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1982 05 10 I I I SEECIAL CHANHASSEN CITY COUNCIL MEETING MAY 10, 1982 Mayor Hamilton called the meeting to order with the following members present: Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. SUBDIVISION PLAT APPROVAL AND SITE PLAN REVIEW, OUTLOT 2, CHANHASSEN ESTATES, MC DONALDS CORPORATION: Mayor Hamilton - This is a reconsideration of the item that was before the Council several weeks ago. Last week there was a vote to reconsider so we will do just that this evening. The procedure that I would like to follow this evening will be, if the Council has any questions they want to direct at McDonald's, Mr. Sellergren, you are representing McDonald's This evening? Dave Sellergren - That.'s correct Mr. Mayor. Mayor Hamilton - If there is a spokesman here for the neighborhood group, I will allow you to speak if you have any new and additional information. Mr. Murphy, that will be you? After Mr. Murphy has spoken and presented his new material the Council will discuss the item and make our decision. So Mr. Sellergren if you would like to begin, if you have something new you would like to present you are welcome to do so at this time. Dave Sellergren - I have nothing at this time Your Honor. Mayor Hamilton - Mr. Murphy, you apparently have some new information that you would like to present? Mike Murphy - Yes, I do Your Honor. I am Michael Murphy of 8021 Cheyenne Spur, Chanhassen Estates. I represent Chanhassen Estates Resident Association, the 178 signatures of the April 8 petition, Mr. Lowell McMillen, Principal of Chanhassen Elementary and William Kinneston, Principal of St. Hubert's. We oppose the project as we have stated before. A public hearing was held on April the 8th at a Chanhassen Planning Commission meeting. All issues were stated fully, namely the concern of the safety of the children of our city and the children particularly of our subdivision, as well as the safety of all Chanhassen Estates residents due to the single entrance and the probability of an accident sealing off the subdivision. The Planning Commission reviewed all of the testimony and made a recommendation. In that recommendation they said, "M. Thompson made a motion, seconded by Conrad to deny the request for a replat of Outlot 2 of Chanhassen Estates and for McDonald's site plan approval." Mr. Thompson stated that even though this parcel is zoned C-2 and may bean appropriate use for McDonald's, McDonald's may not be the best use for this property. He suggested another site perhaps in the downto\Vll redevelopment project. He also stated that because of the traffic situation, pedestrians and vehicular problems, both to the south and north sides of Highway 5, he voted to deny this request. Also, he stated that the Planning Commission has no idea what is going to happen with tWe remainder of the eight acres and would like to see a proposal for that before the parcel is split. On April 19 then the Council reviewed the proposal and again all issues were stated fully and completely. Action was taken by this Council to deny and in that I have Mayor Hamilton saying "We have two ayes and two nays, I realize that there is certainly a good opportunity that this will be lost if we go to court, we don't have a very good defense of ourselves, I think this Council is here to protect the health, interest, and welfare of the residents of this community. I feel very strongly personally that if a child and there is certainly every probability that it could be my own, that they could be injured on that very corner." Councilman Horn said, "I think you pretty well summed it up. I would like to see McDonald's in Chanhassen but not at this site." These steps are complete and comply with due process, therefore it was a legal decision. Now we have a lawsuit. Actions to be heard Wednesday of this week. This Council should await that decision. Nothing should be done now. McDonald's has filed Council Meeting May 10, 1982 -2- for a Writ of Mandamus. What is a Writ of Mandamus? That's a command. It's the name of a writ which issues from a court and is directed to a municipal corporation or its officers commanding the performance I of a particular act therein specified and belonging to his or her public official duty or directing the restoration of the complainant to rights and privileges for which they have been illegally denied. In the Writ of Mandamus it gives the defendant an opportunity to show cause to the contrary. In other words, the Writ of Mandamus means that the City simply must show the court that it did not act illegally. This does not mean that the City must convince the court on the merits of the decision. Just simply that it was a legal act. The Council should not be threatened nor intimidated by this action. We are given to understand that McDonald's does this all the time. It's a standard policy to file such a writ. The Council should not be pushed around. Reconsideration of this matter this evening is improper and inappropriate and in any event can only be moved by a councilman on the prevailing side of the vote. Someone who voted no. The Mayor must not recognize a motion for reconsideration