Loading...
1982 06 07 I I I REGULAR CHANHASSEN CITY COUNCIL MEETING JUNE 7, 1982 Mayor Hamilton called the meeting to order with the following members present: Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. Howard Noziska, Planning Commission, was present. The meeting was opened with the Pledge to the Flag. APPROVAL OF AGENDA: Councilwoman Swenson moved to approve the agenda with the addition of discussion on Lake Drive East and Carver Beach Park. Consent Agenda item (b) Old St Hubert's Church will be discussed separately. Motion seconded by Councilman Neveaux. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. CONSENT AGENDA: Councilman Geving moved to approve the following consent agenda items pursuant to the City Manager's recoTh~endations: a. Close various escrow accounts. RESOLUTION #82-33. c. Filing of Subdivisions, RESOLUTION #82-34 Establishing Procedures to Insure City Review Prior to Filing by Carver County. d. Special Assessment RESOLUTION #82-35, CPT. 2. Fireworks Display, July 4th, Lake Minnewashta Residents. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. PUBLIC HEARING PARTIAL STREET VACATION - LMZE RILEY BLVD. ROBERT ROGERS Mayor Hamilton called the hearing to order. No interested persons were in attendance. Mayor Hamilton asked if there was anyone wishing to speak on this issue. There being no further comments, Councilman Geving moved to close the public hearing. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. PARTIAL STREET VACATION, LAKE RILEY BOULEVARD: RESOLUTION #82-36: Councilwoman Swenson moved the adoption of a resolution approving the partial vacation of Lake Riley Boulevard as set forth in Item #1 of the June 7, 1982, Council agenda packet. Resolution seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes~ Motion carried. PUBLIC HEARING SPECIAL ASSESSMENTS KELLYNNE ADDITION Mayor Hamilton called the hearing tootderwith the following interested persons present: Arlene Vickers, Attorney for Mr. Bohlmann, 247 Third Ave. So., Mpls. 55415 David Tester, owner of Lot 2, Block 2 Clifford Bohlmann, owner of Lots land 2, Block 1, and Lot 1, Block 2 Lou Oberhauser, Attorney for Mr. McCleary David Tester - I am a joint tenant of Lot 2, Block 2, Kellynne Addition. A tenant in common with John Merz. We purchased the lot in 1979 and at that point in time the purchase agreement, we thought that all special assessments were paid by the developer. Last year we did get an assessment for the sewer and water and we understood that but then this year is another assessment for the lateral which is something that we weren't expecting. It seems at this point in time, it's so long after the property was purchased. The developer owned the property at the time that the assessment was actually levied. I question at this point in time whether we would be subject to the Council Meeting June 7, 1982 -2- assessment at this point in time. Arlene Vickers - I am an attorney and I represent Mr. Bohlmann and it is his property that these assessments are on right now and I have been in touch with I Mr. Monk about this whole problem. I just want to make a couple of points. I understand he is going to speak as well and I don't want to reiterate what it is he is going to say but I guess I would like to speak to the equities of the situation. Mr. Bohlmann has already paid for laterals which are benefitting his property when he purchased the property. Laterals were put in by the developer. He should not be required to pay also for another set of laterals which don't even benefit his property but which were constructed to benefit only the lakeshore property. This is not only an unconstitutional taking but a double taxation. I hope the Council will take that into consideration. Russell Larson - What lot does your client own? Arlene Vickers - Lot 1, Block 1, Lot 2, Block 1, and Lot 1, Block 2. All the interior lots. I understand the laterals were constructed to benefit the lakeshore and not the interior lots that Mr. Bohlmann owns. Mayor Hamilton - Is there anyone else who would like to speak on this item? If not, I would entertain a motion to close the public hearing. Councilman Geving moved to Horn. The following voted Neveaux, Geving, and Horn. close the public hearing. Motion seconded by Councilman in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen No negative votes. Motion carried. SPECIAL ASSESSMENTS, KELLYNNE ADDITION: Bill Monk - I wrote this history portion to try and go through it somewhat slowly I as to what has happened on the parcel since 1973 when the original North Service Area was assessed. In 1973 one sewer lateral was put on the existing house. In 1978 the property was subdivided into Kellynne Addition. At that time it was subdivided into seven lots, four lakeshore and three upland. At that time it was decided or policy stated that four lateral assessments should be levied for the lakeshore lots that abutted Lake Minnewashta where the sewer ran and