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HomeMy WebLinkAbout04-13-2020 Council MinutesMINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. The Orono City Council met on the above -mentioned date with the following members present: Mayor Dennis Walsh and the following members appearing remotely: City Council Members Richard Crosby, 11, Matt Johnson, Aaron Printup, and Victoria Seals. Representing Staff were City Administrator Dustin Rief, Finance Director Ron Olson, Development Director Jeremy Barnhart, City Planners Melanie Curtis and Laura Oakden, and Public Works Director/City Engineer Adam Edwards. Mayor Walsh called the meeting to order at 6:03 p.m., followed by the Pledge of Allegiance. APPROVAL OF AGENDA CONSENT AGENDA 1. CITY COUNCIL MEETING MINUTES OF MARCH 30, 2020 2. CLAIMSBILLS 3. ADOPT SOCIAL MEDIA POLICY 4. APPROVE RENTAL LICENSE 5. ACCEPT DONATION — ELECTION JUDGE SERVICE 6. APPROVAL TO DISPOSE OF FIREARMS 7. LA20-000011 — CITY OF ORONO, TEXT AMENDMENTNO. 242, THIRD SERIES RELATED TO APPEALS 8. LA20-000020 — DEAN JOHNSON O/B/O HOMETIME VIDEO PRODUCTIONS, INC., 90 CREEK RIDGE PASS/CREEKSIDE IN ORONO FINAL PLAT RESOLUTION AMENDMENT — RESOLUTION NO. 7083 9. LA19-000071— LAUREL ULLAND ARCHITECTURE/MARTHA MEYERS HEAD, 2090 SHORELINE DRIVE, VARIANCE — AMENDED RESOLUTION NO. 7804 10. DOCK LICENSE FOR DOCK SITE A This item was removed from the Consent Agenda. 11. DOCK LICENSE FOR DOCK SITE B This item was removed from the Consent Agenda. 12. LA19-000091 — CITY OF ORONO TEXT AMENDMENT NO. 243, THIRD SERIES RELATED TO GRADING AND LAND ALTERATIONS This item was removed from the Consent Agenda. Page 1 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. 14. LA20-000001— NEIL WEBER O/B/O ORONO APARTMENTS LLC, 2475 KELLEY PARKWAY, FINAL MASTER DEVELOPMENT PLAN — RESOLUTION NO. 7085 Crosby moved, Seals seconded, to approve the Consent Agenda as revised, with Item Nos. 10, 11, and 12 being removed from the Consent Agenda, and Item No. 14 being added to the Consent Agenda. VOTE: Ayes 5 (Johnson, Crosby, Seals, Printup, Walsh), Nays 0. PUBLIC COMMENTS Mr. Richie Anderson, 3205 Crystal Bay Road, Orono LMCD representative, said he would like to bring the Council up to speed on LMCD events. He noted there is an ongoing lawsuit with a Minnetonka Beach resident. He's asked how much they are responsible for and was told it would be 25% of the first $250,000. He asked for a number; they have not given him a definite number. He has also asked for the 2019 P&L and balance statement; that has not been received, either. He indicated at the last meeting they had an agenda item for approval of the audit of the books. He wanted to comment about the lack of a P&L and budget for 2019 and vote for not approving that item. They pulled it off of the agenda. He suggested that Olson or Rief take a look at that information. He also said at the last meeting, before the Governor declared new regulations for COVID-19, the LMCD posted on their website who could and who could not work on the lake. There were 100 people at the Zoom meeting and there was a lot of discussion because people wanted to get their docks in. They declared that dock workers could not work and people could not haul or move boats. He made a motion that they take that part of the website down. It was about a 12-2 vote in favor of taking that down. Currently, the website indicates dock installers should talk to the DNR or COVID-19 people. He said recently an Orono resident was looking for a dock extension to get to 4 feet and dealing with side setbacks, etc. He is looking at that and will make a recommendation to try and get it done. Johnson referenced a letter being created by the City of Minnetonka Beach to send to the Governor making sure dock installers and marinas are considered essential, and they wanted to know if Orono would support a letter like that. He asked Mr. Anderson if he felt that was necessary. Mr. Anderson said because he is a marina owner, he did not think it was fair for him to ask them to pull the information from the website and he would work around it. He said it was his opinion that the City of Minnetonka Beach did not have to say anything, nor should the City of Orono. The LMCD became the expert on who can do what and the Governor has already said who can do what, so it is a non -factor. The dock installers are installing docks; boat haulers are hauling boats; marinas are putting boats in. It is clearly a gray area. He noted Jon Ressler made a good point in the discussion at the LMCD meeting that 20 construction guys are working on houses, and dock people are dock constructors. He used that term when he told the LMCD to take down the information on the website. He asked why anybody would think they have the authority over what is right and what is wrong. His opinion is to stay out of it. Crosby asked Mr. Anderson how much money Orono put into the lawsuit. Mr. Anderson said that he did not know the numbers or whether or not it was Orono. He reminded everyone that the LMCD is increasing Orono's fee of 2.4% and noted there is a rounding error. He heard through the grapevine there was a presentation made to possibly settle the lawsuit and that the City of Minnetonka Beach is going to the mat. Minnetonka Beach indicated in their newsletter they think they can win the lawsuit. He hopes the City of Orono opposes any increase in their percentage paid because 2.4% doesn't add up to much but it is about what is right and wrong. Page 2 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Johnson asked whether Orono is essentially 40% of their budget. Rief said that 25% of $250,000 would be $62,500, and 40% of that number would be $25,000. Mr. Anderson clarified that Rief was not saying the 2.4% increase was $25,000. Rief said if the lawsuit gets to $250,000, that would be Orono's max amount. From there it changes based on what the insurance is. I le said he would find out more information about the issue. Mr. Anderson noted that was a very big number and he would appreciate the information. 10. DOCK LICENSE FOR DOCK SITE A Barnhart stated this is the first dock license the ordinance was changed for and it seems to meet every requirement. Johnson said he pulled Numbers 10 and l 1 off for the same reason: he noticed the dock plan drawings are not very precise and missing some actionable items if there is ever a need for enforcement. He brought up the order of approval, and asked if the LMCD approval should come before the City issues it. Because it is a City -owned property and there has not been a dock at this site before, he asked whether the City is required to have a permit to have a dock there and if that should be before the City approves the permit. Walsh asked Mattick to confirm the City needs to give the applicant approval before the LMCD can give their approval, because otherwise the applicant does not have anything to get approval for by the LMCD. Mattick said his impression is that the LMCD usually makes their decision once the City has. He doesn't know what the LMCD's approval process is. Walsh noted the LMCD could say they do not even have a right to put a dock in; and until the City says someone has the right, there is nothing to approve. Johnson said he understands some/one of the docks is already in, which Seals confirmed. Barnhart clarified that 1 dock was put in but it was not 1 of the 2 on the agenda. The Council will review that dock at the end of the month. Walsh stated his common sense says the City needs to give approval before the LMCD is approached by the applicant for their approval. Mr. Anderson said he is under the impression it does not need to go to the LMCD. He cited his understanding of the parameters: with any lot that was in existence since 1970, for any property 40-60 feet, the dock can go out 60 feet. The applicant can get a variance to go to 4 feet of water. He does not think that is a problem in this case because the 2 middle docks are 60-62 feet. He thinks the drawing has to have some numbers on it. The side setbacks are 10-50 feet, and 15 feet if you go from 50-100 feet. He said the City should decide if they want to stay 10 feet off the fire lane to establish something for the next 2 guys. 1 le thought the City should require the 10-foot setback, which is in the LMCD rules. Johnson indicated the application states they have to be a minimum of 10 feet offthe property line. Page 3 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Mr. Anderson noted the City, as owner, can require 10 feet off of each side setback, which would coincide with LMCD rules. It looks like the applicant is trying to get 2 boats there, and it specifically says it is 1 boat per 50 feet if you don't own the property. He noted the Browns, the next application up for discussion, have only had 1 boat there. The dock that was put in is for the property to the east, which is Al Shatslee's, and has only had 1 boat there. Walsh said if they owned both boats, they would be fine. Mr. Anderson stated the regulations indicate 1 boat per 50 feet if the applicant does not own the property; they do not own the property. Walsh noted the City requires the applicant to follow the LMCD rules. Mr. Anderson stated that is the rule he received from the LMCD Director. Crosby indicated the City lists that rule in the Dock Site License Agreement. Seals said when she looked through the