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HomeMy WebLinkAbout07-09-2012 Council Meeting Minutes COUNCIL MINUTES July 9, 2012 APPROVED 1 CITY OF LINO LAKES 2 MINUTES 3 4 DATE : July 9,2012 5 TIME STARTED : 6:30 p.m. 6 TIME ENDED : 8:50 p.m. 7 MEMBERS PRESENT : Council Member Stoesz, O'Donnell, Rafferty, 8 Roeser, and Mayor Reinert 9 MEMBERS ABSENT 10 11 Staff members present: City Administrator Jeff Karlson; Community Development Director Michael 12 Grochala; City Planner Paul Bengtson; City Engineer Jason Wedel; City Attorney Joseph Langel; 13 Chief of Police John Swenson; and City Clerk Julie Bartell 14 15 PUBLIC COMMENT 16 17 No one was present to address the council regarding a matter not on the agenda. 18 19 SETTING THE AGENDA 20 21 The agenda was approved as presented. 22 23 CONSENT AGENDA 24 25 Council Member Rafferty moved to approve the Consent Agenda, Items 1A through 1F, as presented. 26 Council Member O'Donnell seconded the motion. Motion carried on a unanimous voice vote. 27 28 ITEM ACTION 29 30 Consideration of Expenditures: 31 32 July 9, 2012 (Check No. 93640- 33 93746, $93,746) Approved 34 35 Centennial Fire District(Check No. 5393 - 36 5409, $11,713.38) Approved 37 38 June 25, 2012 Council Work Session 39 Minutes Approved 40 41 June 25,2012 City Council Meeting 42 Minutes Approved 43 44 Resolution No. 12-56,Appointing Election Judges 45 For the 2012 Primary and General Elections Approved 1 COUNCIL MINUTES July 9, 2012 APPROVED 46 47 June 25, 2012 Special Session Minutes Approved 48 49 Resolution No. 12-61, Approving a Peddler License 50 for Edward Zaliagiris Approved 51 52 FINANCE DEPARTMENT REPORT 53 54 There was no report from the Finance Department. 55 56 ADMINISTRATION DEPARTMENT REPORT 57 58 3A) Memorandum of Understanding with Rice Creek Watershed District regarding city 59 participation in a grant program for a deicing system—City Administrator Karison recalled that 60 the city joined with other area cities in applying for grant funds to support participation in a salt brine 61 roadway deicing program. Brining is a proactive activity to prepare roads before storms and a process 62 that reduces costs as well as chemicals. The city has been awarded a grant that will cover about forty 63 percent of the cost of equipment for the program. In order to receive the grant, authorization to enter 64 into a Memorandum of Agreement with the Rice Creek Watershed District is requested. 65 66 Council Member Roeser moved to authorize execution of the Memorandum of Agreement as 67 presented. Council Member Stoesz seconded the motion. Motion carried on unanimous voice vote. 68 69 3B, Revised Personnel Policy—City Administrator Karlson noted that staff introduced a revised 70 personnel policy for council consideration in May. The policy has been discussed and reviewed by 71 the council at several meetings. The policy revisions include the areas of personal leave, tuition 72 reimbursement, computer use policy, and updating of the drug and alcohol policy. 73 74 Council Member O'Donnell moved to approve the Revised Personnel Policy as presented. Council 75 Member Roeser seconded the motion. Motion carried on a unanimous voice vote. 76 77 PUBLIC SAFETY DEPARTMENT REPORT 78 79 There was no report from the Public Safety Department. 80 81 PUBLIC SERVICES DEPARTMENT REPORT 82 83 There was no report from the Public Services Department. 84 85 COMMUNITY DEVELOPMENT DEPARTMENT REPORT 86 87 6A, Public Hearing, Resolution No. 12-59, Establishing a Cartway—Community Development 88 Director Grochala explained that the city received a petition from Mr. Adam Johnson, 2055 Otter 89 Lake Drive, to establish a cartway easement to provide access to a landlocked parcel that he owns. 90 The process for a cartway is established under Minnesota Statutes and provides that the city council 2 COUNCIL MINUTES July 9,2012 APPROVED - 91 shall establish a cartway if certain criteria is met. The city process has included the calling of a public L.i92 hearing by resolution that also included an order for Mr. Johnson to personally serve the resolution 93 upon the owners/occupants of the land. Affidavits of service have been provided. Mr. Johnson has 94 also provided escrow funds for city costs in the process. 95 96 Community Development Director Grochala then outlined the three issues to be addressed: meeting 97 the threshold requirements of the statute, where the cartway should be located, and 98 damages/maintenance. 