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1978 09 18 I I I REGULAR CHANHASSEN CITY COUNCIL MEETING SEPTEMBER 18, 1978 Acting Mayor Neveaux called the meeting to order at 8:00 p.m. with the following members present: Councilmen Pearson and Geving. Mayor Hobbs and Councilman Waritz were absent. The meeting was opened with the Pledge to the Flag. APPROVAL OF AGENDA: Councilman Geving moved to accept the agenda as presented with the addition of special meeting dates and deletion of downtown clean up project and sign committee status. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. ~~INUTES: Councilman Pearson moved to approve the August 28, 1978, Council minutes. Motion seconded by Councilman Geving. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. Councilman Geving moved to approve the September 5, 1978, Council minutes. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. Councilman Pearson moved to note the August 31, 1978, Community Facilities Study Committee minutes. Motion seconded by Councilman Geving. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. ERIE, WEST 77TH STREET, AND CHAN VIEL1 STREET AND STORM SEWER PROJECT 75-11 AND CONCRETE CURB AND GUTTER PROJECT 77~3: SENIOR CITIZEN DEFERMENT - FRANCES HEDTKE, PARCEL 12-0/11: Councilman Geving moved to grant a senior citizen deferment in the amount of $2,008.32 to Frances Hedtke, Parcel 12-0/11, pursuant to Minnesota Statute as provided. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. BILLS: Councilman Geving moved to approve the bill~ dated September 18, 1978, with the provision that check #10032 in the amount of $300 be reviewed prior to payment by the City Manager. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. ASSESSMENT REVI EW, WEST 79TH STREET IMPROVE~~ENT PROJECT: Daniel and Al Kl ingel hutz, Frank Kurvers and his Attorney, Jim Penberthy were present. Jim Penberthy - I represent Mr. and Mrs. Frank Kurvers. My clients position basically with respect to the improvement project, is that the property does not receive, at the very least, the benefit thatls been assigned to it by virtue of the assessment and at the very most, depending on how you look at it, no benefit at all. The reason we say that is that there was an access road by the Kurvers property prior to the construction of this road. Acting Mayor Neveaux - You are talking about the old West 79th Street? Jim Penberthy - The old West 79th Street, right. Councilman Geving - Are you restricting your comments to the road or to the sewer and wa te r? Jim Penberthy - My understanding is that there is no sewer. We have to talk about the whole project since they are all combined. 1111 be addressing the road and the water and the curb although they do present somewhat different issues. It is my understanding that the Kurvers did petition for water service by the property and so we certainly are not objecting to the lateral in the 79th Street portion of the road by their property. There is another problem as it makes an Council Meeting September 18, 1978 -2- angle and goes down to Highway 5 but as I say thatls another issue. The road issue is essentially, there was a road there, I it is my unders tandi ng it was excavated or dug up and then II replaced and so what we are looking at is a situation of having a road which was a public street by virtue of statuatory user or whatever the case, it was excavated the city comnenced an action of some kind against the party who excavated it and that suit was dismissed and we now have a new road, a shed in the middle of the old road, fence, etc. and an assessment for the improved structure and a cul-de-sac at the end of the road. We are saying that the access was there, we received no new benefit by vi rtue of this new construction and therefore should not be assessed. The other point is that there was and is access from the Kurvers property onto Hi ghway 101. That I s to be sure a nebulous kind of access and I think you are probably aware of that. That's probably going to be determined in the torrens action that I understand is goi ng to be commenced or has been commenced by the owners of the property. Third point is that prior to construction of the new road Kurvers had access on grade from their property to the previous road and now of course if you go out there you see that there is a tremendous bank from the Kurvers property down to the new road. It is impossible to get ingress and egress from their property. Now it is a little bit less severe toward Highway 101 but nevertheless difficult. The old driveway as it existed is completely cut off from access. From that standpoint they have certainly have not received a benefit, they can It get on and off the road. We can procedurely file a notice of appeal and go through all that but what we are essentially saying is that the road is I there, the water is there, it has to be paid for, you have to spread the assessment we understand that but what my cl ients are saying is that it should be spread fairlY and geared to the benefit that various properties receive. What we are suggesting is that there be a full assessment based on a square foot formul a for all properties benefit. We feel that all properties certainly abutting the road, have benefit. That includes the full Hanus property. The railroad property and the city property as well as ours and, if the Counci 1 determines, the property on the corner of Hi ghway 101 and the street. That assessment should be spread çonsistently against all of those properties. The road essentially benefits the Hanus property, Thecu;l-de-sac doesn't benefit our property because of the hardship in getting on and off again and the use that we wi 11 be abl e to put our property to. It benefi ts the Hanus property and we would in