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HomeMy WebLinkAbout03-13-2023 City Council MinutesMINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. Walsh said he agreed. Johnson moved,Seals seconded,to direct staff to draft a resolution approving an after-the-fact variance for LA22-000070,4085 WATERTOWN ROAD.VOTE: Ayes 4,Nays 0. 17. LA22-000068,VALDES LAWN CARE& SNOW REMOVAL OB/O MARK&LISA THOSTENSON,2815 CASCO POINT ROAD,AFTER-THE-FACT VARIANCES Staff presented a summary packet of information. City Planner Curtis said in July the lake slope timber walls and other improvements on this property were destroyed by a fire and a building permit was issued to reconstruct the walls in-kind.During the installation of the walls staff observed that the construction expanded beyond the previous footprint and as a result a stop work order was issued.Because the work was halted prior to completion in November,the owner requested and received permission from the Council to install a final wall as their engineer provided documentation showing that slope failure was imminent and needed this emergency correction. The final wall has not been installed,rather the applicant is now requesting approval to increase the height of the existing top wall to reach the correct grade rather than installing an additional wall. The applicant is requesting after-the-fact setback variances to address the wall footprint expansions in the bluff and lake yard. The changes to the configuration of the retaining walls if approved will likely impact the applicant's ability to fully recapture the structural footprints and dimensions of the previous existing deck and shed,which were also destroyed. In February,the Planning Commission held a public hearing and voted 4 to 1 to recommend approval of the variances including the following conditions:prior to Council review,the applicant shall provide an engineer's opinion regarding the necessity of the additional width of the installed walls and a vegetative planting plan which will screen the walls from the lake. These have been provided in your packet.And following completion of the project an as-built survey would be required. Comments from the public were received.Replacement of the destroyed walls is essential to protect the bluff and steep nature of the slope on the subject property as well as the immediately adjacent neighboring properties who also have steep slope conditions. Staff finds that the variances to permit the expanded retaining wall structure within the bluff and 75-foot setback are necessary to protect the slope stability of the surrounding properties and once screened,will preserve the existing character of the area. Staff recommends approval of the setback variances for the improvements and the conditions set by the Planning Commission. The contractor is present this evening. Seals asked for a refresher on what was approved at a previous meeting.Are we agreeing to other things that were not intended?And are there any of those things in here? Curtis said at the time of the emergency slope repair that was the only action the Council took. It was not in any way an approval of the expanded walls,which is why we're here tonight. Benson said she was trying to get her head around this because she wasn't on the Council in the beginning when this when this started last year. When the slope repair emergency was granted did that enable the contractor to continue working in that area in November to secure it? Page 6 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. Curtis said that was correct but they did not,they just stabilized the slope. They did not do the final wall as they requested. They determined that they would just protect the slope and then evaluated it and decided that a higher sixth wall that was already installed would be more beneficial support for the slope rather than an additional seventh wall more towards the home back into the yard. The fire happened in July.We issued the permit for the in-kind replacement of the walls,which is administrative,in September.We issued that stop-work order in October because of the expanded wall footprint that our inspector confirmed for us.They did not utilize boulders because that would have expanded the footprint of the wall and they were trying to expedite the repair. So they did not want to go through the timeline for the variance publication and approval for boulders. Joe Valdes,owner of Valdes lawn care, 6476 St. Croix Trail South,Hastings,Minnesota, appeared before the Council along with Tyler Warnke,2157 Valley View Place, St.Paul,the equipment operator on the job and Paul Schimnowski with Criterium-Schimnowski Engineers, 161 Dunbar Way,Mahtomedi, Minnesota,the engineer of record. Walsh noted Valdes had said before the Planning Commission that he didn't look at the plans. He also noted that Valdes just went and started digging. Warnke said he was first on-site,and had the plans with him. We were looking at the plans as we were starting the project. Walsh asked if they had the plans,why did they think they could bring a bulldozer down there and scrape out the entire hillside? Warnke said we had to remove all existing walls. In order to get down to the bottom, I had to dig a road. Walsh said,no you didn't.You didn't have to dig a road. That was your choice. You had other options, and that's my whole issue here is that you had other options. You didn't have to do it from the top and dig an entire road down a hillside,you chose to do that.I think at the Planning Commission you said it would take way too much work to do it all by hand from down in the bottom, so you chose to build a road down the middle of the hillside and scoop it all out. So instead of a hill on the hillside,now you have a cliff I have a cliff too. The guys handed it all in my cliff when we had to re-do mine. You chose to go and dig it all when