documents, it looked like there were multiple boat licenses for each dock, which would apparently conflict with the information in the LMCD rules. She feels it is concerning that 1 dock is already in. Walsh noted that what is in front of the Council today is that applications are approved subject to following the LMCD rules. He said if they want to flout the rules and the potential of losing their license, that is the decision the applicants can make. Printup said the City made it very clear that the applicants can lose their license and that they are not starting out very well. He has no problem whether something or nothing is there. He encouraged everyone to please follow the correct process, because he can vote no very easily. Seals stated there are 2 different boat licenses on the application and asked Barnhart to confirm or deny her understanding. Barnhart said the applicant identified 2 boats that would be docked on the dock. One of the conditions of the agreement is that it must comply with LMCD rules and regulations. Seals stated that the applicant had to choose 1 of the boats. Walsh said regardless of the request, the City can still approve the license based on the applicant following the LMCD rules, which states they get 1 boat. They can pick 1 boat or no boats, but if they pick 2, then they lose their license potentially or have to correct the issue within the appropriate time frame. Mr. Anderson stated he verified the rules with the Administrator. He did not think there would be an issue with the LMCD approving a new license. He said there needs to be a better drawing showing that it is 10 feet off the sidelines and the dock is no more than 60 feet, which sets things up for the other docks. Crosby agreed with Mr. Anderson. Walsh said the City's rules are clear in the license. Page 4 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Mr. Anderson agreed with Walsh, noting the language is clear Crosby suggested the Dock Site License Agreement should have identified the details of the LMCD rules regarding the number effect. Mr. Anderson stated the City did it the right way because they said it was per LMCD rules. Johnson said the City is referencing the watershed code or the fire code, noting they have authority at the water. The City needs to do their part and they have some authority as far as some "dock police" and asked what they are policing. He assumed it would be what is on the application. Walsh asked Mattick if granting a license gives someone a form of ownership, or how that is portrayed. Mattick said he would view it more as permission to be on the property. He is not sure he would characterize a license as an ownership interest. He does not know how the LMCD would view that in terms of the number of boats. He indicated he would prefer the license language to refer to the LMCD regulations without a level of specificity in case they change, because then the applicant is still subject to the rules. Council members agreed that Mattick made a good point. Walsh stated as long as the Council has it specified, the City can approve the license, probably with the caveat that only 1 boat can be there or they are in violation of the LMCD rules, unless permission is received from the LMCD. Crosby indicated that the applicants need that information to be communicated, in case they are not at the online meeting. Mr. Anderson stated the applicant's name is Jon Eiss. After Council members noted Jon Eiss was not listed as an attendee, Barnhart stated he could communicate the 1-dock limit and that they should consult with the LMCD to make sure they comply with the requirements. Council members agreed that Barnhart should do so. Johnson moved, Crosby seconded, to approve the Dock License for Dock Site A, correcting it to be 1 boat, and that the dimensions of the dock and setback should be included in the drawing. Johnson noted the City did not need a survey drawing at this point for this purpose, but the applicant could improve the drawing by including the dimensions of the setback and the overall dock length. VOTE: Ayes 5 (Johnson, Crosby, Printup, Seals, Walsh), Nays 0. Page 5 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. 11. DOCK LICENSE FOR DOCK SITE B Johnson moved, Crosby seconded, to approve the Dock License for Dock Site B, correcting it to be 1 boat, and that the dimensions of the dock and setback should be included in the drawing. VOTE: Ayes 5 (Johnson, Crosby, Printup, Seals, Walsh), Nays 0. 12. LA19-000091— CITY OF ORONO TEXT AMENDMENT NO.243, THIRD SERIES RELATED TO GRADING AND LAND ALTERATIONS Barnhart indicated the City Council reviewed the document a month ago and directed him to forward it to the DNR for their review. The DNR found several areas where the City was slightly stronger than the State Statute and gave the City conditional approval. The condition is that once the City approves a document, Barnhart will need to send the document to the DNR so they can have a final review, primarily to make sure the City has not weakened any State Statutes. This only applies to the regulations in the Shoreland Overlay District, which happens to be a large part of the City. The goal was to address slope stabilization issues that required a Conditional Use Permit and at least a 6-week lead time. He pointed out that there are some individuals in the community that like to solve shoreland stabilization and bluff failure issues with underground structures such as retaining walls. Those types of improvements will likely still require a variance because it will often be hardcover in the 0-75. Johnson referenced language regarding no permit being required for grading activities of less than 50 cubic yards or disturbing less than 5,000 square feet, and asked if someone would require a permit if they had 200 cubic yards but disturbed less than 5,000 square feet. Barnhart said they would because it would trigger the more-than-50-cubic-yards. Johnson stated "or" should be changed to "and" or another phrase, because he would interpret that language to mean as long as someone meets either one of those, they do not need a permit. Barnhart indicated he could make any change the Council would like. He asked Mattick if he thought the wording was ambiguous or if there was alternative text that should be used. Mattick and Walsh stated that the idea is someone would need less than 50 cubic yards and disturb less than 5,000 square feet in order to not need a permit. The language needs an "and" versus an "or." Johnson noted that in the scenario of someone grading 49.9 cubic yards but disturbing more than 5,000 square feet, then you would need a permit. Walsh stated it would be conflicting at that point, so "and" would be needed rather than "or." Barnhart noted Council members were pointing out existing code language. He said he tried to illustrate in the graph what the code reads currently and referenced the current language and said if someone is grading 51 cubic yards in the Shoreland Overlay District, they need a permit. Walsh asked if Barnhart was showing them the old code earlier. Johnson said the new language is the same. Barnhart agreed and indicated 51 cubic yards would trigger grading. Page 6 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Walsh clarified that the scenario is if someone has 49 yards but has 6,000 square feet that is being disturbed, one says that a permit is required and the other says that a permit is not required. Theoretically, someone could say they have 49 cubic yards and so they do not need a permit because it says "or." Barnhart stated they would need a permit Walsh referenced the language indicating that basically someone would not need a permit because they have less than 50 cubic yards because of the word "or." Barnhart said the last portion of the table is not in the code and is just for the City Council's reference. Johnson and Barnhart discussed the language used in the code and what would be more helpful and said the activity for permitting and the activity for interim use is in the code but the "no permit" language is not in the code. Walsh asked if the "no permit" language was just for the City Council's information and that what is in the code is the information above that area on the displayed document. Barnhart agreed and asked Mattick if there was language to make it more clear. Mattick referenced the language about grading, import, export, and stockpiling that is in the code and noted the summary is not in the code, so he does not necessarily see the conflict. Ile said Barnhart attempted to summarize when a permit is required. Walsh said it is a clarification to make sure that the summary is not handed out to anybody, and the "or" could be changed to "and," but it does not change the code that is being changed. Johnson noted the chart is very good and it is information that needs to be in the code. The chart would be helpful to residents, but the City does not want them to find a loophole. If the chart is used, it needs to be cleaned up. Johnson said the City is exceeding DNR standards in some areas and asked if there was a reason for that. Barnhart stated tree replacement is the area where the City exceeded the DNR requirements, where there is a prohibition against clearing and removal of large trees in the 0-75. He indicated the Planning Commission wanted some tiers in place: the bigger the tree, the