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HomeMy WebLinkAbout09-10-1984 Council Minutes . . ;,,'f ' MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 1 ATTENDANCE 7:00 PM The Orono City Council met on the above date with the following members present : Mayor Butler, Council- members Grabek, Adams, Frahm and Hammerel . Zoning Administrator Mabusth, Assistant Zoning Adminis- trator Gaffron, and Recorder Sutton represented City staff . City Attorneys Malkerson and Radio, and City Engineer Cook were also present. City Administrator Benson was not present. CONSENT AGENDA* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the Consent Agenda* , with all staff reports c�ncerning these items reviewed at this meeting to be attached to the original copy of these minutes on file in the City Clerk' s office . Motion, Ayes (5 ) , Nays ( 0 ) . APPROVAL OF MINUTES* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the minutes of the regular Council meeting held August 27 , 1984 . Motion, Ayes (5 ) , Nays (0 ) . APPROVAL OF MINUTES* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the minutes of the special Council meeting held August 22 , 1984 . Motion, Ayes (5 ) , Nays ( 0 ) . LARE MINNETONRA CONSERVATION DISTRICT REPORT There was no Lake Minnetonka Conservation District Report. PLANNING COMMISSION COMMENTS Planning Commission Representative Charles Kelley had no comments . PUBLIC COMMENTS There were no comments from the public present. #820 LONIE FISR 493 PARR AVENUE VARIANCE Lonie and Curtis Fisk were present. Robert Hoffman and Garth Coller, attorneys , represented Lonie Fisk. Lawrence Emond, appraiser, was also present. The following neighbors were also present for this application: Catherine and Don Meyer of 485 Park Avenue David and Sherokee Ilse of 4105 Oak Street Tim Argabright of 4085 Oak Street David and Phyllis Fritz of 475 Tonkawa Road Mike and Rowanne Dombeck of 499 Tonkawa Road Debbie and Dave Siegel of 4111 Oak Street Phil Bradley of 4075 Oak Street MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 2 �820 LONIE FISR Zoning AdministratorMabusth stated that this isa lot area and lot width variance. Mabusth stated that the lot contains 10 ,761 . 92 sf and applicant seeks a variance of 32 , 798 sf or a 75 percent variance. Robert Hoffman, Fisk' s attorney, reviewed with the Council the basis on which they have asked for the variance as follows : l . The variance meets the standards of the ordinances. 2 . The variance meets the application of the standards that the City has established by granting other variances within the City. 3 . The facts that have been presented so far do not indicate any adverse effects on the general heaith, safety, and welfare of the village. 4 . Findings for approval made by staff and Planning Commission that meets the ordinances , meets past standards set by the City, and no evidence of adverse effects on general health, safety, and welfare. 5 . A denial would leave them with no reasonable use of the property at all and that there is some protection under the City' s ordinances for the applicant. Hoffman reviewed with the Council the findings on which the above was based as follows : l . These are lots of record and have been since January 1, 1975, and therefore fit within a certain category of the City' s ordinances as to how variances should be treated when applied for for that type of property. 2 . The City' s ordinance provides that the City can grant variances in particular situations where there are practical difficulties or particular hardships and where the variances do not affect the purpose and intent of the zoning nor the general health, safety, and welfare. 3 . Planning Commission has found that this particular application meets the City standards and has found that approving this variance would not effect the general health, safety, and welfare or property value in the neighborhood. 4 . It would place undue hardship on the owner if the variance was not granted in that the owner would have no reasonable use of the property thereafter. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 3 #820 LONIE FISR 5 . The requests that are being requested are consistent and within the rangesof variances that the City has approved or granted within the last two years. 6 . No adjacent property is available for this owner to acquire. 7 . There is a sewer stub available to the property and one half the property has been assessed for that sewer service. 8. There are other patterns in the neighborhood of combining lots for development and those have been approved by the City. Lots in the general area do not meet the current zoning standards as far as meeting the 1 acre minimum requirement. 9 . The proposed building envelope meets all standards of the City as far as setbacks , hardcover requirements, and use requirements . Hoffman stated that his attorney' s office had reviewed the City records of similar variances in the last two years and that no variances that have been heard have been denied. Hoffman stated that every request for a variance for the last two years of properties similar to the Fisk application have been granted. Hoffman stated that the requests that they have are well within the ranges of those variances that have been granted. Hoffman stated that about three or four years ago, his attorney' s office had a matter before the City at which time they researched the City' s records and f ound that the City' s actions were very consistent with the actions as the past two years . Hoffman stated that the courts do recognize