you had a specific plan for in-kind replacement.And so at some point,you dug it all out,your engineer came and designed an entirely different plan that you then pulled a permit for. So it's like going and getting a permit for a 3000 square foot house and then building an 8000 square foot house. In the discussion, Council Members asserted that the applicants had gone beyond the scope of an in-kind solution and removed a great deal of dirt from the bluff The applicants stressed the complexity of the job and noted they had to deal with burned remains of the previous structures and then found underneath the burned wall several feet of old timbers and concrete which had to be removed. They said most of the material hauled away was that and not the hillside itself The also said they had filled in behind the new walls with several feet of supports and material for proper drainage. Page 7 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. Walsh said you never came and asked us,you just went and did it.You're just asking for forgiveness instead of permission,because we would have never have allowed that. I think you need to go put the hill back.You need to get your engineer and you can figure out how you're going to do it. Mr. Schimnowski said he would also like to add that it always works on paper,right?I drew these plans based on existing retaining wall measurements that were out there. And there was a lot of concealed conditions on this site. There was a lot of material buried on this site that needed to come out to stabilize this hillside.And looking at some of the photos of the existing conditions at the time of the fire,there was significant slope issues and erosion at the adjacent property lines. That had nothing to do with this. If I would have the opportunity at some point to illustrate the means and methods that are necessary to demolish,excavate and build the timber wall. They had to move a lot of dirt and it's going to look like a lot is happening but it needs to happen to build a structurally-adequate wall. Johnson said from his perspective and talking with the neighbors that quality work was done. I don't think that's the question. There's a question surrounding the methodology that you used.I think a road is a good description. It was 12 feet wide?Could that have done been done with barge work from the lake without having to do that instead of coming from the top of the bluff? Mr. Schimnowski responded could it have been done?Yes. Would it have been practical to do that?No. Not with the amount of material that needed to come out temporarily,and then go back in for backfill. Johnson said what he saw was pretty alarming. I haven't seen that methodology before.And it seems like keeping as much of the bluff virgin is important. How do we handle this situation to discourage other contractors from just plowing down the hill and telling us well that's how it should be?On the other hand, I appreciate that with earthwork, oftentimes you find things when you start digging.And what I didn't like about your report was your note that the reason the emergency seventh level wasn't done was because of frost and snow. On another project on a property I owned in another city,I dug a basement around the same time and they didn't even have to put frost blankets down. So it wasn't a frost issue.And if you can move all that dirt,you can certainly move some snow to get there if that emergency required. I read that and I thought, well,that's disingenuous to me.And so then it calls into question the rest of it.And all we want is to get the straight story to make sure that other people don't do the same thing like make roads without the City approval or understanding and the right engineering ahead of time.I share the mayor's frustration that we can't just have this going on, and I think that's what this was. So I don't really know the path forward. But you've created a problem. Seals said I think my concern is the neighbors. They didn't sign up for this massive project. She noted the before and after photos are drastically different. We're pretty protective of the like kind. Just to see the change,there's a lot of earth that moved.I'm concerned for the homeowner and I'm also concerned for the neighbors.What else is going to come out of this because so much was changed?We have several emails from residents just showing us the before and after. I had to look at it several times and actually go out there. It doesn't even look like the same property. Page 8 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. Benson asked if it's possible if the project were rebuilt that the Bluff would look as it did before.Is there a way of restoring this bluff? She also asked if it is correct that the contractor had to dig so far back to accommodate the support timbers. Valdes said when we started digging,we don't know what was on the back of the wall. We built this wall as a complete structure from the bottom all the way to the top.Every single wall is like a structure all the way from the top so that will be there forever. He said he would have preferred to do boulders but it would have been a 60 to 90 day approval process. In January it is impossible for us to build a wall with boulders.When we got stopped working,this happened on Friday at three o'clock,we completely stopped work.He said they were allowed to go back and take emergency precautions to prevent erosion over the winter. They later came to the conclusion with engineering that they don't need to have a seventh wall because it would get more into the homeowner's property when we can go six timbers higher here. Benson asked is it true that that trees are unable to be planted in or around this new retaining wall. Valdes said no trees but they have a design plan to completely cover the walls with tall grasses and arborvitaes that don't have root systems that will affect