1989 06 26CHANHASSEN CITY COUNCIL
REGULAR MEETING
JUNE 26, 1989
Mayor Chmiel called the meeting to order at 7:35 p.m.. The meeting was opened
with the Pledge to the Flag.
COUNCILMEMBERS PRESENT: Mayor Chmiel, Councilman Boyt, Councilman Workman ,
Councilwoman Dimler and Councilman Johnson
STAFF PRESENT: Don Ashworth, Roger Knutson, C~ry Warren, Todd Gerhardt, Jo Ann
Olsen and Jim Chaffee
APPROVAL OF AGENDA: Councilman Johnson moved, Councilwoman Dimler seconded to
approve the agenda with the following additions to the Council Presentations:
Councilman Johnson wanted to discuss Council ethics in working with developers
and a possible conflict of interest on his part; Councilwoman Dimler wanted to
discuss the RTD nomination and the SuperAmerica at TH 7 and TH 41; Councilman
Workman wanted to discuss the Lake Riley chain of lakes project and Lake Lucy
Road watermain project; and Councilman Boyt wanted to discuss the Public Safety
Con~nission Minutes, Eurasian Water Milfoil and goals and objectives. All voted
in favor of the agenda as amended and the motion carried.
RSIZYCLING PRIZE DRAWING: Mayor Chmiel drew the name for the recycling program
prize and presented it to Dave Pederson.
CONSENT AGENDA: Councilman Johnson moved, Councilwoman Dimler seconded to
approve the following Consent Agenda items pursuant to the City Manager's
recommendations:
a. South Lotus Villas:
1. Approval of Plans and Specifications
2. Approval of Development Contract
3. Resolution #89-77: Land Use Plan Amendment
4. Final Plat Approval
d. Consider Cooperative Agency Status with MnDot for TH 212.
e. Approval of T~nporary 2 Day Liquor License for Chanhassen Rotary.
g. Wetland Alteration Permit for Construction of Lake Drive and Market
Boulevard.
h. Wetland Alteration Permit for Construction of a Duck Pond, Alan Lenhart.
j. Approve Liquor Concession Agreement Bloomberg Companies and International
Broadcasting Corporation.
k. Approval of Findings of Fact, Convesco, Oak View Heights.
1. Set Special Meeting Date, Joint City Council/Park and Recreation Commission
Meeting.
City Council Meeting - June 26, 1989
n. Accounts Payable'
o. City Council Minutes dated June 12, 1989 Planning Con~nission Minutes dated June 7, 1989
Park and Recreation Con~nission Minutes dated June 13, 1989
Ail voted in favor and the motion carried.
I. PRELIMINARY PLAT FOR LAKE SUSAN HILLS WEST 3RD ADDITION, ARGUS DEVELOPMENT.
Councilman Johnson: I noticed when we did the last preliminary plat we had a
condition that the sediment pond be repaired before the final plat. The
sediment isn't repaired. It's still there. They've had 5 months now. 4 months
now and the sediment pond that failed this winter is still broken. I move to
table any further action on Lake Susan Hills West until that sediment pond is
repaired.
Councilman Workman: Jay, where's it located?
Councilman Johnson: Right along the highway there. Right along CR 17.
Gary Warren: North of Lake Susan Drive. Right on CR 17 on the west side.
Councilman Johnson: They've ignored staff's pleas to do it. They've ignored
the Council direction to do it and now it's time for action. They're coming in
asking for more without doing what we told them to do last time so I'm moving to
table.
Mayor Chmiel: Ray, do you wish to address the Council?
Ray Brandt: Yes. I'm Ray Brandt with Brandt Engineering and Surveying. 2705
Woods Trail in Burnsville. That situation has been awarded, I mean Probe
Engineering took care of the design of it and Nodeland is going to install the
whatever you call it that keeps the leaves, I can't think of the word but
there's a box that's going in there. Skimmer and I was just told today that
should be done very shortly but I can't tell you what shortly is.
Gary Warren: June 8th staff received a submittal on the bafflewear structure
from probe Engineering and it was explained to us that that would be done
shortly thereafter. Constructed, we basically said that the plan was
acceptable.
Mayor Chmiel: When was the discussions?
Gary Warren: This would have been June 8th, June 9th t~meframe right after we
got it. We've been trying, in fact today even to track down representatives
from Nodeland who haven't been returning our calls now so we still are on the
hook. In fact not in concert with Councilman Johnson, I had drafted a letter
today to Argus notifying th~n that we were going to suspend building permits
until that was completed so I guess we have been concerned that there's been
enough time.
City Council Meeting - June 26~ 1989
165
Mayor Chmiel: It sounds like that's consistent with your motion as such.
Councilman Boyt: I would suggest that if the City is going to suspend building
permits, that that handles the problem and we should go ahead and make progress
on this plat.
Mayor Chmiel: I think I'll stick with Jay's motion Bill until it's finalized. I
realize that there may be a problem there but we've requested that several
things be done and this is about the only way we can make sure that it's going
to be done. I'd suggest possibly that you contact the individual who has drawn
this together and have them get ahold of Gary and get that resolved. I have a
motion on the floor. Is there a second?
Councilman Boyt: I hate to see this carried over when we've already done the
background reading. It's just going to add something to a future agenda. If
there's additional discussion, maybe we should hold that. I've got a couple of
conditions I'd like to see added here so if it c~mes back up, it can come back
on the Consent Agenda and just be passed.
Councilman Johnson: There's been no second as of yet.so we can just continue
the discussion on it.
Mayor Chmiel: Maybe what we could do Bill in conjunction with that is to
approve it with the 2 conditions that you have and approve it under the
condition that once it's in, then you may start procedure with the construction.
Councilman Johnson: That's what we did last time.
Mayor Chmiel: That got put by the wayside?
Councilman Johnson: Yes.
Jo Ann Olsen: They haven't received final plat approval.
Gary Warren: On the 2nd plat.
Councilman Johnson: Okay, that was the final plat. They haven't received it
yet?
Gary Warren: This is just preliminary.
Councilman Johnson: But the last time we voted was a final plat?
Mayor Chmiel: Strictly preliminary plat.
Councilman Johnson: And they haven't asked for the final plat approval yet?
Mayor Chmiel: Not yet.
Jo Ann Olsen: Not for the 3rd Addition.
Gary Warren: The 2nd he's talking about.
Council Meeting - June 26, 1989
Councilman Johnson: The last time we told hJ.m to fix this was in conjunction
with the final plat approval. They haven't gotten their final plat approval
yet?
Jo Ann Olsen: We haven't signed off on the mylars or anything yet.
Councilman Johnson: Okay, so we've still got them held up on that plat too?
Okay. Since they really haven't taken any action on what we said last time, as
far as they haven't gotten their final plat, which is when we told them they had
to fix that before they get their final plat, that continues. They can't start
moving dirt out there until they get their final plat so I guess they haven't
violated our specific wishes except for 4 to 6 weeks is too long for something
like this to hang fire. I'd like to withdraw my motion and add a condition that
we support Gary's no future building permits as one of the conditions to (i) and
whatever the other conditions Bill wants to add in here. Get it on in that way.
Councilman Boyt: Okay the first one, Gary mentioned Lake Drive East and that's
a collector. I would like all deeds to include recognition that Lake Drive East
will serve as a collector. The other condition also relates to something I'd
like attached to the deeds of each piece of property. All lots must demonstrate
location of a house pad outside 75 foot wetland setback. That's in relation to
one particular lot in which there's some question if they can do that. Along
with that condition, all property holders must be notified if further expansion
of their house, deck, additional garages would require a variance. There's some
12,g0g square foot lots in this particular portion of the PUD and my intent
would be to make it very clear that those would require variances and that
variances require a hardship out of the control of the property owner. I think
we need to be sure that people are well informed when they buy their property.
Mayor Chmiel: It's a buyer beware.
Councilman Johnson: We're helping them to become aware.
Council,~an Workman: At ~nat time would a buyer be notified of some of that?
From a realtor?
Councilman Boyt: They'd see it on their deed. It would come as one of the
conditions.
Councilman Johnson: To tell you the truth, I've never read my deed.
Councilman Boyt: Well the development contract isn't enough. I want the
property owner to be notified in writing of the constraints on that piece of
property. So how do we do that?
Roger Knutson: In the development contract which is recorded against the
property. Before the final plat, simultaneously at the recording of the final
plat, the development contract is recorded so anyone who buys a piece of
property in that plat sees that contract has been recorded against his property.
Councilman Boyt: The question I would have is, what happens when the City signs
off on a development contract? Ail the streets and sewers are in and we
relinquish our hold on the escrow monies?
City Council Meeting - June 26, 1989
167
Roger Knutson: We relinquish our financial hold.
Councilman Boyt: So it's still in place?
Gary Warren: We've been releasing lots though from the DC.
~oger Knutson: What we can do is just release our financial hold on them when
there are restrictions like that.
Councilman Johnson: So you're saying, instead of reading theirw deed, they have
to read the development contract which is 100 pages thick too and they won't
even have that with their deed. There's got to be some way to inform the buying
public of these problems.
Roger Knutson: That's the best way to get it on the deed. It's not on the deed
physically but it's on their Abstract so when they buy the property they see it.
Councilman Johnson: They see that there's a development contract.
see the require~nents.
They don't
Roger Knutson: It's just like when you buy a home that has covenants against
it. You don't see the covenants written on the deed. The Abstract says there
are covenants recorded against the property and anyone who's concerned would
read them.
Councilman Johnson: Okay, it won't just say there's a development contract
recorded against the property?
Roger Knutson: That's what the Abstract will say.
Councilman Johnson: The Abstract will say that? And then it's up to the buyer
to figure out what that means.
Roger Knutson: To read them. Anyone buying property with an Attorney or anyone
who is at all knowledgeable will read that.
Councilman Johnson: Not everybody uses attorneys.
Roger Knutson: No.
Councilman Boyt: To move this along then I would adjust that condition so staff
would work with our attorney in developing language that reaches a clear intent
of notifying the home owner of the constraints on that piece of property. As
part of that, there should be the conditions it requires to achieve a variance
because I can picture the people with 12,000 square foot lots are going to be
thinking that they can build decks for instance and the problem just comes back
to us.
Mayor Chmiel: It's just like the two that we have right now.
Councilman Workman: Wouldn't it be easier to require a builder to make room for
a standard size deck an option on that home? I don't know, a house without a
deck these days is getting to be fairly rare so a deck is something that
~~y Council Meeting - June 26, 1989
somebody would probably want seeing their neighbors have one, so wouldn't it be
easier to make it such that one could be applied in the future?
Mayor Chmiel: I would think that that would be a little difficult. Roger?
Roger Knutson: You don't have an ordinance requirement that says you have to
have a deck. What you're really saying is if you have a small lot, maybe I
would prefer, I being anyone, would prefer to have a larger master bedroom and
no deck for example. Maybe I would prefer to have the deck or maybe I would
prefer to have a larger bathrocra so what you're really doing by requiring a deck
is you're really taking someone's...
Councilman Workman: I guess I'm not requiring one but...
Councilman Johnson: I think what you're trying to say is the design of the
house should be to where the deck will be within the buildable area. In other
words, on these narrow lots you don't want the house designed as such that the
deck will go on the side yard which will infringe.
Councilman Workman: We had people before the Board tonight who want decks.
Their back yards face each other and they have sliding glass doors for an
alleged deck which is going nowhere.
Councilman Johnson: Designed into the house.
Councilman Workman: So it sounds to me like the builder didn't know about it.
Councilman Johnson: The builder kind of created that situation.
Councilman Boyt: I think this is a topic that needs further discussion but at a
separate point all by itself.
Mayor Chmiel: Right. I think what we have now is any further discussion first
of all.
Councilman Johnson: I'll move the motion.
Councilwoman Dimler: I' 11 second it.
Councilman Johnson: I move approval with the conditions as specified by Bii1
and also the condition that no further building permits be issued within the
entire Lake Susan Hills area until the settling pond is repaired.
Councilman Johnson moved, Councilwoman Dimler seconded to approve the
preliminary plat for Lake Susan Hills West, 3rd Addition for Argus Develo~ent
with the conditions that no further building permits be issued until the
sediment pond is repaired, that all house pads be located outside of the 75 foot
setback from the wetlands, all deeds to include recognition that Lake Drive East
will serve as a collector, and that all property holders must be notified if
further expansion of their house, deck, additional garages, etc. would require
a variance. All voted in favor and the motion carried.
City Council Meeting - June 26, 1989
M. APPROVE RESOLUTION IN SUPPORT OF APPOINTING ED KRANZ TO THE REGIONAL TRANSIT
BOARD.
Councilman Workman: I understand this is simply a resolution recon~nending Mr.
Kranz. Is he going to be representing our district? Our zone?
Mayor Chmiel: I don't think so.
Don Ashworth: No. He represents Eden Prairie.
Councilman Johnson: The Southwest Metro Transit Con~nission I believe also
supported Mr. Kranz last week at our meeting and for our district we are
encouraging the cities of Chanhassen and Chaska to support Gail Kinkannon ~no is
also, she's a member of the Southwest Metro Transit Commission and she's going
to be running for the RTD.
Councilman Workman: My question is, why are we supposedly, I don't know Mr.
Kranz and he doesn't represent our district per se.
Jo Ann Olsen: He represents the Southwest Metro Transit ~ission, the three
cities. Eden Prairie, Chaska and Chanhassen and has been very supportive.
Councilman Johnson: I have no problem working with Mr. Kranz but we also need
to support Gail Kinkannon within Chanhassen's district. We are a 3 city
transportation commission here. We have 2 representatives. Mr. Kranz will be
helpful to us. The Metro Council may see this as none of our business
supporting him but it doesn't hurt him for us to support him.
Mayor Chmiel: He's not part of this city basically.
Councilman Workman: I understand that but we had a resolution prior for I think
it was the Vet's home or something down in St. Peter earlier that you didn't
know who the guy was so you couldn't support it. So therefore understand, I
don't know who he is. I didn't know that he was a part of that council so
you're asking me to approve something that I don't know anything about.
Councilman Johnson: Well there's plenty of time here. This doesn't have to be
done tonight. It's going to be quite a while. This would be a good one to
table so we can bring some information back about both Ed and Gall.
Mayor Chmiel: Sounds like a solution. Can I have a motion, or I will make a
motion to table this to the next council meeting.
Councilman Johnson: I'll second. And ask staff to bring back information on Ed
and Gail.
Councilman Workman: It's not a hostile refusal of Mr. Kranz. I'm just saying I
don't know anything about him.
Mayor Chmiel moved, Councilman Johnson seconded to table action appointing
someone to the Regional Transit Board until staff can bring back information on
Ed Kranz and Gall Kinkannon. All voted in favor and the motion carried.
City Council Meeting - June 26, 1989
VISITOR PRESENTATIONS: THOMAS SCALLON, INTERNATIONAL COMPANIES (NEW OWNER OF
DINNER THEATER).
Thomas Scallon: I've been told I should explain to you who we are and what we
intend to do. Our company International Broadcasting Corporation is a
publically traded company...over the counter table recently in the news.
Councilman Boyt: Excuse me, your microphone isn't working.
Mayor Chmiel: I think it may not be on. Maybe you'd like to just sit down
there right next to Jo Ann and use that microphone.