from anyone voting yes and certainly not from anyone who was not present to vote at all. This is parliamentary proceedings. If you do reconsider then you are faced the prospect of a lawsuit from anyone opposing the project because the reconsideration could well itself be illegal. We are not threatening as McDonald's is but we are very serious about this matter and we will do everything we can to stop it. On the problem of legal fees, which has been expressed previously by the Council, the Council is bound to defend its actions. The Council should not be intimidated by this big enterprise or frightened by anyone. This matter will probably have to be fought in the courts but we believe that the decision has been I made and because of that we won't give up. In summation I would like to say that the right decision was made the first time. That reconsideration is improper. That we should wait for the court for the ruling on the Writ of Mandamus and let the lawsuit proceed if McDonald's wants to proceed with it. Let's stick to your decision gentlemen and lady. Thank you. Mayor Hamilton - Thank you, Mr. Murphy. Does the Council have any questions of either Mr. Se1lergren or Mr. Murphy? If not, a motion is in order to either accept the McDonald's subdivision or to reject, whatever your pleasure is. Councilman Neveaux - I would like either the City Attorney or the City Manager to explain the reconsideration motion that took place last Monday night. There were some allegations made tonight that it was improper and illegal and not a part of our by-laws of operation and I would like to get some of those comments on the floor. It was certainly, in my estimation, did nothing illegal last Monday night. Russell Larson - In my view, the motion having been made by absent Councilman Geving whose vote must be classed in the negative, he being then on the prevailing side, would in effect be sufficient to enact reconsideration. Councilman Neveaux - Does Councilman Geving have anything to say about the reason for it. Councilman Geving - As most of you know, I am Councilman Geving. I was not present I at the last meeting of April 19th. I did not have an opportunity to vote on the issue. I would like to say only that I understand all of the rules and regulations of the ordinances that have been enacted in the City of Chanhassen. I am very familiar with the actions that took place the night of April 19th. The Court Reporter's notes were read to me. I have received a I I I Council Meeting May 10, 1982 -3- copy from the City Attorney. I have studied those for several days. I read and understand fully the minutes of that night's agenda and the proceedings that took place from our city reporter and so I don't think that I need to be brought up to speed on this issue. I was in the negative side or what we call the majority side by not having the opportunity to vote that evening and each Councilman has this opportunity to reconsider any issue if they are on the majority or prevailing side and I chose to do that on May 3rd. I might also say that during the last two weeks I have spent considerable time, both in the morning approximately 6:30 to 7:00/7:15 a.m. at the corner of Dakota and Highway 5, I have spent at least an hour in the evening approximately 3:15/3:30 to 4:00 watching the traffic pattern on that corner and I am quite familiar with it. I have walked it several times. I might also add that I am very familiar with the history of that piece of property at least since 1976 when more than one application came into the City for the development of that property. I understand some of the things that are being said in terms of the health, welfare of our community and the citizens and their children. To me this is an economic situation. One in which the developer has attempted to find other properties in the City of Chanhassen to build a McDonald's restaurant. I don't want them on that corner any better than most of you. There are other spots available. I would agree. They attempted to get several of those sites and they were priced out of their market and so what you are talking about is an applicant who has come before the City of Chanhassen and has met the Zoning Ordinances and the Subdivision Ordinances of our City. We spent five years developing the Comprehensive Plan for the City of Chanhassen. We finished that just within the last two months. That property is designated as commercial. It has been since 1972. An applicant meeting all of the conditions of the City of Chanhassen and the ordinances so enacted and the ordinances are the rules and laws by which we live by in this City, are very important to us and we very, very seldom try to bend those rules for anyone. If this was a variance matter it would be entirely different. McDonald's Corporation, just like any other corporation who would have come in with an application for that piece of property would be standing before you tonight. Any corporation with a commercial business. That's really what we are talking about. We are talking about applying the City ordinances to a piece of property for subdivision purposes. We are not trying to make an ordinance variance of any