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CC Minutes 03-24-2014Chanhassen City Council – March 24, 2014 27.The plan must follow all applicable State and Federal guidelines, including ADA standards for the sidewalk reconstruction. 28.Sanitary sewer and water main to be installed for this project shall be privately owned and maintained. 29.The applicant shall work with staff to develop a revised landscaping plan, which shall be submitted for review and approval prior to issuance of a building permit. Additional landscaping shall be installed along the north property line. Suitable species for the area next to the building include arborvitae, such as Techny, and columnar trees such as Apollo or Sugar Cone maple. To block views of the truck loading docks, the applicant shall install a hedge along the property line north of the loading docks. The shrub materials selected should provide year round coverage to a mature height of at least 5’ – 6’. All voted in favor and the motion carried unanimously with a vote of 5 to 0. Mayor Furlong: Thank you everyone. Thank you. Let’s move now to item number E(6) which was request to be removed from our consent agenda. CONSENT AGENDA: E(6). LYMAN BOULEVARD WETLAND ALTERATION PERMIT: REQUEST FOR WETLAND ALTERATION PERMIT FOR PROPOSED ROADWAY RECONSTRUCTION AND IMPROVEMENT PROJECT OF THE SEGMENT OF CSAH 18 BETWEEN CSAH 15 (AUDUBON ROAD) AND CSAH 17 (POWERS BOULEVARD), APPLICANT: CARVER COUNTY. Mayor Furlong: Why don’t we start, sir if I can invite you back up here. If you could state your question and reason for, desire for discussion then we can perhaps go to a staff report. Mark Anderson: Sure. Mr. Mayor and council, my name is Mark Anderson with MFRA and I’m representing PPB Holdings. Landowner on the south side of Lyman Boulevard, adjacent to the proposed Lyman Boulevard improvements of which the mitigation plan and permit that you’re considering tonight is a part of. The concern with the proposed mitigation plan that. Mayor Furlong: Lay that right over the top of, there you go. Ms. Aanenson, could you pull those things out of his way if they’re in his way? Thank you. Thank you. Mark Anderson: So on the screen I’ve got a copy of the county highway plans and what’s shown here is PPB Holding property on the south side of Lyman Boulevard and part of the application that you’re considering tonight is impacts that the roadway is having on existing wetlands in this area and we’ve communicated with the County on a couple of occasions. My client and myself about our concern for a proposed 24 inch culvert crossing from north to south on Lyman Boulevard that then drains onto PPB Holding property and consequently flows across private property without an easement in the direction of the orange arrow. This is concerning for our client because one, the pipe size is being increased from an 18 inch to a 24 inch. As well the pipe is being extended into PPB property. They do have a small easement for the pipe itself but not for the conveyance of water in the direction of the orange arrow. Along with that the toe of slope, this is a low area on my client’s property and so the toe of slope is being extended into the property approximately 40 feet without any additional permanent easement so those are all things that we’re working through with the County to address so that they don’t negatively impact my client’s property. How it relates to the discussion tonight, since those items haven’t quite yet been 15 Chanhassen City Council – March 24, 2014 formally addressed is that in conversations again with the County public works department, there will likely be additional wetland impacts to convey this water properly to the west and so the report that you’re considering and the permit application that you’re considering tonight does not fully address these items and will likely be amended again so that our client’s property is not negatively impacted. So rather than approve it tonight we’d like to request that it be tabled, hopefully not longer than the next council meeting so that we can fully address these items. Fully address the wetland impacts that occur within the temporary easement that’s noted here and then amend the report and approve accurately addressing the drainage concerns. Mayor Furlong: Okay, thank you. Mr. Oehme, Mr. Gerhardt, Mr. Jeffery, good evening. Welcome to the seat. Perhaps you could address Mr. Anderson’s comments. Terry Jeffery: I can speak to the sequencing and the wetland replacement as to the design issue in the procurement of easement for that drainage that’s, that falls to the design of the plan. What is before you is a wetland alteration permit, Wetland Conservation Act replacement plan based upon the design that was provided. The design that was provided meets the Wetland Conservation Act in that it minimizes to the greatest extent practicable the impacts necessary to build the project. To the extent that there may be additional impacts or may not be additional impacts depending on if any design changes occur would be outside of the germane of what has been requested by the County in terms of the wetland replacement plan so under Chapter 8420 they are to look for ways to avoid impacts. If that is not possible, look for ways to minimize impacts and then those impacts which are unavoidable to either try and rectify on site over time or to mitigate for somewhere else. It is staff’s and the Technical Evaluation Panel’s opinion that this application meets all of those requirements and has in good faith achieved the goals of the Wetland Conservation Act. That does not preclude at a future time, if changes to the plan are deemed necessary that that would then be handled under a separate application but right now that is a design question is outside of the scope of what is being presented with this application. Mayor Furlong: Okay. So the issues raised by Mr. Anderson, am I understanding it correctly that those, that there may be changes that occur in the future depending on the results of additional work on, if there are changes to the design there may be changes or an amendment to the Wetland Alteration Permit? May or may not. Terry Jeffery: May or may not. If the design, if the engineers decide for whatever reason that additional changes need to be made and that results in impacts then yes, we would address that at that time but to speculate on what may or may not happen without a plan is beyond the scope of this wetland application. Mayor Furlong: And does the plan include the 24 inch culvert? Terry Jeffery: Yes it does. Mayor Furlong: Okay, so Mr. Aanenson help us understand if, if the application meets the plan design that was approved, and that includes the 24 inch culvert, do you disagree with the permit application? Mark Anderson: Only with regard to the water that’s conveyed through the 24 inch culvert so Mr. Jeffery is certainly accurate that the county plan does include the 24 inch culvert. What it doesn’t address is that it’s discharging public waters from the north side of Lyman Boulevard to private land without any easement to convey it downstream. As well it doesn’t present a positive ditch slope to convey it to the west so that it doesn’t negatively impact the PPB Holding property so the pipe is part of the plan but the conveyance of the public water has not been addressed. 16 Chanhassen City Council – March 24, 2014 Mayor Furlong: And Mr. Jeffery or Mr. Oehme, I mean with regard to that, is that part of the application you have to consider that? Terry Jeffery: It is not part of the wetland. It is not part of the application to consider what in fact are design issues. So we don’t, as the LGU I don’t look at it and say well I disagree with your design Carver County. You should do this instead and therefore there should be more, more impacts. I look at what was presented to me. Does it meet those requirements? I think Mr. Oehme could speak better to the actual design of the culvert underneath though and the process that was gone through to get to that point. Mayor Furlong: And does the Wetland Alteration Permit that’s before us this evening, does that address questions of easements or slope and runoff? Terry Jeffery: It does not. Mayor Furlong: Okay, it’s strictly relating to what? To. Terry Jeffery: Are the wetland impacts that are proposed necessary to complete the project as designed, and the intended purpose of that project, and any avoidable, unavoidable impacts, are they being replaced in kind? Mayor Furlong: And with regard to those issues, it’s your opinion that this application does meet those objectives and those requirements? Terry Jeffery: That is correct. Mayor Furlong: Okay. Thank you. Mr. Anderson, anything else? Mark Anderson: I think the only point left in the discussion is whether or not it fully addresses all of the impacts. We realize that there will be equipment running to develop the toe of slope. They’ll be running outside of the proposed impact area. I believe they would also impact the wetland areas beyond what’s proposed so I think there’s some disagreement in that matter as to how much construction activity will impact what’s being permitted or might the impacts extend beyond. We believe they will extend beyond. Mayor Furlong: Mr. Jeffery. Terry Jeffery: Mr. Mayor, through the process one of the, one of the requirements of the contractor and the project proposer is an Affidavit of, it’s, I forget the name of the form that BWSR uses but in essence it’s saying that we are response, we understand that there are additional wetlands in this area. We are not to stockpile material in those areas. We are not to use those areas to stage this project. If there are temporary impacts that result as, because of construction. If it’s deemed for instance at a pre-construction meeting that look, we won’t be able to construct this embankment without working, without staging from that wetland area, then at that time we could look at a temporary impact and allowing that temporary impact knowing that it’s going to be self mitigated on site. However, we’re looking at a plan. The plan shows that the grading limits will be to that point and that’s what, that’s what we go by. Is the proposed grading limits. Mayor Furlong: Okay. Mark Anderson: Maybe if I could just one last question. If it’s determined that different design method is required to convey the water that might have additional impacts, can this application be amended versus submitting a new one? 17 Chanhassen City Council – March 24, 2014 Terry Jeffery: Mr. Mayor, the Wetland Conservation Act does speak to that. I apologize I don’t have the exact figures. There is some percentage of which if the replacement or the impact doesn’t increase by X amount, then you can just issue an addendum to an existing application. So my short answer would be yes with conditions. There may be some, you know if we’re only looking at a thousand or a few thousand square feet then yes we can amend it. Mayor Furlong: Based upon some circumstances it can be. Terry Jeffery: Correct. Mayor Furlong: In others it would not be able to be, is that a fair assumption? Terry Jeffery: Correct. That is correct. Mayor Furlong: Okay. Terry Jeffery: So it. Mayor Furlong: Is the County aware Mr. Anderson of your concerns? You say you sent them a letter. Mark Anderson: Yes, and we’ve been communicating with them and as of last Friday they had indicated that they would talk to BWSR about the additional impacts. BWSR being the Board of Water and Soil Resources. Mayor Furlong: Okay. And with regard to the construction concerns and the limits of construction, are they at all concerned about going outside of the limits that are included in the plan? Mark Anderson: They recognize that the conveyance of this water hasn’t been fully addressed yet and we need to resolve it. Whether that means a different construction method or pipe or something like that, that yet is to be determined and that’s what we were hoping we could do is work with them to determine that and then just have this application finalized in addressing all potential impacts instead of you know coming back and amending it later or applying for a new one. It’s just more process and paper and time when obviously we’ve got a construction project that wants to get moving forward as the weather permits. Terry Jeffery: Mr. Mayor if I may speak quickly to that. Mayor Furlong: Mr. Jeffery. Terry Jeffery: If in fact what is determined is that they want to run a pipe conveyance down, then we would need to look at treatment for that because we can’t have a new pipe discharge. That being said, if what it is, is that they need to re-grade that area to insure that there is proper conveyance, that there is positive drainage towards Bluff Creek, the Wetland Conservation Act allows for excavation within a Type 1, 2, and 6. 1, 2, 3 and 6 wetland which this would fall under. So it would not be considered an impact that would require mitigation if it was simply to grade down a few inches to a foot to correct the drainage pattern. Mayor Furlong: Okay. Alright. And so based upon the information and the issue before the council this evening, Mr. Jeffery is there anything that you’ve heard tonight or earlier tonight that would suggest that we do not have enough information or that within our purview to go forward? 18 Chanhassen City Council – March 24, 2014 Terry Jeffery: No Mr. Mayor I do not. I think we have enough to go forward with this application and replacement plan as submitted. Mayor Furlong: Okay, thank you. Thank you Mr. Anderson. Mark Anderson: Thank you. Mayor Furlong: Any other questions? Councilwoman Tjornhom, did you have a question? Councilwoman Tjornhom: I don’t know if I do or not. Well it’s, this may be a silly question. Something struck me that part of, part of your concern was the fact that there was public water that was being directed on private or someone else’s land without an easement. Mark Anderson: That is correct. Councilwoman Tjornhom: Is that what I’m hearing correctly? Mark Anderson: Yeah. Councilwoman Tjornhom: I don’t know can staff kind of explain that to me? If that means water’s water. Is that not correct or can someone just clarify that for me as a point of interest for myself I guess. Mayor Furlong: Mr. Oehme. Paul Oehme: Sure. Mayor, City Council members. That’s correct. The County did take an easement over the pipe itself but did not take a drainage utility easement or right-of-way to convey water through the proposed drainage way. It’s my understanding that some of the water that the culvert discharged prior to the proposed, or the existing conveyance system, some of that water did go on private property as well too so I think the County’s aware of that issue. I think they’re talking about potentially needing additional easements in this area to convey that water so I think that’s still in negotiations with the property owner. Mayor Furlong: Okay. Is there a representative from the County here? Is there anything you’d like to add at this point? Bill Weckman: Sure. Mr. Mayor and council, Bill Weckman with Carver County Public Works. Yeah so we’ve been working on this project and we did have a meeting with Mr. Anderson and Mr. Dorsey, the property owner back in February where these concerns came out and I think it’s included in your packet as far as background information. Letter that Mr. Anderson had sent the County and our response to that letter. Yes there are some issues out there. If you look at the drawing there, we do have temporary easement to do the project. When this concern came out about the water going out and such, yes there was a recognition there may be a need to increase or maybe upgrade that to a permanent easement if in fact it is a drainage area and a permanent easement is needed as one solution to this. I know the property owner has a desire to have turn lanes and such there. I mean we have talked with the City as far as that possibility and the City is, I mean yes that’s a possibility but there’s a process to go through as far as review of the wetlands. Potential wetlands and impacts and such. Unfortunately this project is under th contract to be built. A starting date is supposed to be April 15. Everything is in line to get this project going so there’s a need for this permit so we can continue on with the project. We’ll certainly try to work with the property owner in resolution of this. These concerns but we also have to work with the City as a partner in this project and the City’s process to make this happen so. So I guess my request would be 19 Chanhassen City Council – March 24, 2014 approval of this permit which addresses the project which we are trying to complete and yeah, we will continue to work with the property owner to resolve these other issues. Mayor Furlong: Okay, thank you. Any questions for Mr. Weckman? Mr. McDonald. Councilman McDonald: Okay I’m a little confused by all this because you’ve brought up a couple of points. How can you go forward with a design where you’ve got water going and you don’t know where it’s going to go? You’re also, you’re going to impact private property and you’re telling me that yeah, we could mitigate that. We can do something else. Maybe we’ll go and get an easement at that point. Isn’t that like kind of closing the barn door after the cows have already left? A thorough design would have already accounted for all of this. What’s happened here is that we have a landowner that’s been rather slow as far as what he wants to do with the property so there’s issues of egress and those kind of things with the property and he’s slow doing it. By you putting the water there, now you’re driving where any turn lanes or egress is going to go without getting the proper easements to do that. I don’t understand how everybody can say the design is good to go when you admit you don’t know where this water’s going to go. It’s going to flow over private land. It will totally change the characteristics of this land at that point and no one has really accounted for any of that. That says your project’s not ready to go in my mind. Tell me where I’m wrong because something’s missing here. You can’t do part of a design and say you’re going to figure out the rest of it later and yet at the same time you’re going to impact private property. Explain it. Paul Oehme: Mayor, City Council members, Councilman McDonald. The current drainage pattern really isn’t changing from the existing conditions to the design conditions. There is an existing culvert there currently. That culvert’s not moving. The drainage flow is remaining the same from the south side of Lyman Boulevard, discharging onto the south side of Lyman then down to Bluff Creek. Bluff Creek so the pattern’s still the same. The location of where the drainage flows from the end of the culvert to the creek, that’s where it’s changed a little bit so in my judgment you know the drainage design more or less stays the same. It’s just that the water’s channelized in a different location than it currently is. And to Terry Jeffery’s point, you know that’s something that goes on with every project with looking at wetland impacts and how drainage patterns potentially will occur over time so those type of things can be looked at in the future but in terms of what’s before us tonight in terms of a, the wetland permit, I think from staff’s perspective that’s pretty much set. Councilman McDonald: But okay, you say there’s no change but yet you’re going from what, an 18 inch culvert to 24? Paul Oehme: Correct. Councilman McDonald: So the water flow is going to increase. That’s going to change the way the water moves. Paul Oehme: No, not necessarily. The drainage pattern, the drainage area is more or less staying the same. There is about 7 acres of drainage to the north side of Lyman that’s still going to flow through the culvert. Actually there potentially will be less drainage onto private property or to this area based upon because it’s going from a rural section roadway where the water can flow, sheet drain off the road to an urbanized section where there’s actually going to be storm sewer catching the water before it ends up on private property so potentially there’s going to be less water going in this direction. That existing culvert, that 18 inch culver that Mr. Anderson had talked about, that existing culvert is going to be replaced with 24 inch. That culvert was installed back in I think in the early 80’s replacing another culvert that was there prior. Drainage designs change over time so based upon a 1980 design versus what a 2014 design is. It’s a little bit different design than it was back then so. The pattern’s going to stay the same. The 20 Chanhassen City Council – March 24, 2014 flow of water through that culvert is more or less going to stay the same. The only thing that really changes is the direction of the water. Where the water is going to be going after it leaves the culvert on the south side of Lyman. Councilman McDonald: Okay, if