Thomas Scallon: Our company International Broadcasting Corporation is a
publically traded company and a subsidiary International Theater Corporation,
which I'm the president of, is the owning entity of the Chanhassen Dinner
Theater business. P~ were fortunate enough to have this fine company join a
list of fine companies that we own including the Harlem Globetrotters, the Ice
Capades, three amusement parks throughout the United States located in Detroit,
Buffalo and the Lake George area, 19 skating rinks in upscale suburban malls
like the Galleria in Houston and also including Woolman Rink in New York where
we're partners with the famous Mr. Donald Trump. I've gotten an opportunity to
know Herb and his wife and we've got some pretty tall things to live up. I mean
they're very fine people and they've set a standard which our intention is to
maintain and where we can expand upon it, we will. I guess you'll know our
impact by what we don't do as opposed to what we do do. We're trying to
maintain what they have created and expand upon it. We want to be good
neighbors and responsible citizens in the community here and we feel free to
encourage you to call on us to honor that comnitment and point out to us how we
can be better neighbors. We were impressed most of all in our acquisition by
the concern the employees had for Herb and his wife and their welfare and they
were to be treated in the transition and in the future. If your employees when
you walk away fran a business are concerned about your welfare, I guess that
speaks to what you've done over the years. Like I said, we're very proud to be
associated with Chanhassen Dinner Theater and join your fine co~rmunity here and
the Bloomberg's. I'm happy to answer any questions you may have.
Mayor C~miel: Tom, on behalf of the city of Chanhassen, we welcome you to our
connqunity and look forward to seeing you here and working right along with you
as much as we possibly can. It's a pleasure.
Thomas Scallon: It' s my pleasure. Thank you very much.
Mayor Chniel: Any other visitor presentations?
AWARD OF BIDS: lAKE DRIVE/TH 101 REALIGNMENT IMPROVEMENT PROJECT NO. 88-22.
Gary Warren: Mr. Mayor, June 15th we opened bids for the Lake Drive/TH 101
realignment project. Council I believe is well aware of the scope of the
project and our time line that we're following here to get the majority of those
improvements constructed this year. The low bid was received. We received some
City Council Meeting - June 26, 1989
very competitive bids. Low bid was 24% underneath the engineer's estimate and
they were all very well and closely pacted within 10% of each other so we're
very satisfied with the bidding that was done. ~he low bid was received
from Northdale Construction Company, Rogers, Minnesota in an amount of
$2,203,218.38. We're familiar with Northdale from their work on the
Metropolitan Waste Control Con~nission's Lake Virginia forcsmain project.
They're a reputable firm and we're comfortable with their bid and therefore
recon~nend award to Northdale Construction as noted.
Resolution ~89-78: Councilman Workman moved, Councilman Johnson seconded to
award the bid for the Lake Drive/TH 101 Realigr~ent Improvement Project No.
88-22 to Northdale Construction Company in the amount of $2,203,218.38. This
award is conditioned upon the City receiving the permits from MnDot, the Army
Corps of Engineers and the City for the wetland alteration. All voted in favor
and the motion carried.
PUBLIC HEARING: APPROVAL OF VACATION OF A PORTION OF FRONTIER TRAIL, KING
PROPERTY.
Gary Warren: I can give a quick overview of the item. The vacation request was
considered, and I've got an overhead here. With the platting of Chan Vista area
a number of council are intimately familiar with this neighborhood. The
ultimate extension of Frontier Trail, a portion of Frontier Trail which is shown,
in the shaded area here no longer became a necessity to the City from a
right-of-way standpoint. It used to be basically a proposed future alignment of
the roadway and was actually serving as a portion of the cul-de-sac. The
property owner, Mr. King, had petitioned the City basically to have access to
this property so that it could be cleaned up because at this point in time it
was poorly maintained and somehow clear up the ownership question of the
property. Our initial reaction to that was fine. It made a lot of sense to us.
Let's vacate it. Unfortunately at the last minute we came upon the fact that we
did have a watermain, it's kind of a strange alignment in this area for a
watermain but it does follow the old alignment of the roadway so we were faced
with a paper circus here so to speak in that if we vacated the right-of-way,
then we still needed to replace the property with a utility easement to cover
the watermain because obviously the watermain wasn't moving. We said, well does
that really make sense? Shouldn't we just keep the right-of-way in place to
cover the easement for the utilities because we don't know cable television,
power, they all could be there so we thought that the best solution would be to
actually deny the petition for vacation. Instead encourage Mr. King to
basically take over the property. As you c&n see it is on his, in the original
alignment of his lot and like any other right-of-way in the City, all property
owners, or most, take care of that property all the way up to our curb section
on the roadway surface without actually having ownership of the parcel. So
staff's recommendation is actually to deny the request for vacation but we
obviously would strongly encourage Mr. King to basically adopt that as a portion
of his property.
Mayor Chmiel: Is Mr. King here?
Don King: Don King, 7200 Kiowa Circle. We've been here since 1974 in the City
of Chanhassen. Enjoyed our stay here and the property that's been behind us
Council Meeting - June 26, 1989
that is now all in homes and that triangular piece of land has been a concern
ever since we had moved here as to what was going to take when it was a
cul-de-sac. At the time the housing project was completed for Chan Vista, we
were told at that particular time that it would be their responsibility because
they tore up the cul-de-sac to realign the street. That they would be
responsibility at that point in time to repair that portion of land to upgrade
it, sod it, whatever is required to put it back. Since that point in time that
has not been done and I have made several contacts with Gary and several people
on the Council asking just what is the disposition of such property and what
could be done. My main concern really of course is the beautification of our
con~nunity and continued growth as it's been going but it's quite an eyesore
behind me all these years as far as trash collection, beer cans and such. So I
would like, what I have basically proposed is whatever the City's decision is is
fine with me but I would request basically that the City certainly would grade
it, fill it, sod it and I will take over the total responsibility of it's
continued upkeep for as long as I'm a homeowner in this particular area. So
that's where, I have no problem whether the vacation is denied or whatever legal
te~Tninology you want to use_ with it. My main concern is just to clean it up and
I'll take care of it from that point on. I was also told that there is a Lot 5
in Chan Vista that is supposed to be built on. I don't know if that's actually
going to happen but that's another continuing eyesore behind me. I hope that
can be all dealt with at the same time.
Gary Warren: I think that's a legitimate request. I would just make one
condition or qualify it. I'll be in contact with Enterprise Properties, the
developer from Chan Vista. I don't recall, I have a suspicion that when we
approved the right-of-way alignment that we had conditioned that they eliminate
and clean up that portion of the right-of-way and if we can't get Enterprise to
do it, the City will follow through and do it.
Mayor Ck~iel: That sounds acceptable to you Don?
Don King: That sounds acceptable to me. Mainly I just want it cleaned up.
Councilman Boyt: Don, do you want to do something with your bushes along with
the City or are you going to just leave them there? Do you want to coordinate
that so it all looks like one piece of property back there?
Don King: Well I would like to do that. I'd probably put a few trees out there
or something like that but that would be about the most I would probably do.
Other than that it would be just basically mowed. Must try to blend it in with
it.
Councilman Boyt: So maybe the City could meet with you about how to lay out the
piece of, how to landscape the property?
Don King: That would be fine.
Mayor Chmiel: I think that sounds like a solution to the given problem. Is
there anyone else wishing to address this?
Councilman Johnson moved, Councilwoman Dimler seconded to close the public
hearing. All voted in favor and the motion carried. The public hearing was
closed.
10
City Council Meeting - June 26, 1989
][73
Councilman Johnson: I think we need a time table. We can talk to Enterprise
Property for 2 years and we'd still have a mess back there.
Councilman Boyt: Isn't the best time, the best time to seed anyway is in the
fall.
Don King: Either that or sodding.
Councilman Boyt: If we could work out the best time so it's most likely to
survive, that would probably be the time table we'd want to use.
Mayor Chmiel: Yes, probably better in the fall now.
Councilman Boyt: July and August might not be a very good time.
Councilman Johnson: The time table I'd be looking at is if we don't have an
agreement from Enterprise Properties by say July 15th, that the City go ahead
with it or some other date and then we plan it out and the first part of
September do it as far as the seeding and whatever goes. As a crew's available.
Do the fix up but as you say, planting this time of year is not real great.
Mayor Chmiel: It's not great but the other portion is, if Mr. King wants to
water the grass or sod, whichever we put in, that's another thing that would
have to be done so that could be accomplished now. As far as planting trees,
it's not the best time to be planting trees at this particular time although if
he were to maintain and water and make sure they get that, then that of course
is no real problem.
Councilman Boyt moved, Councilman Johnson seconded that the City work with
Enterprise Properties and Don King to landscape the property behind Mr. King's
house. All voted in favor and the motion carried.
PUBLIC HEARING: VARIANCE TO THE WETLAND SETBACK, DARYL AND DEBRA KIRT, LOCATED
AT THE SOUTHWEST CORNER OF KINGS ROAD AND MINNEWASHTA PARKWAY.
Jo Ann Olsen: The site is at the corner of Kings Road and Minnewashta Parkway.
It is an existing lot of record. A little over 6 acres. A majority of the site
is a Class A wetland. The applicant intends to locate a single family residence
on the home which they have the right to do. ~ney must receive a variance to
the wetland setback. They are maintaining the front yard setback from
Minnewashta Parkway and Kings Road and have been working with staff to try to
locate the house as far away from the wetland' as possible. The proposed plan
does do that but still is located at the closest edge at 25 feet away from the
wetland. Therefore they need a 50 foot seback. The portion of the wetland that
they are going to be close to is the poorer quality part of the wetland before
it gets to the real high quality Class A. We are recommending approval of the
variance. We feel there is hardship. Without a variance they will not have use
of this site and are recommending approval with two conditions on page 3.
Mayor Chmiel: Is the applicant here? Please state your name and your address.
11
City Council Meeting - June 26, 1989
Daryl Kirt: Daryl Kirt, 760g Chanhassen Road. We purchased the lot over there
and we've done everything we can to try to find the most feasible place to put
the house and the garage and it would just make it a lot better site if we could
just have a little bit of fill towards the back. We have 5 children and it'd
just be nice to have a backyard for them. We've been over there for almost a
year now looking at what would be the best and what Jo Ann showed you is what we
think would be the best and the alteration we could do with it. There is a lot
of land there but s~ne of it is wetland and we won't even go back to the lake.
The lake is 40g or 5gg feet even back from where we are before you get to the
lake and it's basically, I would call it just a mudhole or a little swamp area
that we're talking about. It's not the lakeshore or something like that but I
realize wetland is important and whatever works out, we'll definitely work with
you.
Mayor Chmiel: Very good. Thank you. Anyone else wishing to address this?
Councilman Johnson moved, Councilwoman Dimler seconded to close the public
hearing. All voted in favor and the motion carried. The public hearing was
closed.
Councilman Johnson: What was the action of the Board?
Councilman Boyt: They didn't review this.
Mayor Chmiel: No, the Board did not review this.
Jo Ann Olsen: The ordinance states that a variance to the wetland alteration
permit is heard by the Cotmcil.
Councilman Boyt: I'd like to suggest a couple of additions here. I think one
thing that's unique about this and the reason that I can support the variance is
because the lot becomes unbuildable without it. Generally that means the City
has two choices. We grant the variance with suitable conditions or we buy the
property. So not being ready to buy the property, I think we should grant the
variance. I would however, anticipating future problems, I would like you to
hold onto this and to come back in with ~nat you think might be a future deck or
if you've got some other addition to the building that you think you're going to
want to put on 5-1g years from now, I'd really like to see us approve the whole
thing now. The reason for that is because as you may see later on this evening,
once your house is, then you no longer have a hardship in my opinion and I think
you're going to have, you may have a very difficult time getting the variance to
build that deck at that point. Someone could argue that you probably don't have
a hardship for a deck right now but if it was me, I would encourage you to go
for the whole thing.
.Mayor Chmiel: I think it'd be smart, right.
Councilman Boyt: The other thing I would also state and we'll see if the rest
of the Council would go along with us but clearly it would be my intention to
not support future variance requests that would involve the wetland setback but
I think this one you've got an awfully good argument for why we should pass it.
I'd like to see you put it all in one package.
12
City Council Meeting - June 26, 1989
Councilman Workman: What would be the rule perhaps on a single lot as far as
how much of that lot has to be buildable? What portion of that lot has to be
buildable to the point of where we are now in that we have to pretty much allow
a person to use the property?
Jo Ann Olsen: We don't require a minimal buildable area. We do for unsewered
lots...but not for sewered lots.
Councilman Workman: So if in fact this were a Class B wetland or something,
they could actually fill.
Jo Ann Olsen: No, they still have to receive the wetland alteration permit
which is what they are pursuing in front of the Planning Commission next time.
We would only permit as much as is necessary for them to have a house. Even if
it was all Class B, I don't think that we would agree to them filling the whole
thing.
Councilman Workman: No, but they would then be allowed to fill a portion enough
to get a home built.
Jo Ann Olsen: Yes.
Councilman Boyt: I think that there's a difference here, if I might suggest
something. The difference is if this lot was coming in today, we wouldn't
approve it. If they couldn't demonstrate that they could build outside the 75
foot setback, we wouldn't approve the lot but when we approve lots and then go
back and change ordinances, we then become obligated to try to make the best use
of that lot or allow the owner to make the best use of that lot so that's kind
of the difference here. A new lot wouldn't be created but an existing lot has
some rights.
Councilman Johnson: I totally agree with Bill on the future additions. I don't
like the way the second condition is written here. It almost sounds like, come
on you can add something later but it's going to require another variance. I
think it needs to be worded differently in the future to where it more or less
discourages. Instead of just saying there is going, you are going to require
another variance, well you got the variance the first time. Shoot, it's not
going to be hard to get the variance the second time but somehow word that t°
where it shows that any additions will have to show a hardship which there is no
hardship. Somehow or another discourage future additions once it's built. I'd
like to ask the Kirt's if the design of the house would, I see it's a back
walkout I think. Maybe not. It says 40, not WO. If the design of the house,
if they're considering putting a deck on in the future.
Debra Kirt: Actually...as you can see the garage is facing the house. When the
surveyor made that, he made a slight error so where the garage is oversized,
that is actually a part of the back porch. So in a sense it's already taken on
that...
Councilman Johnson: What do you mean?
Jo Ann Olsen: The area that's shown is already including an addition.
13
~i~ Council Meeting - June 26, 1989
Debra Kirt: The garage, you have 38 feet wide~
Mayor Chmiel: I see what you' re saying. You have a breezeway inbetween?
Debra Kirt: Yes, and that breezeway is actually part of the house and the
garage is supposed to be a little bit shorter but then where the garage extends
beyond that, beyond the house.
Councilman Johnson: To the, is it the southwest?
Debra Kirt: Yes. So that corner is actually part of the house like a deck,
like a porch but it would actually come over where the breezeway is so in a
sense it's not going out any farther into the wetland.
Councilman Johnson: No further than what the garage shows?
Debra Kirt: Right.
CounciLman Boyt: So you're saying you've already taken into account my concern.
Debra Kirt: Yes.
Councilman Boyt: Then I think maybe we could accomplish it Jay by taking the
second condition staff has and modifying that to say that it would be this
Council's intention to not look favorably upon additional variances to the
wetland setback.