past actions of a municipality and are of some significance of whether a particular variance should or should not be granted. Hoffman stated should be looked at is whether or not the property is zoned for the intended use which is residential, whether the land is suitable for that use which is residential, whether or not there is evidence in the record that it would be harmful to the general health, safety or welfare or morals in the particular area, or whether or not denial would leave the property owner with a situation where that owner may not have equal protection whereas you have allowed other property owners in the City. Hoffman noted that the appraisal that was submitted was done by Lawrence Emond. Hoffman stated that it is Emond's opinion that the general value of residents in the immediate neighborhood are in the area of $60- 85,000. Hoffman stated that Fisk' s value would be around $90 , 000 upon completion. Hoffman stated that MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 4 #820 LONIE FISR the value of Fisk ' s development is consistent or in excess of the general value of the neighborhood. Hoffman stated that Emond has estimated the current value of the land as nominal . Hoffman stated that if the variance was granted, the property would have an undeveloped value of approximately $12 , 000 . Hoffman stated if a house was constructed on the property, the value of the land would be $17 , 000 . Hoffman stated that the land is currently taxed at $500 a year. Hoff�an stated that other parcels that are taxed $500 a year usually are valued at $76 , 000 after construction of a home. Lawrence Emond stated that he has taken 10 sales in the Orono area. Emond stated that the sales ranged from $75-95 , 000 . Emond stated that the real estate tax (homesteaded taxes on existing property) on $75 , 000 sale is $614 . Emond stated that on other sales rangingfrom $85-88 , 500the average tax was $1 , 047 . 75 . City Attorney Malkerson stated that the Supreme Court � of rlinnesota has ruled that the Council cannot vote for or against any variance application based upon what neighbors want or don ' t want. Malkerson stated that isnotrelevant. Malkerson statedwhat is relevant, however, are the concerns of the neighbors as they relate to the health, safety and welfare. Malkerson stated that the health, safety and welfare concerns are proveable concerns within the courts , not just mere statements that the neighbors think a variance will result in the dimunition of land value, or that a variance will result in over crowding of the neighborhood, or a variance may cause traffic probiems . Malkerson stated that it is important to remember that the court has reviewed a lot of variance cases and have said, it is not whether people want the variance or not, it is , what is the basis for any testimony; is there any basis in fact, which facts support legal reasons for denial or approval. Don Meyer of 485 Park Avenue stated it is not a matter of what the neighbors want, but that the neighbors want the ordinances upheld. Meyer stated that he moved into the area assuming that this is a one acre zone. Meyer reminded the Council that this land was tax forfeit and that he didn ' t think that anyone would let a perfectly buildable lot go tax forfeit without selling it for a profit. Meyer stated that he would just like to keep his neighborhood the spacious way it was when he moved in there. Phil Bradley of 4075 Oak Street stated that at the beginning of this application, the applicant for the variance is not the registered owner of the property. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 _ PAGE 5 �820 LONIE FISR Zoning Administrator Mabusth stated that the applicant can apply for the variance and that the owner must sign the application. Mabusth stated that the owner did sign the application. City Attorney Malkerson stated that as long as the applicanthas some legal relationship with the owner, whether by purchase agreement or other agreement. Malkerson asked what the legal relationship was between the applicant and owner. Hoffman stated that it is father and son. Hoffman stated that there is an agreement between the applicant and owner. Phil Bradley of 4075 Oak Street stated that this applicant went before the Planning Commission, which made certain findings which he feels were perhaps in error. Bradley stated that the applicant is asking for two variances , lot size and lot width, and that he felt that a setback variance should be required. Zoning Administrator Dlabusth explained how corner lots work with setbacks and noted that a setback variance is not needed. Phil Bradley of 4075 Oak Street stated that the owner of the property was aware of the risk when he purchased the tax forfeit lot down at the county. Bradley stated that when Fisk bought the property he was aware that the lot was not guaranteed buildable and he undertook that risk which was a self-induced hardship. Bradley stated that the attorneys have stated that Orono has granted variances in similar cases and Don Meyer has done a rebuttal to the findings of the Fisk' s attorneys. Don Meyer of 485 Park Avenue stated that in his rebuttalmemoto the applicant ' sattorneyreview, that he went over the "similar" variance cases. Meyer stated that he went around to the individual properties that were noted and talked with the owners . Meyer stated that some of those properties were lakeshore and are quite different and should not be compared with the Fisk lot. Meyer stated that one variance was for a septic tank. Meyer stated that if Fisk is allowed to build, that there are other lots in the neighborhood that can be built on. Meyer stated atleast3morepropertieswillwant variances . Meyer stated that he moved into Orono assuming that Orono would uphold the ordinances. Meyer stated that his home is being threatened and asked Council to enforce the ordinances. