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CC Minutes 1994 11 14CHANHASSEN CITY COUNCIL REGULAR MEETING NOVEMBER 14, 1994 Mayor Chmiel called the meeting to order at 7:30 p.m. The meeting was opened with the Pledge to the Flag. COUNCIL MEMBERS PRESENT: Mayor Chmiel, Councilman Wing, Councilwoman Dockendorf, and Councilman Mason COUNCIL MEMBERS ABSENT: Councilman Senn STAFF PRESENT: Don Ashworth APPROVAL OF AGENDA: Mayor Chmiel indicated the item number 2 was deleted from the agenda per the applicant's request. Councilman Wing moved, Councilwoman Dockendorf seconded to approve the agenda with the following changes: Item l(d) was pulled per the staffs request, and Councilman Mason wanted to discuss Shamrock Ridge under Council Presentations. All voted in favor of the agenda as amended and the motion carried. PUBLIC ANNOUNCEMENTS: None. CONSENT AGENDA: Councilman Mason moved, Councilwoman Doekendorf seconded to approve the following Consent Agenda items pursuant to the City Manager's recommendations: a. - Brenden Ponds, Located North of Highway 5, East of Highway 41 and South of Minnetonka Middle School West: 1) Final Plat Approval and Final Reading of an Ordinance Rezoning the Property from RR to RSF. 2) Approve Plans and Specifications and Development Contract, Project 94-17. e. Resolution #94-117: Accept Street and Storm Drainage Improvements in Windmill Run, Project 93-3. f. Resolution #94-118: Accept Street and Storm Drainage Improvements in Oak Ponds First Addition, Project 93 -9. i. Approval of Bills. City Council Minutes dated October 24, 1994 Planning Commission Minutes dated October 19, 1994 Park and Recreation Commission Minutes dated September 27, 1994 k. Request for a Christmas Tree Sales Lot, East Side of Festival Foods, Chanhassen Lions Club. 1. Resolution #94-I19: Rate Regulation Resolution, Technical Amendment, Cable TV m. Resolution #94-120: Approve Change Order No. 1, Well No. 7, Project 94-3. All voted in favor and the motion carded- City Council Meeting - November 14, 1994 B. RESOLUTION AUTHORIZING ADVANCED RIGHT-OF-WAY ACOUISITION LOAN FUND (RALF) APPLICATION SUBMTITAL, HOLASEK PROPERTY, Couneil~voman Dockendorf: In l(b), I understand we're purchasing property at $30,000.00 an acre. Isn't this outside the IvlUSA line? Don Ashworth: I don't believe that it is. Mayor Chmiel: I think it's an inkle, is it not? Councilwoman Dockendorf: It's a what? Mayor Chmiel: An inkle. Councilman Mason: That's a card term Ms. Dockendorf. Councilwoman Dockendorf: If you can tell me it's inside the MUSA line, I'll accept that price. Don Ashworth: Well, it's not inside the MUSA. It can be served by sanitary sewer. Tell you what, let's pull this item and I can get that answered for our next meeting. Councilwoman Dockendorfi Okay. Mayor Chmiel: Alright, would you like to make a motion to carry it over for the next meeting? Councilwoman Dockendorf: I move to table item l(b). Councilman Mason: Second. Councilwoman Dockendorf moved, Councilman Mason seconded to table the resolution authorizing advanced right-of-way acquisition loan fund (RALF) application submittal for the Holasek pmpen~r until the next City Council meeting. All voted in favor and the motion carried. I(C). AMENDMENT TO CITY CODE RELATING TO THE CONTROL AND PREVENTION OF DUTCH ELM DISEASE AND OTHER ARBOREAL DISEASES 'WITHIN THE CITY, FINAL READING; AND APPROVAL OF A SUMMARY ORDINANCE FOR PUBLICATION PURPOSES. Councilman Mason: I don't have any trouble with this at all. My only concern is, in the analysis we talk about, it mentions in there that we cannot go beyond the State Statute Section 13-35(f) t'or including deferments or delay of payments and any deviation from the intention and wording of the statute is a violation. Can't city ordinance supersede State Statute? Don Ashworth: No. Councilman Mason: Well we can go, like for environmental law. City Council Meeting ~ November 14, 1994 Mayor Chmiel: We can be as it is. You can't be less lenient. You can be more stringent than what you normally would want, right? Councilman Mason: Okay, I guess my question is, we had talked about we want the ability to be able to defer for financial hardship and State Statute is saying we can't do that. I guess that's not a question but. Okay, I don't understand why we can't do that. I mean because we don't have the Statute in front of us but I guess I'm assuming that the State Statute says that you can't let anyone defer a payment on something like this and I don't get it. Don Ashworth: I'm trying to recall why. I know that Roger has consistently taken the position that you caimot provide a deferment other than those provided under State Statute which gets into really the elderly classification and there's certain income guidelines. Mayor Chmiel: Those were the additional items that we did put into this though. Don Ashworth: But I don't recall why. This one has gone