circle, Maple Avenue, Pence Lane, Sugarwoods Dr. and Lafayette Ridge Ct. The only three meeting the City standards are Sugarwoods, Lafayette and Herrick Circle. Acting Mayor Callahan referred to the Urban Transportation Policies, Section 2 noting that it doesn't really say there must be a public road. He asked the residents in attendance what they want to do this for. They felt it was in their interest to have the street taken over by the City because they pay the same taxes as the rest of the constituents. They have successfully done this with the City of Minnetonka Beach and are requesting the same consideration. • Callahan asked if they felt it would be cheaper for the City to take it over. 30 ORONO REGULAR COUNCIL FETING HELD OCTOBER 8, 1990 LAFAYETTE RIDGE CONTINUED Bernhardson clarified that as private streets they are • responsible for snow removal, repair maintenance, etc. In a public street, the City would be doing this work except possibly for a major reconstruction. This area would probably not necessitate that for a long time to come as it is up to City standards. Goetten stated this type of situation needs to be studied carefully and approved. There are other streets within Orono that may have similar requests. Nettles asked how long this street was. Since this is just a cul -du -sac it is not significant in cost or City duties. Callahan states the Comprehensive Plan did not take the same view of public streets and PUD's and that may be of significance. He asked if all or some of the private roads are through PUD's. The answer will be found out. The residents asked if they needed to come back for the next meeting if this is not acted on at this meeting. Council noted that they were in attendance and JoEllen Hurr will be their spokesperson at the next meeting. They asked for clarification on why the decision is being postponed. Callahan explained that this issue has come up • occassionally. In this case, the Planned Unit Development had special zoning /building restrictions and part of that is relative to the next part of the problem. The Comprehensive Plan suggests that public streets should serve PUD's and would need further research as to the intent of this section. Mabusth referred to the Parten /Bayside property. As a PRD, you didn't have to exclude the area of the road. If someone went in now and made a public road, then a recalculation of the lot areas would have to be done and this could have an impact where additional area wasn't available and credit was given to units. Council then might be asked to look at some area variance. Comments from residents were added that this is a relatively short street, conforms to City standards and the City maintenance workers go right by on a regular basis. The costs to the City would be minimal. Hurr noted that the Comprehensive Plan talks about the exception being a PUD and this is probably the only PUD Orono has with a private road so that criteria could be used in future requests and may not have to grant to other private roads that may not be PUD's. It was moved by Councilmember Goetten, seconded by Peterson, to conceptually approve the request for a public street in . Lafayette Ridge and to address the concerns expressed before further Council action. Motion, Ayes -4, Nays -0. Motion passed. 31 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 LMCD COMPREHENSIVE PLAN /SHORELAND REGULATIONS JoEllen Hurr explained that she tried to have this tabled. Nettles asked how the environmental impact statement get incorporated in. Hurr stated, "There wasn't any discussion. It was incorporated in as per our discussion and the recommendation to Dave Arndorfer and it wasn't discussed. No one objected to that." Nettles asked if Hurr had the feeling there would be any more commitment on behalf of Hennepin County to fund the enforcement. Hurr felt the LMCD would not have to approve any more use or access, marinas or docks, if that wasn't already approved. Callahan understood that what was approved is everything the DNR was in favor of except the Shoreline Management and that they have a state law about the Shoreline Management. A number of the people who voted yes really don't like it, they just voted yes because someone else told them to. Hurr stated that there will be a meeting on October 10, 1990 • chaired by John Stine of the DNR. Callahan suggested the City have someone go to the meeting on the 24th. He will try to go and a City representative. Gabriel Jabbour made his public comments at this point. He thanked those who responded to his request and expressed his frustation as things did not go as well as he thought they should. At a meeting approximately 4 -5 months ago, he urged Council members to attend other municipalities meetings and talk to them. Mr. Nettles indicated to him that he was a little overanxious. The following day the Mayor told him his attitude could be counterproductive, therefore he should work within the parameters set by the Council. At the September 10th meeting, he left with the understanding that several Council members or Planning Commission members would approach other municipalities and lobby with them and coordinate their actions. On September 24th, he received information that the idea was scrapped. Between September 10 and 24th he was not informed