one had already been assessed so three additional lateral assessments were levied. In 1980 ~vhen the North Service Area project was reassessed six trunks were levied. The problem facing the City at this point deals only with the three lateral assessments as they were levied in 1978. They were levied on the upland parcels instead of on the three lakeshore properties. I did hand out this evening a letter from Mr. Oberhauser, Mr. McCleary's attorney, basically to give the Council the other side of the coin or two points of view. My recommendation still stands that I think the assessments were erroneously placed on the upland parcels and should at this time be changed. That does present some problems and I didn't try and down play that, to new owners on the lakeshore property are the ones basically who will suffer the most by such a recommendation but I feel the City should correct what was done earlier. It was in error. Basièal1y what is being proposed is to take the assessments off the upland property and repay all assessment payments that have been received to date to the owner who made those payments and then the original assessment in the amount of $2,795.82 would be placed on the lakeshore. Spread over the original assessment term of ten years at an interest rate of 7% as it should have been done back in 1978. Don Ashworth - I think it's important on this issue to have an opinion from the I City Attorney. The question in my own mind is whether or not the time period has lapsed. Russell Larson - Any action that the Council would take with regard to these assessments is taken under Section 429.071 ~vhich allows the Council to make I I I Council Meeting June 7, 1982 -3- supplemental assessments to correct any omissions, errors or mistakes relating to the total cost of the improvement or any other particular. You also have the authority under the law to make a reassessment when an assessment is set aside by a court of competent jurisdiction or in the event that the Council finds that the assessment or any part thereof or determines on the advice of the municipal attorney that the assessment or proposed assessment or any part thereof is or may be invalid for any reason. Then the Council can make a reassessment. The question here as I look at it, is a question of special benefit. The Bohlmann lots, Lots 1 and 2 of Block 1 and Lot 1 of Block 2, the question there is whether or not by reason of this lateral assessment they derive any special benefit. The lateral service for sewer and water were placed in the street, Hawthorne Circle, by the developer at his cost and I think it's a fair assumption to make that when he sold those lots those costs were included in the prices of those lots. I don't know that. It's speculation on my part. Secondly, and perhaps more importantly, is that the lots on the 1akeshore which are proposed to be assessed, are deriving a special benefit from the trunk line on the shore of Lake Minnewashta. They are deriving a lateral benefit from that trunk line because they can go right into it and yet they are carrying no part of the cost. It's a matter, I think, of equity and if that were presented to a court of law disclosing all of the pertinent facts as I have briefly outlined them here today, the court would find an easy job of getting around the 30 day assessment appeal requirement. 1'I3_yor Hamilton Dr. Tester, which lot is yours? David Tester - Lot 2, Block ,.., L. Hayor Hamilton - Is this from Schoen and Madson again? Don Ashworth - It appears as though there may have been an agreement, three assessments were placed and it appears as though that, lam unaware of any staff members who, where the issues were presented back to Council through my office, etc. as to where those assessments should go. Bill Monk - I did not dig back far enough to try and find out how it happened. I was just looking at what had happened and go on from there. Councilman Neveaux ~ Back in 1973 when the 1971 project was assessed there_was one one unit placed because it was only one house and the property was one large parcel. In 1978 Mr. McCleary came in and asked for a subdivision request giving us seven lots and as I am under the impression at that time of subdivision approval with the creation of lots that are benefitted by an existing improvement it IS almost automatic that those assessments become a part of record at that time so as I see it the other three lakeshore assessments should have come on stream in 1978 and you are saying that they didn't? Bill Honk - Those three didn! t. -. Instead the upland three were assessed in 1978. Councilman Neveaux - Who on city staff placed them there? Bill Monk - I can find no documentation as to either a request that they be placed that way. I assume a request was made because they were assessed that way but I did not dig back into records to find out how they were placed. Councilman Neveaux .