more tree replacement. The way it is written now, it is more on the discretion of Staff. The City felt more comfortable having it written down. Johnson moved, Seals seconded, to approve LAI9-000091 — City Of Orono Text Amendment No. 243, Third Series Related to Grading and Land Alterations with the caveat that if the chart is published, that the chart be evaluated to make sure that it is clear. VOTE: Ayes 5 (Johnson, Crosby, Printup, Seals, Walsh), Nays 0. CITY ENGINEERIPUBLIC WORKS DIRECTOR REPORT 13. BIG ISLAND PARK ADA TRAIL PROJECT (19-033) - AWARD PLANNING DEPARTMENT REPORT Page 7 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Edwards said Blackstone Contracting was the lowest of 3 bids received. They put the bid out as a base bid and there were a number of alternates. The base bid included the accessible trail network and associated items. Alternate 1 was the vault toilet. Alternates 2 and 3 were the picnic shelter; part of it was the floor of the shelter and the shelter itself. Alternates 4 and 5 were large concrete picnic tables ranging from standard tables to meeting an ADA standard. The total low bid with all alternates was $398,490 and totals $474,764 when the construction bid items are added to the in-house work from the City as well as the design, archaeology, and construction management. Initially the City committed to funding $80,000 out of the Parks fund; the Big Island Legacy Fund, a 501(c)(3), anticipated raising $120,000; and the City received a grant in the amount of $200,000. It is a matching grant, so it requires a match to receive the entire $200,000. Bolton & Menk donated $10,000 of in -kind time for their construction fees. In total, there was $410,000 identified for the project. To date, the Big Island Legacy Fund has raised approximately $68,000. Edwards proposed three different courses of action for the Council's consideration on the award. Action A would award the base bid and all the alternates at a total cost of $464,764 and would require the City to come up with $196,764. Action B would include the base bid and one of the two alternate groups at a cost of $131,531 to the City. In this course of action, the City would only be able to realize about $172,000 of the $200,000 grant. Action C would award the base bid at a cost of $90,000 to the City and would only realize $120,000 of the grant. He indicated there was a proposal packet from the 501(c)(3) for the Council's consideration where, if the City would award Action A, they would continue to try to raise the remaining $52,000 they originally identified as their fundraising goal. Staff recommendation is Action B with either the picnic shelter or latrine, which gives a balance between cost and amenities provided. If the City chooses Action A, there may not be sufficient funds for other projects if $196,000 came out of the Parks fund. He referenced a proposal from Bolton & Menk for construction management fees in the amount of $20,000, of which $10,000 would be donated in -kind. He said Bolton & Menk is also requesting compensation in design fees of $1,177 based on additional work performed. Johnson asked, if the City paid the Bolton & Menk fees, would they be subject to the matching fund grant versus Bolton & Menk giving the City the donation. Edwards stated the maximum amount of engineering and design fees that could be attributed to the grant is $40,000. Even when Bolton & Menk donated the $10,000, there is still $68,000 of engineering for the project. The City was able to maximize the amount of engineering the City can attribute to the project. Johnson said he is grateful for donations from the Big Island Legacy Fund and asked if there was a representative present. After ascertaining that Peter Lanpher was online, he asked what he would want to see happen with the shortfall from the pledge by the group. Mr. Peter Lanpher, Chairman of Big Island Legacy, P.O. Box 175, Long Lake, said they were asked by the City to try to raise $125,000 as their portion. To date, they have raised $58,000, with another $10,000 due to arrive in May. They are actively seeking additional money. Mr. Lanpher said they are a board of five people and noted the Mayor has been at most of the meetings. The recommendations they have come up with are from a historical archive standpoint of what has happened in the past at Big Island and come from past Orono/Big Island Committee minutes as well as the Big Island caretaker. They are not opposed to whatever the Council wants to do. Staff is Page 8 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. recommending Action B. In that respect, the toilet is the most important and practical to have at Big Island because in the past, when toilets were destroyed and vandalized, people stopped going there. If there is not a toilet there, you are not encouraging the function of the park. On top of the hill there is an open-air shelter with picnic tables surrounding it and some that are within. There is also a shelter on the island in the form of the Service Center as you enter the island by the boat docks. What they are trying to do as an organization is put a toilet facility out there. Their recommendation is to put the toilet on top of the hill, not behind the Service Center, because then it is closer to the beach area. There are a lot of boaters that use the beach area, and there are no facilities for them. Johnson thanked the Big Island Legacy for their efforts in raising money and asked whether the City should hold off on making a decision and give Big Island Legacy more time to fundraise or whether there is a critical need to make a decision at this time. Walsh stated the $200,000 grant has a 2-year time limit which comes up in March or April 2021, which limits it to this construction season. Mr. Lanpher indicated the City giving some form of approval at tonight's meeting would be helpful, regardless of the direction. There is a huge cost in just the trail components, and a lot of sand and gravel companies in the Twin Cities area have donated to various causes. If they know what is going on with the contract and who the contractor is, they could reach out to contractors and may get donations. Walsh said that if the City picks the bathroom versus the shelter, there are options to put those things together through the 501(c)(3) as well. Johnson asked if Big Island Legacy has to raise twice as much after the City accepts the grant Walsh indicated Johnson was correct. Johnson stated it made sense to give Big Island Legacy as much time as possible to raise every dollar possible because for every dollar raised, the City gets $2 contributed. Walsh said the City information does not get submitted to the DNR until later in the year or April 2021, and the City may be able to come up with that money or maybe even more. They are trying to move forward with what is on the table right now, knowing that construction season is only so long. Edward stated the grant is not limited to what the City awards with the contract. If additional funds become available later on in the summer for the overall project, those could be applied against the grant As an example, they are considering applying up to $40,000 of the Bolton & Menk bill to the grant and Putting $4,000 of in -kind purchases of things that are separate from the contract that still can be applied against the grant, just as long as it is something that the grant envisioned or was part of the package. Crosby asked if the City could go with Action B now and save the picnic tables and shelter for the following year. Walsh said the City could do that any time, even if the City collected the money this year. It gives the 501(c)(3) more options for raising money. If it can be done before next April, the City can get the matching value of whatever is left on the grant that hasn't been able to be matched yet. Page 9 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Crosby stated he thought the infrastructure should be done first and the toilet would be a major thing. Seals asked Edwards if the price was for a bathroom at the Visitor Center or up on the hill for Action B. Edwards said the bids solicited were for a bathroom by the Visitor Center. Walsh said it is 40-50 yards away so it should not be too different. Edwards stated during the solicitation process a lot of bidders had questions about the installation of the vault toilet and a lot of concerns about how to move that mass of material into place on an island with limitations of barges, cranes, etc. Another big concern would be trying to maintain a vault toilet on top of the outlook, as it presents a lot of unique logistical challenges, including dragging a septic hose through a protected wilderness area on the island, which he is not even sure the watershed would let the City do. He knows they can install and maintain a toilet at the Visitor Center. Mr. Rick Carter, 2780 Shadywood Road, a Big Island Legacy Board member and Park Commission member, said he would love to see the City go with Option A so they could max out the grant and have the shelter as well as the bathroom. He would be grateful for Option B and would hate to do less than that and leave more money on the table. They will continue to raise funds and hope to get enough money to take advantage of the remaining $28,000 of the grant. They would like to see the infrastructure, the trails, Visitor