of any meeting regarding this. On September 26th at the LMCD meeting, he was sitting next to Jerry Rockvam pushing for the same thing. He was frustrated to see that Orono was not organized or represented. When our representataive tried to ask for a tabling, she did not get a second. The only reason she was heard was for the sake of discussion. He wanted the Council to know that Orono could have been substantial had they had "their houses in order ". He would •have been very willing to give any time needed to this project. He feels that working within the system did not work out. 32 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 LMCD COMPREHENSIVE PLAN /SHORELAND REGULATIONS CONTINUED Acting Mayor Callahan commented that getting thoughts • written down to present to other cities took longer than one would think. Circumstances more than anything prevented Mr. Nettles or Mr. Callahan from being able to go around to other cities in the time frame available. You can't have these meetings with the Council unless there is a Council meeting. It wasn't that Mr. Jabbour was consciously left out of any meetings. Minnetonka, Wayzata, Orono, Spring Park and Deephaven were against the Plan. It seemed hopeful that conveying and writing the views of Orono was about all that would be ncecessary to get these same people to vote. He agreed that more could be done. Jabbour made the point that there are a lot of people in the community who are willing to donate time. They may not want to donate 4 years to Council but they may be willing to work here. The homeowners association came up with unbelieveable ideas to try to recalculate the surface based on the navigable surface excluding the milfoil that contaminated the area. Nettles stated that one of the reasons JoEllen suggested that either Ed or himself go to these meetings is because they had invested a lot of time. He tried to contact Minnetonka Beach but never got a reply. He noted that 60% of the shoreline have voted against acceptance of this plan. The LMCD is in a very equivocable position at this time and doesn't think they have much of anything. Those who have voted against it have thrown a • "monkey wrench" into this plan. He thinks it was approved because so much money had been spent. He feels the LMCD made a mistake when they gave a 30 day extension. This would not be interpreted as an attempt to be reasonable in working things out. If further work is to be done on this and the plan is to become meaningful, they will have to come back to these communities and ask for input. Hurr commented that she has gone to many LMCD meetings as an extension of this Council. STREET LIGHTS - LYRIC AVENUE City Administrator Bernhardson stated that this is a suggestion for a way of looking at street lights and ongoing costs. Possibly it could be charged on the utility bill and those that don't pay could be assessed. Acting Mayor Callahan moved, Councilmember Nettles seconded, to table this item. Motion, Ayes -4, Nays -0. Motion passed. NAVARRE HEIGHTS DRAINAGE City Administrator Bernhardson stated that some of the notices had 7:30 p.m. on them. Althougth the discussion did not come to a close until about 7:35, the public hearing was closed. It is being proposed to be put on the October 22nd agenda before proceeding for comments by people who did not get their • opportunity. A public hearing would be scheduled at the same time with plans and specs as part of the required public hearing 33 M ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 NAVARRE HEIGHTS DRAINAGE CONTINUED • before going to bids. There will be a public hearing for special assessments before they are spread over the property. Karen Cuff stated that she just found out the public hearing held two weeks prior was a voluntary public hearing and not the statute project hearing. It was never conveyed to her. Acting Mayor Callahan responded that staff intended and Council thought they were having the right kind of hearing. Because there was an error in the notice, legally it wasn't. Bernhardson stated they felt it was a public hearing that was not required. Goetten asked if the people who did not get a chance to speak at the last hearing because of the time difference need to have another time to speak before the required public hearing. Bernhardson stated that is why they are having another opportunity at an informal hearing. On Ocbober 22nd this issue will be an agenda item. Then a notice will be sent out to people, not posted in the paper. A motion was made by Acting Mayor Callahan, seconded by • Goetten, to allow residents to present their thoughts and concerns regarding the Navarre Heights Drainage on October 22, 1990 prior to anything further being done on this project and another public hearing shall be scheduled at the time of plans and bids. Motion, Ayes -4, Nays -0. Motion passed. Ms. Cuff stated that she wanted to be sure that there will be a statute public hearing so this will not come back to her again at some point in time. HIGHWAY 12 CORRIDOR This was an informational item. A motion was made by Acting Mayor Callahan, seconded by Councilmember Nettles, to accept the Highway 12 Corridor information. Motion, Ayes -4, Nays -0. Motion passed. RULES OF CRIMINAL PROCEDURE CHANGE* RESOLUTION #2886 It was moved by Goetten, seconded by Peterson, that Council adopt Resolution #2886, indicating their desire not to have the proposed rules of criminal procedure change made effective January 1, 1991. Motion, Ayes -4, Nays -0. Motion passed. BICYCLE DISPOSITION* It was moved by Goetten, seconded by Peterson, that Council 40 revise its direction of the August 23, 1990 meeting and that the bicycles will be disposed of by an individual for possible salvage and recycling. Motion, Ayes -4, Nays -0. 