I could get Mr. Anderson back up here. I’ve got a question for you too. Okay you heard what the City and the County have said about all this, what is your proposing? What is the problem then with this culvert going through the way it is? It’s following an existing drainage patterns. What would you look at for a design change? Have you proposed anything? I mean what’s wrong with that design the way it currently is? Mark Anderson: Certainly. So you know one of the primary, one of them is they’re pushing the water 40 feet further into our client’s property so it used to be conveyed further to the north with a narrower roadway and a narrower slope that projected into our client’s property so now it’s all getting pushed further back south onto his property. The toe of slope is being extended and no easement so they’re more or less just taking this land away from our client. Conveying a bigger pipe. You know even if design standards have changed, I believe this pipe will convey more water than it used to in larger events and so maybe they’re designing it for a larger event. Well that will allow more water to come through and so what we’d like to see ultimately is no impact to our client’s property. No negative impact and that would happen by conveying the water downstream where they actually have a ditch. An adjacent property, you can look at the cross sections for the road design. They have a ditch to convey that water. They don’t have any ditch here. It’s just going to spill out onto the landowner’s property and poor, and drain at a very poor fashion to the west and likely flood it and expand, expand you know the wet areas so the water needs to at least get conveyed to the west without negatively impacting this. That could either be done by conveying it on the north side of the road or they can continue this pipe to the west where there is a ditch being proposed. Councilman McDonald: So are you saying in effect what you’re afraid of is that we’re going to end up with a Defacto drainage pond on your client’s property before it all drains down the ditch to Bluff Creek? Mark Anderson: That is correct because now the toe of slope for the new roadway is anywhere from a half a foot to a foot higher than the old roadway. Plus we’ve got a 24 inch. Plus it’s coming 40 feet into the property and that’s where we’re here tonight because we believe there will be further wetland impacts to address this properly once they have a plan that’s complete and doesn’t have a negative impact on PPB Holding’s property. Councilman McDonald: And when you say have a plan complete, who’s they? You or the County? Mark Anderson: The County. It’s their design project. We just need to see them revise it so that it doesn’t impact our client’s property. It’s their. Councilman McDonald: Well what the County says to us is that it’s fine the way it is and we ought to go ahead and approve it. They don’t seem to share your concerns. Why is that? Mark Anderson: Well I think they, Mr. Weckman recognized, I think you said they recognized there were some issues. They just haven’t addressed them yet. I think any one of us as property owners would object to water and a pipe being pushed 40 feet onto our property with no solution on how to handle that water. It’s not just a little bit of water. It’s a 24 inch pipe and so it’s a pretty substantial impact which you know based on our conversations, you know they’re working with us but really not seeing any action and this is you know, this is one avenue that they need to address is the wetland permit tonight. The other is how do they resolve the drainage concern and if they just keep forging ahead and they say they’ve got a th contractor underway. They want to start April 15. Well when are they going to solve it or are they just 21 Chanhassen City Council – March 24, 2014 going to build what they’ve got and push the landowner aside and say well, you know you need to go hire an attorney and deal with this and just put more burden on him or can we stop. Take a look at this. Resolve it and then approve what’s right for the project and what’s right for this permit application. Councilwoman Tjornhom: Mr. Mayor? Mayor Furlong: Councilwoman Tjornhom. Councilwoman Tjornhom: Question I have is you I think just stated that this is a County project. Have you been to the County yet and addressed your concerns and addressed the County Board about this? Mark Anderson: We did talk to the County Public Works Department. Mr. Bill Weckman and Lyndon Robjent. As well we sent them a letter and our client has communicated with them. The plan has not changed. So a lot of time and effort has been spent with no resolution yet to date. Councilman McDonald: And okay if I could, let me ask you a question about what he says if all the water drains the way it is, are we going to create kind of a retention pond there? All the water will go there and pool there until it drains down or does it go into an existing ditch and it drains there and there’s no impact on all that land? Either one, Mr. Oehme or. Terry Jeffery: Mayor, Councilman McDonald. Positive drainage is still to the west on this project. So the water would continue to drain westerly through that area. Councilman McDonald: I agree with that. The question is before it drains to the west is it going to pool because now we’re dumping all that water directly into that swale that’s in there and then it will reach a certain height and then at that point it will continue down or is there accommodation so that now we don’t take all of that land back in there to form a retainage pond? Terry Jeffery: I haven’t seen the model yet as to how high that area will bounce. I can’t speak exactly to that. However the drainage patterns not changing the volume, not changing, I don’t anticipate that it would behave hydrologically different from what we are seeing currently. Although it would be further south on the property that that channelization occurred. That the outflow occurs. Councilman McDonald: Okay, and if there were a problem, since we didn’t, that land’s not part of any easement, are we looking at an additional design at some point to bend the water around so that it now follows the path you want it to? Is that a possible future possibility? Terry Jeffery: Yes it is definitely possible that the ultimate design changes such that they design a deliberate conveyance from that area, whether it be over land flow or through a ditch or piped out or saying well let’s make this then be the stormwater treatment area for a larger, for the remaining property but yes, there is certainly a number of scenarios I could see under which they might possibly change that. Councilman McDonald: But then what you seem to be telling me is that we wouldn’t know that until we build it and we try it out for a while and we see what the natural course of things are. Is that what I, because you wouldn’t change the design within the next 6 months? Terry Jeffery: That is correct. To an extent. We do have, I would assume SRF has modeling data that we could review to see what we are anticipating for a bounce in that area which would be very, a very good indicator of what we would expect to see for the hydraulics in that area. 22 Chanhassen City Council – March 24, 2014 Mayor Furlong: Is that applicable to the wetland alteration permit that’s before us this evening? Is that part of that process? Terry Jeffery: Again no because it is not, we are not designing for the County. We are weighing in on what was presented to us to accomplish the project which is to build the road. If their discussion with a private property owner leads to design changes or procurement of additional easement to accommodate additional flow, that could be addressed at that time under a permit but what has been presented to us is, have they minimized the impacts to the greatest extent possible? Take another scenario. It is not uncommon to say okay, well you can’t minimize the slopes any more than 3 to 1 but what we could do is go 3 to 1 to some point and then put in a retaining wall on top of it thereby making the flow stay within the right-of-way. And minimizing impacts even further. I mean it’s a double edged sword. It could go, there are a number of ways that this could be addressed and I don’t, one of those might result in less impacts to the wetland. Todd Gerhardt: Mayor, council. Mayor Furlong: Mr. Gerhardt. Todd Gerhardt: Just add a couple of things here. I think we’re, it’s obvious you know you can not push water onto private property and I think the County and the property owner and his representatives are having discussions regarding that. And what Terry is saying, that should have nothing to do with the item before you. It’s more of a road design element that should have been handled as a part of the road design and what should have been a permanent easement versus a temporary construction easement and those discussions are going on. And if there isn’t some type of conclusion to those discussions, unfortunately the property owner does have legal rights to come back against probably the County and the City in this matter and, but I believe that the County and the applicant will come to some type of conclusion on this and probably expanding that permanent easement boundary. I can’t sit here and say it’s going to happen but they’re having discussions and, but it doesn’t have anything to do with the wetland alteration. Councilman McDonald: Yes but if I could, I mean it would seem then that that needs to be tied up before you start letting anyone get in there and do any kind of construction because what you’re telling me is that down the road all this could change. And what I mean by that is what Terry’s talking about. If okay you can’t push the water onto private land. Something’s got to be done at that point. Either an accommodation has to be reached or you’ve got to redesign the way that, you know that pipe’s coming out there and dumping water. As to where the water goes. Todd Gerhardt: But this application took into account the calculation of the amount of water coming and the impacts onto the existing wetlands and they’ve endorsed that the measures being used are appropriate. Councilman Laufenburger: Who’s they? Todd Gerhardt: The engineer, SRF. The consulting engineer on the project and how they designed it. BWSR has confirmed how they designed it worked. BWSR didn’t come in and say you can’t push water on private property. That wasn’t you know their job to tell them how to design