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HomeMy WebLinkAbout10-11-1999 Council Minutes73 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 • ROLL The Council met on the above - mentioned date with the following members present: Acting Mayor Charles Kelley, Council Members Richard Flint, Bob Sansevere, and Barbara Peterson. Gabriel Jabbour was absent. Representing Staff were City Administrator Ron Moorse, Public Services Director Greg Gappa, City Attorney Tom Barrett, Senior Planning Coordinator Michael Gaffron, City Engineer Tom Kellogg, Zoning Administrator/Planner Paul Weinberger and Recorder Lanette Wolf Acting Mayor Kelley called the meeting to order at 7:00 p.m. ( #3) CONSENT AGENDA Items 6, 7, 8, 10, 11, 12, 13, 14, 15, 18, and 19 were added to the Consent Agenda. Sansevere moved, Flint seconded, a motion to approve the Consent Agenda as amended. VOTE: Ayes 4, Nays 0. ( #1) NAVARRE WATER TREATMENT PLANT REHABILITATION A. ASSESSMENT HEARING Kelley opened the public hearing at 7:04 p.m. There were no comments. The public hearing • was closed. B. ADOPT THE NAVARRE WATER TREATMENT PLANT REHABILITATION PROJECT REVISED ASSESSMENT ROLL - RESOLUTION NO. 4359 Peterson moved, Sansevere seconded, to approve Resolution No. 4359 Adopting the Revised Assessment Roll for the Navarre Water Treatment Plant Rehabilitation. VOTE: Ayes 4, Nays 0. ( #2) PUBLIC HEARING AUTHORIZING LEVY CERTIFICATION TAX RATE INCREASE FOR THE 1999 TAX LEVY COLLECTIBLE IN 2000 - RESOLUTION NO. 4360 Kelley opened the public hearing at 7:05 p.m. There were no comments. The public hearing was closed. Kelley asked if this is a new requirement that prohibits cities from saying they are not raising their tax rate. Moorse said that the State Legislature is concerned that some local units of government claim • they are freezing their tax rate which sounds like they are freezing taxes. The legislature created the "Levy Certification Tax Rate" which forces cities to say the tax rate is increasing. Page I fo ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #2) PUBLIC HEARING A UTHORIZING LEVY CERTIFICATION TAX RATE • INCREASE FOR THE 1999 TAX LEVY COLLECTIBLE IN 2000 —Continued Moorse said Orono's tax capacity rate is not increasing, but the levy and the "Levy Certification Tax Rate" are both increasing. The City's Levy Certification Tax Rate for 1999 is 13.12 %, and for 2000 is 13.72 %. Sansevere moved, Flint seconded, to adopt Resolution No. 4360 Authorizing a Tax Rate for the 1999 Tax Levy Collectible in 2000 That is Greater Than the "Levy Certification Tax Rate" for the 1998 Tax Levy Collectible in 1999. VOTE: Ayes 4, Nays 0. APPROVAL OF MINUTES ( * #4) REGULAR MEETING OF SEPTEMBER 27,1999 Sansevere moved, Flint seconded, to approve the Minutes of the Regular City Council meeting of September 27, 1999. VOTE: Ayes 4, Nays 0. PARK COMMISSION COMMENTS - Sherokee Ilse, Representative Sherokee Ilse reported that the Park Commission has met with the neighbors of the Navarre Park. The neighbors are very happy and excited to participate in the planning process for the • park. Kelley asked how many neighbors attended the meeting. Ilse said there were five or six neighbors that attended. Gappa said that they spent the whole day on a Saturday walking around the park and Andrew drew up a diagram of some paths through the park. Ilse reported on the status of the Seven Nations Natural Area. She reminded the Council that the neighbors in that area are very anxious for improvements to begin. She said the neighbors are very interested in a link from the trail on Old Crystal Bay and Watertown up to the Seven Nations Natural Area and then to Thoroughbred. Kelley asked if the City abandoned the easement in that area. Ilse said no. Flint said there is no easement from Old Crystal Bay Road unless the public right -of -way is used. 0 Page 2 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 • PARK COMMISSION COMMENTS - Continued Ilse said there is one property owner who is very supportive and that person owns most of the property needed for the trail right -of -way. Flint recalled that it was going to be expensive to install a trail in that area and that the Council did not want to spend the funds. He thought the City was going to just cut the grass, as a preliminary measure, from Old Crystal Bay over to the park. Gappa said the City is mowing the internal trails only. Flint asked if the shoulder of the road was being mowed. Gappa and Ilse said no. Flint asked what the Park Commission has in mind for that area. Ilse said the Park Commission would like to talk to the property owner about what it would take to get the trail off the shoulder of the road. Flint asked if the trail would be on the public right -of -way. is Gappa said if the trail would be separated from the road, it would be necessary to obtain some easements. 