- Instead they were placed on the upland lots. He has been paying those assessments since 1978? Bill Honk - He bought the property just last year or this year. Councilman Neveaux - Did anybody pay those assessments? Council Meeting June 7, 1982 -4- Bill Monk - Yes, they are not delinquent. I assume Mr. McCleary paid them. Councilman Neveaux - Then in 1980/81 when this Council looked at the whole North Service Area ~ve placed assessments on the whole property from a trunk standpoint. Don Ashworth - What happened prior to Bill's coming on board, a plat would come in. Schoell and Madson would be requested how many outstanding units had been shown against this parcel. In this case three units Here shown and during the Council approval of this it was assessed and approved as three additional units with Mr. McCleary required to construct the sewer that would serve the rest of the property. \ve can't verify but I am sure this happened the same as all others and that is whe~ a plat actually was filed and the creation of the individual lots the ques~ion then became who gets those individual assessments and Jean typically would go back to Schoell and Madson asking them to split the total amount of the assessment between lots. The only thing our records show is that those three assessments went to the interior lots rather than the 1akeshore lots. Whether or not that was an error by Schoell aùd Madson or whether or not it was an agreement between Schoe1l and Madson and McCleary, we don't know. Lou Oberhauser - Mr. McCleary's attorney. The assessment on the interior lots occurred because Mr. McCleary asked that it be placed there. There were three outstanding assessments and at that point in time the lakeshore lots were being sold and the questions asked of staff, does it make any difference what lots these assessments are placed against? The answer that was given was, no it didn't. I requested that these assessments be spread against the three off lakeshore lots and the three lakeshore lots would be free of the assessment. That's how the situation arose. Councilwoman Swenson - I am sorry I don't understand. The sewer goes down Hawthorne Circle, is that correct? Bill Monk - The sewer that we are talking about goes along the lake. Councilwoman Swenson - We ~vou1d not have considered these on-line, is that correct? I have difficulty understanding any staff member saying that it wouldn't make any difference where those assessments were levied. I can't imagine anybody doing that. Don Ashworth - I know the issue has come up previously. Again, I don't know what Schoell and Madson may have done. I know this issue came up one other time. At that point in time city staff held the position that the lot in question would leave that assessment. Mayor Hamilton - Let me ask Russ a question. If in fact there was an agreement between McCleary and Schoe1l and Madson or the city at that time that those assessments be placed on the three upland lots, is that a binding agreement? Can we do anything to change that? Russell Larson - Number one, we have no evidence that there was such an agreement. I haven't talked to Brezinsky. It's a matter of equity. Mayor Hamilton - It doesn't seem right, the way that it was done. At the same time .if there ~vas an agreement made do we have a right to change that? Russell Larson - I believe that you have. You were not a party to that agreement notwithstanding that our then consulting engineer was an agent of the city you still have the authority under 429.071 as I pointed out earlier to make this change. I I I I I I Council Meeting June 7, 1982 -5- Councilman Geving - My comment on this issue is that I think an error has been made and I am surprised that it goes past both the staff and the council. I remember lots of discussion about this particular piece but I don't recall any agreement that was ever made and I could see why we could have missed the interior lots for assessment purposes but never the lakeshore lots because that is deriving a benefit. If we applied our assessment. procedure against any of these lakeshore lots we would have picke.j them up ve:cy quickly ::md the only question that I have, in addition to refunding the money, is what this plus or minus would do to the North Service Area fund itself. I always hate to give back money but in this case it certainly is a case where it was collected improperly on those interior lots. I don't see any special benefit for any of the lots that Mr. Bohlmann owns. It should not have been placed and I do agree that the assessment should have been placed on the lakeshore lots if we apply a consistent assessment policies for the. North Service Area. That's the only way I can look at it. We have to be consistent. I want to knovl what the refund does and the reassessment would do to the North Service Area fund. Bill Monk - What it means is that it would take four years longer to actually collect the money. The same amount of money will be collected but it will take four years