99 100 City Attorney Langel noted that the council should hear from both sides,petitioner first and then the 101 homeowner association. There may be rebuttal time allowed afterward. The council will then decide 102 how to proceed. 103 104 Mayor Reinert commented that a position paper had been submitted by the homeowners association 105 that seems to associate this process with eminent domain. He clarified that none of the proceedings 106 this evening have to do with such eminent domain and he doesn't want the issue clouded with that 107 talk. This involves private land and private parties and the law dictates the city council's 108 involvement. 109 110 Joe Barnett, attorney for Mr. Johnson. He believes the homeowners' association brief is misapplied 111 in its statements. It is clear that the threshold requirements are met in this case. Mr. Johnson owns a 112 parcel of property that he doesn't have access to from a public roadway. They claim that there is l 13 reasonable access but that is not what the statute requires. The second issue is the proper location of x'114 the cartway. Mr. Johnson has indicated on a map a red line that shows the distance that he would 115 like to have established as a cartway(submitted for the record). The road already exists there and Mr. 116 Johnson is supposed to have access by a previous deed associated settlement agreement anyway(copy 117 of settlement agreement distributed). Regarding damages Mr. Johnson's position is that there are no 118 damages to the homeowners as there will be no impediment to their use. Apparently anyone besides 119 Mr. Johnson is currently allowed to use the roadway. Mr. Johnson has done everything possible to try 120 and resolve this without this action. The use requested is minimal. How he would use his land is 121 irrelevant. Mr. Barnett added that he has spoken with a member of the homeowners association and 122 there has been no vote of the association on their position. 123 124 Adam Johnson, 2055 Otter Lake Drive, noted the cartway petition that he has submitted, his right to 125 access his land and his request to the council to uphold his right. He has tried to work this out 126 including through mediation. The bridge has been open to everyone but him. He owns property and 127 has maintained it well. He noted the docking easement that is in place. He has caused no damages by 128 use of the bridge and anticipates none in the future. He asks the council to uphold his rights and 129 establish the cartway. 130 131 Dave Snyder, attorney representing the Oak Brook Peninsula Homeowners Association. He has heard 132 the mayor note the reference to eminent domain and asked if the city attorney is advising that he not 133 be allowed to reference the limitations created by the recently enacted statute regarding eminent 134 domain? The Minnesota Court of Appeals in 2007 indicated that the authority to create a cartway is L.,35 an exercise of eminent domain authority. Attorney Langel responded that no one is directing the 3 COUNCIL MINUTES July 9, 2012 APPROVED 136 argument although there may be disagreement on the implications of the eminent domain law. 37 Attorney Langel suggested that the mayor is simply interested in focusing on cartway consideration. 138 Mr. Snyder indicated that his attorney's brief was submitted this afternoon and he has received no 139 opinion from the city attorney on it. The mayor reiterated that he doesn't believe that there is any 140 taking of land by the city. 141 142 Attorney Snyder requested that the cartway petition be denied for several reasons. There is no 143 compelling need for creation of a cartway. The property to which access is sought is part of a single 144 parcel. They believe the parcel is being accessed now and historically accessed without the bridge. It 145 may not be the most convenient access but there is access being used. Another approach and perhaps 146 the most practical would be construction of a bridge by the applicant. Another concern is that this 147 request is inconsistent with the limitation on establishment of cartways by cities; cities formerly could 148 create cartways by public road (eminent domain) and also by establishing private cartways (for use by 149 one individual)as is proposed here today. Because it is private in this case, eminent domain is no 150 longer allowed under statute (except for town roads or ditches). The city cartway statute is not 151 incorporated into the changes to eminent domain so the allowance for cities is only for public 152 cartways. The city only has powers provided to it under statute. He suggests that there are other 153 remedies for Mr. Johnson