0 Flint asked if it could be located beyond the shoulder and still be on the public right- of -waN . Gappa said it may be possible to make a wider shoulder. Flint said the Council would need to know if it would be on the public right -of -way or if it would be necessary to spend significant dollars to obtain easements. Flint asked Ilse what kind of trail the Park Commission was considering. Ilse said the Commission has not planned that far ahead because they want to find out if the Council will support the project. She wants the Council to know that the neighbors do support it. Flint asked if the trail would go all the way to Thoroughbred. Ilse said yes, and that way people would not have to walk on Watertown where there is no shoulder. Kelley asked if the City has an easement on Thoroughbred because it is a private road. Page 3 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 PARK COMMISSION COMMENTS - Continued Gappa said public use of Thoroughbred Road would be a problem because this is a private road. The City only has underlying access easements for utilities, emergency services, etc., but not for general public use. PLANNING COMMISSION COMMENTS - Jay Nygard, Representative None PUBLIC COMMENTS None ZONING ADMINISTRATOR'S REPORT ( #5) #2492 RICK AND GAIL LUZAICH, 2490 OLD BEACH ROAD - VARIANCES AND CONDITIONAL USE PERMIT, RESOLUTION NOS. 4361 AND 4362 The applicants were not present and City Attorney Barrett suggested that the marer be tabled until later in the meeting. Peterson moved, Sansevere seconded, a motion to table Item #2492, 2490 Old Beach • Road. VOTE: Ayes 4, Nays 0. ( * #6) #2521 JOSEPH HAUS, 4485 BAYSIDE ROAD - CONDITIONAL USE PERMIT - RESOLUTION NO. 4363 Sansevere moved, Flint seconded, to approve Resolution No. 4363, Granting a Conditional Use Permit per Municipal Zoning Code Section 10.20, Subdivision 3, (G) File #2521, 4485 Bayside Road. VOTE: Ayes 4, Nays 0. ( * #7) #2523 RONALD AND RITA JANE ZEBECK, 998 WILDHURST TRAIL - VARIANCES AND CONDITIONAL USE PERMIT - RESOLUTIO\ NO. 4364 Sansevere moved, Flint seconded, to approve Resolution No. 4364 Granting Variances per Municipal Zoning Code Section 10.22, Subdivision 2 and Section 10.56, Subdivision 16(L) (2) and a Conditional Use Permit per Section 10.03, Subdivisions 19 -21 File No. 2523, 998 Wildhurst Trail. VOTE: Ayes 4, Nays 0. 0 Page 4 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 • ( * #8) #2524 W. DUNCAN MACMILLAN, 1700/1820 FOX STREET - CONDITIONAL USE PERMIT - RESOLUTION NO. 4365 Sansevere moved, Flint seconded, to approve Resolution No. 4365 Granting a Conditional Use Permit per Municipal Zoning Code Section 10.03, Subdivisions 19 -21, File #2424,1820 Fox Street. VOTE: Ayes 4, Nays 0. ( #9) #2541 PAUL PHILLIPS, 2140 SIXTH AVENUE NORTH, FINAL PLAT OF PHILLIPS WOODLAND TERRACE THIRD ADDITION Peterson moved, Flint seconded, to table Item #2541, 2140 Sixth Avenue North, Final Plat of Phillips Woodland Terrace Third Addition, until October 25,1999. VOTE: Ayes 4, Nays 0. ENGINEER REPORT ( * #10) REQUEST FOR SANITARY SEWER - 480 RUSSELL AVENUE Sansevere moved, Flint seconded, to approve use of one sewer unit for connection of 480 Russell Avenue to sanitary sewer with the property owner responsible for all costs associated with hookup, including the connection fee for the Minnetonka Bluffs sewer project, and City Engineer plan approval required. VOTE: Ayes 4, Nays 0. • ( * #11) REQUEST FOR SANITARY SEWER - 925 BROWN ROAD NORTH E Sansevere moved, Flint seconded, to approve use of one sewer unit for connection of 925 Brown Road North to sanitary sewer with the property owner responsible for all costs associated with hookup, including the connection fee for the North Long Lake sewer project, and City Engineer plan approval required. VOTE: Ayes 4, Nays 0. ( * #12) AWARD CONTRACT FOR WELL #1 REPAIRS Sansevere moved, Flint seconded, to award the contract for well number 1 repair to Alberg Water Services, Elk River, Minnesota, for a total base bid of $29,765. VOTE: Ayes 4, Nays 0. ( * #13) REQUEST FOR PAYMENT #2 - EDGEWOOD HILLS SANITARY SEWER PROJECT Sansevere moved, Flint seconded, to approve Request for Payment #2, Edgewood Hills Sanitary Sewer Project to G.L. Contracting Inc. in the amount of $16,911.29. VOTE: Ayes 4, Nays 0. Page 5 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( * #14) REQUEST FOR PAYMENT #2 - ORONO ORCHARDS SANITARY SEWER PROJECT • Sansevere moved, Flint seconded, to approve Request for Payment #1, Orono Orchards Sanitary Sewer Project to Widmer Inc. in the amount of $56,155.69. VOTE: Ayes 4, Nays 0. ( * #15) REQUEST TO PURCHASE GOLF COURSE LEAF BLOWER Sansevere moved, Flint seconded, to approve purchase of a Little Wonder Leaf Blower from Long Lake Power Equipment for $932.40 to be funded from the Golf Course Capital Outlay Budget with the necessary budget adjustment approved. VOTE: Ayes 4, Nays 0. CITY ADMINISTRATOR'S REPORT ( #16) 200 HOLLANDER ROAD - CONCERNS OF PROPERTY OWNER Sansevere moved, Peterson seconded, to table the matter concerning 200 Hollander Road until October 25,1999. VOTE: Ayes 4, Nays 0. ( #17) LONG LAKE VOLUNTEER FIRE DEPARTMENT YEAR 2000 BUDGET Moorse stated this is information about the Long Lake Volunteer Fire Department's Year 2000 Budget. He said the overall budget is increasing 7% or $11,394. Orono's share is $8,390. The majority of the increase is related to an increase in the pension contribution. He referred to a survey of other volunteer fire departments that shows pension and other compensation levels. The increase in the pension contribution will begin to move the pension to a level that the Fire Department feels will help them to recruit and retain firefighters. Moorse said the Fire Department has budgeted $24,000 in the year 2000 for painting and minor refurbishment of Engine 11 and Tanker 11. He reminded the Council that they have some information from past meetings that lays out more significant expenditures in the coming years for vehicles and equipment. Flint asked how the major expenditures for vehicles and equipment and the location of the fire station will be addressed in the future. Moorse said that the amount that is set aside each year for vehicle and equipment replacement has been increased from $20,000 to $30,000 in the City of Orono's Year 2000 budget. He said that does not include the amount that the City may have to pay toward a new fire station. At this point, no one is sure what the City's share of the cost might be for a new fire station because Mn/DOT will be paying for a portion of it and the station has not been designed. Page 6 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 • ( #17) LONG LAKE VOLUNTEER FIRE DEPARTMENT YEAR 2000 BUDGET— Continued Flint asked what percentage the City of Orono pays. Moorse said it is 71 %. Flint said that, obviously, the City of Orono is a major player and needs to be involved in the planning process from the beginning. Kelley said that he and Moorse recently visited fire stations in St. Bonifacius, Chaska, Chanhassen, Shakopee, and Savage. He understands that the design of the Long Lake Fire Department's station is being held up because Long Lake is trying to work out an agreement with Mn/DOT on funding for consultant services for the design of the fire station. Long Lake wants to make sure they have an agreement in place with Mn/DOT where Mn/DOT will pay the costs of designing a new fire station. If they spend money before Mn/DOT has approved it, then it doesn't get reimbursed. As soon as they have that agreement, an architect will be hired. He said that he, Peterson, and Kelley are on a facilities committee that will be working with Long Lake and the architect to put together a design for the fire station. • Sansevere said that the cities are in discussions about consolidation. If that happens, he asked if the new fire station could be more centrally located and the need for Maple Plain's Fire Department diminished. 