kind so you must understand that if this application would have been, any application, without changing any of the zoning or the subdivision ordinances as we now know them, they would have been allowed on that property. So in essence I am saying I don't want that piece of property to develop for highly intense purposes and I am not intimidated in the least by McDonald's litigation against us. My vote tonight would be no different than it would have been on April 19th had I sat in this chair. I want you to understand that. We are never intimidated by anyone who is going to sue the'City of Chanhassen and we take them all on. We probably have five or six suits pending right now. We are not afraid of these corporations but there is certain rights that they are aware of that they have. There are other economic considerations and I realize sites such as the one in our industrial park. We spent over $3 million in the City building the industrial park. I would love to have McDonald's out there, very definitely, because we have only got five or six lots sold out of 35. We need development there. Unfortunately McDonald's did not choose that site because the price was too high. Another very favorable site for them would have been Council Meeting May 10, 1982 -4- the Legion property. The Legion property is not subdivided even though it has sewer and water now. It would have taken a tremendous amount of money to develop that site. To me the preferable site would have been next to the Holiday I Station and the Americ-Inn. That's where I would have preferred to have had McDonald's place their restaurant. I would only ask Mr. Se11ergren at this point, are you speaking for the McDonald's Corporation this evening? Would you withdraw your application to the City of Chanhassen for the site you have selected? Dave Sellergren - No, Councilman Geving. Councilman Geving - Thank you. Mike Murphy - I have a question on a point of parliamentary procedure. I would like it in the record, would you please answer for me Mr. Larson, the fact that Mr. Geving was not present on April the 19th,you are leading us to believe that that, therefore, put his vote into the prevailing category of no? Is that correct? Russell Larson - Yes. Mike Murphy - Parliamentary procedure, you are saying, therefore, says an absent voters are counted as prevailing? Russell Larson - As in the negative on an issue. Mike Murphy - That is your opinion of parliamentary procedure? Russell Larson - You must remember one thing and one very very important thing. It's not found in Robert's Rules of Order nor is it found in our procedural manual but we have, on this body, five council members and it's illogical to assume that because of a tie vote due to the absence of a council member that a member should die or not be reconsidered. Such a conclusion is abhorrent to the legislative and judicial systems of our country. We do not tolerate. We cannot accept a tie situation due to the absence of one of the voting members and it is on that basis that I render my opinion that Mr. Geving is certainly \vithin his right to move to reconsider this matter. Mike Murphy - Mr. Larson \ve are not discussing whether or not we have five independent individuals here. We are talking about parliamentary rules which governs this body. Russell Larson I don't care to debate that issue with you here tonight, sir. Mayor Hamilton - The question has been answered and I think the Council agrees with Mr. Larson's interpretation of the rules as do I. If there is no further discussion, if one of the council members is so disposed would you make a motion at this time? I am asking for a motion dealing with the reconsideration. We are reconsidering the subdivision plat approval and site plan revie\v. , Councilman Geving - I can't make that motion without additional information. I would like to call upon Scott Martin please. Scott, in our action at the last City Council meeting we acted upon an application for a sign variance, would you please tell me what that action does to one of the recommendations in the staff report of April 1, 1982. Advise us please, how that action on May 3rd affects items 2, 3, and 4 of your recommendations of April l~ Scott Martin - What Councilman Geving refers to is the staff recommendation that both free-standing signs and directional signs on Lake Drive East be in conformance with the area requirements of the Sign Ordinance. The directional signs could not exceed four square feet in area. Bob Waibel - They are four square feet in area. Scott Martin - So the amendment that will be on your agenda for next week for adoption would be a four square foot maximum, foot foot height and one per access drive so they would conform there. They did remove the golden arches trademark from the directional signs. Councilman Geving - On the night of April 19th items 2, 3, and 4 were excluded from the motion. As I understand what you just told me, that any I I I I I Council Meeting May 10, 1982 -5- any motion that would be made tonight would leave in item 3, is that correct? Scott Martin - Items 2, 3, and 4 are moot with the action of the first reading of the ordinance but again your ordinance