addition ask that that cost be separated out from the total project cost and be assessed to the Hanus property. It is our position that it could have been dead ended. Acting Mayor Neveaux - That the additional cost of putting in the cul-de-sac portion on. The part that accrues strictly to Hanus? Jim Penberthy - The way we have looked at that is that if itls a temporary or a partial road with the idea that the road is eventually going to swing around the Hanus building and continue along the old right- of-way, it would simply be dead ended at this point. The turn I around for the plow for the fire, etc. is going to benefit Hanus exclusively, not any of the other'þroperties" involved. Russell Larson - The two points that we would like to raise is that 1) we are . aware that there is pending litigation in the'torrens application of Dan Klingelhutz concerning the claimed 16 foot right-of-way. We point out that while they may well have such an easement it I I I Council Meeting September 18, 1978 -3- must be born in mind that in our planning process any development on that Kurvers property woul d probably not incorporate any use of that particular easement or if itdid it would be an alternate exit or entrance onto Highway 101. I think it has been our practice here that in this area all traffic will have to enter on West 79th Street. Wi th respect to the comment concerning assess ing the' railroad, except for the 100 foot right-of-way strip in which the railroad tracks actually lie, thatls 50 feet on each side of the centerline if it is that far, there is no more railroad property there. Hanus bought all of the railroad property except for the right-of-way and then tu rnedaroundand gave the city an easement over the enti re tract for roadway pufþós'g ~ Acting Mayor Neveaux - There is no privately owned property to the north of West 79th Street to spread the assessment anTrfurther. Russell Larson - That's correct. Bill Brezinsky - The necessity for the cul-de;...sac of course was for the city to maintain the road as a public road right now~ the improvement êrided at the Hanus property 1 ine and it was necess ary to have a turn around for snow plows and emergency vehicles and so forth. Those are required on all streets that are put in now and we have always assessed it against all the properties abutting it as a general benefit to everybody because they need the snow plow. Acting Mayor Neveaux - This is not an unusual kind of thing even though it may be kind of short in length. The reason is for the necessity for turning around a snow plow and/or an ambulance or fire truck or something of that nature. Jim Penberthy - I think we have what I call a légìtimate controversy. There is good faith on both sides and this is simply an attempt to try to resolve it in a way we feel is fair. Now what we feel is fair may not be fair to you folks. What we are proposing is that the assessments for the road be spread over all properties. If the railroad property was sol d to Hanus and he granted an easement to the city, he woul d s till be the fee owner subject to the easement and there may very well be the possibility of assessments to that parcel. Acting Mayor Neveaux - That I s what our purpose is here as you know, the Ci ty Counci 1 orders the project and gets the costs and then assesses the . benefit and that's the tough part of the job. Jim Penberthy - I wanted to mention three more points on our proposal just so that you have those to consider. The first two points I have mentioned, that is to spread the assessment over all properties and of course that IS a determination of what properties are benefitted but 100% over all properties. The-cul-de-sac we have talked about. The third thing is that all extra costs that were incurred on the water constructi on when it was angled at the end of the Hanus property be assessed to the Hanus property. In other words, a comparison can be made of the cost of running the pipe straight through the old road to the loop as opposed to the cost of angling it and then connecting up with the loop. Therè îsarc".éxtra cost in there that was incurred and we have not benefitted from it and the Hanus property has therefore that cost shoul d be assessed to that Hanus property. Bill Brezinsky - I bel ieve we have assessed it. If you try to find a more direct route, if you say we have taken the long way a~ound yo~ wQn1t find it. If you go straight through, follow the rallroad nght-of-way thengetto.the'concrete plant then come ba~k down to .Hlg~way 5 and over, I guess as far as talking about dlfference ln plpe length any route through to this point, the point we have to make a connection down by the drive-in, this is as short as any so I Council Meeting September 18, 1978 -4- am saying you don It have any additional pipe lengths going this route than you woul d going any other route'añd when I say any other route I mean any reasonabl e route that woul dn I t sever I all the properties right through the middle and so forth. Acting Mayor Neveaux - Then what you are saying is the route that the pipe finally ended up being laid in contributed no additional cost other than the $1776 which was the cost of operating within the narrow right-of-way and insulating the pipe. Bill Brezinsky - We determined that theroutè the pipe was laid in, in the development of our final plans, was the most feasible route to go to make the connection between Highway 101 and County Road 16. The movement of the building toward this line resulted in the" of insulating the line and additional construction costs. Those amounted to $1,776. They were assessed against Mr. Hanus. What I am saying is the movement of the building or the placement of the building did not result~ in our opinion, in any additional cost. We had the most