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 6 �820 LONIE FISR Zoning Administrator Mabusth stated that one of the variances Meyer ' s referred to was a variance for a house on a substandard lot on East Lake Street. Mabnsthstated that the structure had existed without inside plumbing and was served by an outside toilet. Mabusth stated to make it a year round liveable structure, they were allowed to have a minimal amount of plumbing inside and to be serviced by a holding tank. Mabusth stated that it was looked upon as a lot area and lot width variance. Councilmember Grabek asked Fisk if he was aware of the zoning when he purchased the lot. Curtis Fisk stated that he never signed anything down at Hennepin County and that he called the City and the City said there would be no problem. Fisk stated that he doesn' t remember who he talked to at City Hall . City Attorney Malkerson stated that the last time this was in front of the Council and that question was asked and the answer was given, the City asked for Fisk' s to search the record and submit an affidavit to the City. Malkerson stated that the affidavit would state that before they bought the property they did call the City and that they don ' t remember who they talked to. Malkerson noted that not that Fisk' s statement is not relevant, but it was just noted for the record. Malkerson stated that the ordinances do not require an affidavit. Councilmember Grabek asked Malkerson if the City was legally bound to grant variances to Fisk because the City granted other variances that were similar. City Attorney Malkerson stated if the City Council has granted one or more variances to properties that are similar to the Fisk property (and there has been no change in the ordinance or change in the comprehensive plan or policies of the City or other change in fact that would distinguish those actions from what the Council has in front of them today if none of those things are true ) , then the precedent of having granted a variance on the same fact situation is very relevant to the courts in the review in the denial or approval of a variance at this point. Malkerson stated that in the constitution of both the state and federal government there is an equal protection clause which basically states all people shall be treated equally. Malkerson stated that if the facts are similar and one person applies for a variance and it is approved, and another person applies for a variance that is similar and it is denied, that the City would have denied equal protection of the law. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 7 #820 LONIE FISR Councilmember Grabek asked Zoning Administrator Nabusth if she felt that the variances that were compared with the Fisk application were similar. Zoning Administrator Mabusth stated that the one that is quite similar is the Munsell variance application. Mabusth stated that because the Munsell lot was sewered, the variance was granted. Mabusth stated that the Burnevik application is similar too. Mabusth stated that the nine variances that were compared with the Fisk application all had similar finaings in approving the lot area and lot width variances. David Ilse of 4105 Oak Street stated that if the Council grants the variance, that the City is opening themselves up to granting other variances for smaller lots. Don ASeyer of 485 Park Avenue stated that the houses that are there now were grandfathered in. City Attorney D9alkerson stated that the fact that this individual bought this property through the county as tax forfeit land is not relevant to whether or not a variance should be granted. Malkerson stated that many times properties go tax forfeit becaus� the sewer assessments were too great or taxes accumulated. Malkerson stated what is relevant, is that the City doeshave expert testimony in the record , unrebutted, that the property is almost worthless if the variances are not granted. Malkerson stated, according to Appraiser Emond, that the property is worth $12 , 000 if the variances are granted. Malkerson stated that when the court analyzes a denial or approval of a variance, it looks to two tests. Malkerson stated that the courts ask what is the dimunition in value. Malkerson stated that in this case we have testimony that it is $12 , 000 if the variance is granted, and almostzeroif the varianceisnot granted. Malkerson stated almost 90-100 percent dimunition in value if the City does not grant �he variance . Malkerson stated that says to the courts that the variance probably should be granted unless it can be shown that the granting of a variance is so adverse to the public health, safety, and welfare, or is so adverse to the promotion of the public good. Malkerson stated that the City has to weigh dimunition in value against the adverse effect, if any, on the health, safety and welfare or adverse effect on the promotion of public good. Malkerson stated that he has not seen any testimony in the record that would indicate that the building of a home and granting the variance, as requested, would result in dimunition of value to surrounding properties , or adverse effects on traffic, sewer or water. Malkerson stated that if there is such testimony, it should be brought