CounciLman Johnson: Where's the 25 foot setback from Jo Ann? From that corner
of the garage and that's actually not even there. That corner of the garage is
not there?
Debra Kirt: Yes, that corner is there.
Councilman Johnson: But you say the garage isn't going to be that big.
Debra Kirt: I see what you're saying.
Councilman Johnson: I want to see if I understand what you're saying here on
the overhead. From what I'm understanding, this deck, is this going to be your
deck in this area then?
Debra Kirt: We aren't really going to have a deck. We' re going to have an
enclosed porch attached to the house that goes to the garage.
Councilman Johnson: But you're saying it's going to go to t_his point?
Debra Kirt: Yes...extend farther west. It goes around the front.
Councilman Johnson: Is that what we're looking at? Is the garage a full 38 or
is it going to be smaller?
Debra Kirt: It will be somewhere very, very close to that. However, when I was
looking at this, there is a porch in front that this doesn't show but that still
is all the way around and it will connect by the garage there where it says
14
City Council Meeting - June 26, 1989
breezeway. Yes...
Councilman Johnson: Does that mean it extends in this direction?
Debra Kirt: No. We designed the house 3 times because everytime we've gone in
to try to put a house on the piece of property, we've had such a hard time
finding a place for the house to fit within all of the wetland. I bought plans
and then we had it all staked out and ready to go and then we decided this is
not going to work so then we did another house plan and tried to work that one
in and we decided we're not going to do anymore house plans. It gets expensive
and frustrating until we know whether we can put the house here. So basically
that's the way the house is but it's subject to...
Councilman Johnson: Okay, as long as we don't extend that front porch into the_
setback on King Road, I don't see any problem with the deck coming around to the
back. It's no closer to the wetland than the garage is. The garage is the
closest point.
Debra Kirt: The way I understand it, we still have room coming out towards the
lift station. Out this w-ay towards the lift station, we have room to play with
in that direction.
Councilman Johnson: You can come out front as long as you don't cross those two
lines there.
Councilwoman Dimler: I guess one of my concerns was that I don't like building
real close to the lake but I assume that you still have enough of the wetland
there that is an adequate filter to the lake. Is that correct?
Councilman Johnson: 500 feet.
Councilman Boyt: Willard wanted to comment.
Willard Johnson: I would go along with Bill. I would discourage some future
variance. It would save the applicant time and us time, whoever's on the board
in the future of going through this process...
Councilwoman Dimler: Roger, would it be alright to put some stronger language
in there and say that any addition to the garage or home in the required setback
will require an additional variances but they will not be granted?
Roger Knutson: I think you can express the sentiment of this Council but you
can't prevent them from applying and you can't tie the hands of a future
Council. You could say something to the effect that it would not be favorably
considered by this Council.
Councilwoman Dimler: Okay, I know what you said. I just wanted to make it a
little stronger because we're facing, these people were very upset with me out
there today because we didn't grant the variances and I'm sorry but it was
people that okayed the PUD and blah, blah, blah you know. They can't accept
that. They say show me where it can't be done and that would be one way to say
that.
15
City Council Meeting - June 26, 1989
Roger Knutson: It certainly would. You could say that by granting this
particular variance, the Council has now given them reasonable use of the
property. Therefore, this Council no further variances would be warranted and
none would be granted by this Council. It's a statement of sentiment rather
than because that's all you really can do.
Councilwoman Dimler: So we can't do anything that would be binding is what
you're saying?
Roger Knutson: No.
Councilwoman Dimler: Then I would prefer the language that we had before.
Mayor Chmiel: Which one?
Councilwoman Dimler: That it would not be looked upon favorably.
Councilman Boyt: I think we have a motion then, or if we don't I would make a
motion to approve Variance Request #89-7 with two conditions. The second
condition be reworded to indicate that this Council would not favor additional
requests for variances. I would also, and maybe add a third condition, that a
correct survey be presented to the City prior to the issuance of a building
permit. Clearly this one isn't right.
Councilman Workman: Since the deck ~nich is not going to be built yet, is going
to be as far away as the garage is, that's really not a variance situation later
on?
Jo Ann Olsen: When they don't increase.
Councilman Johnson: The 25 feet's at the edge of the garage. At the house,
it's probably more closer to 50 feet so if we say they can build up to 25 feet
from there, they could build a 25 foot deck out from the back of the house and
don't think that's our intent. I think we need to say within the 38 foot
envelope running fra~ the front face of the house back which gives them room for
a 10 foot deck on the back of the house.
Councilman Boyt: That's may reason for asking for a proper survey to be
submitted so that we know what it's fixed at. That's what we're really saying.
Let's get the house print fixed on the property and assuming that it's not
encroaching on the wetland more than what we're approving tonight then I think
it's in good shape.
Mayor Chmiel: I thJ. nk that would be agreeable to the applicant?
Councilman Johnson: What I'm trying to do, I'm not trying to be difficult here
but as you say, it won't encroach anymore on the wetlands. They're got 25 feet
that they go from the back of the house towards the wetland and not encroach on
the wetland. They could build a 25 foot wide deck on the back of there.
Councilman Boyt: The way I would approve it is if they have a house print and
that gives them a certain amount of encroachment on the wetland but that doesn't
mean they can scribe an arc and fill in everything inbetween. It's the house
print.
16
City Council Meeting - June 26~ 1989
Councilman Johnson: Right but the house print's not shown quite here. That's
why I was trying to add that 10 foot condition to the back which is what they're
saying is they're going to have basically a 10 foot wide deck on half the back
of their house.
Debra Kirt: I'm not planning...
CounciLman Johnson: Something's going to run around the back of the house 10
foot?
Debra Kirt: It's a porch but it just extends off that 32 feet.
Mayor Chmiel: Your porch might be our deck or vica versa.
Councilman Johnson: A slab of concrete?
Debra Kirt: No, like there's a walkout so we can't, well.
Councilman Johnson: If you want to put a slab of concrete down, that's a
permanent structure, it's part of the house.
Councilman Boyt: Rather than designing the piece of property tonight, couldn't
we say that this is our intent and if you vary from that, then come back to us.
Mayor Chmiel: Right. I have a motion. Is there a second?
Councilman Johnson: I'll second it. I liked the City Attorney's wording on
item 2 by saying that by granting of this variance provides reasonable use of
the property and then add that at the beginning of condition 2. I move that as
a modification.
Councilman Boyt: Why don't we just accept what Roger has.
Councilman Johnson: I move to modify the motion to add the sentence that
granting of this variance provides reasonable use of the property at the
beginning of condition 2.
councilman Boyt: But that's not all. We can't leave condition 2 the w~y it is.
Councilman Johnson: Well your condition 2.
Councilman Boyt: Alright.
Councilman Boyt moved, councilman Workman seconded to approve Variance Request
#89-7 to permit a single family residence to be located 25 feet from the edge of
a Class A wetland as shown on the Site Plan dated "June 21, 1989" with the
following conditions:
1. Type III erosion control as shown on the site plan will be installed prior
to any alteration of the site.
17
Council Meeting - June 26, 1989
2. Granting of this variance provides reasonable use of the property and it is
the intent of this Council that any future variance requests would not be
looked upon with favor.
3. A correct survey be presented to the City prior to issuance of a building
permit.
All voted in favor and the motion carried.
APPROVAL OF KENNEL PERMIT APPLICATION, 1630 LAKE LUCY ROAD, PHIL MATHIOWETZ.
Jim Chaffee: Mr. Mayor and members of the Council, you may remember that this
item was tabled some time ago. I think it was last council meeting so that both
the applicant and the concerned neighbor could be present to address the issue.
You'll note on my comments that the issues remain the same. We did some
checking of the surrounding neighborhood as requested by City Council. There is
a mamo from our CSO officer Bob Zydowsky indicating that he checked with certain
residences. We did receive two written responses in favor of the permit, or not
opposing it and we did receive two from concerned neighbors indicating that they
may have a problem if in fact they did live closer. Public Safety's
recommendations have not changed in light of these concerns. I believe that the
issue here is not really one of a kennel permit but one of whether or not there
is a nuisance involved. If there is we in fact can handle it through our
existing ordinances as we do hundreds of other nuisance complaints regarding
barking dogs. If I can digress a little bit from my comments in my memo to the
Council, but if in fact the kennel permit is not issued to Windwalker Kennels,
he still can keep 2 dogs on his property. These 2 dogs could bark as
Mr. Krueger has indicated they do in the past. There still could be the
clanging if metal dishes. The yelling at the dogs to keep quiet. We can handle
all of those things under our existing nuisance ordinance. Whether or not
Windwalker Kennels gets the permit does not change the fact that there may be a
problem there for Mr. Krueger and we in Public Safety do not turn a deaf ear to
Mr.. Krueger's problems. We just need some factual information so we can handle
it through our proper nuisance ordinance. Our recommendation to the council
tonight is to approve the kennel permit to Windwalker Kennels keeping in mind
that the remedies to Mr. Krueger will remain the same. Contact us. Contact the
Sheriff's Department as other people do with problems with barking dogs. We
will issue a citation if we can verify that there is a problem.
Mayor Chmiel: Okay. I guess I just have a couple questions that I'd like to
ask of you Jim. Being this is within a residential area, issuing a kennel
license which means constitutes 3 dogs or more. Is that correct?
Jim Chaffee: That is correct.
Mayor Chmiel: ~nen does this constitute a business of raising dogs and having
litters within that residential segment? Would that now rather than residential
it goes to commercial because it is a business that's being conducted per se.
Jim Chaffee: I would like to defer to Roger's opinion on that one. I guess
your question is when or is it a commercial kennel is what it boils down to or
when does it become a commercial kennel. Roger, could you answer that?
18
City Council Mseting - June 26, 1989
Councilman Johnson: Wouldn't that become a home occupation within a residential
zone?
Roger Knutson: Home occupations are allowed.
Jim Chaffee: I think under existint zoning, commercial kennel in that area, in
that zoned area is prohibited. I guess the question is, is it a conxnercial
kennel or not.
Roger Knutson: The ordinance defines the difference between kennel coaxnercial
and kennel private. The difference is, in the commercial, as you would expect,
it's where they're housed, groomed, bred, boarded, trained or sold for gain.
With a profit motive involved, it is a commercial kennel as opposed to I like
dogs and I have 3 of my own that I take to shows or just like to be with them.
Councilman Boyt: And it's not permitted in that zone?
Roger Knutson: Not as the property's zoned.
Councilman Boyt: Isn't that property zoned residential single family?
Councilwoman Dimler: It's rural residential.
Roger Knutson: Private kennels are allowed in the RRdistrict. Not commercial.
It does not list co~nercial as allowed.
Councilman Boyt: Conditional use?
Roger Knutson: As a conditional use they are allowed, yes.
Councilman Boyt: Does Mr.. Mathiowetz have a conditional use permit?
Steve Gawron: My name is Steve Gawron and just for the purposes of the record,
my address is 2850 Metro Drive, Suite 429. Mr. Mathiowetz has a conforming, I
guess what it's called is a non-conforming legal permit to use the kennel. The
kennel is non-corrmercial in nature by your own ordinance. It's specifically
Chapter 5 which requires for the purposes of a comxaercial kennel, that the dogs
or animals of others, members of the general public be bred, sold, etc., etc..
In this particular instance, it is Mr. Mathiowetz' dogs that are kept at the
kennel exclusively and thus does not specifically meet the criteria that the
Council set forth earlier in terms of it's ordinances as to what constitutes a
commercial kennel. I have contacted your city planner to find out whether, or
not it meets existing ordinances and it does in every respect. I'd like to be
heard a bit later but I don't want to intrude on someone else's time. Thank
yOU.
Mayor Chmiel: Is that in agreement with your previous opinion?
Roger Knutson: The zoning ordinance does not distinquish between who owns them.
The zoning ordinance only makes the distinction upon whether it's for gain or
whether it's for private enjoyment. What's being suggested is that the kennel
has been there so long it has non-conforming rights and we have recognized this
as a non-conforming use. If that's the case, he would not need a conditional
use permit.
19
Council Meeting - gune 26, 1989
Steve Gawron: That is precisely the case.
Mayor Chmiel: I know ~]at I have gone over there several different times just
to see about the barking dogs and parked. Just rolled down the windows and sat
there very quietly and I have, and I've indicated that to you Jim, that the dogs
have been barking in periods of time. I wouldn't say it's a constant kind of
thing. If somebody walks by, the dogs bark. A car goes by and the dog will
bark, or dogs. I guess I just wanted to indicate that I have been there several
different times to observe and listen and that there is a given problem as far
as the dogs barking on a continual basis. Other than that I'd like to throw it ~
back to Council. If there's any further discussions.
Councilman Johnson: On that property it does seem to .be the wrong place to have
the kennel right next to the road there. I'm not sure if some back area where
there's less disturbance but of course there'd still be the squirrels and
raccoons and skunks come walking by that will make the dogs bark at night anyway
but at least you won't have the cars and people. Most kennels I've been
involved with back when we used to bre~=d a few dogs, everybody had their kennels
off in the back of their property. It's a little late for that discussion
actually unless there is some way we could encourage them to move his kennel.
Quite an expensive proposition.
Councilwoman Dimler: Jim is it true that this is a yearly situation and he has
to come forward for a license yearly?
Jim Chaffee: Yes it is.
Councilwoman Dimler: So we will be facing this year after year after year?
Jim Chaffee: The kennel permit, yes.
Councilman Boyt: That's true with anyone that has a complaint. Any kennel that
has a complaint.
Councilwoman Dimter: I guess the comment that I have, maybe this used to be the
country but I think it's a developing area now and I guess I agree with Jay that
maybe we have to looking at i-h, if not this year then at least in the future we'
have to be looking at encouraging relocation because I think we'll have more
complaints.
Councilman Boyt: I have a question of Ursula if I might. You used to live next
door to a kennel. Can you give us a little insight as to how that worked?
Councilwoman Dimler: Was that a private kennel or conxnercial?
Councihnan Boyt: If the dogs were sold for gain, I would imagine it was
probably a coa~nercial kennel.
Councilwoman Dimler: They had their dogs in the basement so no, we never heard
them and it wasn't a problem but they were not outside. Their private dogs were
outside in a kennel but not the ones they were selling for commercial. They
kept the puppies in the basement and then they would sell them off before they
got to be big enough to keep around. So no it was not a problem.