such as the public cartway laws. Also the use proposed would further 154 accelerate the use of the property for illegal hunting. Mr. Snyder added that there is the option of 155 seeking a statutory change but that should fall to the applicant rather than the city. In the matter of 156 damages,they believe a bond should be established. In regard to the settlement agreement that has 157 been mentioned and distributed by the applicant, his clients disagree that it is germaine and that it ` ,58 provides for access. He reminded the council that this action involves private property. x'159 160 Attorney Langel noted that Outlot A(location of the road) is owned by the homeowners association 161 and he asked if the group is active. Attorney Snyder responded that he doesn't know their activity 162 level but he is aware that they met to determine that they would resist any attempts to encroach upon 163 their private property. When Attorney Langel asked for records of their meeting, Mr. Snyder said he 164 could provide them in the future and added that of the three member board,two are present this 165 evening. 166 167 Julie Jeffrey Schwartz, 2140 Otter Lake Drive. She is concerned that the applicant has not provided 168 any appraisal information on damages. The association has paid money for a professional appraisal 169 estimating damages under either a public or private taking. She understands that the statute requires 170 the council to determine damages and she noted that the council has received only the homeowners' 171 appraisal. On the question of activity of the association,they are active and have registered with the 172 Secretary of State and did meet to authorized hiring of the appraiser and attorney. She discussed the 173 question of access and noted that there is currently a high water level and even under those 174 circumstances, Mr. Johnson has been able to cross to his property and has done so numerous times. 175 He has requested the cartway for walking, a lawnmower and for a garden tractor and she suggests that 176 those things can be brought to the property through a float or a bridge over the channel. She 177 questions if roadway access is being requested because of other plans to build or practice illegal 178 activity that has occurred in the past. She noted that Mr. Johnson is a professional hunter who 179 advertises services in the northeast metro and that his very disruptive activity has and would impact 4 COUNCIL MINUTES July 9, 2012 APPROVED 180 the quiet enjoyment of the area. She asks that the private nature of this property be considered and if 81 it is taken the damage appraisal submitted by the association should be considered. 182 183 Attorney Langel asked if the homeowners' association position is that the channel is not navigable. 184 Attorney Snyder responded that he understands that the position is that parts of the channel are and 185 parts are not and that the burden to the applicant would not be great. Mr. Snyder added that if the 186 request of the applicant for access by use of ATV is accurate,then it is clear that he already has that 187 access because he is doing it now even under high water conditions. He believes that the 188 establishment of a public cartway is discretionary by the council in this case. The mayor noted that he 189 is indifferent about the establishment but has been advised by legal counsel that if the threshold of the 190 statute is met,the establishment isn't discretionary. Attorney Langel clarified the statutory language 191 and the presence of a navigable-waterway. Ms. Schwartz noted that the definition of navigable water 192 is defined by the DNR and in the case of this channel it is not navigable because it has not been 193 dredged. She added that there is a purposefully construction hump at the head of the channel meant to 194 provide separation from the lake that also makes the pond not part of the lake. 195 196 In rebuttal, Mr. Johnson noted that the ATV on his property was driven across the bridge by Mr. 197 Melton so that he (Mr. Johnson) could access his property without police involvement. Regarding the 198 channel, most years the channel has been navigable even by large boats. He added that Rice Creek 199 Watershed District does have authority to dredge the channel also. Attorney Barnett noted the 200 settlement agreement and a clause that requires that the channel be kept navigable. He added that the 201 public taking of property assumption is not correct and therefore the appraisal submitted that is based 02 on a public taking has no basis; it is his-client's position that there are no damages in this situation. '03 Speculation of how the land will be used is irrelevant. Attorney Langel pointed out that there are two 204 elements to a question of damages—value and maintenance. Attorney Barnett responded that there is 205 an obligation for an equitable share of maintenance costs but pointed out that Mr. Johnson's use 206 would be minimal on a percentage basis. 