longer. Basically we are refunding the assessments that have been received to date but we are putting that same original assessment on the lakeshore and give them the same period of time to pay so that they will be injured as little as possible by this change so that they be given a ten year period. Councilman Horn - If this type ofarrangeTIlent were worked out, I assume that there was something put in the purchase agreement with Mr. Bohlmann, is that correct? Lou Oberhauser - Let me give a little more background to answer your question. At the time that the lakeshore lots were sold the representations to the people who bought lakeshore lots were that there would be no special assessments against them because we ~vere operating under the understanding that these assessments were in fact on the interior lots. So the people who bought the lakeshore lots_bought those lots with the anticipation and the understanding that these special assessments that may have been levied against· those lots were in fact paid in full. Mr. McCleary has told Mr. Bohlmann that the; I didn't handle the Bohlmann transaction so I don't know what got messed up in there, but these, special assessments shoul_d have been picked up at the time the Bohlmann transaction was completed and Mr. McCleary has told Mr. Bohlmann or I have told Mr. Bohlmann's attorney that we would pay these assessments against these three interior lots in full before the 15th of September of this year. That's what Mr. McCleary's preference is to have the council take some, defer any action on this until after the 15th of Septemberat·which time tl1e question will become moot because we will have paid in full these special assessments. Councilman Horn - So you are agreeing then that you will pay them? Lou Oberhauser - Oh yes. There is no problem. We have told Mr. Bohlmann that we would pay them. Arlene Vickers - I didn't want to get into this part of it. There are other special assessments and we have been negotiating back and forth because it is Mr. Bohlmann's contention, I did not represent him during the sale of this property, but he contends that Mr. McCleary represented that the land was free and clear of any special assessments before he sold the property and Mr. Bohlmann relied on this representation and in fact a warranty deed which does not accept therefrom these special assessments was given to Hr. Bohlmann·and.itwarranted that there were no encumbrances on the property so v.Te are involved in a legal battle over this and the trunk assessment as ~.¡el1. What I .wouJdlike to say is that if we defer this matter it ties up Mr . Bohlmann's property so that .hecan't sell it. Hecwould like to sell it and build a home and he is unable to do this because of_the lien that is on there. Council Meeting June 7, 1982 -6- Cçmncihvoman S~venson - How \Vill these lots be served when they are developed? Let's say the lateral assessments have been properly placed on the lakeshore lots and that there hadn't been any assessment levied against the three internal lotB, what would we do in a case like that? I Bill Monk - They derive no lateral benefit by the lines put in by the City. Mr. McCleary, back in 1978 or 1979 I am not exactly sure of when, put in Hawthorne Circle and he put the sewer line in himself. Ru.ssell Larson -. No late.ral assessments. Councilwoman Swenson - If Mr. McCleary has agreed to pay three assessments, are we not really talking about transferring what he is paying to those three lots inasmuch as the interior lots are likely to be assessed anyway, can't be transfer Mr. McCleary's payments to those three lots and reverse the levy? Mayor Hamilton - I agree ~vith ,you and I think it's a good idea but I want to ask Russ it seems like Mr. McCleary misrepresented himself to Mr. Bohlmann and we seem to be getting in the middle of that disagreement and I don't think that is right. There was a mistake made on our behalf but if Mr. HcCleary misrepresented himself to Mr. Bohlmann saying that the property was free and clear thatTs not our problem. Russell Larson - I go back to the fundamental theory of law that a piece.of property to be specially assessed must derive a special benefit following the improvement and I don't find that on the three interior lots. I find that the three lakeshore lots derive a special benefit by reason of their proximity to the trunk and that they are not paying their share. They do derive a special benefit. I Don Ashworth - McCleary owned the entire tract at the time that the Council considered the three additional units. When the plat portion carne along the actual spreading of those three units, now it appears as though that Brezinsky made a mistake in saying it's your property and we don't care how they are spread as long as you pay three. In all of the representations that have occurred since that point in time have been consistent with that. When people purchased the lakeshore property they asked for a