2~
City Council Meeting - June 26, 1989
Councilman Workman: I don't know, we've got a lot of documentation here Jim and
letters and everything flying back and forth. The Minutes from the meeting that
we had prior on this are not in here. I think we're going the wrong direction
when we go whether it's a commercial kennel or not a commercial kennel. I think
the Code we need to be looking at is the nuisance code and if there were 1 dog
there and it were a nuisance, it would be a violation. I don't think anybody
involved on the Council at least feels the dogs aren't barking. The dogs are
there. How dogs are there? Right now how many dogs are there? 5 dogs. If
there" s 5 dogs there, they' re barking. I've got a strong suspicion. It' s going
to depend on perhaps the neighbor and his tolerance. I have a dog ar~ that dog
barks and I'm on him when he barks. Even in the house. It bothers me that it
might be bothering other people. If I were living there, I might ~have the s~me
problem. I get very irritated. As much as I love dogs and kennels and all of
it that goes with it. The gentleman has stated he has a problem over a period
of 3 years. We've got a problem. So after I think we look at that issue, then
maybe we look at it and say well is it commercial or isn't it and should it go
somewhere. I had a neighbor when I was a young man. He had a beautiful Golden
Retriever. The thing when the moon came out, the thing sat on the front steps
and howled. One day the dog was gone. Mysteriously run over by a truck or
something and we were young kids then and we bought that but the neighbors
complained and it was one dog and it had to go. So it's asking an awful lot of
the neighbors, whether some are here or not, somebody has said they've got a
continuous problem with it. If I'm having a very loud party and somebody tips
me off that Chaffee and company are coming over to shut it down and when you get
there we ' re all under the covers, that doesn't mean we weren ' t having a loud
party. So I have a real problem with this. The way I'm looking at it is, it's
a positive for them to have the kennel. It's a negative for them to have a
kennel for Mr. Krueger. It would be unfortunate for them to not have it but it
would be beautiful for them not to have it so I'm trying to get rid of the
negative. There's one negative here and I wish the neighbors could work that
out somehow. Dogs don't speak our language generally so when I looked at it.
The negative is there. What can we do to rectify the negative and that doesn't
seem to have been taken care of. That's where my problem is.
Councilman Boyt: I agree with some of that. If you look at the history here,
you s~e this has been a problem for a while. This year there's been 2
complaints filed. If we go back since the last permit, it looks like we've got
3 complaints in the last year. I think Jim Chaffee makes a very good point when
he says that 2 dogs could have caused these complaints. One dog could have
caused these complaints. I think what we have with Mr. Mathiowetz and I think
it was true last year and I think it's true this year is that he's taking action
when there's been a complaint. He's complained about metal bowls. He went to
non-metal bowls. Complained about barking, I think for a while at least you
tried shock collars to try to keep the barking down. Interestingly enough the
couple of times I visited there, I wondered if I had the right spot because
there was no barking so maybe the dogs were gone. I don't know but it was
silent. Barking dogs are a major irritation with me. I would like to see us
adopt a noise ordinance that gives every citizen the right to quickly stop
barking dogs but I don't think, there has not been a citation written and I
don't think that there's been a demonstration that because this is a kennel it's
more difficult than if it was a private homeowner. So for me, the conditions
haven't changed since last year. I agree with Tom, if the kennel was gone,
everybody would be happy but I think that Mr. Mathiowetz has been granted by the
City the right to keep the kennel in it's location. Conduct his, what appears
21
City Council Meeting - June 26~ 1989
to be a business there of sorts and that the complaints we've had have not been
an unusually large number. So it would be my intent to vote to allow
Mr. Mathiowetz to continue to have his kennel permit.
Councilwoman Dimler: I think then we're at the point of asking is it for gain?
I think we have to address that.
Councilman Boyt: As I heard that question, it doesn't make any difference
because be was granted the right to continue the use of his property. Is that
right Roger?
Roger Knutson: That's what, I did not investigate it. That's based on the
representation here tonight who said they're a grand fathered use. They have
rights to continue in operation.
Councilwoman Dimler: Forever?
Roger Knutson: Yes, unless they voluntarily discontinue it.
Mayor Chmiel: Is Mr. Mathiowetz here?
Phil Mathiowetz: Yes.
Mayor C~iel: Is there someway that between you and Al, some kind of working
can be done to alleviate some of his given problems as you well know that the
dogs are barking and you've indicated that yourself. Is there some way that the
two of you can come up with a conclusion or a solution to alleviate that problem
of the barking dogs? I know you don't want your dogs to bark either but it is
representing a problem for h~za and his family as well. Is there any solution
that you can offer at this particular time?
Phil Mathiowetz: I guess quite honestly we've done every, we've made every
suggestion that anyone's ever made of us. I agree with Councilman Boyt.
Barking is a major problam for me too. I dislike it ard we've taken virtually
every step anyone's requested. They said the dogs bark at night, so we put them
indoors at night. Said the metal food pans bothered them so we took metal pans
out. Metal feeders, basically just self feeders and we removed them from the
kennel. I'm not sure what all else we can do. I'm willing to work with Mr.
Krueger if Mr. Krueger is willing to work with me. I think that there comes a
time when there's a level of reasonableness that he has to show too. If it was
one dog, it might bark. We've got 3 bark collars now which are basically
electronic collars that are activated any time the dog barks. It gives them a
stimulus but they're expensive and I'm not made of money and I can only afford
them, I'm willing to buy one for every dog in the kennel but they're $15g.gg a
piece and I don't have $30~.gg or $40~.g0 that I can go and get a bunch of them
all at one time. I've got to buy them as I can afford to put them on and I
don't have a problem with that if~ that will help and I think it will because
we've already demonstrated that. Well first off, we got rid of most of it.
The severe barking dogs, we just got rid of and the other dog that we do have
that does have a major barking problem, has a bark collar on virtually 24 hours
a day except maybe at night once in a while when he's inside the building. When
he's hopefully sleeping and generally then he's pretty well but if Mr.. Krueger's
got some suggestions, I'm willing to listen to them. If the city staff's got
sc~e suggestions, I'm willing to listen to them. I'll work with anyone as long
22
City Council Meeting - June 26~ 1989
as they're willing to try to work with us and give us some reasonable
suggestions, I'm sure can have reasonable solutions too. Thank you.
Councilman Johnson: Mr. Mathiowetz, did you have an operation done on one of
your dogs a few years ago as part of this barking problem?
Phil Mathiowetz: The operation is basically in simple terms it's a debarking
operation where they simply take out a portion of the dog's voice box and that
operation may or may not be successful. This particular one didn't work. It
came back. We subsequently had the dog destroyed because we couldn't get any
handle on her at all so she's not around anymore.
A1 Krueger: I'm here to help get this thing along there tonight. You guys mean
business. I'm representing my wife Carolyn, my daughter Julie and my son Chris.
I think there is a need to settle this thing whether it's barking or not. Some
of us have been there and not heard barking. I'm there every night at 3:00,
okay. Those dogs bark and they're quiet. They bark and they're quiet. We've
had police there. They're not quiet there but when I call I'll assure you that
they are barking or have been on and off for a long time where my patience runs
low, okay. He mentioned that there haven't been any citations. I had a
policeman sit, this was before last year's license, sit in the driveay and say,
yes, I'm going back to write a summons and he was not and a sun~ons was never
written. This year within the last time since I've talked to you, I've had a
policeman out there and I never saw him first off. I never heard any report
back. I finally called the policeman and he said well I sat out there for about
12 minutes and I didn't hear anything. Well, at that point he chose not to
contact me or Mr. Mathiowetz because there was no problem. Well I assure you
those dogs bark at various times. It's a nice kennel. It really is. It's well
kept up. Nobody's questioning that thing. He keeps good care of it. The dogs,
the shock collars that are on them, it doesn't stop tripping and whining and
things like that and it doesn't stop fighting when they're out on the side and
he hollars back and forth between his son to stay away because they're going at
it and he could probably get hurt. Non-conforming rights, if I understand that
right it's kind of a grandfathering clause. I was here well before and it
happened to be the policy of the City to just issue it in the paper. One of the
things I'd like the City Council to address is the future permits, if I
understand it right, all residents within 500 feet will be contacted by mail so
they have the chance to respond. That I would like to get settled not only for
me but for everybody who might be watching tonight. I know some people have had
contact with neighbors verbally that live well within 500 feet but they were
never contacted that have acknowledged things. I do have a problem. If it's a
question of a nuisance, I'll tell you once, this is the honest to God truth.
Mr. Mathiowetz has never come over to my house and talked to me about his dogs.
Once in 3 years and I call him before I call the police. I've called him more
often when he's home, somebody hollars and the dogs shut up. That's usually
late at night. I don't know how you quiet your dogs up when they're that far
away from their residence late at night but I do do that and I'll continue to
probably do that. I've been accused of being the bad guy in this thing and
all I've got is dogs. He mentioned that he keeps his dogs in. That's not true.
It's not true. The problem of different litters coming and going and different
ones, different personalities and barking, I don't think I need to say much
more. Thanks.
23
Council Meeting - June 26, 1989
Councilman Boyt: I would move approval of the kennel permit for the coming
year. I think it's very important that Mr.. Mathiowetz get his application in in
April next year when it's due.
Phil Mathiowetz: I turned it in at the en~ of January.
Councilman Boyt: Oh, okay. I didn't understand that. Thank you. Well my
motion would be for approval of a permit for Windwalker Kennel.
Mayor Chmiel: There's a motion on the floor. Is there a second?
Councilman Johnson: I'll second it. This has been tabled several times this
year. As far as discussion goes, hopefully we are smarter today than when this
was originally approved. The thing is, once you approve and somebody builds,
it's real hard to go back, in fact I'm not sure if it's even possible to go back
and say, well you've put all this time, investment, money, whatever into this.
You built quite an elaborate facility. Why don't you put another 5 grand into
it and move it. I'm not sure that's within the perview of what we do. The
other thing is we need to get our two ordinances to match each other. The
animal ordinance and the zoning ordinance state two different definitions within
the same book of a commercial kennel. What the Attorney read from was our
Section 5-16, Dogs and Cats. That's something that Jo Ann ought to look at I
guess.
Councilman Workman: I'm not prepared to, I'm not excited about denying a
livelihood of somebody who's, have you been living there 3 years?
Phil Mathiowetz: Four.
Councilman Workman: Four years. I'm not excited about the idea of taking away
your livelihood, you obviously very much enjoy the hobby of raising these
animals but I'm not so sure, or I'm having a hard time understanding how Jay and
Bill can allow Mr.. Krueger another year of noise. I know it's probably not
acceptable in a court of law to say what if it was next door to your house but
if it were next door to Jay's or Bill's home, it'd be a different can of worms
and I'd have a problem.
Councilman Johnson: I had one next door to my home. I had two next door to my
home here in this city. Both of which had barking problems and was handled
under the nuisance ordinance. Citations were issued.
Councilman Boyt: I don't see how you can say that.
Councilman Workman: How is this a different situation?
Councilman Boyt: I don't see how you've got any information at all that would
lead you to how we would respond if this was next door to us.
Councilman Workman: Well I'm going to believe a human being neighbor before I'm
going to believe a dog. I mean there's a neighbor complaining. We've got a
complaint. A track record of complaints. Unless you're suggesting he's got
some sort of peave with his neighbor or something, he's got a problem with the
dogs. I don't understand why he would be making complaints about dogs if in
fact they weren't barking.
24
City Council Meeting - June 26, 1989
Councilman Boyt: Nobody's saying that. Excuse me. I'll let you finish. I
apologize but I would appreciate it if you didn't refer to me in your comment.
Councilman Workman: Okay. Well, nonetheless I'm going to move or I'm not going
to support that until, if the option that the neighbors can get together and
they can work this out, that's again a win-win situation.
Councilman Johnson: Refer thsm to the mediation service? Southwest Metro
Mediation Service or whatever that is.
Councilman Workman: I'm not prepared to make a suggestion as to how they're
going to work out their problems but I'll use myself again. If it were next to
my home, as much as I like dogs, I'd have a big problem with it and so would my
young daughters. So I can't support this.
Councilwoman Dimler: I guess I'd like to add the comment that just going ahead
and approving this again this year is fine for this year but then what do we do
next year? I'd like to see it in advance a little bit beyond just approving it
year after year after year after year and having the complaints come back and
back. Isn't there something we can do to move towards solving the problem
ultimately rather than just temporarily from year to year to year? Any
suggestions?
Jim Chaffee: I do have some suggestions. It's like we handle many, many other
dog barking complaints. We've been to jury trials over dog barking issues.
Mr. Krueger has got to notify us, which he's done and we have to verify it.
With the absence of any verifiable facts, it's hard for us to make any kind of
recon, nendations. A neighbor can call and complain many, many, many, many times
but we don't know from a factual basis whether the complaint rings true or not.
We have to believe that there is a case that rings true but we can't act on it
and that's our problem.
Councilwoman Dimler: Are you saying that you can't issue a citation unless you
hear the dog barking when you get there?
Jim Chaffee: That is correct. Now there is another issue that can be pursued
and that's...
Councilwoman Dimler: Why don't you sit there until the dog barks?
Jim Chaffee: Typically what we do when we respond is we roll down our windows
and we listen for 5 minutes to 10 minutes. A lot of time you'll hear the dog
barking and then in this case we know where the dog barking is coming from but a
lot of cases you don't even know where the dog barking is coming from and it's
tough to track down at 3:00 in the morning where exactly a dog bark is coming
from, but a lot of times we do and we have no problem wino going up and banging
on the door once we identify the source of the noise. But in this case, the
only issue I believe that comes to the City Council regarding a kennel permit is
if there is a complaint received once it's published in the paper. If there are
no complaints received, then it's an automatic approval process that doesn't
even reach the Council.
25
i~y Council Meeting - June 26, 1989
Councilwoman Dimler: Okay, but I could see where this could happen over and
over and over again that he complains. You go there and listen for 5 minutes.
~ne dog doesn't bark. That doesn't mean the problem doesn't exist, like was
said earlier.
Jim Chaffee: That is true.
Councilwoman Dimler: So as long as we don't register a complaint then we in
actuality don't have one and then we can play this game forever. I just don't
think that that's acceptable.
Jim Chaffee: No, and I think one of the remedies, and Roger you can correct me
if I'm wrong, that .~ir. Krueger has is a formal complaint. Is that correct?
Roger Knutson: Sure.
Jim Chaffee: We like to say well if we don't verify the fact that the dogs are
barking then there's nothing we can do and that's not entirely true. There is
sc~ething that Mr. Krueger can do and that's file a formal complaint. It has
the same substance as us filing a written citation on it goes through a more
legalistic process.
Councilman Boyt: I'd like to propose maybe an amendment or an adjustment to the
motion. I'd like to see Jim work with the Sheriff's Department and establish a
system of random checks on the dogs. That the wait periods would be somewhere
in the neighborhood of 20 minutes. That they would be around at about the times
when we anticipate that the dogs are most vocal. That the City take some
proactive sort of action here. I agree with Ursula that I think the City does
have a responsibility to see what we can do in this. I happen to believe that
Mr. Mathiowetz is taking responsible action to react to the complaints but I
think the City could more. So if that would make the motion more realistic in
our approach, I'd be happy to add that.
Councilwoman Dimler: Mr. Krueger, would you agree with that?
A1 Krueger: I don't quite understand what's going on here... There are things
out there. There are deer out there. He comes home late from shows late on
Saturday night with his dogs and his horses and those dogs go. They go
continually... I return mail to his house there that were addressed to other
people at Windwalker Kennels. There are other people that are making this thing
click and I'm the guy who's suffering. Me and my family. If I have to file in
a court of law, it's going to go there and we'll pull this video tape in and the
last thing and we'll just air it and say hey, here. I'll pull the residents in
too. We've got two letters from residents and you've talked to one and yes,
you've got a problem with barking. There's a resonnator coming out of that
thing that's going to my house...
Councilwoman Dimler: Okay, but did you understand what was proposed?
A1 Krueger: No.