several meetings. Why don't we pull this as well. Councilman Mason: Yeah. I have no intention of killing the ordinance or anything like that. Don Ashworth: Right. I understand the question. I just don't have the answer. Mayor Chmiel: The other part of that one that I wanted to pull that one Mike is the fact that under Section 13- 28, again the discussion that we had at the time at Council indicated that we were going to make a change in that and that position as it reads, position created. Position of a full or part time city forester. I think we indicated that the position of a part time or intern city forester or tree inspector is hereby created within the city and that has not been corrected and I want that to go on record that that is out and to read as in there. Councilman Mason: Yeah, part time, yeah. That's correct. Mayor Chmiel: A part time or intern. Councilman Mason: So I'll move to table item l(c) until the next meeting. Mayor Chmiel: Okay, I'll second it. Councilman Mason moved, Mayor Chmiel seconded to table the second and final reading of the Amendment to the City Code relating to the control and prevention of Dutch Elm Disease and other Arboreal Diseases within the CBy until the next City Council meeting. All voted in favor and the motion carried. I(D). ACCEPT UTILITY IMPROVEMENTS IN SHENANDOAH RIDGE, PROJECT 93-20. Mayor Chmiel: Okay, they pulled that one themselves. So let's have a motion to table that, item (d). Councilwoman Dockendorf moved, Councilman Wing seconded to table accepting the utility improvements in Shenandoah Ridge per the staff's request. All voted in favor and the motion carried. VISITOR PRESENTATIONS: None. City Council Meeting - November 14, 1994 COUNCIL PRESENTATIONS: Councilman Mason: I'm not making a motion at this time. However I think, I've probably spent more time and more angst on this issue than in my almost 4 year tenure. And I think in talking with Jerome Carlson and in the letter he sent and I believe you all got a copy of this. He does raise some I think fairly important questions about grading. And about the loss of the knolls and the filling of some of the valleys. Now I will also freely admit that I've talked with Richard Wing who has been out there with Bill Engelhardt and Jerome, I believe. Dick? And I know Richard shares, I believe, that Richard shares some of those concerns also about losing the ~knolls and filling in the valleys. The only way I would even consider making a motion on reconsideration is if it is made absolutely clear that that is the only issue that is being dealt with. Councilman Wing: Which is what? Councilman Mason: Which is the issue of grading and what exactly is going to happen to those knolls and those valleys. I, quite honestly, as far as I'm concerned everything else is a done deal. [ think ~ve've gone far enough. But I do think that Jerome, in his letter, and as long as everyone has a copy of it, I'm not going to read it into the Minutes but we did get that grading information at the very last minute. There was some disagreement between the consultant we had and the engineer for the Ryan's, and I'm not saying anyone's to blame or anything but I don't know that I have as complete a picture of the topography as I should have for this vast a project. Now having said that, if I'm the only one that feels that way, I can let it go. But I, as opposed to making a motion for reconsideration, I wanted, I guess I would like to have a little discussion with the Council on how if they think that's feasible or not. Mayor Chmiel: Okay, Colleen. Councilwoman Dockendorf: Well I was obviously torn that evening and the only way I would consider reconsideration is if there is new information. We had so much grading information contradictory, unclear, old, very new, that it was tough to wade through it and [ re-read the Minutes and my biggest concern was what the difference would be between whether we took Lake Lucy to the south or to the north. And the answer that I got was 6 to 8 feet and to my mind that was not significant enough to me to say it needs to be pushed to the south. Particularly since I did like the curve in the road. I think it added some character to the road. So the only way I would like to see it back, if there is definitive new information about what exactly it ~vould be doing to the topography and it honestly kind of irks me that we are only, if this is the issue that everyone is concerned about, why are we only looking at that part of the development. If you look at the southern part of the development there is probably just as much rip and tear and it doesn't seem like we're considering that so if we do, let's look at the whole picture. Councilman Mason: Well I'm not, see I'm not talking about Lake Lucy alignment. My concern right now is, and I guess to some extent I think this is, it was new information at that Council meeting. The extent