207 208 In rebuttal, Mr. Snyder noted that-the appraisal comprehensively addresses both elements—public and 209 private. Statutory predicate for this is not met and the risk of changing statute shouldn't fall to the 210 city. Attorney Langel clarified that the appraisal data seems to be based on a public taking but asked 211 if it could be refined to a private cartway. 212 213 Council Member Roeser noted the settlement agreement for dock access and asked for clarification 214 that the agreement grants access rights to Mr. Johnson. Attorney Langel indicated that he will be 215 further reviewing the document. Mr. Johnson noted that the agreement runs with the deed to his 216 home as well as all the homeowners of Otter Lake Estates. 217 218 Ms. Schwartz indicated her familiarity with the settlement agreement and explained the history. It 219 was intended for owners who already had property developed in Otter Lake Estates. Mr. Johnson's 220 parcel was not created at the time that the agreement was put together and that land in fact belonged 221 to the person granting the settlement so he couldn't have granted an easement to himself. Also the 222 settlement indicates rights to 18 plaintiffs,not parcels. Council Member Roeser pointed out that the 223 agreement says that it runs with the property; he also believes that the easement indicates a right to a 5 COUNCIL MINUTES July 9, 2012 APPROVED 224 navigable waterway. Council Member Roeser added that he does have concern about intended uses. �25 Ms. Schwartz argued that Mr. Johnson's parcel did not exist at the time of the settlement. 226 227 Council Member O'Donnell noted the hunting use that has been mentioned; that is covered by city 228 ordinance so it isn't pertinent to the cartway question. Attorney Snyder pointed out that the question 229 isn't personal hunting but rather professional guide hunting, a service that Mr. Johnson offers. 230 Regarding the settlement agreement, Council Member O'Donnell asked if there is an easement in 231 place? Attorney Langel responded that the settlement agreement hasn't been verified but it appears 232 there is an agreement in place; it has been suggested that the easement provided for in the settlement 233 has never been recorded however. 234 235 Council Member Rafferty asked for a review of claimed damages versus the amount of use claimed 236 by Mr. Johnson. Mr. Snyder responded that statute directs consideration of damages and his clients 237 have followed an accepted process for appraisal by a professional appraiser. 238 239 The mayor asked that the council discuss the threshold element—has the statutory threshold been 240 met? The council indicated that they have determined that the waterway is or could be navigable. 241 On location, it was verified that 293.7 feet is the length of the cartway requested to the nearest point 242 that access is possible (that is a straight line map measurement however and so the exact distance 243 hasn't actually been established—a point of entry has beerr established). It was pointed out that there 244 are metal stakes in the ground that would have to be removed. Attorney Langel noted that there is 245 also the question of dimension. Mr. Johnson said that statutes indicate a width of no less than 33 feet 46 and he'd prefer the area off the road to be 30 feet. Council Member Stoesz suggested that there may 47 be some indication of size in the easement agreement and that in turn could be compared to the 248 request and perhaps used to assist with determining damages. Attorney Barnett asked about the 249 ability for Mr. Johnson to access the property for his work and measurement. 