Center, and bathroom in place. They are anxious to see it go forward. Printup asked what the grant deadline would be. Walsh answered that the money needs to be spent by next April. Seals said she is going in the middle of the road. There was talk about the City giving the 501(c)(3) a loan, but she does not think it is a good plan because from what she knows, there is nothing to hold a 501(c)(3) to a loan. It would also seem unusual for a non-profit to pay back a City on a loan and is a harder ask. Her priority is to improve the trails. She thinks if the bid was for the toilet by the Visitor Center, the City should stick with that plan, as Change Orders cost a lot of money. She is 100% sure the watershed does not want the City dragging a "poop" line through their nature preserve. She likes the location of the toilet as bid because it is open and you can see it from the water. There are also cameras there and it is a nice, safe area. In the past people have destroyed things out there, and she feels better about the bathroom being there. If everything works out perfectly and the watershed is willing to have a septic line drug through the nature preserve, the City can build a second toilet, assuming the money is raised. Crosby stated he agreed with Seals as far as the toilet location because vandalism will happen, and it makes sense to try to prevent it. He is leaning towards Plan B. Johnson said he does not think it is a park without a bathroom. The question is, can the bathroom survive on the island. Having it closer to the dock and the entrance will help with visibility. He stated the question that needs to be answered is what kind of commitment can the City get out of the fundraising group. He indicated the City is prepared to contribute what they pledged in the beginning. The only variable that has changed is how much money the group has been able to raise to this point, when the City has to make a decision. He is leaning towards Action B. Page 10 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Walsh noted that at this time it is more difficult to fundraise. Mr. Lanpher stated he has been in the production business and does not see that there would be any difference in locating the bathroom behind the Service Center as opposed to the top of the hill. He brought up the bathroom that was close to the Service Center that was vandalized in the past. Their biggest priority and feelings are to have the bathroom on top of the hill where they used to hold classes for the Minnetonka Sailing School and others. If the trails are built the way they should be, the septic system that has to run up from the beach going to the bathroom is just following a trail. Their viewpoint is, it is more important that the bathroom be located on top of the hill; and if a bathroom is built in another phase, it could be by the Service Center. Johnson stated he is unconcerned about the logistics of getting the septic tank empty, regardless of location. Seals noted her opinion is that it is Edwards' and Staffs job to figure it out Walsh asked, assuming the cost for the bathroom was the same at the Service Center and at the hill, if that would change any Council members' minds about location. Crosby said he thinks the Council needs a list of pros and cons regarding the bathroom location. The facility will probably be vulnerable to vandalism at either place. If there are cameras at the Service Center, that might be a better location. He agreed with Seals and said the Council has to rely on Edwards. Walsh noted the 501(c)(3) wants the bathroom up on the hill because it is close to the beach. If the cost is a huge difference, it kind of seals the fate. If it is the same, he asked what direction the Council would give. He said there are cameras at the Service Center and they have not seen any vandalism. Seals said her opinion is the better location would be by the Service Center by the docks. It is easier to get to, and if there is vandalism such as a fire, the fire boat can dock right there and go straight up the hill. Also, by putting it in the Service Center area, they are keeping it in the rec area, which is safer for the City because there are not extra hoops to go through with the watershed. Printup stated nature is also a factor, because a storm went through and a tree fell down and pretty much destroyed the learning center and there needed to be some cleanup. He said he can't support loaning any more money or offering any more City dollars to the project hoping that it breeds more donations. He is very thankful for all the donations that have come in. Edwards said vandalism was taken into account in the design process. The vault toilet is made of precast concrete and metal and is based off of the remote vault toilets on the Three Rivers trail system. Another pro for locating the bathroom at the Visitor Center is that it centrally locates it along the ADA-accessible trail network. Crosby clarified that Edwards wanted the bathroom at the Visitor Center. Edwards agreed with Crosby. Seals noted that Edwards' team would maintain the area and she would lean on his expertise versus anyone else's. Page 11 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Johnson said the City pledged $80,000 and the first question that needs to be answered is, does the City want to pledge more money. Walsh indicated that Johnson was correct and stated that is the difference between B and C. Option C is an extra $10,000 and Option B is an extra $50,000 which still leaves $30,000 on the grant available for the 501(c)(3) to gather. Option B includes the toilet; Option C does not include the toilet. Crosby suggested Option B and said the City should take Edwards' recommendation on the bathroom location and keep the trails. He said more could be done later. Rief expressed concern about placing the toilet away from the Visitor Center and the jurisdiction the City does not have when it relates to being in the natural area. He said if there is a hose being run up the hill from the Visitor Center and the hose breaks, the liability would be the same but the hose would be three times as long. Jurisdiction is quite a bit different in the natural area versus the recreational area. He also leans on Edwards' recommendation from a maintenance point of view. Seals moved, Crosby seconded, to go with Option B, putting the vault toilet by the Visitor Center per the City Engineer's recommendation for the Big Island Park ADA Trail Project (19-033). Johnson noted if the toilet is located by the Visitor Center, it will be utilized more. VOTE: Ayes 4 (Johnson, Crosby, Seals, Walsh), Nays 1 (Printup). Walsh moved, Crosby seconded, to award the Big Island Park ADA Trail Project to Blackstone Contracting, accept the construction management fee proposal from Bolton & Menk not to exceed $20,000, authorize payment of $1,177 in design fees above the previous not -to -exceed proposal, and accept the in -kind donation of $10,000 from Bolton & Menk. VOTE: Ayes 5 (Johnson, Crosby, Seals, Printup, Walsh), Nays 0. PLANNING DEPARTMENT REPORT 15. LA20-000016 — PAUL THOMAS DESIGN BUILD, 2710 PENCE LANE, CONDITIONAL USE PERMIT Staff presented a summary of packet information. Johnson noted they have had this same type of request that they have granted to people, and it's been fairly rubber-stamped as long as the people agree to the conditions. He asked Mattick if there is a reason for the City not to grant a Conditional Use Permit (CUP) in the meantime when there are ongoing, existing, and historical violations on a property. Mattick asked Johnson if he was referring to the alleged violation on the shoreline. Johnson said he understands that issue is open and that there were other issues with the use of the driveway, etc. Page 12 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Mattick noted the request in front of the Council involves a bathroom/plumbing in the garage. He would like to take a closer look at the connectivity between the two issues. When someone makes a request, the Council can impose conditions that are reasonably related to the request. He does not know the status of the current code violation, but his understanding is they are set to have a hearing, they have challenged the finding and are still working their way through the process. I le is not sure the Council can wait to have the process played out, because there is a 60-day rule. If the City wants to tic the shoreline issue with the restroom in a garage, the City will have to look at how to address it. He did not think it is as simple as saying a violation was found on the property so the City is not going to grant the CUP. Mr. William Griffith asked the Council to look at the survey being displayed and indicated one of the difficulties with the proposed garage is that it appears to be in the I-luelers' front yard the way the lot is configured as you come down the joint driveway. He thought there was discussion both at the Planning Commission and elsewhere about some screening of that building. He noted another question, looking at the driveway as it runs through Lot 2, is there has been continuous use of that driveway to service Lot 1, which is a subdivision condition when the lot was created that prohibits that driveway use. They asked the City to confirm, as they are issuing the permit, that the applicant is in compliance with the shoreline issues and driveway