feasible route selected before the building was placed there. . Jim Penberthy - My last point is that the contractor or someone came over our dubious easement and piled a bunch of junk on our property during constructiDn and our proposal contains a foregiveness of all damages for tresspass in connection with that. Debris, materials were pl aced there during cons tructi on wi thout' consent and my cl ient is willing to say as a part of his proposal that he is not going to look to anybody for damages or for rental if there are no damages if we can try to get something resolved along these other lines. This is entirely new and it doesn't have anything to do with the I assessment procedure per se, it's a separate matter. I jus t simply bring it up now. Councilman Geving - Is the material still there? Jim Penberthy - It's gone. Bill Brezinsky - We are aware that the contractor tresspassed on the property. I don't know if there are any damages. If there were any damages we would like to see the claim. This would be the contractors responsibility to reimburse Mr. Kurvers. That's what he has got a bond for. We wouldnlt final out the project until he did that. The city,isn't going to have to reimburse any of thos~e expenses. Russell Larson - Jim~ you would first have to establish a claim against the city for tresspass and I doubt that you can do that.' Acting Mayor Neveaux - Do you have a concrete proposal as to what your client feels the assessment should be? It's obviously not going to be zero. Jim Penberthy - He is prepared to pay the water assessment as it is assessed. Acting Mayor Neveaux - I see no trunk assessment or trunk units on the Kurvers property. Jim Penberthy - Right. The street as I understand it has been assessed on a square foot basis. All we are saying is take all of the property that benefits from the street and assess them in total on a square foot basis. That includes all of Hanus' property. That includes the property he ownes subject to an easement. That includes any property owned by the city. Any other properties and we feel I that logically this has to take itself to the ready mix property as well. There is a partial assessment against it now. Bill Brezinsky - There never was an assessment against the ready mix. Acting Mayor Neveaux - There are three parcels that are assessed for the street project; Daniel Klingelhutz, F. J. Kurvers, and Donald Hanus. The ready mix and the drive in are assessed for the lateral watermain. I I I Council Meeting September 18, 1978 -5- Acting Mayor Neveaux ""' You are saying there are some parcels within the benefitted project area that we have not claimed that they receive benefit from the street? Jim Penberthy - You claim that they receive benefit but they have not been assessed 100% of the square footage. Hanus for example. Bill Brezinsky - The final criteria was adopted by the city was that the Daniel Klingelhutz property was assessed 100% and the Kurvers was assessed 100%. On the Hanus property the presently developed area was assessed. The reasoning behind that is that the parcel that was not assessed on Hanus I that shows on your map under D. Gordon, that has not been developed. Acting Mayor Neveaux - Now you say presently developed, you mean that within the steel fence? Bill Brezinsky - Right. The reasoning for not assessing the D. Gordon property or the ready mix is that in our opinion there will be a necessity of extending the road way if those two parcels develop in a different manner than they are right now. Then they would be assessed for that extension of the road. Al Klingelhutz - My brother has given me permission to speak On this. The" property has 115 foot, frontage'onHi:ghway lOl-arrd-i-s:...85 feet 'deep. It had a sewer and 'water7'assessment way baCk in about 1972. It had the 01 d railroad street as we called it with an easement until the year 1999. It is our feeling that the street is nice'tahave along your property but it isnlt essential because there was more'than sufficient access to the property from Highway 101 especially with the "side frontage and the short depth of the property .Pri or to my brother and mysel f leaving for Europe he did write a letter to you people stating that he woul d not object to the hal f assessment but he felt that if it would be any larger than that he would have good cause for strong and strenuous objections. I guess I would have to agree with him on that because when you have access to a street and the city comes and puts a new street in tobenefi t· other properti es, I can I t qui te see that the property that already had access toa highway should be assessed a full amount as the other properties because I don It think he derives' the same benefit. " A much lesser benefit in fact. I think we passed a resolution four or five years ago on corner lots in the city saying that corner lots side streets should only be assessed at 50%. Acting Mayor Neveaux - The policy has been on residential areas that if you are on a corner lot you get a full assessment on one side and a half on the other but that'policy has never been carried over into commercial properties. According to our research by our legal advisors at the time of this public hearing specifically they said that there never was an official policy on other than residential corner lots. Al Klingelhutz - In a sense it never was a public street in theCity of Chanhassen. It was an easement from the railroad. It really is a new street. On the easement that Mr. Kurvers has I believe on his abstract it says that if there is a public street in there, the easement over the Daniel Klingelhutz property will be null and void. Now there is a public street in there, I assume that the easement is null and void, of course this is another matter. Russell Larson - I