Councilwoman Dimler: Okay, the proposal was that we have random checks for 2g
minutes. But wait now. Let me finish. For 2~ minutes at the times that it is
anticipated when the dogs would be most likely to be barking.
26
City Council Meeting - June 26, 1989
A1 Krueger: ...when the dogs are going to bark or when something's going to
cross the road or somebody jogs along with their dog...
Councilwoman Dimler: So you're telling me you're not satisfied with that?
A1Krueger: I have a probl~n and I might have to address it from a nuisance
problem but I don't have to do it from a con~nercial kennel. If I've got barking
dogs, he's right there are dogs all over. One of the gals you talked to has
more of a barking problem than I do but she lives there and she's lived there
with them for 10 years you know and...
Councilman Boyt: I don't know what else to propose.
Mayor Chmiel: Al, I know that you're having a lot of given problems as far as
the dogs are concerned and I too have talked to some of the neighbors and the
neighbors have indicated basically saying that if they lived as close as you do,
that it would also bother them. I'd like to see a solution done between the two
neighbors is what I'd really like to see but nothing, as it appears, is being
done. I can understand that you look at that, the kennel in itself with the
location of the 5 dogs face directly towards your house and the proximity and
distance I'm not sure but those...covered through that area. I'm not sure what
the decibil level would be of those as they hit your house but I'm sure there
must be some kind of a requirement that if kennels are in, there must be a
requirement as to sound, just like any other business within the city. You have
to self contain your db level at your property line at so many decibils. I
think maybe this is something that we should look at. Something that we should
take into consideration as a city. It is a problem to that neighbor. I'd like
to see us move in that particular vein even before we make a motion to proceed
with this.
Councilman Boyt: Mr. Mayor, we have a noise ordinance that we attempted to pass
a year ago that Roger I think might have passed on a copy of the Mound noise
ordinance that he has. ~nat may make Mr. Krueger's position stronger a year
from now if we pass the noise ordinance because it's very specific about the
noise levels and what would be tolerated. I think inbetween now and then, we
need to take action on this and we need to give Mr.'Mathiowetz one more year of
operation and if it makes it more reasonable on the part of the city to monitor
that, I think we should include that in our agreament.
A1 Krueger: I'll go with that for another year or until his next license is up.
Councilman Boyt: That's not what I said though. Didn't say move it out. I
said that in the meantime we can hopefully look at strengthening the noise
ordinance and we may be in a different position a year from now but I certainly
didn't want to create the impression that Mr. Mathiowetz would have to go. I
don't know.
Steve Gawron: If I might just...and I'll try to keep it very, very brief. As
indicated earlier, I represent Mr. Mathiowetz. I think the issue's before this
Council have been clearly enunciated back and forth and perhaps it deserves some
clarification at this point. Mr. Krueger may have very valid complaints. He
may or he may not but that's not for this Council to decide. You have on your
books a noise ordinance. You have on your books an ordinance that has to do
27
City Council Meeting - June 26, 1989
with nuisance and that is his avenue of relief. If he feels that the dogs have
become a nuisance, he like any other citizen of the city, has a right to make a
complaint. If he believes that the city officials are not being responsive to
his complaint, he can make the complaint himself. There is nothing to stop him
from doing that and that is his avenue of relief. Mr. Mathiowetz has complied
in his attempt to be reasonable at each juncture. When the initial problem was
that a dog was barking, he put a collar on the dog to try to keep the dog from
barking. He went so far as to have the dog debarked. When it still didn't
resolve the problem, he had the dog put away. Mr. Mathiowetz put up, and I
might add at considerable expense, a 6 foot cedar fence which is around the
compound. Mr. Mathiowetz, by Mr. Krueger's own expression of opinion, has a
very clean kennel, well operated kennel. The point is that the City has given
him permission to do this and at this juncture having done so, Mr. Mathiowetz
has come to reasonably rely on that pe~nission and he's taking action based on
the City's permission. For the City at this point to pull the rug out from
underneath him is simply wrong. It's wrong today, tomorrow, it will be next
year but that doesn't mean that Mr. Krueger has no avenue of relief. Mr.
Krueger has exactly the same avenue of relief as any other citizen in the city
of Chanhassen. That is to say he believes there is a problem, he can make a
complaint and if he believes that the city is not responsive, he can make the
complaint individually himself. And in point of fact, he has called on public
officials. He has called upon public safety to come out and listen to the dog
problem that he indicates. On at least 7 occasions in the last 3 years. On 6
of those 7 occasions, either no report was issued, no barking was heard, no
noise was heard. On 1 occasion in 7 there was some indication that there was
barking and a warning was issued. Mr. Mathiowetz has no greater, no lesser
rights than any other citizen in the city of Chanhassen and he has done, when
Mr. Mayor respectfully, when you talk about the neighbors trying to work it out,
I'm not sure what Mr. Mathiowetz can do that he hasn't done already. He's tried
to meet the issue halfway. He's tried to meet it well over halfway but he's
done what we can do. Now if the City Council would permit me, I took a video
tape of the specific kennel facilities in order to acquaint those members of the
Council who may not be specifically aware of the set up to get some first hand
look at exactly what the kennel looks like. It's about a 3 to 4 minute video
tape. With the Council's pemnission, I would ask permission to show that at
this time.
Councilman Boyt: I'd like to call the vote.
Councilman Johnson: I think everybody's seen this.
Mayor Chmiel: Yes, we've seen photos. We've seen everything. I don't think
that's absolutely necessary.
Councilman Workman: I'd like to ask Roger's opinion perhaps. We're talking
legalies again and as far as enforcing our Code. Carver County Sheriff's
Department, Public Safety. What kind of documentation do they have to keep to
say there's a probla~ there before there's a problem, which there may or may not
be a problem.
Roger Knutson: Anyone who has a c~nplaint about barking dogs, in addition to
asking the Sheriff or Jim's office to come out, can come in and say I heard a
dog bark on such and such a day and I swear it was owned by this person. Here's
the location and go through the things that he says are causing the proble~n.
28
City Council Meeting - June 26, 1989
Fill out a citizen's complaint and it can be tried~
Councilman Workman: Does he need to fill out a citizen's complaint and hasn't
he proven up to this point, has he filled out a citizen's complaint of any sort?
Is that a problem? Is calling the Sheriff's Department is not...
Roger Knutson: You can call a million times. That doesn't prove anything wrong
happened. If proves you think something wrong happened. The only way you can
get a citation issued for this kind of offense is if it is heard in this case by
Jim or someone working for Jim or the Sheriff's office or a citizen's complaint
is filed. That's the only way it can be handled and if someone comes in ar~
fills out a citizen's complaint, then the process is that our office would
review it and make sure there is reasonable cause to believe what would have
said, reasonable evidence to support it and if there is, it's charged out on a
regular basis.
Councilwoman Dimler: What's the penalty?
Roger Knutson: 90 days in jail, $700.00 fine is the max.
Councilman Boyt: Are you saying that if Mr. Krueger comes in with a complaint,
then it's followed through at City expense?
Roger Knutson: Yes.
Councilman Boyt: Who makes that decision?
Roger Knutson: Initially Public Safety would make that decision. I guess
there's two checks. Formal complaints cost a bit more money than a normal tag
so normally Jimwouldmake an initial look at it. If he thinks there's some
merit to it or has concerns about it, then he passes it up to us and our office
actually drafts the formal complaint based upon the citizen's...and it's got to
be signed and all that and then we take a look at it and make sure we think it
has enough merit to go forward.
Councilman Boyt: What if we choose not to go forward with it? Then what's Mr.
Krueger's option?
Roger Knutson: Civil remedies.
Councilman Boyt: Okay, so he can take it to court himself?
Roger Knutson: Sure. Not the criminal violation but as a private nuisance.
Councilman Boyt: Well I would call a question on this issue.
Mayor Chmiel: I see where we have discussed this. Hopefully you've got all
those additional items that we've discussed at this particular time Jim. What
we're looking at is issuing that license for the year which was effective
January 1 which means it's 6 months still running. Is that correct?
Jim Chaffee: I believe it's April to April.
29
City Council Meeting - June 26, 1989
Mayor Chmiel: Does it begin in April? Okay, I'm sorry. I thought it was
January. He filed it in January. Noise portions, citizen's complaints of
course which you can still do A1 and it looks like the only outcome that we have
is to put this to a vote and see what it goes as and go from there. A motion
has been made. There is also a second.
Councilman Boyt moved, Councilman Johnson seconded to approve the kennel permit
application for Phil Mathiowetz at 1630 Lake Lucy Road. Councilman Boyt and
Councilman Johnson voted in favor. Councilman Workman and Councilwoman Dimler
voted in opposition to the motion and Mayor Chniel was silent. The motion
carried with a vote of 3 to 2.
Co~uncilman Boyt:I'd like a roll call vote.
Councilman Johnson: Aye.
Mayor Chmiel: Being a silent vote I was voting with the positive which was the
aye.
Councilwoman Dimler: kb.
Councilman Workman: I voted no.
Councilman Boyt: Aye.
Mayor Chmiel: 3 to 2. It's approved. Al, you have all those other recourses
to go on.
A1 Krueger: Has the ordinance been changed that all residents within 50~ feet
will be notified?
Councilman Johnson: Not at this time.
Councilman Boyt: Still needs to be done.
Mayor Chmiel: Supposedly it was done but it wasn't. That's the question he's
asking.
Roger Knutson: That's for a conditional use permit.
A1 Krueger: As I understood it last time, it was going to be addressed by all
residents of 500 feet would be contacted at the time of the license. If I hear
you right now, you're saying that I have a dog kennel until next filing. Right?
Mayor Chmiel: That' s correct.
A1 Krueger: Then at that point will the City be contacting all residents, not
only on my site but any other site that's going to be a dog kennel?
Don Ashworth: Yes. If I may. We have modified the application process for
kennel licenses requiring the applicant to submit to the City the names of all
persons within 500 feet. We then send that notice out or will be sending that
City Council Meeting - June 26, 1989
out with the next round of applications. It was staff's belief that that was
the instructions that basically Council had given us from the last time around
and that has been instituted, right Jim?
Jim Chaffee: That is correct, yes.
Councilman Boyt: Is that in our ordinance to do that?
Don Ashworth: The ordinance requires an application to be prepared on form...
Councilman Johnson: Provided by the City.
Don Ashworth: Correct. And in that area, staff has taken what we believe was
the City Council's direction to insure that citizens were notified and are
requiring that as a part of that application, that the applicant suh~it those
names so we can notify those people.
Councilman Johnson: Mr. Mayor, I'd like to move ~aat on a future agenda we
place a modification to the animal licensing ordinance, the kennel licensing
ordinance to add that to our ordinance rather than have it only as an
adminstrative procedure.
Mayor Chmiel: There doesn't need to be a vote on that, we can just proceed with
that.
Councilman Johnson: Alright so everyone agrees with that then. I don't like
changing ordinances without public noticing that there's going to be a change to
the ordinance and we've got 30-40 dog kennel owners, whatever. I don't know how
many we've got here but they like to know that we're going to change the
ordinance under which they are operating rather than just do it without any
public input so that's why I'd like to get it put on a future agenda so we can
do this. It will be published in the newspaper, etc..
A1 Krueger: Living with this year doesn't pose a real problem in the fact that
he's already mentioned to neighbors he's planning on moving and I anticipate
that happening. If that happens, will I have any problem, will he be billing
that thing as a house that's got 5 kennels? Is there some procedure that we can
get on there that gets those 5 stalls removed?
Mayor Chmiel: I think at that particular time it would probably come back to
Council for that decision whether to issue a permit or not.
A1 Krueger: Will the sale of the house come too?
Councilman Boyt: It stays with the property.
A1 Krueger: See, no matter how I go here, I lose, lose, lose. Even if it goes
to a private kennel and he does move, I'm attracting dog people. Okay?
Councilman Boyt: It could be worse.
A1 Krueger: I agree but see I started there. I lived there before he did and
the procedure was, I would have aired myself fr~m day one on having a kennel
there, okay? Maybe at that point all I would have to do is get up and say I
31
City Council Meeting - June 26, 1989
oppose. Now I have to prove I have to have a problem and that's what you guys
are doing.
Councilman Johnson: There's been a lot of changes since that time, especially
where we publish the information ar~ stuff. It used to be published in a
newspaper that you could only get a Kenny's. Things like that. Now we at least
publish our agendas in a newspaper that goes to every home in the city so people
are a little better informed of what's going on. But 4 years ago when this got
approved, if you went to Kenny's ar~ if you picked up the newspaper, you would
be able to read the public notices. What I'm saying is there's been changes.
Unfortunately it did happen 4 years ago before any of us were on the Council and
probably got approved without the Council even being involved at all.
A1 Krueger: So there was no wise decisions here to begin with. Neither on the
location or the problem and good old Krueger family's are the ones that are
suffering. We're the ones that woken up at night, okay? We're the ones that
hear it in the morning, okay and you guys are blessing me with that, okay?
Councilman Johnson: You have your other alternatives.
A1 Krueger: I know. I know. They all cost me money and I've got a $250.00
bill to have a phone conversation so far, okay? I got a problem and you guys
have given me my problem and now I'll live with it until next licensing but
okay, give me something then too. On the removal of those kennels so that house
when it is sold, because I know he's going to sell it.
Councilman Johnson: I don't think it's legal to do that. We've got to live
within a structure of law that...
A1 Krueger: Then don't approve it. I've got a problem. Come camp out. You'll
be woken up when stuff goes by. Did we dete~nine what procedure was going to be
followed? Is that what that gentleman said?
CounciLman Johnson: The administrative procedure is that everybody within 500
feet and the Council has asked to where we're going to actually make a change to
the ordinance to that effect.
A1 Krueger: That will be in effect for next year?
Mayor Chmiel: Right.
VARIANCE TO THE REAR YARD SETBACK, DANIEL KERLING AND ROBERT KLINGER, 31~ SINNEN
CIRCLE AND 8180 MARSH DRIVE.
Willard Johnson: We denied the variance for the rear yard setback for Daniel
Kerling and Robert Klinger because we couldn't find no hardship. Mr.. Boyt made
a statement on some piece of property that, I don't know if it was before you
people here. Could you work it into that with the contractor so he don't
squeeze a house in a lot and I guess that's what happened. The City got stuck
with the same situation. Put up a wall to wall house and this gentleman feel
that the contractor puts in the sliding doors in the back and the gentleman
thinks well I can throw a deck out ar~ we'll probably get stuck with it. I feel
for the applicant but we cannot find a hardship in this situation.
32
City Council Meeting - June 26, 1989
Mayor Chmiel: Mr. Klinger also has other problems. Not only being able to put
a deck but he also seems to acquire all of the water within that particular area
and there should be a swale in there that I suggested he contact those people so
that has proper drainage. I walked out on that back yard and I sunk up to my
ankles in mud &nd water. There's water standing all over in that back yard.
Willard Johnson: I have to aclmit I didn't get to the property, I'll be honest
becauser I didn't get the paperwork until tonight. Do you want me to talk about
all 3 of them?
_Mayor Chmiel: Yes. Well, let's take them one at a time.
Roger Knutson: No one's appealled?
Councilman Boyt: On one's appealled, is that right? Then we don't even vote on
it if they don't appeal.