forward . MINUTES OF THE REGULAR COUNCIL MEETING OF SEPTEMBER 10, 1984 . PAGE 8 #820 LONIE FISK Malkerson noted that the statements made by the neighhors that they would like to have this lot kept as open space is certainly relevant to them and relevant in planning and relevant to the Council, but not necessarily relevant to the context to the granting or denial of a variance . Malkerson stated that here the City is dealing with the property rights of the person owning the property. Malkerson stated that in this case the person bought the property, whether or not they talked to the City is questionable or looked at the ordinance is a questionable, but what is important is what is in that ordinance. Malkerson noted the ordinance states undue hardship tests must be met as follows : l . Was this a plight that the land owner created? Malkerson stated not really because the zoning code was changed on this property years ago taking it from being a standard lot to a substandard lot. 2. The variance, if granted, will not alter the essential character of the locality. Malkerson stated that is up to the Council based on the surrounding lots . 3 . E�onomic considerations alone shall not constitute a undue hardship if reasonable use of the property exists under the terms of this chapter. Malkerson stated that the City has heard testimony that if a variance is not granted, the property is worthless and is useless except for the open space benefit of the neighbors. 4 . Inadequate access to direct sunlight for solar energy. Malkerson stated that this test question does not apply to this application. 5. Property in question cannot be put to a reasonable use if used under conditions allowed by the official controls . Malkerson stated that Attorney Hoffman and Appraiser Emond have stated that there is no reasonable use for the property if this variance is not granted. City Attorney Malkerson stated that the City should be focusing on constitutional rights of the applicant. Malkerson stated that the courts will look to see how the Council has interpreted the same ordinances . Malkerson stated that the courts will look to the evidence in the record before the Planning Commission and Council as to what is the value of the property. Malkerson stated that the courts will weigh the dimunition in value and the health, safety and welfare. � MINUTES OF THE REGULAR COUNCIL MEETING OF SEPTEMBER 10, 1984 . PAGE 9 #820 LONIE FISR Mayor Butler noted that when someone buys taxforfeit property they are given a paper that includes a warning that the property may not be buildable. Butlerstated that it is up to the owner to investigate into the matter to see whether the lot is buildable. Butler stated that he bought the lot with that risk that it may not be buildable. Bu�ler felt that the lot is too small. Butler asked staff to come back with a list of similar variances that have been denied . Phil Bradley of 4075 Oak Street stated the Fisk bought the lot for $7 , 000 . Bradley stated that the lot is 59 percent smaller than the average homesites in Summit Park. Bradley stated that if the Council grants a variance of 75 percent than the City will be bound to granting variances of a higher percentage than this . Bradley stated that he would like to see the ordinances upheld. David Ilse of 4105 Oak Street stated that if he would have known that an appraisal had been done he would have hired his own appraiser. Ilse stated that experts can tell a story two different directions . Ilse stated that if the property were to be used some other way the neighbors property would increase. Ilse stated that by approving this variance would set a precedence for all the zoning districts in Orono. Councilmember Grabek asked if by approving this 75 percent variance, would the City be in a potential danger by setting a precedence. City Attorney Malkerson stated, if in the future the City has another variance application and gives the same findings as this variance (this lot has always been a single separate ownership, at one time this lot was a legal lot and the zoning code changed to make it a substandard lot but that the use is still allowed ) and there is not evidence to the adverse effect on the health, safety and welfare, if the lot is sewered, the City would have the same question here tonight. Malkerson stated that the Council should not think about precedence setting but rather look to the property owner and his legal right to the property. Malkerson stated that there has been no legal evidence to the adverse effect on the health, safety and welfare to allow a lot to be used in accordance with approval standards . Councilmember Frahm stated that he could see a potential traffic hazard because if this variance is approved, the next four lots in that neighborhood would probably be approved, therefore creating more traffic on a limited roadway. MINUTES OF THE REGULAR COUNCIL MEETING OF SEPTEMBER 10, 1984. PAGE 10 #820 LONIE FISK Phil Bradley of 4075 Oak Street stated that there is only one access out of that neighborhood. Councilmember Adams stated that he is reluctant to approve this large of a percentage for a variance but yet then the City is denying the property owners rights. Adamsstated that research should be done on denial of any similar variances. Adams stated that he is reluctant to give incentives to people who speculate on tax forfeit lands . Councilmember Hammerel stated that he is concerned with the intent of the zoning code . Hammerel stated that by granting this variance it could set a precedence . Hammerel