the wall or the drainage. Benson asked what would be the effect if the work were to be taken out or redone?At this point,there's no putting the bluff back. Is that correct?It would be tearing out what's there and putting in boulders or something else. Warnke said he could only say we haven't talked about that, if we were to tear it out what would be the next step? Council Members said they believe the new wall system has to go back to the original grade and line up with the top of the bluff and the properties on either side. Curtis said she would suggest that in future applications for similar projects that we require them to provide us with their method of construction, rather than just the plan for construction.At least that would provide a more realistic expectation for the applicant and the neighbors as well as the City for what we're going to see start to finish how the project will progress. Walsh opened the discussion up to public comments. Carol Price, 2813 Casco Point Road, said she is the property owner on the west side of this property. I do have some grave concerns. The biggest one is that adding 1.7 feet to the existing sixth wall,the top of that wall that exists now, it's not sufficient to prevent soil erosion from my property on the west side, due to the differences in the elevation levels, as the retaining walls are currently built.And you saw by the picture earlier,the fence at the top that that level was basically the same along the properties.And this wall actually curves in. Part of that was building these walls further back. So I'm going to show my findings. I've been going through a lot of this data,even back from the original drawings. So there's a letter from Criterium-Schimnowski Engineers dated February 24,2023 regarding the sixth wall versus a seventh wall and it does not mention any change in property gradients to the adjacent properties. The Page 9 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. letter states the design option to add height to the existing sixth wall was done on December 9,2022.But there are no details in this information packet to support the design analysis.Also,this letter states that adding height to the existing sixth wall is I quote,a good option to reduce the steepness of the slope. However,this conclusion to me seems rather vague,and it does not indicate the total gradient and how to mitigate the effects of a steep slope. The letter also states that adding height to the sixth wall versus building a seventh wall,could,I quote,result in less soil disturbance and excavation. However,the bluff has already been disturbed and excavated with a backhoe,basically digging out the entire bluff throughout this retaining wall rebuild project.It is my concern that the Criterium-Schimnowski engineer does not provide any details of how to mitigate the slope from the neighboring properties with respect to adding 1.7 feet of height to the sixth wall,and how that is comparable to building the seventh wall that was in the original plans.But all is explained if you review the original plans of the retaining wall by this engineer, dated August 24,2022.In the design limitations section,there is a statement, quote, site layout and grading design are not included in wall design services. Those services are the responsibility of the site civil engineer end quote. So that begs the question,who is the civil engineer on this project that can assure that the grading is done properly,to mitigate the bluff grading to adjacent properties?Based on the property surveys,the elevation level of my adjacent property near the very top of the bluff is at 963 feet. The survey in Council Exhibit A depicts the current top of the sixth wall at 957 feet foot elevation,a difference of six feet. By adding 1.7 feet to the sixth wall,the resulting elevation gradient would be 4.3 feet. There is a photo on page 26 of this information packet that does show the existing slope of the property to my property that currently exists. The plans provided in this information packet Council Exhibit E show plants and flowers that will be planted in this area.This depiction also shows a wall on both the west and east side of the property.I am not certain if these walls are the existing wood timber walls that run along the side property lines or some other wall that will be built to replace the wooden timbers.However,my concern is will this depiction in Exhibit E be sufficient to mitigate the 4.3 foot slope differential that currently would exist?As a comparison reference,there are photos included in the letter from Criterium-Schimnowski Engineers dated November 18,2022 regarding the timber retaining wall upper tier,and that closely resembles the current condition of the bluff with the exception of the snow on the ground. The photo had an outline superimposed for the placement of the seventh timber wall. The outline on the seventh wall did extend along the adjacent property lines to hold back the dirt. The engineer stated in this letter that the final seventh wall height will increase to about four feet tall near each end where the existing slope increases.And a follow-up letter dated November 22,2022,the engineer states that quote,the slopes of the top of the timber retaining walls constructed to date are much steeper than originally designed. Thus again,my concerns of the steep slopes.The City Council has a very difficult task to decide on the next course of action or reaction for this after-the-fact variance request. The request to increase the height of the top sixth wall to reach the correct grade height rather than installing an additional wall has my concerns.As the property owner on the west side,the elevation gradient to the top of the bluff seems quite steep with regard to adding only 1.7 feet to the top of the sixth retaining wall. Should the City Council authorize construction of the added