issues and provides screening of the building. Mr. Eric Vogstrom, 2710 Pence Lane, said the garage is more in front of the Iluelers' garage and there is not another place he could put it. Originally, he wanted to be farther back so he could build a 4-5 car garage. By him being 130 feet from the lake instead of 75 feet, he could only do a 3-car garage. The driveway issue was settled a long time ago and he hasn't had any violations yet. They also do not have any stop work orders on his property, as was mentioned to the Planning Commission. With respect to the DNR issue, that is mainly on the Dunkley property, and the Dunkleys are in the process of disputing that. He does not see how that has anything to do with this property. He is going to be building a garage with or without a bathroom, but adding the other items is setting a ridiculous precedence. The Council does not have any precedence as far as screening. City Staff and the Planning Commission have recommended approval. He is going to be working with the Huelers as far as screening on the entire property by planting pine trees together, and to have him do screening for this is unprecedented and unfair. If he moves the building, it would be more in front of their house, and that does not solve any problems. He also has the ability to put another 1,000-square foot building on his property. He wants a garage like everyone else in Orono. He feels it's a rubber-stamp deal. He hopes to be treated fairly like everyone else who has brought a similar issue to the Council. Crosby stated as long as this is in compliance, noting that it cannot be used as a rental unit, the City should move forward and draft a Resolution to accept. Walsh said they are called CUPS because they are conditional, not a rubber stamp. Otherwise, it would be in the code that people can just do it. Ile noted at the Planning Commission, Mr. Vogstrom said he had talked with the Huelers and said it would not be a big deal to put some screening there. There are some outstanding violations that might mostly be on the Dunkleys' but it is also on Mr. Vogstrom's. Part of the conditions is that it gets cleaned up, similar to when your child cleans their room, they can have dessert. Johnson noted right now there is an investigation into whether they did anything wrong and the Council does not know the findings with the DNR. It does not sound like the City has any jurisdiction on that issue and he is hesitant to loop that issue in. The screening item is between the neighbors. Mr. Vogstrom is not asking for a variance for the location of the garage, he is in a complying location, so he does not have an obligation to the City to have screen age. There has been a lot of turmoil in the area and it may be Page 13 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. an opportunity for some good will, but it's not the City's business. In his experience, when bathroom requests come up, as long as the applicant understands the conditions, he supports approval. Printup stated he would like to learn more about the issues and asked for the item to be tabled for two weeks. He noted the CUP stays with the land forever, even if the garage blows down. Printup moved to table LA20-000016 — Paul Thomas Design Build, 2710 Pence Lane, Conditional Use Permit for two weeks. Walsh asked what information Printup would like to gather. Printup stated it would be the DNR regulations on the shoreline, to hear more about the CUP and how it affects the land, and to try to untangle the issues with the property and to categorize everything. Crosby noted it is a bathroom in a garage, it is not complicated, and he did not think anyone needed to reach out to the shoreline. He hoped the neighbors could work together on the screening but did not think that was something the Council could dictate to them. He asked Mattick for his input. Mattick noted they would need to find the connection with whatever they pull in. Crosby said he did not think it would be an ample reason to pull something in so it could be held as leverage. He stated the CUP would be approved for almost any other home in Orono, so there is no reason to not move ahead. Seals stated there have been a lot of challenges and nothing has been simple or normal on this corner. When she sees the address, she knows exactly where it is, and that is not normal. Her thought process is, he has a right to build a garage, but why is everything such a tangled mess and is there something the Council is missing that needs to be checked on. She commented that Printup was not saying no but wanted two more weeks before making a decision. Seals seconded the motion to table LA20-000016 — Paul Thomas Design Build, 2710 Pence Lane, Conditional Use Permit. Johnson asked if the applicant had an opinion about tabling it. Mr. Paul Vogstrom, 2731 Eden Lake Road, Hanover, said he understands the project has been complicated and there are a lot of accusations. They want to get the project done. He understands the Council does not think two weeks is a big deal. This matter is going on and on because the Huelers keep raising accusations. He has tried to work with them. The Huelers were for the plan back at the Sketch Plan meeting, and because they could not come to terms on buying some property from the Dunkleys, all hell broke loose. He is sorry that it has been what it's been, but it's a simple application that everyone else gets approved for, and now everything's got to be looked at. He said other subcontractors drive on different driveways. He does not think anyone has crossed the line and they have signs up and they do everything they can. It is not fair that the neighbors keep yelling and screaming, and they are abiding by everything and keep getting delayed and jumping through hoops. He recommends the Council move forward with the project and stop setting precedence that neighbors can just complain. He asked the Council to reconsider tabling the item. Page 14 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Crosby said he is strongly against tabling the matter and thinks it needs to be moved forward. He believes if it was any other project, without a doubt it would get stamped and not stopped. Personal feelings cannot get in the way; the Council has to be logical and look at the project and decide how the Council would have voted in another instance. If the home was on another road in Orono, it would go forward. The City has to be nonjudgmental and consistent. If the Council tables the matter, they are not being consistent. Printup stated his motion stands. Walsh commented that everything mentioned were good points and he did not think a couple weeks would hurt to gather more information. Johnson said there have been a lot of problems with the relationship and the City should be cautious and do the right thing because of the issues. However, a bathroom in a garage is not an issue the Council should hold up. VOTE: Ayes 3 (Printup, Seals, Walsh), Nays 2 (Crosby, Johnson). 16. LA20-000012 — SOURCE LAND DEVELOPMENT INC., LAKEVIEW OF ORONO Staff presented a summary of packet information. Walsh noted he was at the Planning Commission meeting and members decided to either vote all of it or none of it rather than do any kind of piecemealing, which does not help the Council with a direction in terms of how they voted. Mr. Chase Peterson, Source Land Development, stated it has been a good project. They have about 13 lots remaining, and there are issues with the lots that make them undesirable or tough to build on. Adding additional costs on to buyers is something that they often stay away from. They knew they had to make some changes and they had to give something back to the community/Orono, and they decided to get creative and tinker with some of the conservation lines to provide some building elbowroom and make potential buildings a little more buyer -friendly. In doing that, they get away from disturbing natural space, adding retaining walls, grading costs, etc. They have gained support from a lot of the local neighbors. There have also been a couple of concerned neighbors, and they have answered their concerns by giving them an agreement with some tree privacy, etc. They were a little upset that they did not get much feedback/guidance from the Planning Commission other than a simple no, and as a result, have presented the same application to the City Council. Walsh asked how many lots the original plan contained. Mr. Peterson answered that it was 46 lots. Walsh said they did a good job figuring out where to put the houses in relation to the nature, environment, and septics because they are down to 5-10% of the lots and that it is hard to get it perfect upfront. I le said they are adding more than they are taking and noted one of the big concerns was going around the corner on North Arm Drive and moving the driveway to allow for sight view. Mr. Peterson said they could have done it differently and hopefully perfectly. There are a lot of moving parts: septic locations which have to be on virgin soil; each site has to have a primary and secondary well Page 15 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. location; conservation on the lots; a building footprint that may be undesirable/very costly. They have done a pretty good job on the other lots and are down to the last few where they need to make changes in order to have them