34 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 SALARY ADJUSTMENT - RANDY RATHBUN* It was moved by Goetten, seconded by Peterson, to adjust Barry Rathbun's salary to $12.303 per hour effective October 1, 1990, which is the hourly rate for Level 5, Step IV as per the compensation plan. Motion, Ayes -4, Nays -0. Motion passed. LEAVE OF ABSENCE JAMIE BOSMA* It was moved by Goetten, seconded by Peterson, to accept Jamie Bosma's request for a leave of absence of approximately 35 days. Ayes -4, Nays -0. TEMPORARY EMPLOYMENT - CLERICAL STAFF* It was moved by Goetten, seconded by Peterson, to approve the temporary employment of Laurie Scheff ler at $9.182 per hour effective at the start of Jamie Bosma's leave of absence and will terminate upon Jamie's return or December 21, 1990, whichever occurs first. Motion, Ayes -4, Nays -0. Motion passed. EMPLOYMENT - PUBLIC WORKS DEPARTMENT* . It was moved by Goetten, seconded by Peterson, to employ Scott Oberaigner as a maintenance worker in the Public Works Department at a starting rate of $10.45 per hour which is Level 5, Step 1 of the Compensation Plan. Employment is contingent upon a favorable physical examination and stress test. A tentative starting date is October 22, 1990. Motion, Ayes -4, Nays -0. Motion passed. FINANCIAL PROJECTIONS* • It was moved by Goetten, seconded by Peterson, to accept the information presented in the memo dated October 5, 1990 to the Mayor and City Council regarding the Financial Project. Motion, Ayes -4, Nays -0. Motion passed. SPECIAL ASSESSMENTS - DELINQUENT UTILITY ACCOUNTS* RESOLUTION #2887 It was moved by Goetten, seconded by Peterson, to adopt Resolution #2887 providing for the collection of delinquent charges for 1990 sewer and water utility services and annual septic inspection and recycling program fees. Motion, Ayes -4, Nays -0. Motion passed. SPECIAL ASSESSMENTS - DELINQUENT 1990 DEVELOPER FEES AND ALARM USER FEES* RESOLUTION #2888 It was moved by Goetten, seconded by Peterson, to adopt Resolution #2888 providing for the collection of delinquent Developer's Fees and Alarm Users' fees in the amount of $1,554.34 and to add ten percent (10 %) interest to the amounts due. Motion, Ayes -4, Nays -0. Motion passed. MUNICIPAL BOARD HEARING* It was moved by Goetten, seconded by Peterson, to accept the information presented to the Mayor and City Council from City Adminstrator Bernhardson in the memo dated October 1, 1990. is Motion, Ayes -4, Nays -0. Motion passed. 35 F ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 SET PUBLIC HEARING DATE - REALLOCATION OF C.D.B.G. FUNDS* It was moved by Goetten, seconded by Peterson, to conduct a public hearing on November 13, 1990 at 7:00 p.m. to consider reallocating Community Development Block Grant funds. Motion, Ayes -4, Nays -0. Motion passed. APPOINTMENT OF ELECTION JUDGES* RESOLUTION #2889 It was moved by Goetten, seconded by Peterson, to adopt Resolution #2889 appointing election judges for the general election Noember 6, 1990. Motion, Ayes -4, Nays -0. Motion passed. 1486 LONG LAKE BOULEVARD - SEPTIC OPTIONS* It was moved by Goetten, seconded by Peterson, to approve staff recommendation for allowing John Gardner at 1486 Long Lake Boulevard to add drainfield trenches to the existing system rather than requiring a mound system which would be required based on soil conditions but which the property is not large enough to accommodate. Motion, Ayes -4, Nays -0. Motion passed. ADMINISTRATOR'S INFORMATION* It was moved by Goetten, seconded by Peterson, to accept the City Administrator's Information regarding: Animal Care Facility, Well #3 Update, Goal Setting Status, August Receipts and Disbursements, and Wire Transfers. Motion, Ayes -4, Nays -0. Motion passed. CITY ATTORNEY'S REPORT: City Attorney Barrett requested an Executive Session. LICENSES* RESOLUTION #2890 It was moved by Councilmember Goetten, seconded by Councilmember Peterson, to approve the following license: Septic Installer - Marty Bros. 9436 Quaker Lane Gambling Permit - National Multiple Sclerosis Resolution #2890 At Jimmies Lounge 3380 Shoreline Drive January 1, 1991 - December 31, 1991 Special Event - Viking Bassmasters fishing tournament October 14, 1990 7:00 a.m. -3:00 p.m. North Shore Drive Marina Motion, Ayes -4, Nays -0, Motion passed. BILLS* It was moved by Goetten, seconded by Peterson, to approve payment of the All Funds Account. Motion, Ayes -4, Nays -0. Motion passed. 36 ORONO REGULAR COUNCIL MEETING HELD OCTOBER 8, 1990 EXECUTIVE SESSION - 11:50 P.M. Acting Mayor Callahan requested that the Council go into an executive session at 11:50 p.m. 0 ADJOURNMENT 12:00 A.M. It was moved by Councilmember Goetten, seconded by Councilmember Nettles, to adjourn the Regular Council Meeting at 11:50 p.m. Motion, Ayes -4, Nays -0, Motion passed. 37 Edward J. Ca l,lahan, Jr. Acting Mayo • •