the project. It was just the impacts onto the wetland is what BWSR was asked to review and how they’re going to mitigate and impact those wetlands. Mayor Furlong: Mr. Oehme. Paul Oehme: So Mayor, City Council members. The County is acquiring temporary easements for installation of the culvert and then grading in this area as well and that includes the area that we’re talking 23 Chanhassen City Council – March 24, 2014 about for the wetland impacts. So we’re not, the County’s not planning on grading or going on private property on this project at all. There is a temporary easement out there during the construction process. We do have time when the, right now for negotiations that the County’s already started for acquiring those additional potentially drainage easements. Turning those temporary easements into permanent easements in the future so we’re not theoretically impacting private property right now because the County is acquiring those easements necessary to construct this project. Mark Anderson: So I think the concern is, you’re asked to approve a permit application tonight for a project that’s incomplete and because the project is incomplete in addressing this item, as well a permit application tonight is incomplete. It hasn’t been fully resolved and you know the owner has to bring me to this meeting tonight and work with the County and all these sorts of things when the County should be doing this right in the first place so I would force their hand. Get them to resolve this. Then once they have the full resolution that doesn’t negatively impact our client’s property, then come back with a full permit application and then you can approve it. Mayor Furlong: And Mr. Anderson thank you for your comments but if I understand correctly, and Mr. Jeffery, Mr. Oehme, the issues you’ve raised about the easements. The ditch slope. The construction process are not necessarily pertinent to the wetland permit. Is that correct? The permit that is before us this evening is addressing issues of. Mark Anderson: Of the road. Mayor Furlong: Effects to the, based upon the design of the effects to the wetlands. Mark Anderson: Yeah it addresses an incomplete design and a complete design will likely change this permit. Mayor Furlong: Okay. Mr. Jeffery, any final comment? Terry Jeffery: No, I think that’s fine. Mayor Furlong: Thank you Mr. Anderson. Mark Anderson: Thank you. Mayor Furlong: Any comments from, comments? Thoughts by the council. Councilman Laufenburger: I do. Mayor Furlong: Mr. Laufenburger. Councilman Laufenburger: Mister, thank you Mr. Anderson for your comments and your description. I think these are simple questions but I need to ask them. Could you explain the term mitigation and it’s use here, and I’m quoting from the staff report. These impacts will be mitigated for by wetland credits. Can you explain that Mr. Jeffery please? Terry Jeffery: Mr. Mayor, Councilman Laufenburger, yes. Under the Wetland Conservation Act, if an impact is deemed unavoidable in order to accomplish the goals. If you’ve looked at all other alternatives and. Councilman Laufenburger: And in this case to accomplish the goal is build a roadway. 24 Chanhassen City Council – March 24, 2014 Terry Jeffery: To build a road to the safety design standards that have been put forward. Councilman Laufenburger: Okay. Terry Jeffery: The alternative to look at would be another alignment entirely. Councilman Laufenburger: Okay. Terry Jeffery: And clearly that’s not an option. If there are impacts that are deemed unavoidable then they must have their functions and values replaced. And to replace those you can either replace in kind on site, and that’s typically done with a larger block parcel. Councilman Laufenburger: Okay. Terry Jeffery: But when you have linear parcels you’re very limited in where that can occur so then you look to establish wetland banks. And the way that this is set up, the Board of Water and Soil Resources has two banks that they manage, or two bank programs that they manage. One is the road replacement program and that is for any improvement that is deemed germane to the safety improvements themselves. That are intrinsic in order to improve the level of service of that road and improve long term safety. They will replace from their program so the applicant does not need to replace. Whether it be the City, the County, the State or the Federal agencies. Any impacts that are not deemed germane to that safety, and that typically tends to be stormwater ponds, pedestrian trails, those types of pertinent items to the project can be replaced by purchasing credit from a private held bank. So I would own a bank. You would come to me and you would purchase those credits that would be applied to the mitigation for the impacts that you couldn’t avoid and all of this is done as long as the credits are established prior to the impacts being, taking place it has to happen at 2 units to 1 unit ratio. So for every acre of impact, 2 acres of mitigation must occur. Councilman Laufenburger: So this project, 2 acres of wetland will be impacted. Terry Jeffery: Correct. Councilman Laufenburger: And that is, that is 2 acres of wetland on the south side of Lyman. Is that correct? Terry Jeffery: That is actually 2 actually 2 acres of wetland throughout the entire corridor of this phase of the project. Councilman Laufenburger: Do you know how much of this is on the south side of Lyman on PPB property? Terry Jeffery: I’m looking for it right now. So Wetland 1A will be impacted in it’s entirety. That is the pond that is closest to the, actually can you put that onto, just that slide right there will work. 1A is if you look at where Sunset Trail. Yep, that’s 1A and 1B are right there. Councilman Laufenburger: Okay. Terry Jeffery: So those impacts combined. Councilman Laufenburger: Go past that. Go down on the left side of the. 25 Chanhassen City Council – March 24, 2014 Terry Jeffery: So now we’re at Wetland 2. Impacts total to Wetland 2 are 1.42 acres. Councilman Laufenburger: Okay, 1.42 acres then. I think that’s, if I’m not mistaken it’s that area where the culvert is okay? Terry Jeffery: Yep. Councilman Laufenburger: So 1.4. So that means the agency, the County who is building this road, they will have to buy 2.84 acres of wetland credits in order to offset the impact that they have on 1.42. Am I say that right? Terry Jeffery: That is correct. Councilman Laufenburger: Okay. Alright. That answers that question. So in other words the credits means we’re giving permission to alter this wetland in exchange for 2.8 acres of not altering somewhere else. Terry Jeffery: Yes. Councilman Laufenburger: Okay. So some other property owner or some other wetland is not going to be impacted whereas 1.42 acres will be impacted. Okay. Let’s talk about this culvert. You said there’s an 18 inch culvert right now, is that correct Mr. Oehme? Paul Oehme: That’s correct. Councilman Laufenburger: Is that culvert fully functional right now? Paul Oehme: I have not inspected it but I believe it would be. Councilman Laufenburger: Okay. I’ve seen this land on the north side and I’ve seen water accumulate there so that suggests to me that at, for various reasons it’s possible water’s not running through that culvert and in fact it goes over those driveways and continues in a westerly movement. Have you observed that Mr. Jeffery at all? How about you Mr. Weckman, have you observed that at all? Bill Weckman: No. Councilman Laufenburger: No. Terry Jeffery: I have not observed that although I do know that one property to the west had issues with their culvert and the conveyance through that but whether that is from this watershed I do not know. Councilman Laufenburger: Is there a culvert underneath those two driveways? Paul Oehme: Councilman Laufenburger there is a culvert at this location. Councilman Laufenburger: Okay. Paul Oehme: That was replaced by the City, I don’t know 3-4 years ago maybe. 26 Chanhassen City Council – March 24, 2014 Councilman Laufenburger: Okay, okay, okay. But the culvert, if you can just with your arrow, the culvert we’re talking about here is going from there to there and right now it’s 18 inches and you’re making it, and the County’s going to make it 24. Paul Oehme: Correct. Councilman Laufenburger: Why the increase in size? Paul Oehme: Again the County engineers did the analysis and the design for that culvert and they believe a 24 inch culvert is necessary for today’s standards. Councilman Laufenburger: Oh for today’s standards. Not necessarily because there’s going to be 33% more water going through. Paul Oehme: No. I mean again the watershed, the area that potentially would flow through this culvert is theoretically not going to change under this design. Councilman Laufenburger: And in fact your argument about the road directing the surface water of the road is going to go to storm sewer, right? Paul Oehme: Correct. The road is going from a 2 lane rural section roadway which is I don’t know 30 feet wide. Now it’s going to be significant wider. 4 lanes with a median inbetween so the surface area that used to drain to this culvert is going to go down some. Councilman Laufenburger: Okay. That’s logical to me. That you build a road that directs the water from the roadway rather than it just going off the side, now it’s being directed. I can see that that would be less water. Let’s see. This is a wetland alteration permit. Why are we seeing this right now? I mean we’ve seen a lot of approvals on this project over the last 2 years. Why are seeing this wetland alteration permit right now? Mr. Jeffery. Terry Jeffery: Mr. Mayor, Councilman Laufenburger. There is a very long history with this parcel dating back to 2007. Councilman Laufenburger: Who is this parcel? The PPB parcel? Terry Jeffery: The PPB parcel, yes. Councilman Laufenburger: Okay. Terry Jeffery: There have been no fewer than 3 delineations done on this property. There was a completed application that was submitted. I don’t have the. Councilman Laufenburger: By the County? Terry Jeffery: By the County and at that time, due to questions about access onto the PPB Holding’s property it was asked to remove that application so it did not go forward. That was in, that was in March of 2013 this was originally going to come, yeah. There’s the history of this area here. Not to go through it in great detail but each color grouping is a different phase. Whether it be the delineation. The green is the original when the entire corridor was delineated. 