at which the knolls are going to be chopped off and that whole area and the extent at which the valleys are going to be filled in. That's where I'm coming from on this Colleen. Road alignment, as far as I'm concerned, that's done. Councilwoman Dockendorf: But that affects what's going to be filled. I mean that, to me that is the whole issue. Where we place Lake Lucy Road determines how much cut and fill we have to do. Mayor Chmiel: That's right. City Council Meeting - November 14, 1994 Councilwoman Dockendorf.' Now if we can take the same plat and say okay, thi~ is fine the way you set your home sites and this is where Lake Lucy is going and talk about reducing some of the cut and fill, which I'm not sure that is even feasible by using, by putting aside our ordinances about how steep grades can be. Then that's a different issue. But if we're going to talk about grading, we need to talk about road alignment. I mean the two cannot be separated. At least that's my understanding of it. So I'm willing to look at it again but I'm really concerned that all we're going to be doing is talking the same items with the same amount of information. Mayor Chmiel: Being that I was the only one who voted in opposition to this, and those are some of my basic still concerns just exactly what you've mentioned here and I would like to see this myself brought back for reconsideration but I cannot make the motion because I was the dissenting vote against that so one of you could make that motion to bring it back under the conditions that you've indicated with some of the concerns that. you're saying right now. Councilman Mason: Why do you want it to come back Don? Mayor Chmiel: I think it's just exactly what you just got through saying, and without making repetition. There's some real concerns that I saw there and it was some of the grading and some of the things that were going to happen within that particular area. I think the Ryan's have the right to develop their property but yet there are some concerns environmentally that I felt should be, or should have been addressed. And the road again is the other factor of that part too. Where we'd have to look at that. Richard. Councilman Wing: Well I'll only enter into the discussion for information, just because I was out there with Bill and this isn't a flag I can carry so it's going to have to be left with the Council. The issues that I came up with were Outlot B, and is that buildable or not buildable. I don't think we ever specified and if xve're going to set that Outlot B aside up there, I think we ought to be a little more careful about it's future and I'd like to see it specifically not be buildable in the future so that buffer's maintained. But I asked that Bill be involved in this and I did go out there and stand on top of the ridge line and look at the different roads. Where they would actually go and how wide they were. And when I actually stood on the top of that hill and looked at that northerly alignment, which I kind of favored myself, I was stunned at the amount of grading that would occur versus if it ~vent the southerly route. So I changed my mind on that and the grading was severe. I had Bill just simply sit there and move the dirt with his hands and it simply flattens it out. So I think my concern here is a little more philosophical along maybe with the Mayor's was if, we have our intent statement which isn't necessarily enforceable. It's an intent statement and then your ordinance then becomes more specific which tries to meet the intent statement. Well, there's a lot of gray area here and there always will be. We can't, I don't want to legislate ourselves into oblivion on these issues but number one, the Outlot B I think needs to be discussed and be specific on it's future. I think the road alignment, you have to be out there and see the two different ones physically and then start seeing the retaining walls that have to be built. What's been given to us has no alternatives. It's simply presented to us and it does really flatten that land out and maybe that's part of development. Maybe the road and the alternative would flatten it out. I don't have those anstvers. There's going to be a lot of damage out there one way or the other but after talking with Bill and then meeting with Roger and then talking, I went through the Planning Commission because at the last minute I felt a lot of pressure. Colleen and myself both kind of sat back and kind of panicked a little bit and I wish I had simply gone with the Planning Commission that night because on 7 to nothing or 6 to nothing, as it wound up that night, they felt that there was severe tampering occurring with this land, and they don't do that very often. They don't very often come out in some of their conservative position and say this land is being tampered with beyond reason and that set me back. That's why I went out there