0 Moorse said he is not sure that consolidation will change the location of the fire station. He said they are looking at locations that are a little farther west, but they wouldn't want to move it too far west because the fire station needs to be located relatively close to the firefighters. Sansevere said he was thinking within one - quarter mile of the Orono City Hall because it is fairly central to Long Lake and parts of Orono. Kelley said that the consultant would help find the best location for the fire station. Sansevere said the Council should keep in mind that they will need to consider what role Maple Plain would play if Orono and Long Lake consolidated and the fire station was moved farther west. Moorse said that on a periodic basis, the cities take a look at the fire districts to see if changes are needed. Flint asked how duplication of expensive fire equipment can be avoided. Page 7 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #17) LONG LAKE VOLUNTEER FIRE DEPARTAIENT YEAR 2000 BUDGET— Continued • Moorse said that several of the local city administrators recently talked about that specific question. They want to meet with all the fire chiefs and city administrators to talk about avoiding duplication of expensive equipment and keeping volunteer fire departments viable. Kelley suggested there should be one fire department for the north shore of Lake Minnetonka with four different stations. Sansevere asked if both Long Lake and Maple Plain Fire Departments respond when there is a fire call. Moorse said that the fire departments cooperate very well through mutual aid. He said that as they looked at the various stations, each one has different equipment that would be nice to have, but the price adds up quickly. It would be very expensive to pay for the same equipment at the Long Lake fire station and all the other stations that support Orono. It might be more cost effective to have one main station with some satellites. Sansevere asked what percentage Orono pays to Maple Plain. Moorse said it is very low, perhaps $20,000 to $30,000 of a $167,000 budget. Kelley asked if the firefighter pension plan is under funded. Moorse said he does not believe it is under funded. Kelley asked why Orono is being asked to pay more money toward the pension fund. Moorse said it is because they want to increase the benefit. Kelley asked after the benefit level comes up, will it be under funded. Moorse said the City would want to figure out what the contribution needs to be to make sure that we can reach a benefit level without it being underfunded. Kelley asked if Moorse receives an annual statement of the pension's investment returns. Moorse said he has not received a statement. He said the fire association is independent. Kelley said it is very important to get an annual statement that shows their investments and the returns. Flint asked if the fire association makes those investment decisions individually. Page 8 0 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999_ ( #17) LONG LAKE VOLUNTEER FIRE DEPARTMENT YEAR 2000 BUDGET— Continued Moorse said the department itself has a fire relief association with a board that makes the investment decisions. They may be working with a financial advisor to help them with their investments. Kelley said that not all the fire departments participate in PERA. Some of them handle their own pension funds. Peterson moved, Sansevere seconded, to approve the proposed Long Lake Volunteer Fire Department operating and capital budgets for the year 2000, and to amend the General Fund and Improvement and Equipment Outlay Fund budgets to reflect these expenditures. VOTE: Ayes 4, Nays 0. MAYOR/COUNCIL REPORT Flint said there are two work sessions scheduled and he asked Moorse if those meetings will be held. • Moorse said there is a work session this Thursday at 7:30 a.m. to talk about the stormwater management plan. He said there are meetings scheduled for October 21 and October 28. The Council will be meeting with Mn/DOT on the preliminary layout. The Council also needs to talk about the Comprehensive Plan at one of the meetings. Kelley asked Kellogg if the work that was done south of the bridge on North Ferndale Road during the North Long Lake Project was paid for by the City of Wayzata. Kellogg said they did pay for it. Sansevere said a resident inquired whether the City would be interested in obtaining a police dog. Peterson said the City has had two police dogs in the past. Moorse said it was not cost effective and the City can call other police departments if a canine is needed. He said it was a public relations tool. Sansevere asked when the City last borrowed a canine from another department. • Moorse said he would check with the Police Department. Page 9 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 0 ( * #18)PURCHASE OF LAND MANAGEMENT SOFTWARE (GOVERN) Sansevere