buildable. He is hopeful to wrap up the development and have 13 more homes. Crosby said the developer was very thoughtful and did a nice job. Mr. Peterson commented that the sight distance for the driveway is 315 feet and referenced some images in Council members' packets which illustrated the potential sight line of the potential driveway. Printup noted there was one person who was adversely affected and had a real problem, potentially. He wanted to see on the map where that area would be. Walsh said he thought it was Lot 22, who was three doors down, so they would not be affected directly. Curtis agreed with Walsh and said the owner's comments were in the packet and thought it was a Mr. Crandall. Printup stated the comment was something about buying the lot and expecting to have some open space and then losing the open space. Curtis said the comment came from the owners of Lot 10 and indicated that area on the map. She said that Mr. Peterson worked out an agreement for some screening. With regard to any of the letters in the packet, if there was a follow-up from the letter, she included that also. She believed their concern was mitigated. Printup asked if there was a switch of some land. Walsh indicated that was in regard to Lot 17. Curtis indicated a hashed area on the map and said the applicant is asking for that area to not be conservation easement and would flip the building site in that location. In conjunction with that, they want to do an administrative action to move the lot line over so the building area is wider on Lot 17 along North Arm Drive. Walsh asked if the conservation would then move to the dark green area on the map. Johnson indicated Walsh was correct. Printup said he is trying to see how it affects the neighbors when they expected something conserved as opposed to things being switched. He stated several years ago when this project was coming about it was very emotional and it was hard to figure out the lot situation at that time but that it is nice to see all of the conservation area. Walsh agreed and said it is nice that they are also adding more conservation area. Curtis indicated on the map the concern that the owners of Lot 10 had. Walsh asked Staff if the Lot 10 owners' problem had been solved. Page 16 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Curtis stated she believed so and the Lot 10 owners no longer had concerns Mr. Peterson said they did address the concerns from the Lot 10, Block 1 owners. They will plant some privacy trees for the owners and the owners would retract their original letter. He said he thought Printup was referring to the Lot 21, Block 3 owner. I Ie does not know what his concerns are or how to answer them; he was always going to have a neighbor there, and having a house on the other side of the lot is not going to be in his view. Mr. Bryce Johnson commented that the value of adding Lot 9 as a conservation area should not be missed and is extremely important to people who use the park in the development and along North Arm Drive. In addition to working together between Citizens for Lakeview and Source Land, they connected the park with trails that lead from Lakeview Parkway to the park, and one of the trails goes through Lot 9. It aids the entire conservation aspect of getting through the park and also viewing it from the park and the people that use the park daily. When the plan was first presented, there were 4 driveways on North Arm, then it went down to 3, and going back to 4 is not unreasonable. He said Source Land has done a good job overall on the development in preserving what they were going to do and creating all of the conservation areas, which is why many people support the project as a total package. Johnson moved, Crosby seconded, to approve staff to draft a resolution for LA20-000012 — Source Land Development Inc., Lakeview Of Orono VOTE: Ayes 5 (Johnson, Crosby, Seals, Printup, Walsh) Nays 0. 17. SCOTT AND MELISSA MUSGJERD, 4156 HIGHWOOD ROAD, ENCROACHMENT AGREEMENT REQUEST Staff presented a summary of packet information. Johnson asked if Edwards had any opinions he would like to put on the record Walsh said he walked the area, and it looks like the stone wall was built to get rid of City water that is impacting the owners' yard. Edwards said the wall is pushing any drainage towards the west side of the easement, although he did not know if it flooded the lake yard. I le saw three different places where there were encroachments into the right-of-way. The easiest one to deal with is Item C, where there are some pavers and mulch and other things that encroach slightly into the City's property. Most of the time that would be defined as landscaping, and in other situations the City does not require an encroachment agreement. Landscaping in the right-of-way is done at the constructor's risk, and the City would not require an encroachment for that. Item B, which is the wall farthest to the south, appears to be an inadvertent encroachment into the right- of-way, coming over a very slight amount. It runs parallel to the right-of-way which makes sense for retaining back soil and keeping anything from the right-of-way coming across into the property. Item A encroaches more than halfway across the existing right-of-way and pushes the water to the far side of the right-of-way. His recommendation was to not allow that encroachment because it does set a precedent and the City knows there are similar issues and other City rights -of -way that lead to the lake. If Item B were to remain, it is a structure in nature and there should be a proper encroachment agreement between the City and abutting homeowner. He noted another consideration is that the right-of-way is used by some Orono residents as a winter lake access. Page 17 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Walsh said the access for people getting their snowmobiles through that area is a non -issue. He asked what the alternative solution would be for all the water that is rolling off the hill into the yard. Edwards stated the City would improve the drainage swale as it goes through the right-of-way or armor it with things such as erosion control matting and riprap down the right-of-way. After Walsh noted that the solution sounded expensive, Edwards responded that it would cost several thousand dollars to do that but that it was probably cheaper than what was paid to put a retaining wall in. Ms. Melissa Musgjerd noted the work was done by the landscaper to help with water erosion. It is not in the way of encroaching anybody being able to get to the lake. If they have to remove it, they will remove it. She said it is becoming more of a neighborhood feud where people want to see people spend more money to do things. Everything they have done to the property is to make it better. She understands Edwards' comments about riprap. The retaining wall cost about $3,000, and they did that after the City took some trees out that were dying and the City was afraid they would fall on the house. Crosby said he looked at the site and, with the way everything is sloped, he believes it is probably a necessary retaining wall. He would be in favor of leaving the wall. Mr. William Griffith said there is plenty of room for a snowmobiler. hiker, or walker to get down to the lake if that is their desire. Also, the City has used an encroachment agreement to allow reasonable improvements within the right-of-way, and at 4051 Highwood Road there is an encroachment agreement which allows private improvement within the right-of-way. The agreements contain language that if the City wanted/needed to improve the right-of-way, the property owners would have to remove the encroachment and let the City take whatever action they wanted within the right-of-way. Johnson asked what the City does when owners make changes in a right-of-way without getting permission first. He said if the existing retaining wall is protecting this property but pushing the water to 4167, it should be removed. Crosby stated that 4167 is owned by the property owner just to the west of that parcel. With the slope that is present, the water would pretty much stay within the fire lane because the slope is so far to the east that the retaining wall acts more like a bounce -off. He said he does not think it will negatively affect 4167 even if the owner built on it. Crosby asked how long the wall would last with heavy water. Edwards said he has no idea how long. Johnson asked if the existing wall pushes some water to the west. Edwards stated that it crosses the midpoint of the right-of-way so it does push water to the west. Walsh said it does not go all the way to the other side of 4167 because it gets higher in elevation. Even if the City decides to leave it, it still needs an encroachment agreement. If the City decides to fix the alley, that would go away. He asked if the City agrees with letting them keep the self-help in place with an encroachment agreement. Page 18 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Printup said the property was proposed to come before the City 2-3 times to take over the alley, and when the house was built a number of years ago, the question came about the alley. It almost seems like it's another crack at the apple to encroach into the alley for the benefit of one side. Ile said it needs an encroachment agreement; but he is trying to figure out if the