Mayor Chmiel: Then we can move onto item 9.
VARIANCE TO THE FRONT YARD SETBACK, TOM MICHELSON, 600 FOX HILL DRIVE.
Willard Johnson: Similar situation you had here a couple weeks ago. Variance
to a front yard setback. We could not find any hardship in that situation. I
feel for the applicant again, to be honest about it but I don't believe giving a
variance to the front yard setback and the Board all agreed that we could not
find a hardship in that situation.
Councilman Workman: Maybe if I could make a con, nent. We had a variance request
for something almost identical to this a couple of weeks ago. I know they
applied on the 5th. Wouldn't staff be able to say, you know it doesn't look
good? I don't know, I guess everyone wants their day in court but I feel more
sorry for, I don't feel sorry for Willard coming in early or anything but these
folks come in and they just kind of get told something that I think I kind of
had a good idea on already. They didn't have a snowball's chance.
Don Ashworth: It would appear as though the application though was 5/5.
Councilman Workman: It was 6/5 I think.
Don Ashworth: Is when it was paid for. The back side shows 5/5.
Councilman Workman: I guess there's nothing we can do.
Councilman Boyt: Tom, I think there is something we cnn do and I think if the
City Council is consistent in turning these down, then staff will be able to say
this is what the City Council has done in the past. People may save themselves
money. I can say that over the last couple years with the old Council, there
was, if anything, a lack of consistency so staff never knew if they were going
to be supportive or not. That didn't allow them to give a strong position to an
applicant. So I agree with you. I hope we can be consistent enough so that
staff can say that this hasn't passed in the past and probably w~n't in the
future.
33
City Council Meeting - June 26, 1989
Councilman Workman: I guess I'm not so much looking for consistency I guess. I
go at variances thinking I'd like to approve them rather I don't want to approve
them so I'd rather look at them positively than negatively. I liked to help you
improve your home and add a deck and a pool and everything else so I'm still
looking at them reasonably individually so I don't know that I'm looking
necessarily for consistency. Although my actions have proven lately I guess
consistent. I guess I was asking staff to perform something that they weren't
going to be able to do.
Willard Johnson: Excuse me, could I make a con~nent? I think Roger probably
could back me on that any citizen has a right to go for a variance even if he
calls one of you people on the council and says, do you think I can make it and
you say no. He still has, I guess that's his Constitutional right to come
before you if he wants to spend $75.g~ or whatever the charge is to take a long
shot at it, I guess that's his.
Councilwoman Dimler: This Daniel Kerling and Robert Klinger, I talked to both
of them afterwards and they were detaining me and that's why I wasn't here to
start the meeting. They were rather angry so I guess we could alleviate some of
that too by giving them maybe an indication as to what their chances might be.
But the one thing they couldn't understand is what constitutes a hardship. I'm
just wondering if someone can, I guess I really couldn't explain it to them
either except that it can't be self-imposed but what constitutes one that isn't
self-imposed. I guess I'd like to have somebody look into that and write a
statement that we can explain to future applicants that are denied because they
don' t understand.
Willard Johnson: Mr. Klinger called me a number of times and I told him he had
to work through City staff. I don't feel that I have the right to say hey, no
you aren't going to get it or give him that impression. I don't want to put
myself out on a limb.
Councilwoman Dimler: No you can't but all I'm saying is there some wordage that
we could have that we could explain to them what constitutes a real hardship and
not a self-imposed one. I guess it would help me out if I could explain.
Mayor Chmiel: Don, will you pull something together on that?
Willard Johnson: There again it's the contractor. I guess I'm going to nail
the contractor but it's his fault that they've got wall to wall houses and we've
got a number of these projects that are planned developments that have been
giving us problems. I hope you people can work out something.
Mayor Chmiel: Yes, if you look at the two houses with the 30 foot setback as
they had from their property line, you'd have contiguous decks from one to the
other. That presents a problem.
Willard Johnson: Because you could have that whole string, if they all decided
to put decks out, you could hop from one house to the other.
Mayor Chmiel: Their homes I think probably are the closest in that particular
area, which is a shame but that's part of the developer. Is Mr. Michelson here?
If not, as you indicated it was denied. No hardship.
34
City Council Meeting - June 26, 1989
VARIANCE TO REQUIREMENT FOR IMPROVEMENTS, DAVE STOCKDALE, 8301 AUDUBON ROAD.
Willard Johnson: We could find no probl~ there as long as you grant the
variance we felt he didn't need the curb and gutter at this time. Roger helped
us with a number of steps. I don't have th~m here to be honest about it. We
gave him a number of alternates and with Roger recon~ended we had money in
escrow in case he doesn't follow through with his project the City is covered
and we felt at this present time, that would be the best way to go and hope the
Council agrees with it.
Mayor Chmiel: I also went out to this one and looked at that as well. The
thing I guess I had just one concern. I think you addressed that the roads that
you would be proposing on putting in would be the existing one as is shown as is
now presently. I also notice that the drainage for that would be going strictly
to the west as it goes to the north some and in the east portion it sort of has
a drop off on both sides so the drainage goes in two different directions in
that specific location.
Willard Johnson: And the Board felt that he didn't require a cement curbing at
this t~ne because it'd be just a waste of energy to put it in and tear it out
when he develops.
Mayor Chmiel: What was the Board's reco~endation?
Willard Johnson: To grant the variance with the conditions listed.
Councilwoman Dimler: Can you give the conditions Roger?
Roger Knutson: I gave my notes to Jo Ann. I can't recall them. But you did
more than grant a variance. I guess that's technically what happened but they
were just going to postpone the timing of when the concrete curb and gutter
would have to be put in. They postponed it the earliest of the following dates.
January 1, 1992. When sewer and water is available to the property. When any
building permit is issued for the property with a value of more than $10,000.00
or if the property is subdivided. The earliest of those events, the concrete
curb and gutter has to go in and they have to put up a $10,000.00 letter of cash
escrow to guarantee performance.
Councilman Johnson: At this time?
Roger Knutson: At this time.
OFFICIAL MAPPING OF TH 101 RIGHT-OF-WAY, FRED HOISINGTON.
Councilman Boyt: This is really straight forward. Maybe we could just move
ahead.
Mayor Chmiel: Yes as I've gone through this, I didn't see any real given
problems with it. Is there any discussion?
Councilman Johnson: Is there any member of the public that's here for this
issue?
35
City Council Meeting - June 26, 1989
Mayor Chmiel: Anyone wishing to address it? I don't see anybody at all.
Councilman Workman moved, Councilwoman Dimler seconded to approve Alternate 1 of
the Official Mapping of TH 101 dated May 31, 1989 from Fred Hoisington. All
voted in favor and the motion carried.
DESIGNATION OF CITY ATTORNEY.
Don Ashworth: City Council earlier this year had asked staff to go through an
interview process to look at City Attorney position, City Auditor and our
Financial Advisor. In looking at, and we did that, I used John Dean of the
HoLmes Firm to help in the preparation of a proposal format. We solicited
proposals that did run in the League magazine. City Council did receive a copy
of all of the proposals received. Again, .Mr.. Dean and I took a 2 day period to
meet with the top 6 firms that we considered eligible for this position. In
addition we had interviewed an attorney who currently is with Carver County and
we felt that Jean Shirley would be an excellent potential candidate. Speaking
of that latter one first, had completed a financial analysJ, s of dollars that we
have been spending in the City Attorney area and although we have spent
considerable sums during the past 2 years in condemnation processes and
development contracts associated with Rosemount, McGlynn, etc., it was my belief
that that type of work, in all likelihood, would not continue in the future or
at least could not be guaranteed at a level that would sustain an in-house
attorney at a cost of roughly $100,000.00. Maybe $125,000.0~ but by the time we
put someone in-house, it would be generally into that area. Again, I was
anticipating that Mr. Dean would be here to help in that process. I again think
that all of the firms were very, very good. The top, we again have shown the
top 6 and of those 6, really the top 3 listed were considered to be, you didn't
put them in the same order there. I better watch what I'm saying. We had
listed them in another way but anyway, what it came down to was we have a very
known quantity and this is again Mr. Dean's position, my own, with the Grannis
law finn it would be the recon~nendation of myself that the Grannis firm be
selected for City Attorney. I believe that the process that we've gone through
has been a very worthwhile one in that I think it has forced Grannis to look at
their cost structuring and to establish a retainer system that would assure a
reasonable return for them while yet providing a reasonable level of service to
the city. That would be at a blended rate that would be lower than our current
rate for that service. In addition, city staff had interviewed all of our staff
members to try to determine whether or not the level of service being provided
by the attorney was sufficient for city staff members How they would suggest
for improvements, etc. so again I think that that pro~ess was a very useful one
in obtaining suggestions from all of our staff as to how we might improve again
the city attorney functions and how those functions interrelate with each of our
departments. With that Mr. Mayor, again staff is recorrmending that the Grannis
law firm be selected for City Attorney. I should also note that the City
Attorney is considered as a city employee under State Statute. There is one
exception and that is that any reconxnendation from myself must be concurred with
by the City Council for either disaissal or for employment. In terms of the
next two selection processes that we will be going through which is really the
auditor and the financial advisor, in both of those instances that is a
contract. It is a contract with the City Council and again you can authorize
36
City Council Meeting - June 26, 1989
staff to carry out that type of interview for you but I would anticipate that
with those two, that the City Council will be sitting in on the interviews
themself. So at least at that point in time we'll have to schedule it either
for Monday evening or potentially a Saturday morning.
Mayor Chmiel: Would you clarify what you said just before in reference to the
attorney?
Don Ashworth: State Statute spells out the responsibilities of City Manager.
That includes the hiring and firing of all city employees with the exception
that the City Attorney. That any dismissal or employment must be concurred with
by the City Council so any recommendation from myself in terms of City Attorney,
whether it be for dismissal or for employment must be concurred with by the City
Council.
Councilman Workman: Mr. Mayor, I haven't had a chance. I got a lot of the
paperwork from the law firms and I really haven't had a chance to look at this
issue in much detail. I've heard a lot of good things said about Roger. Not
only from city staff but from other independent sources. I've heard a lot of
good things but I would make a motion to table until perhaps, it's a difficult
thing for me to make a decision on. I'm not going to deny that but I would like
a little more time if Council feels it's appropriate.
Councilwoman Dimler: I have a question too of Don. Is there a possibility that
the Council itself could interview the top three?
Don Ashworth: Sure. If the Council would choose that they would like to
interview the top three, we can sure do that.
Mayor Chmiel: That was one of the concerns I had too and I wanted to review who
the top three were and to get that list from you so I can go through each of
these accordingly and scrutinize it a little closer.
Councilman Boyt: I recognize that this may not fall on receptive ears but in
the report, if you read it, it stated pretty clearly that the transition from
one city attorney to another is rather dramatic in the impact it has on the
City's on going legal efforts. Unless the Council has some particular
discomfort with the existing City Attorney, I think we should move on with this
piece of business and approve Knutson as, Roger Knutson. The film of Grannis as
the City Manager has recommended so I would make a motion that we approve the
appointment...
Councilman Workman: I have a motion.
Councilman Boyt: You don't have a motion. There's no second. I make a motion
that we approve Roger Knutson as the City Attorney for the coming year and his
firm.
Mayor Chmiel: Is there a second?
Councilman Johnson: I'll second that.
37
City Council Meeting - June 26, 1989
Councilman Boyt moved, Councilman Johnson seconded to approve the appointment of
Roger Knutson of the firm of Grannis, Grannis, Farrell & Knutson, P.A. as the
City Attorney for the next year. Councilman Boyt and Councilman Johnson voted
in favor. Councihaan Workman, Councilwoman Dimler and Mayor Chmiel voted in
opposition and the motion failed with a vote of 2 to 3.
Mayor Chmiel: I too feel, as Tom has indicated, ! want to review this a little
closer and look at the complete total cost differences that are entailing. I'm
not saying Roger's not doing a fine job. I think he is but I want to make sure
that I understand who 9~'re hiring and what the other people have potentially to
offer and I want to see that done.
Councilwoman Dimler:
top three?
Can I make a motion then that the Council interview the
Mayor C]m~iel: Yes, you can make that motion.
Councilman Workman: Can I move to table at this stage first of all?
Mayor Chmiet: We have a motion first. She'd have to withdraw her motion.
Councilman Workman: I just want it tabled so that I can, I haven't looked
through the stack of proposals.
Councilman Boyt: I have a question for Mr. Ashworth. Was there a significant
difference in the proposed fees of any of the top three firms?
Don Ashworth: The proposal by Albrecht could be considered to be significantly
lower. One of the things that I had talked about during the interview process
with Mr. Albrecht, who is here this evening, is the fact that I do not believe
that the retainer realistically represented the ~mount of work that's going to
need to be completed so it would be my interpretation that really it's an
extension of the hourly rate that was being considered. For example, I think
that the example used there w~as approximately 2g to 3g resolutions, etc. and
we'll hit over 2~0 resolutions so you've got some big differences in the amount
of work to be...
CounciLman Boyt: What was the hourly rate difference Don?
Don Ashworth: I would hate to throw out a figure.
Councilman Boyt: Well I'll withdraw the question.
Councilman Johnson: I move to table.
Counci Lman Workman: I already moved on it.
Councilman Johnson: It's died for lack of a second by now.
Mayor Ckmiel: No, there was discussion going. Bill interjected in there and I
let the discussion go.
Councilman Workm~n: I will second Ursula's motion.
38
City Council Meeting -June 26, 1989
Councilwoman Dimler: My motion was that the Council interview the top three or
anyone they choose to really, they should be able to call for it.
Mayor Chmiel: Okay, the motion is on the floor and there's a second to
interview the top three attorney...
Councilwoman Dimler: Or any one of choice. Whichever. If one of us wants to
pull one.
Councilwoman Dimler moved, Councilman Workman seconded a motion that the City
Council interview the top 3 candidates or any candidate of the Council's
choosing for the City Attorney position. All voted in favor except CounciLman
Johnson and Councilman Boyt and the motion carried with a vote of 3 to 2.
Councilman Workman: I'd like to move that we table the selection of our City
Attorney for 2 weeks I'd say. Should we be able to get that done Don?
Councilman Johnson: Her motion does that.
Don Ashworth: The question becomes when it is the City Council would be able to
take and meet as a group to interview the candidates. Point of clarification.
That is that staff is aware of the top three firms and in previous discussions
with the mayor, I think there would be an additional firm so we're probably to 4
and then by your motion there may be others added even to that. Does City
Council have a Saturday morning that may be open or are you aware of a
particular evening that you'd like to look to?
Mayor Chmiel: It would have to go beyond the 4th of July I would think.
Councilman Workman: July 8th?
Mayor Chmiel: July 8th? That'd be a Saturday. Saturday morning. 8: 00 a.m..
Right here in the Council chamber.
Don Ashworth: If we have the courtyard conference room complete by then, that
might be a nice setting as well.
Mayor Chmiel: Either or but here in City Hall. Is everyone able to do that?
Councilman Boyt: I don ' t know.
Councilman Johnson: I don't know at this time either.
Mayor Chmiel: That would be fine.
COUNCIL PRESENTATIONS:
Mayor Chmiel: Let's move on with Council presentations. Council ethics in
working with developers and conflict of interest.