heights to the sixth wall,I would request that the City Council approval would require an as-built survey following completion of the walls and restoration of the grades. This could be ambiguous considering the top of the bluff and the side elevation grading to the adjacent properties have been altered from the original grades. That is before the fire occurred on the bluff and burned the original retaining walls. I would also ask the City Council to require that containment measures must be implemented to compensate for the change in elevation from the applicant's property to the adjacent east and west properties such that erosion is mitigated and controlled. Page 10 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. Since the licensed engineer who designed the retaining walls is not responsible for the site layout in gradient services,I would request that the site civil engineer provide the written assurances that the work was completed based on known industry specifications and building codes for mitigating soil erosion and collapse of the bluffs. So my final comments,this was a massive,massive project.There were many, many dump truck, loads of dirt. I don't question the bluff work itself. I think Joe Valdes and his men did a good job building the wall.It was the method of just tearing away the whole bluff that had everyone concerned and has everyone concerned now.And my concern is that top wall doesn't meet the original top of the bluff. There are the indications that plantings are going to be made. I will say that the wall was built with a combination of dirt and stone behind those walls for good drainage. That is as it should be. I'm concerned, how will those plantings take effect in that type of soil?Certainly,you could add something to make it work.I think everybody tries to do a good job. The method of this one was beyond what we've seen for any lake owner.But that doesn't mean we can't go forward and just make it a bluff and retaining walls such that the neighbors on each side don't have to worry about that bluff falling apart. So you have my condolences on how you want to make your decision. It's tough.I agree. It's very,very, very tough. Johnson noted that this is a lot for a neighbor. You're a particularly educated on the matter and I'm sorry, you've had to learn this much about it. Thanks for your comments.We'll definitely want to integrate some of your recommendations there to our opinion.But,the other part of this is how we deal with this.How do we deal with contractors that go outside the scope?How as a City do we do this better next time to prevent it for neighbors like you when all you do is live there? Charles Price, Carol's husband,2813 Casco Point Road, stated Melanie,you made a great point,that next time an application comes in some questions need to be asked.How is this going to be done?And I think that might have been lacking on this one,because everybody from the City who saw it was very shocked. And just to add another data point on the dump trucks,when we talk dump trucks,these are the kinds used on the interstate highways. They're massive.And the worst day I think it was,you know,we're there pretty much every day,we saw at least seven and maybe eight of these giant dump trucks of dirt getting hauled off.It looked to me like they were bringing in gravel and backfill so the dirt went out and hopefully proper backfill came in,the contractors might be able to clarify that point. He asked to have a photo put back up. This is showing the top of the bluff where it originally was. That really shows where the top of the bluff was from the top of the original bluff where that line is.That goes from one fence post to the other. And that is actually 22 feet from the new top of the bluff,so that gives you a rough idea that they've dished the shoreline back 22 feet from where it used to be. Drainage,we still haven't seen too much about drainage at the Planning Commission. I did ask about it.And Joe did clarify that he has that taken care of,but I'm not sure what that means.And I did talk to Wes today. He's still concerned. He doesn't know,has the drainage been taken care of or has it not?. Wes, on the east side,he did ask about the wall between the two properties,a border wall,if you want to call it that, does that catch water? So the water can't just freely fall from this property to the 2817 property. So he wants that wall to remain of some kind.It doesn't have to be exactly what it is right now. Margaret Martin provided a letter. And she has statements from a professional geotechnical engineer and some of his points are really,really important, I think.He's saying,where's the soil test?The engineer says, here's the wall design and I base my wall design upon internal compound stability,but my design is dependent upon a geotechnical engineer doing soils tests and soil samples, and making sure that the assumptions that I made to design Page 11 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. this wall are accurate based on the actual soil as it exists.And I've never heard one thing about that being provided.I don't know if there's been soil tests or not.I noticed that in the engineer's letter,the engineer has a lot of outs that you can't hold him responsible if soils tests were not done. This has been a long and difficult challenge for all of us. It's gone on for a very long time, and we're still going at it. So my summary statement is as follows.If the City does decide to approve the walls to remain as they are,then I recommend that the City at least require a soils test per the engineer's statements that he has in his letters to the City.And also,require that a wall completion report is submitted by the engineer, Mr. Schimnowski, and he has spelled out what that requires. They're actually in his letter.I am referring to the one from August 24. It's in his letter. So