moved, Flint seconded, to grant preliminary authorization for the purchase of the Govern and ArcView software, subject to receiving the formal proposal from GeoAnalytics. VOTE: Ayes 4, Nays 0. ( * #19) RESIGNATION OF COMMUNITY SERVICE OFFICER Sansevere moved, Flint seconded, to accept the resignation of Jason Koczur from the position of part -time Community Service Officer effective September 19, 1999. VOTE: Ayes 4, Nays 0. CITY ATTORNEY'S REPORT None. ( * #20) LICENSES Sansevere moved, Flint seconded, a motion to approve the following licenses: HOME OCCUPATION LICENSES • Mi Casa Salon (Hair Salon) Jennifer M. L'Allier 2684 Lydiard Avenue Excelsior, MN 55331 Morning Staar Surgical (Surgical Supply) Thomas W. Clapp 475 Ferndale Road North Orono, MN 55391 Nail by Ginger (Service) Ginger Scott 2620 Kelly Avenue Excelsior, MN 55331 Waldron Law Offices, Ltd. (Law Office) John B. Waldron 1951 Concordia Street Orono, MN 55391 Page 10 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 • SPECIAL EVENT PERMIT Applicant: James McNulty, McNulty Construction Company Event: Builders Association of the Twin Cities Parade of Homes Remodelers Showcase Location: 3125 Fox Street Date: October 15, 1:00 p.m. - 7:00 p.m. October 16 and 17,12:00 p.m. - 5:00 p.m. VOTE: Ayes 4, Nays 0. ( * #21) BILLS Sansevere moved, Flint seconded, to approve payment of the All Funds Account. VOTE: Ayes 4, Nays 0. ( 95) #2492 RICK AND GAIL LUZAICH, 2490 OLD BEACH ROAD - VARIANCES AND CONDITIONAL USE PERMIT, RESOLUTION NOS. 4361 AND 4362 The applicants were not present. Weinberger presented the staff report. He stated that a revised restoration plan has been • reviewed by Dr. Peter Bedker who recommended the plan be adopted by the City. The plan has removed two trees that were located near the far property lines and relocated them closer to the center of the property. He said this plan has not eliminated any trees that did appear on a previous plan; however, it has increased the spacing and will achieve 90 % canopy coverage within the 25 -year restoration period as recommended by Dr. Bedker. Weinberger said the applicant also applied for a conditional use permit and variance to allow for retaining walls and to allow fill within 75' of the lake. He said that staff and Dr. Bedker recommend approval. He said that the applicants have proposed a stairway 5' wide, however the Ordinance only allows stairways 4' in width. Staff is recommending the proposed stairway be reduced l' to comply with the ordinance and decrease potential hardcover on the property. Weinberger said that the Restoration Agreement contains a number of conditions to which the property owner and the City agree to. One of the conditions allows Staff to enter the property and conduct an initial inspection following restoration planting and additional annual inspections for six consecutive years. The purpose of the site inspections is to ensure a successful restoration program and ensure the bluff is not subject to any erosion problems. It also gives the City the right to complete the work if the restoration is not completed or is unsuccessful and for the property owner to pay for those services. Weinberger said the code requires all conditional use permits and variances to be recorded on the chain of title of the property. The property owner disagrees with this requirement. Staff is Page 11 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #S) #2492 RICKAND GAIL L UZAICH, 2490 OLD BEACH ROAD -VARIANCES • AND CONDITIONAL USE PERMIT - Continued recommending that the Restoration Plan, variance for the retaining wall, and the conditional use permit for the small amount of fill be approved. This is all subject to the property owners agreeing to sign the conditional use permit and the restoration agreement. Barrett said that two weeks ago he sent a memo to Mr. Reznick to tell him that the City was determined to see a Restoration Agreement and to point out to him the legal authority of the City to compel one. If someone cuts trees and vegetation in violation of the zoning code, the City can repair to the District Court and get an order of mandamus requiring the property owner to restore it. Barrett also cited him the statutory requirement that the conditional use permit would have to be filed against the land. He did not hear from Mr. Reznick and finally reached him last Wednesday. Barrett said he told Mr. Reznick the matter would be on the