stated that he doesn ' t understand how the courts can deny the City code. City Attorney Malkerson stated that when the code speaks on the intent and purpose about the desire to promote open space it does not mean that the City has any more authority than what is setforth in the performance standards and what the constitution and statutesallow. Malkerson stated thatit talksabout open space in the code. Malkerson stated that when the City went to a one-acre zoning it was to make sure that a lot of the vacant land when new parcels developed would be developed as one acre density. Malkerson stated that the courts have said that when previousCouncils approved a zoning code that allowed for lots like this , that that Council had set in momentum a certain constitional right then that stays with that property, subject to slight changes that a current Council can bring about through its police power. Malkerson stated that this was a legal lot at one time. Councilmember Grabek moved, Councilmember Frahm seconded, to approve the variance for Lonie Fisk based on thefindingsstated previously. Motion, Ayes (2 ) , Nays (3 ) . Mayor Butler, Councilmembers Adams and Hammerel voted nay. Motion failed . Councilmember Frahm stated that he has not heard testimony that would effect the public health, safety and welfare and therefore cannot legally deny the variance until he has heard such testimony. Mayor Butler asked staff to research the question and give us book chapter and verse on the impact of changes of character of neighborhood, denying the open space protection of the zoning code, the fact that this lot is 59� smaller than all other lots in the neighborhood, where the City said "no" on lot area and lot width variances and why, any lots similar to this with sewer . and houses, and if so where and when, and under what zoning code. Butler stated that the integrity of the MINUTES OF THE REGULAR COUNCIL MEETING OF SEPTEMBER 10, 1984. PAGE 11 zoning code has to be maintained somewhere along the #820 LONIE FISK line and people do move into a community because of the atmosphere that the community presents to them on visual sighting. Butler stated that the residents rely on the Council to uphold the zoning code. Butler stated that staff should find out precisely why the lot is too small and to come back and give all the rationale she will need to show before the judge and say "your honor it (the lot ) is too small " . Malkerson stated that he assumes that in that direction� if staff comes back and says that staff believes that as a matter of law and facts , and staff ' s recommendation is that it is a buildable lot then staff is able to bring that recommendation back to Council? Mayor Butler stated it is but that isn ' t what she wants to hear. Councilmember Adams moved, Councilmember Hammerel seconded, to table the Fisk applicati_on until October 29 , 1984 , in order to provide adequate time for the neighbors to look into the questions discussed . Adams stated that the neighbors should have the burden of presenting to the Council arguements relating to the health, safety and welfare of the community. Motion, Ayes (4 ) , Nays (1 ) . Councilmember Grabek voted nay. City Attorney Malkerson set deadline dates for submittals. Malkerson set October 17 , 1984 for any additional information to be submitted to the City. Malkerson set October 22 , 1984 for any response to those submittals . City Attorney Malkerson suggested that the neighbors obtain legal advice to come up with f indings that would find adverse effects on the public health, safety, or welfare if the City approves the variance. Malkerson suggested the neighbors seek any expert testimonies such as traffic engineers, appraisers, etc, to give findings to the Council on how this variance would have adverse effects on the traffic or dimunition in property values. MINUTES OF THE REGULAR COUNCIL MEETING OF SEPTEMBER 10, 1984 . PAGE 12 #830 WILLIAM SMILEY 2720 PHEASANT ROAD FINAL SUBDIVISION RESOLUTION #1670 Mr. and Mrs. William Smiley was present. Yale and Suzie Smiley were also present. Mayor Butler noted that a building permit cannot be issued until Lift Station #7 is repaired. Mayor Butler moved, Councilmember Adams seconded, to approve Resolution #1670 , A Resolution Approving the a lot line rearrangement known as Yale Smiley Addition. Motion, Ayes ( 5 ) , Nays ( 0 ) . #739 EDWARD LEHMAN 3525 SHORELINE DRIVE 2420, 2450, 2470 CARMAN ST FINAL SUBDIVISION RESOLUTION �1671 Mayor Butler moved, Councilmember Frahm seconded, to approve Resolution #1671 , A Resolution approving the plat of a lot line rearrangement known as Lehman Lagoon. Motion, Ayes ( 5 ) , Nays ( 0 ) . #845 ALAN MCDOWELL 905 FERNDALE ROAD WEST CONDITIONAL USE PERMIT RESOLUTION �1672 Alan McDowell was present. Mayor Butler stated that her only concern is that this could be rented out in the future. Butler stated that it is almost impossible for the staff to police. Councilmember Frahm suggested taking away the separate entrance to the guest house use. Frahm noted that this type of use is impossible to police. Mayor Butler moved, Councilmember Adams seconded, to approve Resolution #1672, A Resolution Granting a Conditional Use Permit to permit construction of a caretaker/guest apartment at 905 West Ferndale Road. Motion, Ayes ( 4 ) , Nays (1 ) . Councilmember Frahm voted nay for the reasons noted above. #847 CATHARINE CRAM 3760 WATERTOWN ROAD CONDITIONAL USE PERMIT RESOLUTION �1673 Assistant Zoning Administrator Gaffron noted that Catharine Cram had signed off on the resolution. Mayor Butler