2012 they came back with a replacement plan application. March it was decided we should probably, March of 2013 we should probably pull this back. DNR decided, they went through the DNR culvert application on their own because they realized that this 27 Chanhassen City Council – March 24, 2014 was kind of getting, let’s get this one moving forward so the culvert was approved in one month in October, August, September, October of ’13. SRF delineated the property separately on the Dorsey property. Huston Engineering then came in and did some more delineation. Councilman Laufenburger: Okay. I think you’ve answered my question. Does Chanhassen have the authority to approve a wetland alteration permit? Before you answer that, who owns the wetlands in the State of Minnesota? Terry Jeffery: They are considered waters of the State. Councilman Laufenburger: Of the State. Terry Jeffery: Not like a public water inventory like a lake would be. Under the Clean Water Act or the PCA’s permit for the Clean Water Act they are considered waters of the State but, but the land that the wetland is on is owned by that landowner. That fee title so I cannot come onto it and utilize like I could a lake. I couldn’t come onto it. Councilman Laufenburger: But the use of that and the modification of that is subject to guidelines by the DNR, am I saying that correctly? Terry Jeffery: Yes. The State through various agencies have determined that they are important enough to project. Councilman Laufenburger: Okay. So not only is, the homeowner can’t, or the landowner can’t just be willy nilly they can’t do anything? If there is wetland there, the DNR oversees what can be done with that? Terry Jeffery: The DNR or other agencies. Councilman Laufenburger: Or other agencies. And Chanhassen is one of those agencies, right? Terry Jeffery: Correct. Councilman Laufenburger: Okay, so this wetland alteration permit applies only during construction? The 1.42 acres of wetland. Terry Jeffery: They are allowed to permanently fill 1.42 acres of wetland in that area for the completion of this project provided that they mitigate that at a 2 to 1 ratio elsewhere. Councilman Laufenburger: Okay. And once that’s, once that 1.42 acres has been altered as necessary to complete the project, will it be returned to it’s original state or not? Terry Jeffery: No. No. Councilman Laufenburger: So this permit says you don’t have to return it to it’s original state. You have permission to modify that 1.42 acres for purposes of building this road. Terry Jeffery: Correct. Councilman Laufenburger: Okay. We’re getting somewhere here Terry, thanks. Why 40 feet into the property? 28 Chanhassen City Council – March 24, 2014 Terry Jeffery: In order to meet safety design standards, and please step in if I’m wrong, they need to have a minimum side slope of 3 to 1. Councilman Laufenburger: So this is related to the corridor. The road corridor, is that right Mr. Oehme? Terry Jeffery: Correct. Paul Oehme: Correct. Councilman Laufenburger: Okay, so 40 feet. So is it, is it 40, 40 additional feet onto the property or is it, is it 12 additional feet onto the property as opposed to, Mr. Weckman do you know? Todd Gerhardt: Bring up the plan that shows the culvert. I think you bought some additional right-of- way… Paul Oehme: Well here’s a. Mark Anderson: Yeah this plan is one representation of the additional land area that is projecting into the PPB Holding property. Councilman Laufenburger: Mr. Anderson do you know with certainty how long the current 18 inch pipe goes into the property? Mark Anderson: I believe it’s within the right-of-way at this time. Rick Dorsey: No it isn’t. Mark Anderson: It’s not. Okay. Rick Dorsey: I currently have about 90 feet… Councilman Laufenburger: I really need to have him answer that at the. Rick Dorsey: Mayor, council, my name is Rick Dorsey. The pipe, this road has since I’ve owned the property in 1979, it started out about 25 foot wide dirt road and it had a 15 inch culvert originally and about 25 feet long. In 1981 the road was widened. A big embankment was put on my property and that pipe extended then to 90 feet in length. Most of it on my property. There’s been no real additional land purchased on the north side of the road so that hasn’t changed and it’s going from 90 feet to 130 feet. Current plan so it’s coming another 40 feet in. Now again. Councilman Laufenburger: So let me just make sure. My question was, how much more does the pipe protrude onto your property than it did before and you’re saying it’s almost 40 feet. Rick Dorsey: Correct and prior to that the end of it was not on county property either. They put it in unbeknown to me when it was being constructed in 1979, or 1980. The road easement was coming in I believe about 40 feet from the center of the road and that pipe came in approximately another 20 feet beyond the right-of-way at that point in time. Councilman Laufenburger: Okay. Thank you Mr. Dorsey. 29 Chanhassen City Council – March 24, 2014 Rick Dorsey: Yep. Councilman Laufenburger: I just have one last question and I think it may be, I’m not sure who this goes to but, was there right, was there additional right-of-way purchased for the, in order to build the road? Mr. Oehme, do you know? Was there additional right-of-way purchased from PPB Holding in order to build? Bill Weckman: Or easements. Councilman Laufenburger: Or easements, yeah. Paul Oehme: Or easements. There, I believe there are and do you have that drawing? Mayor Furlong: So it’s in the process? Is it in process of condemnation? Paul Oehme: It’s in, it’s going through the right-of-way acquisition process right now. There is in place or proposed right-of-way that’s going to be acquired plus the temporary easement that we had talked about as well so there is both. Councilman Laufenburger: I don’t need to know the exact amount but my assumption is that if the County needs more land in order to build this road they will buy that in the form of, either buying the land or buying the easement for that land from PPB Holding, is that correct Mr. Oehme? Paul Oehme: That’s correct. Councilman Laufenburger: Okay. Alright. Thank you Mr. Mayor. That’s all I had. Mayor Furlong: Thank you. Any other questions? Mr. Jeffery or Mr. Oehme, the wetland, the 1.42 acre portion of the wetlands, is that the entire wetland at that location or is the wetland actually larger and they’re just mitigating or dealing with 1.42 acres? Terry Jeffery: Mr. Mayor, the wetland is actually larger and they’re just mitigating or impacting the 1.42 acres. Mayor Furlong: So with regard to, so what’s before us tonight is that, impact on a portion of the wetland in that location and that’s being mitigated and so the question is, is it being mitigated? Terry Jeffery: That is correct. Mark Anderson: There haven’t been any improved wetlands on the PPB Holding property at this time so it’s unknown. Mayor Furlong: Okay. Thank you Mr. Anderson. Directing the question to staff. Terry Jeffery: There is no legally approved wetland boundary extending beyond the approved right, or the proposed right-of-way. Mayor Furlong: And when… Terry Jeffery: And in my professional opinion having done this since 2004 or since 1994 there is additional wetland that extends beyond. 30 Chanhassen City Council – March 24, 2014 Mayor Furlong: And when would that wetland be delineated and. Terry Jeffery: If in the future the, Mr. Mayor if in the future the property owner of that land chose to delineate it for a project. Mayor Furlong: For a development project? Terry Jeffery: For development project for instance, they would be delineated at that time. Mayor Furlong: Okay, thank you. Councilman Laufenburger: Just a follow up Mr. Mayor? Mayor Furlong: Yep. Councilman Laufenburger: Did I hear you correctly Terry? You said that there is no approved wetland in this area on the PPB? Terry Jeffery: Beyond. Councilman Laufenburger: Beyond the 1.42. Mayor Furlong: No. Terry Jeffery: Mr. Mayor, Councilman Laufenburger the, can you bring up my slide again? Mayor Furlong: Is the 1.42, that’s within the construction limits? Terry Jeffery: Yep. Yeah, bring up that one right there. Yep. So the red that is shown on there. Councilman Laufenburger: That’s the one. Terry Jeffery: Is the limits that were looked at. The yellow that is shown are the delineated boundaries that were approved as part of this process through the final Houston Engineering delineation. Oh, they are not impacting in it’s entirety. Mayor Furlong: So does the wetland, that yellow line through there, that’s the edge of the wetland based on the delineation of the permit process? Is that what I heard you say? Terry Jeffery: Correct. Mayor Furlong: And does the wetland extend to the south or to the north of that yellow line? Terry Jeffery: It extends south of that yellow line. Mayor Furlong: Okay. And so the 1.42 acres is the distance between the yellow line south to the red line? Or wherever there’s wetland within that, within the red line area. 31 Chanhassen City Council – March 24, 2014 Terry Jeffery: It is from the northern yellow line to that point at which, which is not shown on this. This just shows the delineation. South of that yellow line to a point where the limits of the grading for the toe of slope occur. In some places, it’s not that entire area that’s being shown. Mayor Furlong: Okay. Does the red line, what does the red represent? Terry Jeffery: Their scope. Their limit of review for doing the delineation. Mayor Furlong: And they being? Terry Jeffery: Houston Engineering. Mayor Furlong: Okay. Todd Gerhardt: And that would either be the permit or construction easement boundary. Terry Jeffery: Perhaps, yes. It should coincide with that. Clearly moving east though they’re not showing the full boundary but yes. It would coincide with the right-of-way. Todd Gerhardt: Yeah. Terry Jeffery: And the Notice of Decision for the wetland delineation specifically states this applies only to that portion which is within the proposed right-of-way for Lyman Boulevard. So the delineation itself was approved. Mayor Furlong: Okay. Alright. Thank you. Any other questions? No? Thoughts or comments by council? Councilman McDonald: Yeah I’ve got a couple comments. Okay I’ve listened to all of this and I guess where I’m having a problem with it is that, again as I said who’s going to drive development on this site and it really didn’t make any difference. If the County’s got a better idea then that’s fine but my problem is they should pay for