agenda tonight and a decision would have to be made because the time period would be expiring unless he and the City mutually agreed to an extension. Mr. Reznick is not present at tonight's meeting. Barrett said he wanted to be certain that the Council members understand the legal implications of the document. He said there are three separate matters. They are a variance to allow the fill, a conditional use permit which allows the regrading, and a restoration plan. He said that nothing in the language of the conditional use permit or the variance has to do with restoration. The restoration plan is a separate piece which staff had hoped to treat as a is condition which could be wrapped in and made enforceable. Barrett said he would like to provide a short amendment to the staff's conclusions and recommend that the Council pass the proposal if they like it substantively. By his amendments, the City could include the restoration agreement, the exhibit which shows the restoration plan and state specifically that the conditional use permit and restoration plan are to be filed against the land. If the applicant refuses that, Barrett thinks the City should prevent any further work on the land until the proper conditional use permit and variance are granted. Secondly, Barrett said the City should commence an enforcement action against the property owner in order to compel the restoration plan, not just to be accepted, but to be filed against the land. This is important because if the land is sold tomorrow, there is no way to compel the subsequent owner to maintain the restoration unless there is an order filed against the land. Most of the trees can be cut at will because the replacements will be so small and the City has no ordinance to prevent them being cut. Sansevere asked if the restoration plan could be enforced against the new owners if the property was sold tomorrow. Barrett replied that in his view, unless the City gets some type of agreement to file the plan and the City's rights of entry and repair against the land, then the new owner is not bound by it. 0 Page 12 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #S) #2492 RICK AND GAIL L UZAICH, 2490 OLD BEACH ROAD -VARIANCES AND CONDITIONAL USE PERMIT - Continued Sansevere asked if, in that case, the City should pass the restoration plan. Barrett said that it may be that the applicants will accept the restoration plan and agree to have it filed against the land. He said that if the City passes the restoration plan, then he knows what the City's position is and he can go to Court to request that it be ordered against the land. Sansevere said he would have a problem passing the restoration plan because there were trees cut down in the center of the property and the restoration plan does not call for them to be replaced in the center of property. He feels it would set a bad precedent to allow them to replant the trees only on the sides of the property. Kelley said the City is concerned about the trees that were cut down in the 0 -75'. He asked if the City can do anything about the trees that were cut down in the 75 -250'. Weinberger said that in this case, the City can do something because the Code does not allow intensive vegetation removal on a steep slope. This property has a steel slope up to approximately the 954 contour, which would include most of the trees. He said clear cutting is not allowed by the code. • Sansevere asked to be shown the new tree line. 0 Weinberger showed the location of the trees on the restoration plan. Sansevere said the Council would be setting a bad precedent by allowing the applicant to only replant trees on the side of the property rather than in the middle. Barrett asked Weinberger to show the 954 contour. He said it is true that there were five trees taken altogether, but he does not believe the City can regulate the trees that are behind the 954 contour. Weinberger showed that there were two trees removed in the 954 contour. Flint said there are contour lines farther from the lake. Weinberger said it was determined by walking the property where the actual slope goes from being steep to coming out to a more even grade. He interpreted the 954 contour to be the top of the slope. He said it could be argued that the slope goes higher on the hill. Flint said the contour line closest to the house could be interpreted as the top of the bluff. Page 13 