moved, Councilmember Frahm seconded, to approve Resolution #1673, A Resolution approving a conditional use permit to permit a guest house use of an attached apartment at 3760 Watertown Road. Motion, Ayes (5 ) , Nays (0 ) . MINUTES OF THE REGULAR COUNCIL MEETING OF SEPTEMBER 10, 1984. PAGE 13 �848 LOWELL ZITZLOFF 3525 SHORELINE DRIVE VARIANCE RESOLUTION #1674 Lowell Zitzloff and Bruce Schmitt, architect, were present. Mayor Butler moved, Councilmember Hammerel seconded, to approve Resolution #1674 , A Resolution granting a variance to permit the construction of a commercial building located at 3542 Shoreline Drive. Motion, Ayes (5 ) , Nays ( 0 ) . #850 DENNIS THOMPSON 250 OLD CRYSTAL BAY RD VARIANCE RESOLUTION #1675 Dennis Thompson and H.G. Steckel were present. Thompson noted that n-o auctions would be held on the property. Adams moved, Councilmember Hammerel seconded , to approve Resolution #1675 , A Resolution granting a variance to permit the keeping of horses for the purpose of breeding, training and sale to the public at 250 Old Crystal Bay Road. Motion, Ayes ( 5 ) , Nays (0 ) . #851 STUELAND & BARBEAU 4080 BAYSIDE ROAD VARIANCE RESOLUTION #1676 Assistant Zoning Administrator Gaffron noted that Stueland and Barbeau had both signed off on the resolution. Councilmember Frahm moved, Councilmember Hammerel seconded, to approve Resolution #1676 , A resolution approving a variance to permit construction of a detached garage located at 4080 Bayside Road. Motion, Ayes ( 5 ) , Nays (0 ) . #863 WILLIAM GREGORY 1410 SHORELINE DRIVE CONDITIONAL USE PERMIT RESOLUTION #1677 Planning Commission Representative Kelleystated that the Planning Commission felt that the Gregory' s should be tagged if that wetlands was found to have been altered. Councilmember Frahm moved, Councilmember Adams seconded, to approve Resolution #1677 , A Resolution approving a conditional use permit for the construction of a retaining wall. Motion, Ayes (5 ) , Nays (0 ) . MINOTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 14 PAUL SMITH PUBLIC HEARING 8 :30 - 9:15 PM RESOLUTION #1678 Councilmember Adams left the Council meeting at 8 : 30 p.m. Paul Smith and Lou Oberhauser, attorney, were present. City Recorder Sutton noted the affidavit of publication. Mayor Butler announced that now was the time and place for the public hearing concerning the Paul Smith sewer at 2477 Dunwoody Avenue. Mr. and Mrs . Powers of 2475 Dunwoody Avenue were present for this public hearing. Carl Widmer, contractor, was also present. Lou Oberhauser, Smith ' s attorney, asked for the estimated cost of the sewer project. City Engineer Cook stated to install sewer on the Smith property on Dunwoody Avenue would cost $2 4 , 6 0 0 and f or water $4 , 000 . Cook noted another $2 , 000 for the installation of the station for a total of $28 , 600 . Cook stated that there could be some additional cost involved in the easement acquisition. Cook stated that the City needs an easement from the Powers . Cook stated that the proposed line is on the north side of the property line which is the Power ' s original homesite. Cook stated that on the north side a 10 ' permanent easement would be needed, 15 ' temporary construction easement, and 10 ' temporary easement on the south side of the line. Cook stated that a garden that would be torn up would have to be replaced. City Attorney Malkerson asked if that estimate included an easement acquisition cost. City Engineer Cook stated not a significant portion of the easement cost. Oberhauser stated that Smith is willing to cooperate with the City. Oberhauser stated that there is a 10 ' ingress-egress easement on the property but thatSmith has not been able to use that easement because of the objections of the property owner. Oberhauser stated that Smith wants the City to go ahead with the condemnation of the easements and the construction of the sewer and water. � MINUTES OF TAE REGOLAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 15 PAUL SMITH City Attorney Malkerson asked if Smith was willing to pay the benefit and sign an agreement with the City that says he will pay special assessments . Lou Oberhauser stated if the assessments were reasonable he would be willing to sign. City Attorney Malkerson stated if the City lays out $34 ,000 for the project and then Smith is willing to sign up for only $10-12 , 000 the general tax payer has to pay the remainder of that project cost. Malkerscn stated that the court will want the City to prove thiough testimony that the property value went up $34 ,000 . Malkerson stated that Smith suggested putting in the holding tank sometime in the past . Paul Smith stated that he has wanted to put sewer and water in for a long time. Mayor Butler stated that the Council had approved the holding tanks for the Smith property and that they were never installed and so the Council would like to proceed. Councilmember Frahm stated that Smith has had many opportunities to negotiate this with the Powers and that there has always been an excuse holding up the installation and that sewer and water should be installed now. Councilmember Frahm moved, Mayor Butler seconded, to call for plans and specifications for the City project to install municipal sewer and water lines to the Smith property and for staff to start condemnation of easements and to commence hazardous building proceedings requesting that the court order that the building is inhabitable due to inadequate and poorly functioning sewer facilities . There was more discussion after the motion. Oberhauser stated that the City is avoiding the issue. Oberhauser stated that the City made a mistake in 1963 when they installed the sewer and water and did not include the Smith property. Oberhauser stated that Smith should not have to pay the whole assessment because the City made a mistake before. City Attorney Malkerson stated that there are not facts in the record to justify the conclusion that the City made a mistake in 1963 . Malkerson stated that some of the sewer projects in the past when the City would come upon a property that was difficult to service that the property owner would sometimes say they didn't want sewer and water service. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984. PAGE 16 PAUL SMITH Oberhauser stated that the record speaks for itself . Oberhauser stated that Smith' s property should have been sewered since it was the best candidate on Casco Point to get service. Councilmember Adams returned to the Council meeting at 9 :00 p.m. Paul Smith stated that he had a contractor ready to install the holding tanks and then the City went and stopped the contractor f rom starting the job two days before the contractor was to start. City Engineer Cook stated that the easements had not been acquired and an agreement was not reached with the Powers. Oberhauser stated that the City should solve the problem because of the mistake the City made in 1963 . Oberhauser stated that the City should install the sewer and water and assess the maximum benefit back to Smith, but that Smith should not have to pay for the whole assessment because of the City' s mistake. City Attorney Malkersonstated that the acquisition of easements is an assessable cost. Malkerson asked if Smith is willing to sign an agreement with the City to assure payment for the assessments . Councilmember Frahm asked how much it would cost to do an easement condemnation. City Attorney Nalkerson stated approximately $3-4,000 . Councilmember Frahm revised his original motion, now moving to commence hazardous building proceedings requesting that the courts declare the building uninhabitable due to inadequate sewer facilities and for Smith to sign an agreement with the City which would state that within so many days of the condemnation of easement that the sewer and water will be installed. City Attorney Malkersonstated that two motionsshould be made. Malkerson stated that one motion would deal with the hazardous building proceedings and the other directing staff to obtain an appraiser. Mrs. Powers stated that they would sign a right-of- entry agreement so that the installation could commence. Oberhauser, Smith and Widmerleft the CouncilChambers at 9 •15 to confer. Mayor Butler closed the public hearing at 9 : 15 p.m. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 17 PAUL SMITH Oberhauser asked if 6 weeks (from the date of access to the property) was adequate time for the installation of the sewer and water. City Attorney Malkerson stated that an agreementfrom Smith would be needed stating that Smith will not sell the property in the interim. Malkerson stated that since it is the City' s intent to assess all or a portion of that cost of the acquisition of that easement back to the property, the City should complete steps under 429 in the statutes . Councilmember Frahm withdrew previous motion. Oberhauser stated that if the City prepares a document wherein Smith would waive the procedural aspects of the preliminary hearing, etc, that Smith would sign. City Attorney Malkerson asked if Smith would be willing to sign a waiver of his right to appeal the assessment roll that levies the cost of that acquisition to Smith. Oberhauser stated that the Powers will probably want money for the easement. Oberhauser stated that the City owes Smith the access to the line. Oberhauser stated that they are willing to waive any of the procedural aspects but no substantive issues . Mayor Butler moved, Councilmember Hammerel seconded, to direct staff to obtain an appraiser and review that appraisal with Smith and Powers and proceed with the installation of sewer and water within 6 weeks . Motion, Ayes (5 ) , Nays ( 0 ) . BIG ISLAND STATUS REPORT* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve Building Official Jacob' s status report on Big Island. Motion, Ayes (5 ) , Nays ( 0 ) . NAVARRE FORCE MAIN BID AWARD Councilmember Frahm moved, Mayor Butler seconded, to approve the bid award to B & D contracting f or an amount of $102 , 926 . 28 subject to City Attorney review. Motion, Ayes (5 ) , Nays ( 0 ) . FOX STREET & WILLOW DRIVE RESOLUTION �1679 VARIANCE City Engineer Cook stated that the curve on the south end of Willow Drive and Fox Street is a 30 mph designed curve. Cookstated that the road wasconstructed with MSA funds. Cook stated that since that time the regulations have changed and this street is referred to as a rural area designed roadway. Cook stated that a minimum design standard has to be 40 mph. MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 18 Cook stated that the curve no longer meets the standard MSA has established. Cook stated that the City has to apply for a variance to the standards . Cook stated that the resolution is asking for a variance and the City is asking for elimination of the first 500 ' from the system. Cook stated that MN DOT will approve that subject to the City agreeing to build that 500 ' within the next two years sometime. Mayor Butler moved, Councilmember Adams seconded, to approve Resolution #1679 , A Resolution Requesting a Variance from current Municipal State Aid Standards. Motion, Ayes ( 5 ) , Nays ( 0 ) . BID OPENING DATE CHANGE SEWER LINE REPAIR DITCH GRADING HWY 12 Mayor Butler moved, Councilmember Frahm seconded, to set the bid opening date for September 28 , 1984 at 10 AM for the sewer line repair and ditch grading on Highway 12 . riotion, Ayes ( 5 ) , Nays ( 0 ) . CRYSTAL BAY SEWER PDBLIC HEARING Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the public hearing to be held September 24 , 1984 at 8 : 00 PM concerning the Crystal Bay sewer project. Motion, Ayes (5 ) , Nays ( 0 ) . CABLE TV REPORT Mayor Butler noted the Cable TV meeting to be held September 11 , 1984 , at 5 : 30 PM at the Shorewood City Hall. ORONO ASSESSOR AGREEMENT*Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the Assessor Agreement with Rolf Erickson. Notion, Ayes ( 5 ) , Nays ( 0 ) . ASSESSING SERVICES* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the letter and resolution #1663 sent to Hennepin County thanking them for the assessingservices over the years . Motion, Ayes ( 5 ) , Nays (0 ) . MAPLE PLAIN INTERCEPTOR* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve City Administrator Benson' s letter dated August 31 , 1984 , to Lowell Thompson at the Met Council concerning the Maple Plain Interceptor. Motion, Ayes (5 ) , Nays ( 0 ) . TAX INCREMENT FINANCING* Councilmember Frahm moved, Councilmember Hammerel seconded, to recognize the tax increment meeting to be held with the Navarre Retail Association on September 11, 1984 , at 7 : 00 PM. Motion, Ayes ( 5 ) , Nays (0 ) . MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984 . PAGE 1_9 BID AWARD - 3/4 TON PICRUP 4 W/D UTILITY DEPT* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the bid award to Minneapolis GMC Truck Center for one 3/4 ton and 4 w/d pickup for an amount not to exceed $10 ,075 . 00 . Motion, Ayes ( 5 ) , Nays (0 ) . BID AWARD UTTLITY TRACTOR STREETS & PARRS DEPT* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the bid award to Kortuems Sales & Service for one model 2150 John Deere Tractor and side mount mower for an amount not to exceed $19 , 280 . 86 . Notion, Ayes ( 5 ) , Nays ( 0 ) . R�.'VENUE SHARING PUBLIC HEARING* Councilmember Frahm moved , Councilmember Hammerel seconded, to approve the public hearing for revenue sharing to be held on October 15 , 1984 at 7 : 00 PM. Motion, Ayes (5 ) , Nays ( 0 ) . COUNCIL MEETINGS FOR OCTOBER* Councilmember Frahm moved, Councilmember Hammerel seconded, to recognize the October Council meeting schedule. Motion, Ayes (5 ) , Nays ( 0 ) . SPECIAL ASSESSMENT PROCEDURES* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the special assessment procedures past and present report. Motion, Ayes ( 5 ) , Nays (0 ) . PRIMARY ELECTION DAY* Councilmember Frahm moved, Councilmember Hammerel seconded, to recognize primary election day as September 11 , 1984 and approve the judge precinct assignment. Motion, Ayes (5 ) , Nays ( 0 ) . TEMPORARY EMPLOYMENT STREET DEPT* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve thetemporary employment of Randy O' Brien for the Street Department at an hourly rate of $9 . 00/hr effective September 4 , 1984 . Motion, Ayes (5 ) , Nays ( 0 ) . PART-TIME EMPLOYMENT LIQUOR STORE* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve the part-time employment of Curt Brimer and Michael Greenquist at $4 . 00/hr, and a salary increase for John Hennings from $3 . 95 to $4 . 35/hr. Motion, Ayes (5 ) , Nays ( 0 ) . LETTER TO CREIGHTON* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve City Administrator Benson ' s letter dated August 30 , 1984 , concerning insurance coverage. Motion, Ayes ( 5 ) , Nays (0 ) . MINUTES OF THE REGULAR COUNCIL MEETING HELD SEPTEMBER 10, 1984. PAGE 20 CITY ATTORNEY' S REPORT WELSH MATTER City Attorney Malkerson reviewed with the City Council the outcome of the Welsh litigation matter. Malkerson noted that the City does not have authority to regulate dredging in the public, open waters because the DNR has the exclusive authority to do so. Malk�erson stated that the City does have the authority' to regulate thelocation andsize of docks . Malkerson stated that the City does have the authority to regulate rip rapping of the shoreline and disposition of dredged spoils within the City. Malkerson stated that the court found that the City is not liable for Welsh' s attorney ' sfees . Malkerson stated that this was the first case in Minnesota that the courts outlined the extent to which attorney' s fees would be available. Malkerson stated that Welsh will probably resubmit a dredging application to the City. Malkerson stated that in the future when the City receives a notice of dredging, the staff will analyze it and see if there is any adverse impact and bring it to the Council and will then communicate with the DNR and the City will give their recommendation to the DNR. Councilmember Frahm moved, Mayor Butler seconded, to direct staff to remove the dredging application fee on the City fee schedule. Motion, Ayes ( 5 ) , Nays ( 0 ) . LICENSES* Councilmember Frahm moved, Councilmember Hammerel seconded, to approve a septic system installer' s license to Marty' s Excavating. Motion, Ayes (5 ) , Nays ( 0 ) . BILLS* Councilmember Frahm moved, Councilmember Hammerel seconded, that the All Funds Accounts and Liquor Store Accounts be paia. Motion, Ayes (5 ) , Nays ( 0 ) . ADJOURNMENT 10: 04 Mayor Butler moved, Councilmember Grabek seconded, to adjourn the regular Council meeting at 10 : 04 and go into executive session. Motion, Ayes ( 5 ) , Nays ( 0 ) . ATT ST: i �- � /• �../ D othy M Hallin, City Clerk Mary C. But r, ayor