retaining wall is absolutely necessary, or did the landscapers put it in for aesthetics and to help out a little bit and hope it would not get noticed. Walsh noted that it is a skinny lot so it needed variances either way. Mr. Erick Celms, 1535 Highwood Lane, said he wanted to reiterate their submitted comments. They oppose the after -the -fact permit request, noting rules are in place for a reason and people need to abide by them during the duration of a project. The permit should have been pulled at the time of construction or as the retaining walls were being built. He said it is frustrating when people plead ignorance when they knowingly step out of bounds. Walsh asked Edwards if the City found this and brought it to the Council's attention, or if the item came as an application. Edwards stated it was identified on the document when the applicant was petitioning the City to vacate the easement. Ms. Musgjerd said there are some underground water kickouts built into the side of the hill which helps with the water. The fire lane/easement is pretty pitted, and she does not think there is any issue that their water could encroach into Douglas and Roban Smith's 4167 lot because that also slopes down. There is a lot of runoff that goes into the lake which is because of the pitch. This has led to a lot of angst among everyone, but they bought the lot and worked with an architect who could put a house on it when the buildable square footage was a little less than the size of a doghouse. They had a landscaper do some stuff, but they do not want to get him in trouble because he did not pull a permit. She understands what the Council is saying, that they have seen this come up before, because the Council has. They would love to own the fire lane so they could add on to their house, but they've come to the fact that will not happen because there is too much neighbor opposition. They want to make the property the best it can be. Walsh, based on what Edwards put together, said Item C is considered landscaping and is a non -issue; Item B comes over just a little but would still need an encroachment agreement; Item A is the issue. If the City needs them to take it out, the City needs to fix/redo the swale so it keeps the water out of their yard. Seals agreed that Item A is the big problem, and she would have them take it out and the City would fix it. She said the applicant and neighbors are getting pitted against each other, and then no one wins. The City can say it was a mistake, but they need to play by the rules and have the owner take it out and the City commit to fixing it the right way. That way the neighbors are getting what they want because water is not going onto their property, and the City is following the rules. Crosby stated his assumption is that the retaining wall is on their property but simply in the right-of-way of the fire lane. Walsh and Seals indicated it was in the fire lane. Walsh noted that everything within the orange area on the map being shown is the fire lane. Page 19 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Crosby agreed but noted the wall is still within their property lines. Johnson stated that it is City -owned property. Printup said that area is a proposed line from another application. Curtis stated the pink area on the map is the fire lane. Johnson said that was also the property line. Johnson agreed with Seals. He said it gets complicated because although it may be helping the situation, it does not give them permission to improve City property. The City will run into other situations where people have improved City property and there will be no benefit to the City, and the Council will make them take it out. Just because they might be solving a problem does not give them permission to improve City property. They should remove their property from the City property, the City assess the property, and then do what is right to make sure City property is not negatively affecting their property. Printup asked if that would be in line with Staff recommendations. Walsh indicated Item C is a non -issue, Item B needs an encroachment agreement if the City decides to keep the little bit there, and Staff thinks Item A should be taken out. He thinks the Council's recommendation should be to fix the swale to keep the water down the City's lane of property. Johnson and Seals said there should be no encroachment agreement and B should be removed as well. Council members discussed that Item C were just walking pavers on the ground which are not structural and don't need to be dealt with. Printup and Seals brought up a fire lane that basically disappeared and was landscaped and became beautiful, but it started out as a little thing and turned into that. Council members discussed what the motion should be regarding Items A, B, and C given the amount of slope and property lines. Mr. Griffith said since the Staff recommendation was to allow B and C, that may be the sensible solution, and the property owner could work with the City Engineer to resolve the encroachment in Item A. Johnson moved that the City does not grant any encroachment agreement on the property and the City Engineer will assess what needs to be done from a City standpoint to correct any grade issues on the City property. Walsh clarified that Johnson meant to solve the water problems that are going onto their property. Johnson amended the motion to add that there would be no encroachment agreement, the owners do not have a right to have anything on City property. Walsh clarified Johnson's motion is that the City Council is removing A; B, C will remain, and the City will commit to working with the homeowner to resolve the water issue so it is not going into their property. Page 20 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Johnson indicated Walsh was correct and noted that Item C does not require an encroachment agreement Johnson made a substitute motion, Printup seconded, to remove Item A and Item B and that Item C will remain and the City will commit to working with the homeowner to resolve the water issue so it is not going into their property regarding the Scott and Melissa Musgjerd, 4156 Highwood Road, Encroachment Agreement Request. VOTE: Ayes 4 (Johnson, Seals, Printup, Walsh), Nays 1 (Crosby). 18. LA19-000063 — CITY OF ORONO TEXT AMENDMENT NO. 244, THIRD SERIES RELATED TO SPECIAL EVENTS Staff presented a summary of packet information. Barnhart noted Staff recommends the State Statute version, Exhibit A. Johnson moved, Crosby seconded, to approve the State Statute version of LA19-000063 — City of Orono Text Amendment No. 244, Third Series Related to Special Events. VOTE: Ayes 5 (Johnson, Crosby, Seals, Printup, Walsh), Nays 0. 19. LA20-000014 — TIMOTHY WHITTEN, WHITTEN ASSOCIATES O/B/O I JACOBS/ A JACOBS REVOCABLE TRUST, 1700 SHORELINE DRIVE — SKETCH PLAN Staff presented a summary of packet information. Johnson asked if the property was already in the Municipal Urban Service Area (MUSA). Barnhart stated that it was but there would need to be some engineering work to provide sanitary sewer to all of the properties. There is a lot of work to do but it is supportable by Staff. Johnson asked if the lot across the lake, on the south side of Shoreline, was a separate Planned Unit Development (PUD). Barnhart said they are all the same. Johnson asked if Shoreline Drive was an easement. Barnhart said he did not think it was an easement but it is part of the same parcel. A portion of the lot shows some portion of the property south of Shoreline. Johnson noted that the document indicates "Outlot C." Barnhart said that is what is being shown at the sketch level. Ile imagined Outlots A, B, and C would be part of Lots 1, 2, and 3 at the conclusion of the plat. Johnson stated if the lots across the street are separate as outlots, Orono code will not allow them to have a dock. Page 21 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Barnhart agreed and said that is why he expects them to be part of Lots 1, 2, and 3 and that is part of the plat. Printup stated it should be made clear early and often. Walsh commented that the residents will want their boats on the water. He said at the Planning Commission it looked like everything had been well -thought out. Johnson said he likes the plan and it makes sense to keep the driveway at that location. Although it was only a single-family residence, there was a lot of activity at that property and he is not concerned about the increase in traffic. If the County would allow a turn lane in both directions, that would be terrific. Council members agreed it looked like a good plan. Barnhart said they will continue to work with the developer. MAYOR/COUNCIL REPORT Seals said a lot of people are stuck at home and she thanked everyone who is working. Printup stated it is nice to see the American flags up along the streets. He thanked Jackie H., who made some homemade masks. He said there are some restaurants who are petitioning the Governor regarding takeout of alcohol from restaurants and said Orono may want to send the Governor a letter encouraging that if the Council is interested in pursuing that idea. Johnson said he was going to propose sending a letter to the Governor but after hearing the LMCD rep, he thought it would be better to leave it as status quo. He stated he wanted to bring to the Council's attention his concern about