assessment search and that showed no units. The interior lots all the way along have showed that assessment but if the Council were no~v to transfer that from the three interior to the three lakeshore I see no reason to refund Mr. McCleary any portion of the monies that he has paid. What it would amount to is the outstanding balance would be spread against these three lakeshore lots. Councilwoman Swenson - Why would that be necessary? We already have a letter here from Mr. Oberhauser which is this not true that Mr. McCleary has agreed to pay for the assessments? Since there is not an assessment likely to be had on the interior lots, why can't the whole thing be transferred? It seems to me it's just a matter of paper work. Bill Monk - If the Council is inclined to change the 10ts,.I don't think you can do that with the county. a transfer can be made but I can look into it and if is inclined to go that will be first option. assessments to the lakeshore I don't think that type of that's the way the Council Russell Larson - I think the way to go on this if you are inclined to transfer assessments and go through the necessary steps which we have already started with the hearing and the action under 429.071 and resolution approving that. That then sets it down. We have no idea today on June 7 whether Mr. McCleary will perform on his agreement on September 15th. We are not a party to that I I I I Council Meeting June 7, 1982 -7- agreement and I have seen many things in writing that have never come to pass. Councilman Neveaux - I think we are very clearly directed to follow the attorney's advice under 429.071 subdivision 2, reassessment says that the City Council may find, determining on advice of the municipal attorney that the assessment or proposed assessment of any part thereof of a 429 project, may he invalid for any reason and upon notice and hearing as provided for the original assessment may make a reassessment or a new assessment as to such parcel or parcels and I am very uncomfortable doing anything other than placing assessments upon benefitted properties and it appears to me with a trunk sewer line running across the front part of the four lakeshore lots that those are the benefitted properties and if in fact the four units that were determined in 1981 were placed on some other 10ts,that was a mistake and in fact we should place those assessments upon the benefitted lots and if that means Mr. McCleary need to do some negotiating and paying of those charges as he indicates to Mr. Oberhauser, his attorney, that he intends to do prior to September 15, 1982, that's a private matter. I think as far as this body is concerned we are looking at an assessment procedure under 429 and a benefit. RESOLUTION # 82-37: Councilman Neveaux moved the adoption of a resolution accepting the attorney's recommendation and accept the city engineer's memorandum of June 7, 1982, and placing the remaining balance of the assessments against Lot 4, Block 1 and Lots 2 and 3, Block 2. Resolution seconded by Councilman Geving. The following voted in favor: Mayor Hami1ton,-Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. Councilman Horn - I assume Mr. McCleary would pay those whether they remain on the interior lots or exterior lots. Lou Oberhauser - It doesn't make any difference because we intend before the 15th of September to tender a check for $1,677.50 times three. AWARD OF BIDS, REFINANCE BONDS OF 1982: Bob sander and to open, tabulate and review bids that were received. Bank Northwest at an interest rate of 11.793%. Andy Merry were present One bid was received from RESOLUTION #82-38: Mayor Hamilton moved the adoption of a resolution awarding the sale of $3,955,000 general obligation improvement bonds to Bank Northwest. Resolution seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Council- woman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. AWARD OF BIDS, PUMPHOUSE #4: Six bids were received. The engineer recommended awarding the bid to A. & K. Construction, Inc. including alternates 1 and 3 in the amount of $221,701. RESOLUTION #82-39: Councilman Horn moved the adoption of a resolution awarding the bid for construction of a pumphouse/park shelter, including alternates 1 and 3 in the amount of $221,701.00. Resolution seconded by Councilman Neveaux. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motiori carried. MINUTES: Councilman Horn moved to approve the May 10, 1982, Council minutes. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. Amend REVIEW PRIORITY LISTING AND PROCEDURES FOR MN DOT CONSTRUCTION PROJECTS in the May 17, 1982, Council minutes by adding: Mr. Crawford noted there had been no response from the City regarding the need for easement acquisition to repair a serious erosion Council Meeting June 7, 1982 -8- problem along Higmvay 101 at the top of the river bluffs. Council members knew nothing about the request and told Mr. Crawford to contact the City Engineer to resolve the problem. Amend REVIEW COUNTY ROAD 18 CONSTRUCTION PLANS in the May 17, 1982, Council minutes by adding after the last motion: Councilman Neveaux - I voted no for the reason that I don't believe we should tax each other between the various municipalities and government organizations. I Amend REVIEW COUNTY ROAD 18 CONSTRUCTION PLANS in the May 17, 1982, Council minutes by adding after the first res~lution: Councilman Horn - I voted no because I feel it is an inappropriate use of spending money at a time like this on a road that isn't necessary. Councilwoman Swenson - I voted no for the same reason. Councilman Neveaux moved to approve the May 17, 1982, Council minutes Motion seconded by Councilman_ Geving. The following voted in favor: Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. votes. Motion carried. as amended. Mayor No negative Âmend_the May 24, 1982, Council minutes under CHANHASSEN FIRE RELIEF ASSOCIATION by ~dding: Councilman Horn asked the City Manager to find out what portions do other cities contribute to the fire department benefits. Councilwoman Swenson moved to approve the May 24, 1982, Council minutes as amended. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. Councilman Horn moved to note the April 22, 1982, Planning Commission Motion seconded by Councilman Geving. The following voted in favor: Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. votes. Motion carried. minutes. Mayor No negative I Councilman Geving moved to note the March 18, 1982, HRA minutes. Motion seconded by Mayor Hamilton. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. Councilman Geving moved to note the May 4, 1982, Park and Recreation Commission. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. Council members requested to be included on the Park and Recreation Commission tour of city parks. DOWNTOWN REDEVELOPMENT PROJECT, DEVELOPMENT CONTRACTS TIME EXTENSION REQUEST: Dennis Spalla, Kraus-Anderson, and Bill McRostie, Bloomberg Companies, were present requesting a six-month extension of their development contracts. Councilman Neveaux moved to accept the recommendation of the HRA and City Staff and extend the contracts for the two developers in the downtown area (Kraus- I Anderson and Bloomberg Companies) for a period of six months and direct the City Attorney to draft the necessary contract amendment and also perhaps direct the HRA and City Staff to look at alternative options for the City to look at before the six month period of time is up. ~Iotion seconded by Councilman Horn. The following voted in favor: Councilwoman Swenson, Councilmen Neveaux and Horn. Mayor Hamilton and Councilman Geving voted no. Motion carried. I I I Council Meeting June 7, 1982 -9- KENYON KEm~EL PEID1IT APPLICATION: Mr. and Mrs. Joe Kenyon. 400 Pleasant View Road, were present seeking renewal of a kennel permit. Mr. Kenyon stated that they have had the kennel since 1946. He presented a petition signed by 30 of his neighbors stating that the kennel is not a nuisance or detriment to the neighborhood. Larry Tivy, 370 Pleasant View Road, was present objecting to the kennel due to the odor and noise. Mr. Tivy has found a drain tile on his property that he feels drains from the kennel. He has plugged the tile with concrete. Mr. and Mrs. Bob Stevens stated they have lived in the neighborhood for 26 years and have never had a problem with the kennel. Councilman Geving moved to approve the Kenyon kennel permit application as presented and request the City Engineer to check the drain pipe to see what property it drains. Motion seconded by Councilwoman Swenson. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. CoUncilman Horn suggested that the KenyOn's attempt to feed the dogs lateLiu_the morning so as not to disturb the neighbors. SIGN PERMIT APPLICATION, CHANHASSEN CHIROPRACTIC CENTER: Dr. Donald Kristenson was present requesting approval to install a 3~' x 14' wall-mounted business sign at 421 West 78th Street. Councilman Neveaux moved to approve the sign permit application for the Chanhassen Chiropractic Center, Permit 82-5, as recommended by the Community Development Director. Said sign to be located in the center of the building. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. LOTUS LAKE ESTATES BEACH LOT, CONDITIONAL USE PERMIT: Aaron Babcock and Jim Parsons were present. The Lotus Lake Bomeowner's Association and B-T Land Company have signed the conditional use permit but added a new paragraph to the end of the permit. The new 1ánguage states "Notwithstanding any language to the contrary herein, B-T Land Company and Lotus Lake Estates Homeowners Association do not waive any of their rights to challenge the provisions of this permit as being invalid, illegal or unenforceable." Mr. Babcock and Mr. Parsons agreed that the paragraph will be stricken from the contract. B-T Land Company also agrees to striking the paragraph. Councilman Neveaux moved to authorize the Mayor and City Manager to sign the permit as found in the June 7, 1982, Council packet with the deletion of the paragraph stated above. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. WATER SURFACE USAGE ORDINANCE, DNR RESPONSE: The Assistant City Attorney, and representatives of the Lake Study Committee will meet with the DNR to try to resolve the points raised by the DNR in reviewing the proposed ordinance. LOTUS LAKE ESTATES DEVELOPMENT, REVIEW ESCROW CHARGES: Rick Murray and Bruce Malkerson, Attorney, were present to discuss charges made to their escrow account. Ric~Murray - It came to my attention last fall when we talked about the second and third additions of Lotus and I recognized then and staff pointed out to me that I had this deficit that was growing larger and larger and larger in our first addition escrow account. Somehwat taken back, I àsked, well~ where did it come from. I thought we were done with our escrow and our platting process back in 1979 and they were very helpful in forwarding the charges. The most substantial of which was $3800 from Mr. Skaar's law office. I suspect now it's up around $5000: I had two points in Council Meeting June 7, 1982 -10- bringing this whole issue up. Number one was the use of the escrow account per se as it's spoken to in the ordinance. The escrow account was set up to defer the cost of the platting process and it seems like the City, by a policy or ~he way it's been administered, keeps an escrow account active right through maybe not only the life of a development but it seems like beyond the life of a development. We were done developing in the first addition, from my point of view I would say you were done when you assessed the cost of those improvements to all the homeowner's there and were spread. We guaranteed those things to be paid through our letter of credit and I would think somewhere around or about that time our obligation for an escrow account per se would have terminated. The question becomes whether those charges really are associated ~vith our development or not. If they are associated ~vith our development then I believe that yes we are responsible for paying them. I don't want to put any more burden on the citizens of Chanhassen. By the same token if they are not associated with our development which is our position, I don't think that your future citizens should have to bear the brunt of those costs either for one citizen who gets upset with the administrative process and tries to by-pass that process. She, in fact was suing on a covenant which she felt she had from 1964 which neither the City had any knowledge of nor any of the successors in interest to Mr. Bloomberg had any knowledge of. I think that's pretty well documented by in District Court. Bruce is here to elaborate on that a little bit if there were any questions you had concerning his letter. Quite frankly we think that we have done a good job in this community. We have tried to complete our development on a timely basis given the economy and we don't feel that this one particular charge is a responsibility of my neighbors to pay for that from that narticular subdivision. We would ~vish to have the Council reconsider the staff's position on those charges in particular and there are some other small minor charges which, again, I can't see why I pay for somebody's phone calls to the City Attorney's office. I Craig Mertz: The develppment contract does say that the applicant is going to hold the City harmless from all claims, damages, etc. arising out of the platting and developing of this propertj. To~my mind .this is a claim that arose out of platting and development of that property. It was not a foreseen claim. We didn't knòw, B-T Land Company didn't know that we were going to get sued as a result of platting and construction of Choctaw but we were sued and the argument about who actually prescribed the location of Choctaw, I think, is a red herring. The only thing that is re1event is that in the contract we did cover this unforseen situation and we did say that the developer was going to hold the municipality harmless from this type of claim. I feel that it is within the discretion of the Council to assign these costs to the developer. I Bruce Malkerson - I just wish to stress a couple of items which I know are in that letter (June 4, 1982). First of all a city only has the authority that is given to it in the statutes and there is a statute directly on point as to what authority a city has concerning these developers contracts that we are talking about and I have sited that section of the statute, 462.358 in which the statute says that "a city may require the execution of development agreements and require the filing of bonds, letter of credits, in order to make sure that there is the construction and installation of the public improvements.1t Not for everything else that may become related to a plat in its first year of development or 100 years