that. It bothers me that you haven’t finalized easements, right-of-way’s, how much property is going to be taken. You’ve got a landowner that’s coming before the City as this is kind of his last gasp to get the County to negotiate because once we approve this and you start construction, you put the landowner at a difficult position. Or you force the landowner’s hands and now we’re in a lawsuit and this road doesn’t get built for a couple years and that wouldn’t be good for anyone. I’m in favor of tabling this and forcing resolution at the county level to get these issues resolved while there is still some leverage at this point to get a fair market price for the landowner. Or they get a fair assessment you know as to what’s happening to the property. I hear what Terry says and then at the same time you tell me but it could impact it and it could do this. There’s too many if’s. There’s no certainty. You can’t build anything without certainty. I mean I’m an engineer. You can’t do that or else you’re asking for trouble. I’m also the lawyer in all of this. You’re also asking for trouble. It bothers me that you have not brought a completed package before us so I’m in favor of delaying it. I can’t vote for the delineation at this point. Mayor Furlong: Alright, thank you. Other thoughts. Comments. Councilwoman Ernst. Councilwoman Ernst: Yeah, I’m in agreement with Councilman McDonald. You know we’re asking to approve a project that really doesn’t convey the entire design of the project, in particular where the water will ultimately end up or the conveyance of the water and based on all the gray areas and the predictions that seem like well, we’ll wait and see. Then we might do something about it. I’m just not comfortable approving this at this time. Once we know what it really looks like then we can take another look at it. 32 Chanhassen City Council – March 24, 2014 Mayor Furlong: Mr. Gerhardt. Todd Gerhardt: Mayor, council. We have to go back and look at the issue before you today. We already awarded contract on this project. We’ve enter into a contract with a builder and any delays may come back as damages to the City in this project and so it’d be my recommendation that you approved the wetland alteration permit before you and have staff direct a letter to the County to work with the property owner and have this resolved within 60 days. If not bring it back to council and you know, to see why we haven’t got some type of conclusion within 60 days. Mayor Furlong: You say we’ve awarded contract. Haven’t we also approved the plans? Todd Gerhardt: Yes. Mayor Furlong: I mean the plans for this project were approved by both the County and the council. Todd Gerhardt: Correct. Mayor Furlong: Previously so I think, Councilwoman Tjornhom. Councilwoman Tjornhom: Mr. Mayor, and forgive me I’ve been listening to this quietly trying to soak it all in. I’m still confused about why there’s a project that we’re supposed to approve or not approve and it’s still not coherent or conclusive that it’s complete or not complete and what role I guess the City has in this project versus the County and why it would come to us if there’s still outstanding questions. I don’t have a problem with the project. I just want to make sure that we are acting within our rights as a city and you know and like I said why this is even coming to us like this so if someone could just explain that to me. Mayor Furlong: Mr. Gerhardt. Todd Gerhardt: Mayor, council members. The property owner is at his wits end. He is asking you to help him in getting negotiations with the County underway and completed and this is his last straw to be in front of a board. And unfortunately it’s under the wetland alteration permit and it’s after we’ve already entered into a contract with a builder. You know I can feel for him but delaying this is not in the best interest of the City or the project. You know it would be my recommendation that staff be directed to work with Carver County Public Works in getting something resolved here regarding pushing water onto a private property. Councilwoman Tjornhom: And that was my question I think a half hour ago when you know we started really delving into this I said, you know is this a county issue? Has the applicant dealt with the County because this clearly is an applicant/County issue. Not a City/applicant issue. Todd Gerhardt: Well we’re kind of in this jointly with Carver County. Councilwoman Tjornhom: Right. I understand that we’re all married into it somehow. Todd Gerhardt: Yeah. Councilwoman Tjornhom: But at the same time like I said, I just don’t understand. I don’t want to be played in that role as being you know part of that piece of the puzzle that either delays a project for 33 Chanhassen City Council – March 24, 2014 whatever reason so I just want to make sure that tonight we do the best thing for the city of Chanhassen and our projects and our commitments that we’ve made so far. Todd Gerhardt: Well I don’t know if the property owner would you know support my recommendation to you or not you know where we would get involved and have the three parties sit down and get some conclusion to this within the next 60 days and if not bring it back to council and say we still haven’t resolved the issue and, and we can bring this issue back as many times as you want and try to get the issue resolved. Councilwoman Tjornhom: But it’s not our issue. I mean it is but it’s not. Mayor Furlong: Well I guess the question I have is with regard to the issue before us, which is the wetland alteration permit. Councilwoman Tjornhom: Right. Mayor Furlong: And does it meet the requirements of that? What I’ve heard tonight is it does based upon the design. The question, and you know these questions come up. Property owners have a right to question and continue to question and question and question if they want to, and there’s nothing that says either that they have to agree with the proposal from the County or the City at any point in time. Whether that’s 60 days or 6 days or 6 years. I mean but there’s a process there that’s available if there still is disagreement so the question I think before us tonight is does the wetland alteration permit meet the requirements of the State. The State statutes on all the issues and, and does it meet the requirements before us and if it does I think we should go forward with the approval. I certainly think the city staff and county and the property owner need to sit down and try to resolve some of these things, and if with that resolution there’s a change in design and that change in design requires an amendment to the wetland alteration permit, it will be back before us. But with regard to the design that’s been approved and that’s moving forward what I heard tonight is that this application meets all those requirements. Meets the State statues and any other guiding requirements and so I think you know, is the issue before us should it be approved? I think it should be. That doesn’t preclude us from directing staff to say, sit down with the County. Try to facilitate this. See if something can be worked out okay and going forward. Mr. McDonald. Councilman McDonald: If I could Mr. Mayor. First I’ve got a question for Mr. Gerhardt. Okay, it goes out 60 days. What’s our remedy at that point if we’ve already approved all of this and everything’s now going down a road, what difference does that make? Yeah you’re right you can bring it back to us forever and ever but how does that resolve the problem? Todd Gerhardt: Well what it does is it reserves a right to bring it back on an agenda item you know so there’s a message between you, the property owner, the County and the City saying in 60 days if we don’t have resolution or moving this item along that we bring it back and have to answer to you, Mayor and council why we didn’t get resolution to this item regarding putting public water on a private property. Councilman Laufenburger: Could we mitigate the matter by withdrawing the permit? Could we, could we withdraw our approval of a permit in 60 days? Todd Gerhardt: I don’t know if there’s an appeal process once you approve it. Terry Jeffery: This is one time I wish Roger were here. Mr. Mayor I cannot answer that question intelligently. 34 Chanhassen City Council – March 24, 2014 Councilman McDonald: Then Mr. Mayor if I could, a comment to what you brought up to us. I agree. Where I disagree is that when this project was brought before us I was under the impression it was complete. What I’m finding out tonight is, ah it wasn’t quite complete. Mayor Furlong: Well and what’s complete and what’s item of disagreement perhaps with the design. Councilman McDonald: Well yeah and you’ve got a major problem here that could impact a lot of things if they can’t reach resolution about where does this water go. I mean that’s a failure. Again that should have been disclosed where we could have asked a lot of questions a lot sooner in all this. You’re right about the wetlands permit and stuff, what does that have to do with anything? But as Mr. Gerhardt said, you know we’ve got a property owner within our city that is having a problem and he’s coming before the council and the only leverage that we’ve got, which is why I asked the question is, we don’t approve the permit and that forces people, okay you want to get this project done on time. You’d better solve the issue quick. That’s the only leverage we’ve got within the city and that’s why I’m concerned about okay, we push it out 60 days. Where’s our leverage? It’s yeah you’ve got to come in here and talk to us. Todd Gerhardt: Well I’m just telling your leverage is going to hurt the City in the pocketbook also. Councilman McDonald: Right and I understand that and that’s where I feel as though yeah, we’re between a rock and a hard place. Councilman Laufenburger: Explain, Mr. Gerhardt. Explain how does our leverage of 60 days, how does that hurt the City? You’re speaking with, with conviction and certainty and I’m wondering where that comes from. Todd Gerhardt: Any delay in the construction process, the contractor who we have awarded bid to can. Councilman Laufenburger: We did or the County has awarded? Todd Gerhardt: We did. Mayor Furlong: We concurred. Councilman Laufenburger: We concurred. Todd Gerhardt: Yeah. Councilman Laufenburger: The County awarded, we concurred. They’re using some of our money okay? Todd Gerhardt: Correct. And we gave our Municipal Consent for them to move ahead with the design and with that any delays