39
City Council Meeting - June 26, 1989
Councilman Johnson: This is my own personal soapbox I guess. It's a thing that
I've tried to maintain at any time I have a contact with a developer or a
developer asks me to come and meet with him for lunch or whatever, I bring, well
actually I've never met with a developer over lunch or anything like this but I
arrange a meeting at City Hall with city staff. Generally the developer then
says he doesn't really want to meet with me and we don't have the meeting but
it's my personal preference and my personal ethics that I will not meet one on
one with a developer and this is based on previous actions I had seen taken by
previous people where they had meetings and votes changed after private meetings
and that's one of the things that got me involved into this office in the first
place is some of the things I saw happening in years past. I just wanted to
bring that out that citizens see and hear that m~nbers have one on one meetings
with developers. It doesn't look good to the citizens. Staff is always ready
to accompany anybody on these visits if that's necessary. So that's all I
wanted to say on the soapbox on my personal view of ethics and how I handle
developers who, you can't refuse th~n when they call you up on the phone because
you can't hang up on them. They've got you. Staff generally doesn't give out
your work phone number. However, my daughter does. My 6 year old has been real
good about that. Oh, he's at work. Here's his number. Thanks a lot Chrissy.
Fortunately I changed jobs. Now that's the second part where I want to bring a
clear understanding. On May 1st I started working with a consulting engineering
firm. I've already talked to staff and a few other people and there's really no
belief that there's much of a conflict of interest here in that the firm is
formerly known as E.A. Hicock and they're changing their name July 1st to J.M.
Montgomery. 5hey'ye been purchased by J.M. Montgomery. I'm the manager of
their hazardous and solid waste section. It's a consulting engineering firm.
They are also the engineers for the Minnehaha Creek Wastershed District. Here's
one of the other engineers in the firm I work for has written a letter and
they're a part of this city. I an not in their section. I have nothing to do
with the work they do. These people do not work for me whatsoever so I really
feel that personally, and I'd like to get some feedback, that since although
they're in the same firm, they're in a different division under a different
manager. Minnehaha Creek Watershed District that I can act upon issues within
that watershed district. I personally feel there isn't a conflict of interest.
...in fact I have been recently about the effects of Riplox because they're also
the Rice Creek Watershed District and they did the Long Lake experiment and have
all tile data so I've been looking at Riplox and all the data involved in that
lately. So there's scrae advantages. I'm not too wild about Riplox after
looking over that data either. But anyway, I just wanted to bring that forward
so there is no secrets there.
Councilwoman Dimler: If I could just make a con~nent. I think Jay might have
been referring to me because I do meet with developers. I just want to say for
the record that I do it for information only. I don't promise them a vote or
anything like that. It's just to get the information so I'm more adequately
informed to get their perspective and then I also call people in the area,
citizens in the area to get their perspective and it just gives me a broader
view of what's going on. That's why I do it and I don't particularly see
anything wrong with it. My other thing was that I wanted to discuss a
nomination to the RTD. We did already hit upon that but I did call Don this
morning and ask him to give us a little bit of a presentation of what the
current status is. Who's on it and what are our responsibilities with each
nomination from our own district rather than just confirming Ed Kranz who is not
40
City Council Meeting - June 26~ 1989
2@3
really representing us.
Don Ashworth: Unfortunately after you had called,'I went into Jo Ann's office,
relay~i the questions and asked her to make sure she was in a position to
respond to each of those this evening. I think that I have correctly understand
the questions. Again, Mr.. Kranz is from Eden Prairie...any fo~m of endorsement,
it's simply a generalized endorsement. He is not from our district. It would
not be our nomination. Our district would include Chaska, Chanhassen, Savage,
Lakeville, Prior Lake. It's a larger area and the City Council may make a
nomination from your own group or someone within the conxnunity. As Jay had
stated earlier, Gall Kinkannon has shown an interest.' She has been an
enthusiast for the MTC busing for 10-15 years that I'm aware of and has
continuously represented Chanhassen well there. Whether again you wanted to
look to a citizen from Chanhassen or not is up to the Council.
Councilwoman Dimler: Is there anyone currently on it that is from our
district?
Don Ashworth: It's really a new group.
Councilman Johnson: I'll fill you in on this in that I'm on the Southwest Metro
Transit Con%~ission and we're all involved with RTB. RTB has been killed by the
Governor and reinstituted by the legislature and it's coming back in new form.
The districts are being totally reorganized. We used to be represented by one
district for all three of our cities and it followed basically the Met Council
guidelines. Eden Prairie actually had two districts within there. There was
several people have been very helpful to the Southwest Metro Transit ~nich is
the bus company that services Chanhassen. The transit provider. Ed has been
very much helpful to us over the years in our voting. The RTB has in the past
not really liked Southwest Metro terribly much in my opinion. There's been some
friction back and forth. They didn't like us opting out of the system but we
had the option to make our own bus system and we've done it and we've proved it
as a viable option now. Everything is in flux with the RTB. The appointment to
the Chair of the RTB is a very high level political thing. The appointments to
each position on the RTB. They cut the size of it in half. We don't know
what's going to happen to the staffing. I just got a packet tonight about that
thick about what's going on with it. Tonight we're expecting to find out
whether the drivers are going to go on strike. Another issue which all of a
sudden there may not be buses on 'Wednesday. Really it's in a state of flux
right now.
Councilwoman Dimler: Okay, but do we have new requirements?
Councilman Johnson: They're realigned the districts. They no longer conform to
Met Council districts. It used to be each Met Council member also had a RTB
member that represented the exact same district and the Met Council more or less
sponsored that person. The various cities kind of fought with and the Met
Council appointed them. It's different now. There are some of a certain
percent of the group. Four of the m~bers have to be locally elected officials.
Two of those have to be a county officials. Two members have to be general
population. Like four or something have to be appointed by the Governor of
which one has to be an elderly. One has to be a handicap. It has become one of
the craziest combination of boards you've ever seen. It's a very complex
situation now but Gail is running for one of the two allowable non-elected
41
City Council Meeting - June 26, 1989
positions and there will be people all over the Twin Cities doing that in other
districts. We don't know what the competition is going to be like yet. I don't
think we should make any kind of endorsements really until we see what all the
competition is. I've known Gall now for 2 years that I've been on the Board and
she is a transit user in addition to being a menfoer of the board and very
comprehensive. Very good record of being there and working very hard. She's a
hard worker. She'd be an excellent member but I'd like to see who else is going
to be.
Councilwoman Dimler: Are you saying then that people should come and apply or
let us know that they're interested and then how will they know to let us know
though?
Councilman Johnson: Appointments at this level are the political savy of, the
people asking for this type of an appointment is such that they know to let you
know. This is not something that...
Councilwoman Dimler: Okay, so from all those who let us know then we make a
nomination?
Councilman Johnson: Yes. We can support a lot of people. We could support the
gentleman from Hopkins who is considering also. He used to support us a lot out
here. In fact he was essential in some of his maneuvering to keep us from
having to rebid the bus service last year. He used to represent part of Eden
Prairie so he's the one who came to all our meetings. Nobody else did. Ed came
once or twice.
Councilwoman Dimler: Okay, that's all the questions I had there. Then I just
had one more thing and that was that some neighborhood complaints about time
SuperAmerica station at TH 7 and TH 41. The main problem being the holding pond
problems with dirt sliding into it. There's no berming and no landscaping and
generally the site looks a mess. The citizens feel that the development
contract was not upheld. Can we have somebody go out there and test the site.
Bring back the violations and then we would decide what to do. Does anybody
want to address that?
Gary Warren: There's two letters in the Adminstrative Packet. One from my
staff. The other from the Watershed District. We've been out there harrassing
the developer if you will. We have been for quite a while to get this thing
cleared up. We've mentioned in the letter we're suspending his building permit
on the retail center, which he hasn't started anyway and we've put him on notice
that if corrective actions aren't taken, I forget the date but that if they
aren't we will be utilizing his security to see that the corrections are done at
his expense so he's on notice as of last week.
Councilwoman Dimler: Okay, and have you heard from him?
Gary Warren: I haven't. Dave Hemphill I had write the letter and I don't know
if they talked to Dave but I haven't heard. Dave normally would have told me if
they responded.
Mayor Chmiel: We've had some discussions on that as well.
42
City Council Meeting - June 26, 1989
Councilwoman Dimler: So then I should let these people know that action has
been taken and they can expect to hear from you.
Gary Warren: Yes, the letters are in your administrative packet. You can show
thom that.
Councilwoman Dimler: I know that but I mean when we get personal phone calls, I
feel like I want to get back to them with a little more updated information.
Gary Warren: That's the latest and the greatest.
Councilman Workman: Lake Riley chain of lakes continuing saga. I guess I was
disturbed a little bit by the letter in our adminstrative packet from Mr. Haik.
Raymond A. Haik, attorney to the Mayor and the City Council basically stating
that we are not in fact going after the Lake Lucy access either fast enough or
not at all and that we're going to be possibly responsible for reimbursing the
Watershed District for their portion of the costs. This I believe is erroneous
in that at least to my knowledge as a councilmen, this project just came very
much to light to me and in fact the grant was made by the EPA and the monies
were designated to us in June of 1986. Now 3 years later, the Watershed's
engineers have finally come through with the plan for the clean up 3 years
after. I don't think we've failed to respond. I was missing Lori Siets~ma all
day to find out where exactly we are with a possible access. She seems to be on
s~me sort of a track for completion in May, 1990. That apparently in her mind
is adequate and she's gotten that feedback from somebody, I don't know who. I
did meet with Mr. Haik and the rest of the crew. I think I mentioned that to
the Council. Mr. Tomasek from the PCA and it appears as though Mr. Haik is
really only concerned with the Watershed District's money. I was told by a
person at the Chicago office of the EPA that in fact the report by the
engineering firm for the Watershed District report is actually a report to do a
report to do a lake clean-up. Not a report to do a clean-up. Perhaps this
project, the portion of the money that was paid to this engineering firm was
very substantial for what we've received. EPA and PCA tell me that this will
not go through without public approval. I don't know where the public approval
is supposed to come up. I've mentioned getting public hearings. Discussing it.
I don't know again how best to discuss highly technical matters but there are
some negatives to the work project, not to mention the public access. We again
need to refocus and find out, by all accounts it appears as though the million
dollars is gone and I think perhaps somebody is trying to blame somebody here
and it might look like somebody's trying to blame the City Council of
Chanhassen. Now I'm not very happy with that considering the amount of time
it's taken up to this point to get this thing moving. With that I guess I was
hoping that Jo Ann was here because Jo Ann has been taking a lead with a lot of
this and again I'd like to direct her to let us know what's going on because
there's a lot going on out there. ~nere's some people that think their lake is
going to get cleaned up and I think not with this money so it should be a
concern to us. We've been kind of pointed at as the foot draggers and I would
have to disagree.
Councilman Boyt: I'd like to comment on that. Maybe others would. I agree
with you that I think that people are now looking around for who can take the
responsibility for what happens in the future. I was a little distressed at the
letter but I think the letter was very clear in drawing a line in the sand and
43
Council Meeting - June 26, 1989
saying July 10th is the date and I think that the City can make that date but we
can't make it if we just let it come to us. I think that the City Council has
to hold some work sessions. I think this needs to be a priority issue and we
need to have a decision on the access by the 10th. To get that we need to have
enough meetings between now and then to have those issues worked out because if
we don't have it by the 10th, we are going to look like we haven't held up our
end of the deal, though I would agree with you Tc~, I don't think that's true at
all. I think that's how it's going to look and I think we need to be ready with
a proposal for an access. I happen to believe that the DNR's proposal to cut
through the marsh is misguided and that we should be looking at this mechanical
access myself. I've got quite a curiousity about how this article managed to
get in the Star and Tribune last week and how we managed to find ourselves the
topic of the political cartoon. I think the political cartoon was in very bad
taste and I think the_ article seemed to show an interesting perspective on a
problem. I'm just curious how it got there.
Councilman Workman: Did you read the work plan?
Councilman Boyt: I read through it but I didn't read it with the detail that
maybe you've given it.
Councilman Workman: I think if you had, the Riplox, why they chose Riplox or
why the writer had a concern about Riplox is beyond me. Riplox sounds like a
fairly boring topic to me. Politics is probably much more exciting to me so I
can't answer that for hLm but Riplox is a very large portion of the project,
$310,0~.~0. In reading through that article I noticed that $31~00.00 showed
up not only in our project for Riplox but $310,0~.~0 to the Long Lake project.
It was just pulled from the Long Lake project and plugged into our project. The
politics of it, which are more fun, the politics of it is, what's going to
happen, number one what's the cost of the access to us. Cost of that lot is
getting more and more expensive. As we talked before Jay it's a project to
clean up Lake Riley. What's going to happen to Lucy and there's 4 other lakes
so none of those concerns have been alleviated. I myself personally think
pouring Riplox into Rice Marsh Lake is not a good idea. I have no technical
background to support that but I'd like to see some that does so it's a touchy
issue as we've known all along. I think the article in the newspaper was
printed after this letter was written and they want to push it along and make
sure that the Watershed gets their money and I want to make sure we get the
lakes cleaned up.
Mayor Chmiel: In the Administrative packet, we did send a letter, or I sent a
letter to Conrad Fiskness, manager of the Riley-Purgatory-Bluff Creek
specifically addressing all those problems and as you mentioned, they're looking
for that, as Bill mentioned, they're looking for the access to that property on
the t0th and that was something that I had conversation with Mr. Haik as well on
the telephone and he feels that if we want to go through a study and take a year
to year and a half to come up with a solution ~fnat's the best thing for the
lakes, he says he really doesn't care just as long as the access of that
property is done by the 10th of July or the 15th of July with the DNR having
that ability, knowing that that's going to take place and that's his only real
concer~.
Councilman Johnson: I think we have a real concern by meeting that because the
wetland alteration permit has to be approved to do that. We turned down
44
City Council Meeting - June 26, 1989
_w~r. Rivkin's much ~naller wetland alteration~
Councilman Boyt: That passed. I was the only one that voted against it
actually.
Mayor Chmiel: He had mentioned that at many of the meetings here that he had
had approval. I think Bill's right.
Councilman Boyt: But nevertheless the point about a wetland alteration permit
is certainly part of this.
Mayor Chmiel: Yes, that's a requirement.
Councilman Johnson: At the time of Rivkin's permit, didn't he not need one the
year before?
Mayor Chmiel: Right.
Councilman Johnson: Then we changed the ordinance making it required to have
one. I think that must have been the one I missed this spring. I wasn't going
to vote for that.
Councilman Boyt: I think a key ingredient of this Lake Lucy access affects all
of Chanhassen, not just the Lake Riley chain of lakes and that's non point
source pollution. A big part of the money, as much as is going to Riplox is
going to educate us about sources of non point source pollution and all you have
to do is go look at any lake in our city and you can see that it's been hit by
that already this year. The whole city stands to gain by this project. We have
a tremendous opportunity here and I would really like to see us get it done by
the 10th of July.
Councilman Johnson: Hopefully somebody's doing something about the mechanical
access via Lake Ann. I don't know if any action has been taken on that.
Councilman Workman: But hasn't DNR basically said that's not a go. That's not
s~mething that they're even going to consider.