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #S) #2492 RICK AND GAIL L UZAICH, 2490 OLD BEACH ROAD -VARIANCES AND CONDITIONAL USE PERMIT- Continued Weinberger said the top of the bluff deals with the rise in the elevation over a certain period. He believes the section of the ordinance dealing with tree removal refers to steep slopes and doesn't necessarily refer to a bluff. Flint said he feels Dr. Bedker's plan was an effort to work it out with the property owner with a little give and take on everybody's part. Now, the City is in a situation with a non- cooperative property owner who will not even show up at the meetings. He believes another approach would be to turn the entire application down until there is an adequate restoration plan. Sansevere said that the one time the applicants were at a meeting, it was made clear that the Council would like to see them address the fact that so many trees were removed from the center and it doesn't seem like there is any movement on their part to do that. Flint said he doesn't believe they ignored it completely. Sansevere said they moved two trees, but not to the center to replace the ones that were cut down. Barrett said the question is the extent to which the Council can predicate a decision on a • variance application or conditional use permit application on the restoration plan. He said the variance application really has to do with hardship and what is done in similar circumstances. The conditional use permit for the grading is the same issue. Ordinarily, the Council looks at conditional use permit applications and grants them or not depending on whether they meet the written required conditions. He does not believe there is any immediate link between those applications and the restoration plan. Sansevere said he does not have a problem with the walkway or the retaining wall. Jay Nygard said he believes they are linked in several ways. He said the biggest tree they removed may or may not be in the bluff area, but it had the largest root structure and it was maintaining the most erosion control. He said that when the applicants presented the proposal to the Planning Commission, they passed it so the applicants could get the plantings completed this year and reclaim the land. He believes that the plan the Planning Commission reviewed had several trees planted down by the lake in the center of the lot. He said the present plan is contrary to what the Planning Commission looked at. Kelley said he is concerned that the land will be sold and the City will have no recourse. Peterson said she believes there will be a problem with the perception within the community if the trees in the center are not replaced. • Page 14 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #S) #2492 RICK AND GAIL LUZAICH, 2490 OLD BEACH ROAD -VARIANCES AND CONDITIONAL USE PERMIT - Continued Barrett recommended that the Council think of the restoration plan as not being linked to the conditional use permit or the variance, consider what they would want to see as an appropriate restoration plan and if the applicant will not agree to it and record it against the land, that is predicate for litigation. Kelley asked if the Council can move the trees on the plan if they don't feel the plan is appropriate. Barrett said yes, he thinks the restoration plan is an independent piece. Kelley asked if the Council members would like to move the two maple trees back to the center of the property. Sansevere asked Nygard where the trees by the lake were supposed to be located. Nygard said the plan being shown is not what the Planning Commission reviewed. He said the plan they reviewed had a few trees in the middle and the Planning Commission wanted to see more trees and less shrubs. He does not believe the applicants followed the direction of the Planning Commission. • Kelley said the trees should be moved to the top of the bluff, not down by the lake. Sansevere said he would like the new trees planted as close as possible to the stumps of the trees that were removed. He thinks the Council needs to send a message to everyone that they can't cut their trees down to get the view and then replace the trees on the side. Peterson said there is a problem with the definition of the bluff. Flint explained to Gaffron that the Council was addressing the question of where the bluff starts and whether the Council has any power to deal with the area near the house. Gaffron said