with Bill because I said, what have I done here. So it's in the middle. There's pros and cons. I don't 'know if there's a lot of new information to be had or City Council Meeting - November 14, 1994 not but I think both sides need to be here to, in today's terms, talk about what's getting moved and what is getting changed. But if you stand out there with Bill, there's a lot of, our intent statement isn't going to be met. And I think that intent statement is important. But I wish you the best of luck. I'd like to see an alternative. It's just too bad there isn't an alternative. It's not up to us to do it and the owner chooses not to and sympathy does go with the owner if in doubt. I mean the last decision, when it came down to push and shove, there was sympathy for the owner and developer because it's their land and maybe was the reason I kind of held back at the last minute. Councilman Mason: What are statutes on reconsideration? Is tonight our only shot at reconsideration? Mayor Chmiel: I don't really -know. Don Ashworth: I am sure that that is not the case. Do you want me to make a quick phone call to Roger? I don't know if I can catch him at home but I can try. Councilman Wing: It was my understanding tonight was D day. Councilwoman Dockendorf: Yeah. And I xvould like to, I mean if it is reconsidered, could it come back for the next Council meeting with Richard here who has a ton of knowledge. I'd just as soon benefit from that. Mayor Chmiel: He still has 2 more meetings. Councilman Wing: I won't vote on it but I'll address it with information. Councilwoman Dockendorf: Why not? Why in heavens name would you not? Councilman Wing: I'll think about that. I think the Council that has to live with this and move forward on it and if there's any delays, sl~ould be the one making the decisions and I don't want to swap that. I'm going to say this up front. Nothing irritates me more than a lame duck trying to go out with a splash and I would much rather have the people that have to carry this forward make those decisions. Councilman Mason: Well, I hear what you're saying about a lame duck making a splash Richard. On the other hand Colleen is absolutely right. You have as much history and knowledge on this issue as anyone else does on the Council and you're entitled to your beliefs and your feelings regardless of whether you're a lame duck or not. Councilman Wing: And I will serve as an information source. Mayor Chmiel: Yeah, lame duck is not something I think we. Councilman Wing: Well I'm being flippant about it. I don't feel that way but I think it's important that the Council, the working Council deal with this issue in case it's pursued in the future. Don Ashworth: I'm more concerned about getting the full cooperation and not, I shouldn't use cooperation. Can we, can the Ryan's and ourselves provide this "new information" within 2 xveeks? City Council Meeting - November 14, 1994 Councilman Wing: Bill Engelhardt can. It's black and white. Here's what's being done and frankly, if I had this to do over again, here's the biggest problem I had. I would have said Kate, go to the podium and educate us. Go from A to Z. What happened7 What did you recommend.'? Why and what are the problems and we could have made a very intelligent decision if we had backed the pressure off us and given us just 10 minutes of breathing space, we may have voted in good faith for it. Councilwoman Dockendorf: It was a very complicated... Councilman Wing: Terribly so and they were sitting up here pushing this stuff at us that nobody had seen before and that was out of order. I may have voted for it in good faith if Kate had just had a chance, with Bill, to present the case in order. Councilman Mason: Well, and it would have been nice to have had some sort of before and after pictures too and I've got to believe the technology is there for that. Yes, no? Don Ashworth: Certainly not within a 2 week period of time. Councilman Mason: Well right. Right. Mayor Chmiel: No, but as you've indicated that reconsideration could be done tonight and until the additional information's been secured, then at that time have a meeting back. Councilman Wing: If you reconsider, nothing need change. Nothing need happen. Councilman Mason: Oh that's entirely possible. I'm not, if I make a motion to reconsider, it is not, I will be very up front. It is not necessarily to change anything but that part about the grading just, just really hit me and I don't know that we had time to digest that that night. The other side of the coin is, if we do reconsider and then deny, we are also opening ourselves up for a lawsuit. Mayor Chmiel: That's exactly right. You were there before that anyway, one way or the other. Councilman Mason: So I guess maybe another question I would pose tonight is this worth a meeting perhaps with the Mayor and the Ryan's. Mayor Chmiel: Could do that too. As