code enforcement. He received a complaint about a dock installation on Crystal Bay Road, which brings the number to 2 for docks that should not be in yet. There is a new construction project going on which the City approved multiple variances on. The dock was installed prior to getting the final approval on the framing, which needs to happen before the dock can be put in according to code. He felt people should be able to have a dock without having a house and didn't want the language in the code at all. He received a follow-up from Barnhart that the framing would be done in 2-3 weeks and by the time the City does the code enforcement action, the property owner would be in the clear so Staff was not going to pursue the violation. He told Barnhart the choices as he saw them: the City enforces the codes, or the City amends the codes. He thinks the City has done a very good job over the years of amending codes that do not make sense. It is concerning to him when they choose to follow up on some code violations and not others. He does not think that is how the City should be handling the issue. The other dock on Crystal Bay Road went in without a permit. There is some question if they meet the 10- yard setback with the one that went in; the dock that is existing prior to the permit might not be in the right spot. That is part of why it is important to have dimensions on drawings. He also wants to make sure the rental agreement says 10 feet from the sideline. Seals said Johnson brought up a good point and it makes sense to enforce codes. She does not understand how it is okay for the City to say, "Well, they will put the dock in in a few weeks so I won't enforce it." It seems like individuals are picking and choosing when to enforce, and it seems a little suspect. Page 22 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. Mattick stated there is a pragmatic approach and also just a strict enforcement. They are in violation of the law; but if they are not going to be in violation in 2 weeks, does the City start a court action. He asked what the City hoped to achieve, or if it was to send a message. There is a certain amount of discretion when enforcing the laws. He gave the example of not seeing a lot of tickets written for people going 59 mph in a 55. He said it sounds like in a couple of weeks the owners will be in compliance. Johnson said the property owner may be in compliance but there are question marks about the situation. Mattick noted one of the statements in the policy regarding code enforcement is to gain voluntary compliance. The City sends letters saying within 10 days property owners need to fix an issue. If in 14 days or 2-3 weeks the issue is fixed, does the City want to start a criminal action upon seeing something, or does the City want to work with the owner and figure out if they will get to compliance. If the City needs to take a stiffer swing at it, the City may want to look at opening up the policy. Johnson stated Mattick was making his point. The first question is, who gets to decide who the City discriminates against as far as which ones move on immediately and which ones the City chooses to take a blind eye to. The goal is 100% compliance and the City wants that without going to the next level. If the first level is not started, what happens if there is not compliance in a few weeks. If the Governor says construction workers are not essential, all of a sudden 2 weeks turn into 6 weeks. When a complaint comes in, the City should investigate the complaint and put the wheels in motion. If the owner complies, everyone is happy. In his opinion, it is very dangerous and an irresponsible approach to pick and choose. Walsh said about a year ago a policy was put in place regarding how to address violations. The process is, if the City receives a complaint, the City sends a letter out and the recipient has time to reply. His understanding is Staff is making a judgment call and saying in this case it will be in 2 weeks. By the time the City gives them the letter and time to comply, they have already complied. He stated he is willing to Pull out the policy and revisit it if there is anything the Council should tweak on it. He agreed that the Council needs to be consistent in every case. Johnson said that is his point and there is no harm in getting the ball rolling. Barnhart noted part of the issue is limited resources. He did visit the property and noticed the property owners were well into framing the second floor. I le thought it was a reasonable response to not fire up a letter and then retract it later. Ile does not think the City gains anything. He has other violations he is spending his time on. Printup asked if that property owner was aware they did something that they should not have done. Barnhart stated that they probably do not know that. I le said he could send the property owner a letter saying they are in violation. The issue is that the violation will only happen once in the life of the building because it only applies if the house is torn down in the winter and you want to put a dock up before the house is done. Johnson said Staff does not get to decide; and for the City's protection, the City should treat every file the same, especially code enforcement. He saw the code enforcement list, and there are not an overwhelming amount of complaints the City is dealing with. Seals agreed with Johnson. She said it is great that they will be in compliance in a few weeks, but it sends the wrong message: We know that you messed up, but we aren't going to let you know and we are going Page 23 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. to let it slide. She referenced the Crystal Bay dock and said they don't have a permit and the dock is in; they don't even know if they will get a permit and the dock is in. If there is a rule or a code, they need to be enforced. If the code is bad, it can be changed. It does not take that long to send them a letter and let them know. It is unfair to the property owner because the City has not let them know. Johnson said the City put the screws to the neighbor down the street for the same thing. Right now, it is not even-handed, it is being noticed, and it has to be even-handed. Barnhart stated he has not gotten a complaint on that dock on the City property. Last winter when it was noticed, the direction from the Council was to not do anything and they would change the code. As the property owner is requesting his license, Barnhart has charged an after -the -fact fee, which is what he can do, and the property owner has indicated he will wish to appeal. Seals said that Barnhart was correct in that case. Just because the Council talks about something does not make it a sealed deal. It makes everyone question whether or not the dock should go in, as the property owner doesn't know how to read the rules. Legally, the City's best bet is to be consistent on everything. Printup referenced the City -owned dock application that the Council just approved and said the Council was warned that people would abuse that and that applicant chose to abuse it. He hopes that person sends something to the City saying he is sorry and that he will do better next time, because the message was very clear that they could lose their application. Seals commented that the property owner is appealing his after -the -fact fee. Johnson said the house is now up for sale so there probably was a push to get the dock in. In fairness to that owner, the family has been putting the dock out for years without permission and so they just did it again. He is willing to hear what the applicant has to say. Johnson asked if he needed to make a motion regarding the property that is in violation or whether the City Council could give Staff direction to continue with code enforcement until there is compliance. Council members were in agreement to give Staff direction at this point. Crosby noted Mattick made some good points and said there is also the way you deliver code enforcement, and sometimes you have to think through the process because if you punish just for the sake of punishment, he did not know if many lessons would be taught. He also said he wants to get everybody back to work as soon as possible. He asked Orono citizens to remember small business owners and encouraged everyone to continue to support restaurants; they are the life -blood of the community. He encouraged everyone to be kind to their neighbors and do what they can to send positive messages. Walsh agreed with Crosby and thanked the policemen and firemen for their great work at the fire in Mound. His heart goes out to everyone taking pay cuts. He thanked everyone for their hard work. A tro.1117u 16011.E Y_17r ICI] 11Z9tH ZI].11 Rief said they have had a number of donations that have come in to the City. He thanked Walsh for the pizzas delivered to the Police Department a couple weekends ago and thanked those that donated cupcakes, stating everyone appreciated them. He thanked everyone for helping out with donations. Page 24 of 25 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 13, 2020 6:03 o'clock p.m. CITY ATTORNEY REPORT None ADJOURNMENT Crosby moved, Seals seconded, to adjourn the Orono City Council meeting at 9:17 p.m. VOTE: Ayes 5 (Johnson, Crosby, Seals, Printup, Walsh), Nays 0. ATTEST: nna Carlson, City Clerk �Xuqo�� Dennis Walsh, Mayor Page 25 of 25