the total removal of trees is not allowed in a bluff. The bluff includes the bluff impact zone which is the area up to the top of the bluff and the next 20 feet. The top of the bluff is the point at which the slope changes from 18 percent or more to 18 percent or less. Sansevere asked if the three trees near the house are in an area that the Council has authority over. Kelley said Weinberger has defined the top of the bluff at the 954 contour. • Gaffron said, in his opinion, the whole feature is the bluff and if they have clear cut on the bluff, those trees would have to be replaced. Page 15 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #5) #2492 RICKAND GAIL L UZAICH, 2490 OLD BEACH ROAD - VARIANCES • AND CONDITIONAL USE PERMIT- Continued Sansevere said that he would like to see two trees planted in that area also. Kelley said that the applicant would have to replant two maple trees between the 956 and 958 contour as close as possible to the original. He said it is also the Council's opinion that the two maple trees that were cut at the 75' line should be replanted toward the center of the lot. The other Council members agreed with Kelley. Kelley said he thinks the Council members all agree on the variance and the conditional use permit. Kelley asked which items of the proposed resolution need to be changed or added onto. Weinberger said the requirements for replanting will be added to the resolution as part of the conditions. Sansevere asked Barrett what the Council needs to add to protect itself from someone buying the property next week and not having the plan enforced. Barrett recommended that the Council set a deadline within which to get an agreement on the restoration plan as amended. If an agreement is not obtained, to authorize him to commence litigation and to file it against the property. is Kelley suggested Friday, October 22nd. Sansevere asked what would happen if the o«-ner sells the property before accepting the agreement. He asked if the new owner would get the property in the state it is in now and the City could do nothing. Barrett said that to some extent it is a question of whether they would be good faith purchasers or they buy in ignorance of this. He said the violation the City is seeking to remedy occurs by the action of an individual person against whom, and his land, the City can get an order. To say that a subsequent purchaser has liability for those actions is hard to do unless the City could demonstrate actual knowledge. Sansevere asked if the Council should consider filing the litigation now. Moorse suggested that the City put a sign back up so that any potential buyer would see it. Sansevere asked if they would be bound by any legal obligation to do something about it. Barrett said that if they are aware that the property is subject to a dispute about whether it has to be restored, that they would take it subject to that dispute. Page 16 ORONO CITY COUNCIL MEETING MINUTES FOR OCTOBER 11, 1999 ( #S) #2492 RICK AND GAIL L UZAICH, 2490 OLD BEACH ROAD - VARIANCES AND CONDITIONAL USE PERMIT- Continued Sansevere said that if there is a chance of the property being sold, the City should do something about it right away. Flint asked Barrett if he was saying that the City could commence litigation tomorrow and file a lis pendens simultaneously. Barrett said yes, and that would put a new owner on notice that the property is subject to litigation and that they have to inquire as to what it is about. The title investigation should reveal the lis pendens. Flint said he thinks the City should commence the litigation and file the lis pendens. Peterson moved, Sansevere seconded, to approve Resolution No. 4361 Granting Variances Per Municipal Zoning Code Section 10.22, Subdivision 2 and Section 10.56, Subdivision 16(L)(1) and a Conditional Use Permit per Section 10.03, Subdivision 19, File No. 2492, 2490 Old Beach Road, on the condition that the applicant reduces the width of the proposed stairway from 5' to 4', and excluding the restoration plan. VOTE: Ayes 4, Nays 0. • Sansevere moved, Flint seconded, to adopt a resolution authorizing Mr. Barrett to commence litigation to restore the property because of the cutting in violation of the Zoning Code. VOTE: Ayes 4, Nays 0. • Peterson moved, Sansevere seconded, a motion to adjourn the meeting at 8:20 p.m. VOTE: Ayes 4, Nays 0. ATTEST: Lin a S. Vee, City Clerk Gabr 1 Jabbour, Mayo Page 17