later and that's our point. The statute says you can require of the developer those things related to making sure that the sidewalk goes in and the curb and gutter, those sort of items. Not to indemnify the city against any and I all claims of action that some la~vyer that's looking for a job or some lawyer that's innovative comes up with to name the city or name somebody else. That isn't part of the project. I don't think it's anticipated from the city's point of view but certainly not from our point of view. I represent numerous municipalities and in those cities, I think you are over extending. You are going beyond your authority in the statute to expect us to pay for anything related to anything. I I I Council Meeting June 7, 1982 -11- If you look at the provisions of that contract~ paragraphs 7 and 8, they are clearly talking about the actions related to public improvements, to the construction of roads, curbs and gutters and things of that sort. That's why we don't think it's allowed under the statute nor is it allowed under the development contract that you have. We are certainly willing to pay for the costs directly related to those items called public improvement but not as to anything else that someone alleges that somehow we were involved in and I think if you reviewed the complaint she (Mrs. Lovetang) lost on all four counts and she should have lost on all four counts but we shouldn't have to pay just because of some claims that were filed unfortunately against you and against my client too. Craig Mertz - I would agree with that principle. However, I would distinguish it by pointing out that the Council, in this case, went the extra mile, they constructed the improvements with public money and negotiated a contract that set forth the rights of the various parties and while the bulk of the contract does have to do with construction there is definitely language in the contract that used applicable to the situation. Councilman Neveaux moved to table action on this for two weeks to allow the Mayor, staff and the applicant to attempt to negotiate a reasonable solution. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. OLD ST. HUBERT'S CHURCH SUB-LEASE AGREEHENT: Councilman Geving moved to approve the maintenance agreement between the Family of Christ Lutheran Church and the City of Chanhassen. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. ENDORSEMENT OF JAN HAUGEN, BOARD OF DIRECTORS, LEAGUE OF CITIES: Councilwoman Swenson moved to direct staff to send a letter of endorsement to the nominating committee of the League of Cities endorsing Jan Haugen for the Board of Directors. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Council- woman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. LOT 36, SHORE ACRES: Councilwoman Swenson advised council members of the hazardous disrepair of a home on Lake Riley Blvd. Letters will be sent to all the neighbors advising them to keep their children away from the home and the building inspector was directed to post signs on the property. Councilman Neveaux moved to direct staff and the City Attorney to either commence hazardous building proceedings or nuisance abatement proceedings against the property. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. LAKE DRIVE EAST: Councilman Geving requested staff to address the extension of Lake Drive East from Dakota Avenue west to Great Plains Blvd. and also Lake Drive East to 184th Avenue. CARVER BEACH PARK: agenda to reconsider using the park. Councilman Horn requested that this item be placed on a future the parking restrictions as he has noticed that no one has been MC DONALD'S LITIGATION: The Assistant City Attorney gave a status report. On May 28 the City was served with another lawsuit. This one is Chanhassen Estates Residents Association versus the City of Chanhassen and involves the City Council approval of building permits for McDonald's and includes a request for monitary damages of an unspecified amount but to exceed $50,000. Accompanying the summons and complaint Council Meeting June 7, 1982 -12- were motion papers for a court hearing the residents asked the judge to issue bar the City from issuing the building denying the petition for the temporary which was held June 2. At that court hearing a temporary restraining order. This would permit to McDonald's. The judges order restraining order was received June 7. I REVIEW MSA GENERAL FUND PROJECTS: Councilman Neveaux moved to accept the report and authorize the Ironwood Drainage Project not to exceed $4250. Motion seconded by }Iayor Hamilton. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Neveaux, Geving, and Horn. No negative votes. Motion carried. Councilman Neveaux following voted in Geving, and Horn. moved to adjourn. Motion seconded by Councilman Geving. favor: Mayor Hamilton, Councilwoman Swenson, Councilmen No negative votes. Meeting adjourned at 11:30 p.m. The Neveaux, Don Ashworth City Manager I I