would be damages back against the property which we would be subject to based on our road agreement and the percentages that we would contribute back to this project. th Councilman Laufenburger: But are they going to rip up this culvert on April 15? Todd Gerhardt: It may not just be the culvert. It may be just mobilization. You get into road restrictions and a variety of issues and. Councilman McDonald: Well okay let me ask this question, and again I wish Roger were here but so we go ahead and approve all this and if the landowner then proceeds to court and they get an injunction, are 35 Chanhassen City Council – March 24, 2014 we off the hook? I mean we’ve done everything, well hey he’s the one talking about you know we’re in a difficult position about penalties. What does the contract say about okay the landowner who has a recourse from a legal perspective, where’s the contract on that? Are we still in jeopardy even if we approve this tonight? Todd Gerhardt: Potentially. Councilman McDonald: Potentially. Rick Dorsey: Mayor could I come up one second? Mayor Furlong: For what purpose? Rick Dorsey: I’m not trying to stop this project, number one. I’ve been working. Mayor Furlong: Two minutes Rick please. Rick Dorsey: I’m not interested in stopping the project. I put that forth 2 weeks ago when we met in front of the Planning Commission. We asked to get the County to sit down and get this, a plan worked out. It hasn’t happened. We’ve had a little talk but it hasn’t happened. My biggest concern is dealing with the water. With respect to the wetland issue, and that’s really what we’re here for is dealing with the wetland issue. I have legal recourses if I need to take them I guess. I’d just as soon not do that but with respect to the wetland issue, the issue that’s before you is, is there more wetland that’s being impacted than what is being disclosed and you’re not going to see anybody come back and tell you more was impacted unless I do because you’re not going to go out and inspect it and you don’t know what’s there today and what’s been marked off. There will be more wetland impacted because they’ve only gone to the toe of the slope. That slope is 25 feet high at 3 to 1 slope. I believe it’s 3 to 1. There’s no way a tractor’s going to be able to do anything without going another 20-30 feet beyond that to back up and down the side of that hill. There’s well, there’s water that’s going to be brought in. It will not drain. It’s coming in my property basically flat. They say positive drainage. My neighbor to the west will have a ditch. I’ll have flat drainage. It’s going to sheet drain across until it gets to their ditch. It’s going to create more wetland perhaps. How do I deal with that because they’re not putting the ditch in that’s necessary to replace the ditch that’s there? Now the other thing is that they’re coming further into my property. Every time, this is the third time. Or third time this road’s been built. Two of them I’ve been a part of. The first time it was 25 feet wide. Mayor Furlong: You mentioned that earlier. Rick Dorsey: Okay, it’s now comes into my, it came in 40 feet. Now we’re into about 90 feet into my property and we’re pushing water in that used to come 20 feet or whatever into my property. Now we’re in 50-80 feet further. Every time it comes in further, and there’s no easements. There’s nothing there but I get the water. The size of the pipe, I’m sure the consultants are dealing with that because the anticipation is there’ll be growth on the north side of town. There’ll be more hard surface. Mayor Furlong: Okay. Rick Dorsey: So there are issues that are there. Mayor Furlong: Alright, thank you. 36 Chanhassen City Council – March 24, 2014 Rick Dorsey: I’m willing to take, I don’t want 60 days. I’m ready tomorrow. I’ll meet with somebody tomorrow. Let’s get it done. Let’s get it done. Mayor Furlong: Alright, thank you Mr. Dorsey. When is the construction due to start on this project based upon, Mr. Oehme do you know? Paul Oehme: Mayor I believe right after road restrictions so May timeframe. th Bill Weckman: The contract is April 15. th Mayor Furlong: April 15, alright. th Paul Oehme: April 15. th Mayor Furlong: Alright. Do we have a couple meeting between now and April 15? I think we have one th on the 13 don’t we? Todd Gerhardt: Yeah. th Mayor Furlong: Alright. Would it make sense to table this until the 13 to give the County and City time to sit down with the property owner and he’s just stated he’s willing to meet right away, tomorrow if necessary and maybe there can’t be a resolution but if not at least we’ve. I mean I believe based upon the issue at hand, I think this is being used for something which it’s not intended and I would be comfortable moving forward tonight approving this based upon the facts presented to us for this permit. I think this other issue is still going to be there. If a majority of the council wants to allow this to be used as a tool to delay then I would certainly support that we minimize that to our next meeting which would be I think our first meeting in April. But I would certainly pursue, or prefer to go forward this evening because I think the facts and circumstances justify us doing so. Mr. Laufenburger. Councilman Laufenburger: Yeah I just, and I don’t want to challenge your words Mayor but I am going to challenge just 3 words you used. Mayor Furlong: Okay. Councilman Laufenburger: Tool to delay. I don’t believe this is a tool to delay. This is a tool that the property owner would like to use as leverage to move quickly forward and this appears to be movement that he has not seen from the County to his, to his acceptance so I don’t think it’s a tool to delay. I think it’s a tool for action. Mr. Weckman I think you had a comment. Councilwoman Tjornhom: Yeah I guess. Mayor Furlong: Councilwoman Tjornhom. Councilwoman Tjornhom: I’m sorry. Mayor Furlong: Oh. Councilwoman Tjornhom: I’m sorry. No I didn’t mean to interrupt or anything. Mayor Furlong: Do you have a comment? 37 Chanhassen City Council – March 24, 2014 Councilwoman Tjornhom: I do. Talking about tools for delaying and the County, I mean the County is here. Why hasn’t this been resolved before tonight? Why do we have to be a tool to you know for Mr. Dorsey to come back and negotiate with you. Mayor Furlong: For whatever purpose. Councilwoman Tjornhom: Yeah. Bill Weckman: Okay Mr. Mayor and council. I believe this response letter is included in the packet or somewhere in there. It’s. Mayor Furlong: Do you know what page it’s on? Bill Weckman: When these concerns came up and Mr. Anderson sent a letter to the County and February ththth 24 we responded. February 25 but I mean there was work done before this February 25 response as far as trying to find the answers in order so we could respond. Regarding the 24 inch culvert and such, there is concern as far as redirecting that water whatever. What impact that may have to potential wetlands to the south. Well not being able to delineate those wetlands, you don’t know for sure what is there and what the potential is so. Mayor Furlong: And why weren’t those delineated then, if that would be necessary to respond? Todd Gerhardt: We didn’t have permission to go on the property. Bill Weckman: We didn’t have permission to go onto the property to delineate the wetlands. So we don’t know will diverting that water what the impacts may or may not be and there again we talked to the City about that and yes, that’s something that could be done but it’s a matter of sequencing and doing that. In doing that job. As far as addressing some of these other things we, Mr. Dorsey, well the property owner had an interest in us putting a right turn lane on and extending that slope and we asked the City is that a possibility but again yes, it’s a possibility but there’s a process that has to be gone through and that process has to be initiated by the property owner. So I don’t know, Mr. Dorsey is saying the County th hasn’t done anything. I think this letter of February 25 in essence puts it in Mr. Dorsey’s hand that if he wants something done on that property, to initiate it. Mayor Furlong: And that letter’s in the packet on page, or electronic packet on page 233. Bill Weckman: Yes. Yes it is. And so if Mr. Dorsey wants to come into the City and initiate this and work through the process, the County is willing to work with Mr. Dorsey and the City to address these concerns. The other process that is going on here is the right-of-way acquisition process and we’ve been going through that process and had an appraiser look at the plan and the impacts of the property and an appraisal was done as far as the impacts and an offer was made for the right-of-way. We haven’t resolved that. We are in negotiations. Because of the scheduling of the project, yes. There was condemnation that is filed. We do have the right to access the property through that process. In that process, if Mr. Dorsey is impacted, if it’s a negative impact here, a damage he has the right to compensation for that. That has yet to be determined. I mean if we cannot negotiate a settlement it will go through the Land Commissioners. As far as that process unfortunately we’ve been having a difficult time getting a third land commissioner. The land commissioners that we agree upon, when we try to get an appointment we find out they are not available or have a conflict of interest and cannot be a land commissioner for this particular project but, so that is another process that is going on. So if there are damages there and the property owner has legal rights to fair compensation for those damages and that will be determined 38 Chanhassen City Council – March 24, 2014 through the land commissioner process or appeals to that process if we cannot reach a negotiated settlement. Councilman McDonald: Well excuse me, something you said you need to clarify that. Have you started a condemnation action at this point? Bill Weckman: Yes. Councilman McDonald: Okay. Bill Weckman: Mr. Mayor, councilman, yes. The condemnation, I’m sorry I’m not prepared to answer as far as specific dates but it was a few months ago where the condemnation hearing was held. We have right to access this property or, and yes there is additional right-of-way being purchased. The permanent roadway right-of-way is a fee title. It is a property purchase. That flood line is a temporary easement. Around the culvert it’s a drainage easement. In our letter we do mention that yes, we do need to look at is