is not effective until it's given a second reading and adopted. Councilman Geving - One more time, your recommendation is to leave items 2, 3, and 4 in the staff recommendation or remove them? Scott Martin - To leave them in but, I just want to explain that McDonald's has complied with the area requirements of the directional signs, all signage and has removed the corporate trademark in a revised plan that came after this report was written but before the City Council considered it on the 19th. I guess summarizing, Dale, with the adoption of the Sign Ordinance amendment that was discussed last week, McDonald's signs will conform in all respects. Councilman Geving - Will you complete item 8 for me please, which is partially incomplete at this time. Scott Martin - The "and" at the end of item 8 is simply to tie into the following number 9. Councilman Geving - It doesn't mean gutters, berming, etc. Scott Martin - No. What you see before you is it. Councilman Geving - Was there any consideration for the berming on the south side. Scott Martin - There was discussion at the Planning Commission to berm between the drive through access window and Dakota Avenue, which would be on the west side, but there was no discussion, either at staff or the Planning Commission or my recollection at the City Council, to berm along Lake Drive East which would be the south property line. The idea was to provide some berming between Dakota and the drive up window because the on-coming headlights or traffic on McDonald's site could potentially confuse motorists going north bound on Dakota towards Highway 5. Councilman Geving - Could you convince me that with no berming, as planned here, that the lights coming out of McDonald's would not shine into homeowners to the south. Is there sufficient cover, tree cover, etc. at this time. Scott Martin - I don't know that I can say that. I would speculate that there probably is because there is a pretty major stand of evergreen trees in that area as I recall but I couldn't say for sure. Councilman Geving - I think it's important. Mr. Mayor, may I digress for a moment on this issue because I think it's important to the whole subject of this piece of property and that involves the striping plan presented by the City Engineer. We have not discussed it. I know that it's a sketch in his presentation to us. I personally would like to see not only striping, the sidewalk that is mentioned, I feel that the green light at the semaphore on the west end of Highway 5 is too short. I sat and watched kids practically run across that road in order for the light not to turn on them, so I want that changed if this thing goes through. In fact I want it changed if it doesn't go through. I don't care because that light is too short at this time, Bill, I would like to have you look at that one. I would like to have you contact the State Highway Department and see if we can stripe pedestrian lanes across Highway 5 if we can't build some kind of overpass for pedestrians and I would like to have you also ask them if there is some way that Highway 5 can be marked both to the west and to the east with pedestrian crossing signs or watch for pedestrians in crosswalk, something of that nature, Bill, is what I am thinking about. This brings me to another subject. I did notice that most of the children crossing the highway from the north into Chanhassen Estates cross on the west side. It's a very bad walk all the way down from Jerry Schlenk's home, to the tracks, across the road. There is virtually no place where they can walk. They have Council Meeting May 10, 1982 -6 to cross in the ditch, across the railroad tr cks, practically into a drainageway before they get to the sem phore. Once they cross the road they walk apparently to the we t along in front of the gas station. I would like to see a si ewalk on both sides of Dakota and I don't care if the City as to pay for it as a public improvement project, but I think that's where the traffic goes. When I see children coming from St. Hubert's or downtown Chanhassen they tend to walk to the west and to put a sidewalk on the east side to me means that they were going to cross the road, once they get across Highway 5 to pick up the sidewalk in front of McDonald's and then walk and they are not used to doing that. Now you are talking about crossing two lanes of traffic and I am opposed to that. My thinking is, the comments I have made in terms of safety, would be my comments regardless of this issue tonight because I think that's a bad corner anyway. Bill, I would like to have you consider that at this time. Regardless of what happens tonight, I have sat on this corner and I have seen a number of cars, probably 90% of all the CPT activity in vehicles comes from the east. Most of their employees apparently live to the east of Chanhassen. We have got to do something with Highway 5 and we have got to do something within our own power and that is to extend Lake Drive East to 184th Street as soon as possible. Now, when we put that street in for CPT, we captured the entire area in what we call an Economic Development District. All the taxes generated from CPT and the properties to