I've indicated to you, I've had discussions with the Ryan's and they may be amendable to making some changes, and I'm not speaking for them. Councilman Mason: I understand that. Mayor Chmiel: But there might be something there, I don't know. Councilman Wing: Mike, that's a good point. I saw three things that could happen, and maybe only two: Number one, the neighbors could come back and sue to force, try and force the intent statement. Or closer adherence to the intent statement which then might force them to come in and mediate a little bit. On the other hand, if we reconsider it, maybe between the Mayor, the Ryan's and the parties, or whoever, there could be some mediating before it even gets back to Council and be a dead issue and everybody be happy. That's what I guess what I thought of reconsideration. It would primarily be to say Ryan's, we're really concerned but there's 7 City Council Meeting - November 14, 1994 some problems here. Why don't you talk to the Mayor and staff and see if there isn't some compromise that we can make everybody happy with and maybe not even come back to Council. Or push ahead on it and see if the neighbors want to sue or not, which case forces mediation, or let it go altogether. That's a difficult question Mike. I don't envy you. Very awkward. Councilman Mason: Ticking of the clock makes me think of what, the Edgar Allan Poe. Was that the Pit and the Pendulum? Councilman Wing: It's not 8:00 yet. We've got time. Councilman Mason: We're got 2 more minutes before 8:00. Well I also, I feel deeply for the Ryan's and I'm sure there are some people that share that sentiment and I again will kind of say, I won't kind of say. I don't like this we versus they attitude in this city and ! 'know sometimes it can't be helped and I would hope it's not a matter of choosing sides. But I've maintained that in the last 3 years, 11 months I guess so that will continue. Councilwoman Dockendorf: I'm trying to think of the last time we reconsidered an item, and I don't recall what it was. Councilman Mason: It was something to do with, it was a beachlot issue if I'm not mistaken. Councilwoman Dockendorf: I was afraid it was that. Councilman Mason: And we won't discuss that. Councilwoman Dockendorf: But my point being that it wasn't as close a vote as it was 2 weeks ago on this item and obviously that evening Richard and I were completely undecided and it was a difficult issue and the facts were muddled and I think it's worth taking a look at. So at least if we do approve it, we can do it with the full 'knowledge that we did our all. Councilman Mason: Sounds like a motion Councilwoman. Councilwoman Dockendorf: Well, I think it sounds like a second Mike. Councilman Wing: You're getting good Mike. Councilman Mason: Well I guess I will make a motion to reconsider. I want however, before it gets passed, I want to have some very strict parameters put on that reconsidering because I don't want this whole thing opened up again. I don't think Ryan's, I don't think Mancino's, Carlsons, Davis, whoever. That's not why I want this re-opened. I want it re-opened because I would like the Mayor to sit down with the Ryan's and maybe express some concerns. I would like it reconsidered because I would like some sort of visual representation of how the grades will change before and after. So actually there'd be three. South alignment, north alignment and as is. I don't know how that, this puts us with the 120 day time line, which may or may not be an issue. I do not, you know I kind of firmly believe once we make a decision, then we need to stand by it and I feel badly that the Ryan's aren't here to 'know this right now, but I assume they'll be called soon enough. But I want the motion to be made very clear that it is to get, the reason I'm making this motion for reconsideration is I need to see the changes in topography and it can be on a graph, CAD, whatever. I want to be able to see three pictures and if that isn't possible, and I don't know. But I guess the first step is, if you're willing to do it. City Council Meeting - November 14, 1994 Mayor Chmiel: Yes. Yeah, I'd be willing to do that. Councilman Mason: Because if, like Richard said, if that can be worked out that way, then none of this other time and expense needs to happen, which is my preference. That none of this other stuff needs to happen. So there's my motion and it's 8:03. Mayor Chmiel: Okay, we have a motion on the floor. Is there a second? Councilwoman Dockendoff: I will second it. Councilman Mason moved, Councilwoman Dockendorf seconded to reconsider the motion made on Shamrock Ridge reganling topography. Ali voted in favor and the motion carded. Councilman Wing moved, Councilman Mason seconded to adjourn the meeting. All voted in favor and the motion carded. The meeting was adjourned at 8:03 p.m. Submitted by Don Ashworth City Manager Prepared by Nann Opheim 9