there a need for some additional permanent drainage easement as compensation to the property owner due to the impacts of this project. Mayor Furlong: Any other questions? Councilwoman Ernst: Sure Mr. Mayor. Mayor Furlong: Thank you. Councilwoman Ernst. Councilwoman Ernst: So can you tell me if we go, if we do approve this and we say tonight okay County, City work with the resident or work with Mr. Dorsey and see if you can resolve this in the next 2 weeks, is that possible? Bill Weckman: Mr. Mayor and councilwoman, I guess from the responses I’ve been hearing to have it completely resolved, it doesn’t sound like it is possible because to go through some of these is a process and it needs to be looked at. Councilwoman Ernst: So do you have a timeline as to how quickly it could be resolved? Bill Weckman: I first as I see it the property owner has to make a proposal on what they want done here. So we can address that. Councilwoman Ernst: Have they not told you what needs to be done? Bill Weckman: They’ve not formally applied to the City or, I mean we can’t. Mayor Furlong: Are you referring to the road project or are you referring to development of his property? Bill Weckman: Work on his property and what would occur on his property. Todd Gerhardt: Yeah I think you know where we’re at is that Mr. Dorsey can go through the condemnation process. That is the set schedule. As soon as we can find that third commissioner that could hear each side’s story and make a determination on value. I think Mr. Weckman has said that there’s been a counter proposal to change the construction easement into a permanent easement. Is that, did I hear you correctly? 39 Chanhassen City Council – March 24, 2014 Bill Weckman: No there has not been a formal counter proposal. In our response to Mr. Dorsey we did indicate that. Todd Gerhardt: You would look at it. Bill Weckman: We would look at that as a possible resolution to his concerns as far as is water going over private property or whatever. To in fact put a permanent drainage easement on that area and compensate for that drainage easement. Todd Gerhardt: But at any time your right-of-way people would sit down with Mr. Dorsey if he would like to try to settle this but you have parameters of which you have to work within. Bill Weckman: Well right. I mean we have, we have our appraisal on what the values are and what the impacts are and we can work with that. The property owner has a right to have their appraiser and own appraisal done and which in fact the County would have to pay for. We haven’t seen that type of an appraisal. That’s one way to try to negotiate this way out and there again, if we can’t negotiate it, well then it’s go to the Land Commissioners and each side present their case and the Land Commissioners determine what’s fair compensation for damages or impacts we’re doing to the property. Councilwoman Ernst: It’s just hard for us, for me to approve this tonight when I don’t know it’s going to get done and when. That’s my concern. Mayor Furlong: Mr. Gerhardt. Todd Gerhardt: It’s going to get done. Councilwoman Ernst: But when? Todd Gerhardt: You know it’s sometime. It’s got to be done. As soon as you can find a third commissioner to hear it, but you know you can’t but he’s assured that he’s going to get some type of compensation. I think you have already settled with some property owners along the corridor. Bill Weckman: Ah yes. We’ve settled with a number of property owners or close to a settlement on a couple more. Councilman McDonald: Mr. Gerhardt if I could. One of the things that he just said at the end that changes a lot of things for me is the fact there is a condemnation process. That wasn’t brought up earlier. Under the law they can go in there and start doing all this construction and you can settle it out later but you know they’re forced by law, by statute, you’re right. There’s a process. So that’s why I asked, okay if you’ve already started a condemnation proceeding then this has kind of gone beyond us but if you want to have Mr. Knutson you know write to the council and express that yeah, our holding up this permit is not going to accomplish a thing. Just because of where that’s at so I mean, that’s where it’s at. It’s already transitioned over to the legal recourse side of all this. If it’s in condemnation then there’s nothing we can do so. Mayor Furlong: So are you suggesting, Mr. McDonald are you suggesting that we go forward with the proposed resolution this evening? Councilman McDonald: Yeah, I’m proposing now yeah. We might as well go forward with the resolution because we have no impact and there is the down side of, as Mr. Gerhardt says, there’s probably penalties built into the contract. I don’t feel comfortable incurring penalties when there’s 40 Chanhassen City Council – March 24, 2014 nothing I can do about it and at this point I can’t do anything about it. You know we hold it up, it’s not going to make that process of condemnation go any quicker or any faster. It’s a set process and it does under statute it allows the state entities to come in. You can start construction and we’ll argue over fair market value and everything at a later date. It allows projects to move forward. That’s why the law was written that way. Mayor Furlong: Mr. McDonald, would you like to make the motion then for this evening? Councilman McDonald: Sure if they put it back up. I’ve forgotten what it was. Mayor Furlong: It’s in your packet as well. Councilman McDonald: Okay. Councilman Laufenburger: Page 124. Councilman McDonald: I would make a motion Mr. Mayor that the Chanhassen City Council approves the Wetland Alteration Permit #2014-05 and the WCA Permit #2013-01 for the purpose of the reconstruction of County State Aid Highway 18 (Lyman Boulevard) Roadway Improvement Project, Phase 3 and authorize the Water Resources Coordinator to sign the joint notification application for approval of the wetland replacement as shown in application dated February 11, 2014, subject to conditions within the staff report. Mayor Furlong: Do you want to continue then? And. Councilman McDonald: Oh, and adoption of the attached Findings of Fact and Recommendations. Mayor Furlong: Okay, thank you. Is there a second? Councilwoman Tjornhom: Second. Mayor Furlong: Motion’s been made and seconded. Is there discussion on the motion before us? Mr. Laufenburger. Councilman Laufenburger: Thank you Mr. Mayor. I think as has been made clear, this wetland alteration permit is needed for the building of the road. I do not disagree with Mr. Anderson’s position as he’s expressing them on the part of Mr. Dorsey that what we don’t know is what’s going to happen to the water that comes through that culvert after the construction is complete. But it’s clear to me that the conveyance of that water, whether it’s flat. Whether it’s graded or whatever, that’s outside of what this permit is supposed to do so I don’t believe that there’s anything that we can do to accelerate, to prone, you know work for action. All we can do is encourage and support Mr. Dorsey in his efforts with the County to try to get them to understand that in his view his property’s going to be impacted and the County needs to at least listen. Maybe not agree but at least listen to that in an effective way. I’m prepared by support this motion as it stands. Councilwoman Ernst: Mr. Mayor? Mayor Furlong: Councilwoman Ernst. Councilwoman Ernst: Yes now that I’ve had some clarification on the condemnation process, that does change it for me as well but I would also like to see the County continue to work diligently to try and 41 Chanhassen City Council – March 24, 2014 resolve this issue. And I know that there are processes that you need to follow and it sounds like it’s kind of on their timeline but I would only ask that that happens so I would support this as well. Mayor Furlong: Any other discussion? Hearing none, without objection we’ll proceed with the vote. Councilman McDonald moved, Councilwoman Tjornhom seconded that the Chanhassen City approves Wetland Alteration Permit #2014-05 and WCA Permit Number 2013-01 for the purpose of the reconstruction of County State Aid Highway (CSAH) 18 (Lyman Boulevard) Roadway Improvements Project, Phase 3; and authorizes the Water Resources Coordinator to sign the joint notification application for approval of wetland replacement as shown in application dated February 11, 2014 subject to the following conditions and adoption of the attached Findings of Fact and Recommendation: 1.Wetland replacement shall occur in a manner consistent with the Minnesota Wetland Conservation Act (MR 8420). The applicant shall receive the City’s approval of a wetland replacement plan prior to any wetland impact occurring. 2.An appeal has been filed on behalf of Mr. Rick Dorsey. This is an appeal of staff decision to deny a request for a No-Loss determination for Wetland 1A. Any approval of mitigation quantities shall be contingent upon the outcome of this appeal. The county may hold any additional credits and apply those credits to future phases of the Lyman (CSAH 18) reconstruction project. 3.If it is determined that secondary impacts will occur to wetland 1A as a result of the proposed improvements, these impacts will need to be mitigated for at a 2:1 ratio. 4.Wetland buffer areas shall be preserved, maintained, and/or created around all existing wetlands in compliance with Sections 20-401 – 20-421 of Chanhassen City Code. 5.The applicant shall apply for and obtain permits from the appropriate regulatory agencies, e.g. Minnesota Pollution Control Agency, Minnesota Department of Natural Resources, Minnesota Department of Transportation, Minnesota Board of Soil and Water Resources and Army Corps of Engineers and comply with their conditions of approval. 6.The applicant must submit a Bill of Sale for Wetland Banking Credits to the Minnesota Board of Water and Soil Resources signed by both the buyer and seller of designated wetland credits. 7.The applicant must obtain, and the city must have received copy of, an Application for Withdrawal of Wetland Credits from the Minnesota Wetland Bank signed and approved by the Minnesota Board of Water and Soil Resources prior to any wetland impacts. 8.A signed Landowner Statement and Contractor Responsibility form shall be provided to city prior to commencement of activity. All voted in favor and the motion carried unanimously with a vote of 5 to 0. Mayor Furlong: Thank you everyone. Hopefully we can find a resolution quickly. 42