the north, Lyman and The Press, are in what we call an Economic Development District. We are capturing those taxes for just that very purpose. Along with that, the purpose of maintaining that swale, the drainage swale that goes bet\veen the Chanhassen Estates and CPT properties. We have made a commitment to the Riley-Purgatory Watershed District to clean up that ditch and it's going to cost us $100,000. My feeling is, if we could forestall that I would like to see the traffic routed onto a new Lake Drive East extended all the way to 184th as soon as possible even if it means having somehow to finance that internally by the City so that all that traffic can move to 184th, take the right out and go to Eden Prairie or \vhere else those people live, but get them out of Chanhassen as soon as possible without having to affect the traffic on Dakota. Those are my comments, as well as the pedestrian crossing I would like to see on Erie crossing Dakota in the Estates itself. In other words, when you come to the first intersection on Dakota and it turns to the right onto Erie, I would like to see pedestrian crossing stripes there, Bill, with a sign. We can control this because it's city property, that says pedestrian crossing and I would like to see those kinds of improvements tonight entered into our discussion because we can control those. We don't have to talk to the State of Minnesota and we can control those regardless of whether there is a McDonald's on the corner. Mayor Hamilton - I certainly have the same concerns, however, they don't really deal with McDonald's. Councilman Geving - But they are all part of it. Mayor Hamilton - No they are not. The issue is McDonald's subdivision and plat approval and site plan review. One of the points that you made that I \vould comment on briefly is, if we put a sidewalk down past the current drive in and the cement factory and do something to cross the highway then we are asking all the taxpayers to I I I I ,I I Council Meeting May 10, 1982 -7- pay for improvements within the City to protect our residents at all the taxpayers expense and it's McDonald's property. With that, I have no more to say on the subject. We are still looking for a motion. Father John Knorr - I would just like to make a comment to Mr. Geving. You said that since the area was zoned for business then McDonald's has a right to come in there, my meager knowledge of law is that, the better interpretation of law is not the rigid word by word but the intention of the law and the intention of law is the welfare of the people. That's what all law is supposed to serve and if the people feel that McDonald's is going to be a hazard to the welfare, especially of our children, I know many children come to St. Hubert's from that area and one mother has expressed a great concern, she lives on Erie, of her three children crossing that street. So, even though McDonald's has the right, you might say legally, to build it there, if it's not for the welfare of the people then that is the, to me, the essence of the law, what is the common good of the people. Councilman Geving - I would like to make the motion. Move the approval of the subdivision plat and site plan review for Outlot 2, Chanhassen Estates, McDonald's Corporation as presented to us this evening and staff recommendations 1-9 in their report to us of April 1, 1982, with no exclusions and that number 9 of that April 1st report include a statement such as; and all other applicable State and Federal agencies that are typical of the City reviewal of any project. That is my motion Mr. Mayor. Councilman Neveaux - I second the motion. Mayor Hamilton - We have a motion and a second. So you have a document, Bill, that we could mark as an exhibit? Bob Waibel - We have official copies here. Mayor Hamilton - Would you please mark those as exhibits? Russell Larson - I would ask Councilman Geving to consider amending his motion to attach a condition to the motion. Namely, that the applicant, McDonald's dismiss without prejudice and without costs to either side, the pending litigation and be done immediately and as a part of the approval action taken. Councilman Geving - I would like to add the attorney's comments to my motion as stated and exactly the words stated. Mayor Hamilton - Do you second? Councilman Neveaux - Yes. Mayor Hamilton - Any further comments by the Council? If not, we will have a roll call vote. Councilwoman Swenson - Aye. Councilman Neveaux - Aye. Councilman Geving - Aye. Councilman Horn - Nay. Mayor Hamilton - My vote does not change, I will vote no also. Motion carries three to two. 1982 REFINANCE BONDS: Andy Merry and Bob Sander, Juran and Moody, were present to discuss details of the sale which will be held June 7, 1982. The issue refinances temporary bonds which were sold in 1978 and 1979. Councilman Neveaux left the meeting. 1981 AUDIT: Bob Voto and Rob Tautges, DeLaHunt Voto & Company, presented the 1981 audit. Councilman Horn voted in favor: negative votes. moved to adjourn. Motion seconded by Councilman Geving. Mayor Hamilton, Councilwoman Swenson, Councilmen Geving Meeting adjourned at 12:00. The following and Horn. No Don Ashworth City Manager