Councilman Boyt: What they've said is, they have concerns about it but the
point is that they've just, Lori just today realized that there ways to overcome
their concerns but we need to know specifically what their concerns are.
They're saying we want a handicap access. If we're talking spending $120,000.00
to acquire property, you can do a lot with $120,000.00 to build a mechanical
access. We're only talking about lifting the boat 6 inches.
Mayor Chmiel: I think if we're going to come up with any solutions to this, we
better have some answers of whether or not that's a viable option or not and I
think we'd better find out from staff. Checking with DNR if, from what I've
read, it was an indication by the DNR that that was not acceptable.
Councilman Johnson: The trouble is, once you get your boat off your trailer,
how do you get it across Lake Ann. You can't paddle a great big boat across
there. If you have an electric engine and that's not equal access.
45
City Council Meeting - June 26, 1989
Don Ashworth: That's my understand as well and again, one of those involved has
been Dale Barber. One of the problems we've had staff wise is we'll be bringing
2 or 3 and they will check with whomever to see if that's acceptable. If you do
get agreement from the one group who happens to come in, then Fisheries or
Waters or whatever the next group is shows concerns and you're back into a tail
spin. I don't know what to suggest.
Councilman Johnson: Early in the process I asked a question and it has never
been answered. Last year. DNR says they won't restock that lake if we don't
have public access on it. They said they would kill it without public access on
it. Do the fish kill without public but they won't restock it. I've said okay,
fine. Would the City restock it? Would that be acceptable? The DNR not put
money into Lake Lucy except for on the kill side of it which they said they
would do without public access but their policy is they will not restock any
lake that does not have public access. That I've had asked to have looked into
several times.
Mayor Chmiel: In order to get the full grant you have to have the access. If
you don't have the access, you don't get the grant. That's what it boils down
to.
Don Ashworth: And making issues more difficult now and one of the reasons for
the timing is the original work program called for the city to make the grant
application in May of this year. LAWCON has now changed this past year, changed
the timing and has stated that no application will be received from any city for
boat access prior to September of 1989 so they had moved the entire process back
by 6 months so we can't make an application for a boat access on that lake
because of their regulations and yet without an application and grant approved,
we cannot acquire the land which was one of the original conditions that we came
back with when we had initially met with those people is we need to take and
have a grant to be able to carry out the acquisition of this boat access that
you're de~nanding of us.
Councilman Boyt: Can we meet with the necessary people sometime either this
week or next Wednesday and get this rolling?
Don Ashworth: Why don't I have then Lori contact each of the Council members.
Do we want to set up a tentative time? Is there a general time that would be
good for council members?
Councilman Workman: I guess I'm unclear as far as ~aat we're going to talk
about.
Don 'Ashworth: It seems like there's a number of issues including where do we
stand with the mechanical lift. Can we get that. Can we not. The question you
just posed regarding stocking versus not stocking. Where do we stand with the
grant if they move this whole application back and how does that change our
relationship with the Watershed District. Then who's going to be conducting
these hearings? The letter we sent over to the Watershed District said Council
would like to see hearings held but we need your help and so far I haven't seen
a response to that although that was very recent.
Councilman Boyt: Well if Don is right and we have time to resolve some of these
issues, it sounds like the really critical issue is how do we handle the access
46
City Council Meeting - June 26~ 1989
to Lake Lucy. I'd like to see us get that resolved by the 10th of July or there
abouts and we'll work these other things out when we're not under that
tremendous crunch of time.
Councilman Workman: It's my understanding from Mr. Haik's letter that the
Watershed District has exhausted all their funds and that has directed the staff
to not incur additional expense and that we inform the City of Chanhassen of the
need to obtain the access to Lake Lucy by July 15th and I've heard this from
them basically before that we don't have any money to defend the project. We
don't have any money to show up. The Watershed isn't even ready to pay Bart
Engineering the extras to show up at one of these things. I've been told that
and we're kind of being put under the gun for a project that was begun 3 years
ago and my original point is not to point blame at somebody but the thing has
been going on for 3 years. We just got a work plan. We've known about the
access for a long time. I've heard about that being a political problem and now
people get to look at the work plan and look and see and it's their right to
look at the work plan in a public process and now we're kind of being told hurry
up and get the access in, you've got to do it otherwise the million bucks is
gone.
Councilman Johnson: Part of that work plan delay, as far as that goes, there's
a lot of bl&me back and forth. The substate agreement had to be signed before
the work plan could be written. Before the monies could be released. The
monies were there but they couldn't be released to write the work plan until the
substate agreement was signed. The Watershed District gave that to the MPCA.
Six months later the MPCA commented on it. There's a lot of miscon~nunications
in the interim. People changing jobs. Things like that happen to where the
substate agreement got just more or less misplaced and the whole project sat
hanging. It's a typical bureaucratic mess up having local, regional, state,
federal all trying to do the same thing. We all have the same goal.
Councilman Boyt: Could we meet sometime and get this discussed?
Mayor Chmiel: Yes, that's what I was just looking at. It would have to be
again, maybe we could do it right after Saturday or we could do it before too as
far as that's concerned. I have open the 5th, the 6th or the 7th.
Councilman Boyt: Nothing this week?
Mayor Chmiel: You want to do it this week?
Councilman Boyt: I'm thinking we're going to need more than one of these
meetings and if we can start it out sometime this week. I don't know that Lori
can get the people together.
Councilman Johnson: Especially EPA out of Chicago.
Mayor Chmiel: I can do it on Wednesday.
Councilman Boyt: Can we try for Wednesday and see if we can get anything
meaningful together?
Don Ashworth: What are you looking at, daytime or evening?
47
City Council Meeting - June 26, 1989
Mayor Chmiel: Evening ~
Don Ashworth: We could have a problem with some of the State people.
Mayor Chmiel: Give th~n a choice. Either Wednesday or Thursday. How is
Thursday for everybody?
Councilman Workman: Thursday is bad.
Councilman Boyt: If we need to, can we meet during the day? As you've stated,
they probably won't come out in the evening.
CounciLman Job_nson: This week will be tough for me during the day.
Mayor Chmiel: Thursday I could.
Councilman Workman: I was of the understanding that Mr.. Robert's of the EPA in
Chicago was going to be in the area somet~me. You might want to find that out.
Soon.
Mayor Chmiei: Why don't you find out ~nen he's going to be here and get back to
each of the Council ar~ then notify the papers.
Don Ashworth: We had Jo Ann in on most of these as well and I hope that she
will return.
Councilman Johnson: If Bart Engineering says they can't come because there's no
money to pay the engineer to come, would we as a city be willing to, on an
hourly rate, pay them to be at the meeting?
Mayor C~niel: To have Barr here?
Counci]~nan Work~an: I think Jay that we're trying to find out the access and
the merits of the plan and Riplox are probably not at hand right now.
Councilman Johnson: Alright. Barr's not involved in the access?
Mayor Ckmiel: No.
Don Ashworth: Dale Barber, Division of Fisheries and you want, the LAWCON
group, the DNR group.
Councilman Johnson: As many as we can get. I think EPA is critical too because
I've asked what the EPA's definitions are of various things and I keep getting
the answer, the same as DNR's. I say how do you know and they say because it
is. Nobody se~ms to talk.
Mayor Chmiel: Okay, maybe if we can go in that particular direction and Don you
can get back to us and let us know, we can pursue it from there. Tom, you had
the ~termain yet?
~ounc~lman Workman: Yes, it's kind of an engineering thing and maybe Gary if
can get your attention. I didn't get a chance to bring it up last time. I'll
48
City Council M~eting - June 26~ 1989
try and be really quick. Lake Lucy Road again. When they put the watermain in,
they put up the environmental fences on the outside. We had a previous
discussion about this so you have the fence and then you have between the fence
ar~ the road and then you have the road and then you're backhoeing and they're
dumping it in the road. Then it rains and maybe they got it all up and maybe
they got some of it up and they did a pretty bad job of cleaning it up. So it
goes down the storm sewer into the catch basin I guess and fills them up. Not
to mention somebody noticed it was very, when I was driving my girls to the
sitter listening for dogs at the kennels and dodging dirt piles but it really
seemed odd that I don't know where would have been a better place to dump it but
it was in the road and it rained heavy that week and it was definitely running
off the piles and later on, for at least 2 weeks, there was quite a bit of heavy
dirt still on the sides.
Councilman Johnson: The storm sewer should have been protected.
Councilman Workman: And it seemed tome that whoever put the environmental
fences up wasted their time because it ended up where we didn't want it.
Gary Warren: Is the question that there should have been a better way for th~
to back cast the fill material or a better way to put up the erosion control
fence?
Councilman Workman: Well we did have an erosion control fence up to protect the
storm sewer. We're putting it in the road. In fact we're putting it right by
the opening.
Gary Warren: The construction restrictions that we had on the project and the
challenge that the contractor had was to do this project within the confines of
one lane of traffic if you will and without taking up the whole boulevard area
and getting into the neighboring property so he was forced to do his backcast on
the roadway surface. There wasn't a choice there. The erosion control fencing
was put up to protect the property's on the sides of the road and also we did
already have erosion control fencing interior to the basins that are in Curry
Farms for example where when it runs off from Yosemite basically to the east
into those catch basins and then into the detention ponds there, through Centex
we had silt fence and erosion control fencing put on the inlets there to trap
the material in those basins so maybe that wasn't as obvious but as Jaywas
saying, it should have been that actually was the case. We did have those
barriers up. As far as the fine silt on the road, and we've seen this with any
of our projects, the fine silt that comes frc~ the clay which is really the
nutrient loading material if you will, you can take a street sweeper out there
all day long and you'll never pick it up.
Councilman Workman: This wasn't that fine silt. I don't know who was in charge
of cleaning it up. If they were or if the city was but whoever.
Gary Warren: The contractor is responsible.
Councilman Workman: But this wasn't silt. This was an awful lot. They didn't
do a good job. It eventually's going down the storm sewer. If it didn't end up
polluting the lake, hurray for us.
49
City Council Meeting ' June 26, 1989
Gary Warren: The erosion control fence we had up in Curry Farms could have
gotten the majority of it. That was the fences on the inlets to those basins
were there to retain or to knock that sediment out. Are you saying that now...
Councilman Workman: ...we didn't have any go into Lake Lucy?
Gary Warren: I would expect massive quantities went in, no. Are you saying
that the road right now is not satisfactory?
Councilman Workman: It appears to be better.
Mayor Chmiel: I'd say it still isn't. There's a lot of dirt.
Councilman Workman: There's a lot of work that can be done. Those bike trails
are not useable to my standard.
Gary Warren: We aren't done with the sodding and the final grading as I relayed
to you the other week when we were talking about this an~ we're in the process
right now of converting the software to get the whole system up and running with
the booster station but the final restoration work has yet to be done. There's
sodding and such that needs to be done to stabilize those boulevard areas and
that should be happening soon.
Councilman Workman: It just didn't look good.
Mayor Chmiel: I remember when the road first went in, it was absolutely sheer
beauty you know and now it looks like it's been there for 100 years.
Gary Warren: It was a consequence that nobody tried to hide that the challenges
when you're trying to r~n that kind of equipment on that road, that's why we
plan to sealcoat the road here to restore that wear surface there but actually I
was, in all honesty, I was surprised that it didn't get, the shine is gone so to
speak off the road but we didn't get any significant gouging or anything. When
you have a front end loader and equipment running like we did out there, I
thought it could have taken a lot more abuse so I think it held up well
structurally. We've got a few curb sections, minor gouges and sections that
were busted but it came out of it pretty well I thought.
Councilman Boyt: Okay, these might be items for future agendas. I would like
to see Public Safety minutes published. Typed up and published. We've had
quite a bit of debate about this in the Public Safety meetings and at one point
I was firmly against it but in the last couple months I've been won over and I
think that this is an expenditure that should be either approved or denied by
the City Council and I would like to see it co~e up on the next agenda.
Don Ashworth: Point of clarification. Publishing?
CounciLman Johnson: Verbatim, is that what you're saying?
Councilman Boyt: Yes. Typed up as they are for the Park and Rec and Planning
Con%mission.
Councilman Johnson: But you don't mean put in the newspaper?
50
City Council Meeting - June 26, 1989
213
Councilman Boyt: I don't mean put in the newspaper, no. Sorry, didn't mean to.
Councilwoman Dimler: Could you explain just a minute why?
Councilman Boyt: Yes. Up until the last couple of months, Public Safety
Minutes were taken as a suamary statement about a given topic. A lot of items
didn't make the Minutes and it was sometimes hard to follow the discussion that
led up to whatever the summary was. I think we've found that there's a lot of
con~nents that get made that can help all of us look at an issue a little bit
better. J]~ suggested this and has tried it out for I would think 3 meetings or
so and I think it makes sense. I initially thought it was an expenditure the
City didn't need to be making but I think at least, if we're going to do it I
think the City Council needs to approve the expenditure and if we're not going
to do it, I'm not all that uncomfortable with not doing it but I think it's a
Council decision and not a staff decision. Okay, next point is the Eurasian
Water Milfoil. I would like to again have an item put on the agenda that gives
this a targeted amount of funding. I'm uncomfortable saying here's a blank
check and I'm also uncomfortable saying that we're not going to com~it any
specific funds to this. I would like to see us con, nit at a minimum $5,000.00
and if Don thinks there's the ability to com~it more than that. If we don't
spend it, fine. Scott Hart told me today that we had 2 samples brought in and
both of those proved to not be Eurasian Water Milfoil but apparently our
volunteers are working away at this thing and I'd like to see us have some
money. The third itsm, we had in the last pack, and all three of these are
really carry overs from that, the re-distribution of Jay's proposed objectives
for the City Council, the City if you will, and we also had so~e possible
objectives for various co~missions and staff. I think that the City Council
should consider this as a regular agenda item in the future and that we should
be working with the commissions, the staff and ourselves to come up with a clear
mission statement and some objectives.
Councilman Johnson: I think we're at that point of maturity of this Council
that it's a good idea.
Mayor Chmiel: I had one other item too by the way that I picked out of the
Administrative packet and I thought we might as well look at this tonight. In
fact I'd even like to make a motion that we accept staff recommendation on
Greenwood Shores parking.
Councilman Johnson: What?
Mayor Chmiel: It's in the Administrative Packet.
Councilman Johnson: Let's put it on the agenda and bring it up. I haven't read
the adminstrative packet yet.
Mayor Chmiel: Well, some of us might have.
Councilman Johnson: This is usually my Tuesday reading is my administrative
packet.
Mayor Chmiel: Okay, we can do that. Put it on the next one.
51
City Council Meeting - June 26, 1989
Councilman Johnson: What was the recommendation of staff?
Don Ashworth: I guess there's not a real clear direction there and that's one
of the concern areas that staff has had. I think that there are various
individuals that feel that it is clear. Some feel that it is not. The item was
at least put in the adminstrative section to alert the City Council that barring
no action by the Council, that I would be putting it onto an upcoming agenda to
clarify the action of the Council of July of 1988 as well as I believe it was
February or March of 1989.
Mayor Chmiel moved, Councilman Johnson seconded to adjourn the meeting. All
voted in favor and the motion carried. The meeting was adjourned at 10:45 p.m..
Submitted by Don Ashworth
City Manager
Prepared by Nann Opheim
52