that's all I have to say. It's been a tough deal. Walsh said I can see that they wanted to get the bluffs down there taken care of but now they've created an entire new bluff landscape that was not part of the like in-kind. They have to figure out how to reengineer to get that grade back there,and figure that out to the best of their ability. Otherwise,what's stopping anybody from just sculpting out their bluff?Just digging all the dirt?I either deny it,or we table it and let the engineer go back to with the neighbors and get this figured out knowing the direction that we need to see. So then you guys could decide do you want an answer today?Or do you want to go back to the drawing board with the neighbors and try and get this figured out? Mr. Schimnowski asked so one of the bigger issues of contention with earth questions for you is the top grade of the yard,that you want that to be original? Seals said we understand burn down. So there's some challenges. But I think trying to get as close as you can back to what it was is probably ideal. Johnson asked if the homeowners intend to replace any of the other structures that burned. Curtis said they would like to reconstruct the deck and the shed that was beneath the deck.But as I mentioned earlier, it might not be possible to capture the footprint of the previously existing deck. Benson pointed out the situation was the result of a fire,not anything the homeowners wanted to do. So this bluff,regardless of what happens at this point,will never be returned to its original state. Is that correct?So we are where we are with it. And I think my thoughts are communication,communication, communication. And I think it's always a tricky thing when expectations are set in one direction,and then things happen in another.And this is something I was talking about earlier with Adam is that these variances come about or these after-the-fact issues come about from poor communication,lack of communication and expectations being set here and then delivering here. And regardless,we are where we are right now. I do want to acknowledge how incredibly difficult it's likely for the neighbors in this area.And that's important to say because I think whether it's the homeowners or the neighbors,nobody was wanting this to turn out the way it has. Where I'm coming from is that going forward communication has to be spot on. She said she was also very interested in monitoring the plan for vegetation. That's an area that I think I'd like to focus on going forward. But I agree that for now,maybe tabling is the right way to go. Page 12 of 21 MINUTES OF THE ORONO CITY COUNCIL MEETING March 13,2023 6:00 o'clock p.m. Curtis said it might have been helpful if staff would have more discretion in a situation like this of approving something that is not necessarily in-kind,for example,the boulder wall. Edwards said maybe that'd be a good work session topic. There may be better methods to do that than just simply replacing exactly what's there. I will say for City engineering projects where we're doing the exact same work,we often employ the exact same method--we will dig down to get everything that's bad out and we will start rebuilding those walls. We just did a ravine stabilization project this fall, different materials and a little bit different situation, but generally the same method.We built a road in and built our way back out. Johnson moved,Benson seconded,to table LA22-000068,Valdes Lawn Care and Snow Removal, 2815 Casco Point Road, after-the-fact variances.VOTE: Ayes 4,Nays 0. RECESS AND RECONVENE Mayor Walsh recessed the meeting at 7:58 p.m. The meeting was reconvened at 8:05 p.m. FINANCE DIRECTOR REPORT Finance Director Olson gave a presentation on the previous month's building revenue, noting the City is about 35%ahead of last year and typically the first two months of the year are the lowest activity.We'll have to wait until you see the May through October/November period where all of the revenue comes in. So we're off to a good start.Hopefully it continues.We're at 16%of revenue at roughly 16%of the year. CITY ATTORNEY REPORT Attorney Mattick said he had a couple of updates. I did receive a request from Councilmember Benson regarding the Data Practice Act, and I thought it'd be useful to share it with the entire Council. The question was when you as individual Council Members get emails from residents or other citizens,what is the status of those emails?And what the law says is that if there's an email from a resident to a Council Member or the Mayor,that email is private data,meaning that if we got a data practice request,you would not need to disclose it because it is private data. You as the holder of that data could choose to share it if you wanted to.And you as the holder or receiver or sender of that email can choose to share it even though it's private,but you can choose to withhold that as private data.Also,something to keep in mind with that is if you get an email from a resident, and then you forward it to say,Adam,at that point that email has become public;the sharing it with staff has made it public. If you get an email from a resident, and they copy a staff member,that email then becomes public also. So strictly speaking, correspondence to and from residents is private data. There are other types of classification. If you receive property complaint data that's technically confidential,there is a legal distinction between confidential and private. Otherwise,you know,when we've done our trainings,generally what we've said is look, all emails are presumed public,but I think this is one of those exceptions that has come up. The thing to keep in mind is that if and when we have emails,if there's litigation,the discovery process may,in fact,require them to be disclosed.But candidly,you start with the fact that they're private. So they're not always disclosed. Page 13 of 21