think it is significant to note paragraph number 2 of Donis report whereby he discusses perhaps more articulately than I did, the matter that in the event of any development it is likely that the city would not allow access onto Highway 101 or at least exclusive access to Highway 101. I would have to say that for my knowledge of that area, the frontage property, the frontage of the Klingelhutz property is Council Meeting September 18, 1978 -6- actually West 79th Street because of the primary access factor. I am sure that in our planning processes when development occurs on that property the cityp lanni ng department, the Planning I Commission and th.e Council W. ill.establi.sh that one of the conditions is that there is primary access off 79th Street. Acting t~ayor Neveaux - Getting bac~ to the analogy of the residential types of property where on a corner lot you pay towards the improvements in full on one side and only half the frontage on the other side. If that were moved to this particular piece of property, you are saying that Daniel should pay full across 101 and a half on West 79th Street. At present 101 is a State Highway and improvements made to that he would never be assessed so he gets a free ride. Al Klingelhutz - I don't agree with you. County Road 16 was a state highway and I am sure 101 will be improved to the same standards as County Road 16 and all those people on main street were assessed for anything over a certain width and the curb and gutter. There is a very possible near future assessment on 101. Russell Larson - I think that is to far speculative to this Council to consider. Councilman Pearson - What I was wondering about, I feel that there is no question about that this West 79th Street is going to benefit both the Kurvers and the Klingelhutz properties but I also think that there is no question at this time that it primarily benefits the Hanus property. I am wondering if there is some way that we could defer the assessments for the road for say up to five years or until the property was sold or built 'uþon for these two -p"arceTs. I Russell Larson - You have that authority under recently enacted amendment to the assessment law. Councilman Pearson - It seems to me that this would be a reasonable way of going. The interest would accrue. This would not apply to the water. Acting ~~ayqr Neveaux - I think this would look different if the property were of such configuration that the 80 foot frontage were on 101 and the 115 were running down West 79th Street. Then the type of building you would put on would probably face West 79th Street.· It looks like and it probably will be developed so that it will front on 101. Establishing a criteria tonight for this piece of property may lead us into some problems down the road when we get a similar corner lot situation. I think this is a kind of unique situation and I would hate to see it become binding on future councils. Frank Kurvers - Bill had mentioned about the Hanus property and he also mentioned about the Gordon property and where the fence was~ well I think the entire property is all fenced. The entire Hanus property is fenced. I just wanted to clarify the issue. Jerry Schlenk - The fence includes all the Hanus property. Bill Brezinsky - The approved plan ends where the blacktop ends. They don It have an approved development plan for the Gordon property. Councilman Geving moved to amend the assessment roll to include all of the Hanus I property if the engineer determines that the Gordon property is within the fenced area. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. I Council Meeting September 18, 1978 -7- OFF SALE INTOXICATING LIQUORS, REVISE HOURS OF SALE: RESOLUTION #78-55: Councilman Pearson moved the adoption of a resolution extending the off sale intoxicating 1iquor hours as setforth in the City Attorney's letter of July 18, 1978. Resolution seconded by Councilman Geving. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. .. 1979 PROPOSED REVENUE SHARING BUDGET ,iJSE'T 1979 BUDGET REVI EW AND HEARING DATES: The City Manager presented the 1979 proposed revenue sharing budget and general fund budget to the Council. CONSENT AGENDA: Acting Mayor Neveaux asked if any council member wished to discuss any items on the consent agenda. Couticilman Gevingreques ted that del eti on of Lyman Blvd. from Municipal State Aid System be discussed .separately. As no additional comnents were recei ved,Council man Gèvi ng moved to approve the foll owi ng items purs uant to the City Manager1s recommendations: a. Accept Commission Resignation, Herb Bloomberg, H.R.A. b. Resolution Supporting Richfield Contention of Binding Arbitration. RESOLUTION #78-56 Motion seconded by Councilman Pearson. Néveaux, Counci1men Pearson and Geving. The following voted in favor: Acting Mayor No negative votes. Motion carried. DELETION OF LYMAN BLVD. FROM MUNICIPAL STATE AID SYSTEM: Councilman Geving moved to have the engineer represent this with' a recommendation on what roads woul d be considered for replacement. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. I APPLE VALLEY LIT! GAHON STATUS: Russe 11 Larson gave a report. SPECIAL MEETING DATES: Councilman Pearson moved to hold a special meeting on Monday, September 25,1978, at 7:00 to discuss the proposed budget and set a public hearing for October 2, 1978, to consider public comments on the 1979"budget. Motion seconded by Councilman Geving. The following voted in favor: Acting Mayor Neveaux, Councilmen Pearson and Geving. No negative votes. Motion carried. Councilman Geving moved to adjourn. Motion seconded by Councilman Pearson. The following voted in favor: Acting Mayor Neveaux, Counci1men Pearson and Geving. No negative votes. Meeting adjourned at 10:00 p.m. I Don Ashworth Ci ty Manager