250 251 The mayor suggested a discussion of damages and maintenance; what should be considered in that 252 discussion? Council Member O'Donnell remarked that the appraisal data submitted is for the full 253 length of Otter Lake Road. Attorney Snyder responded that the appraisal includes damages in gross 254 and net(including sub parts). Council Member Roeser suggested that if Mr. Johnson is granted use of 255 a private road,he should participate in the maintenance of the road. Mr. Johnson said he agreed in the 256 past to pay current and future maintenance. Council Member Roeser suggested sometimes it's the 257 fear of the unknown that cause issues or concerns; would Mr. Johnson be opposed to covenants or the 258 like attached to the situation that would calm fears. Mr. Johnson suggested that use isn't a 259 consideration in the cartway statute so he'd prefer not to add any conditions. The mayor indicated 260 that he would intend to somehow address uses and conditions as part of an action on the matter;the 261 city attorney clarified that the statute doesn't provide for such. Council Member Roeser suggested 262 that a property owner could certainly voluntarily accept conditions. 263 264 Attorney Snyder reviewed his clients' position. He believes that this evening's review and discussion 265 clearly identifies this as an eminent domain related action and he doesn't believe that the city would 266 want to overstep current statute. There are other solutions besides this action to deal with the 267 disagreements between neighbors. Conditions or not the issue is imposition on the property owners' :68 rights. He recommends that the city call for a posting of a bond in the matter as would be called for 6 COUNCIL MINUTES July 9, 2012 APPROVED 269 under eminent domain. They request that the city deny the petition and allow the petitioner to pursue L270 other avenues if he chooses. If the city were to grant the petition, damages must be considered. 271 272 Attorney Barnett noted that it is clear that Mr. Johnson has met the statutory threshold for granting of 273 the cartway. On the question of damages,the statute doesn't require that there be damages set and in 274 this case Mr. Johnson already has an easement and he shouldn't be exposed to any damages. Future 275 maintenance costs will be a consideration. 276 277 The mayor said he would intend to see the public hearing closed and for the council to receive more 278 information on outstanding questions and have another discussion in the future. Council Member 279 Roeser asked Mr. Johnson if he will be willing to put some limitations on future use with the 280 understanding that could have a bearing on damages now and in the future; he recommends that the 281 parties discuss that aspect. The mayor commented that he is indifferent about the action;the council 282 must drill down using the facts. He is sensitive to the privacy of that neighborhood but he doesn't 283 believe this is an issue of eminent domain(he reviewed the process that the statute dictates the 284 council must follow to consider the petition). He feels there is a value involved here; the 285 neighborhood is secluded and this would be an imposition. 286 287 Council Member Rafferty moved to close the public hearing. Council Member Stoesz seconded the 288 motion. Motion carried on a unanimous voice vote. 289 290 The item will be considered next at the August work session. The council will want more �`91 information on the settlement agreement and its easement implications. Also the council would like X292 to understand zoning and land use for the area in question. Attorney Langel said it would be helpful to 293 know the exact point of entry to the land. Clarification of the dock or lack thereof is requested. 294 295 6B) 1"Reading of Ordinance No. 07-12,Amending Section 8,Industrial Districts of the Zoning 296 Ordinance—Planner Bengtson explained text amendment before the council. The city engaged the 297 assistance of Landform to review the industrial district zoning language to ensure standards are 298 consistent with the 2030 Comprehensive Plan as well as the goal of continued quality development. 299 The ordinance has been reviewed by both the Planning &Zoning Board and the Economic 300 Development Advisory Committee and both have recommended approval. The city council reviewed 301 the language at their last work session. 302 303 Kendra Lindahl,Landform,noted the goals of updating this ordinance were to simplify the language 304 and to move more specific performance standards into the landscape ordinance. At the work session 305 discussion the council did raise questions about how to deal with properties abutting other industrial 306 property. In working with staff, it is felt that the way to provide flexibility in those screening 307 standards so that individual situations can be considered is within the landscaping regulations. For 308 outside storage,the language in this ordinance has not changed. 309 310 Council Member Roeser moved to approve the first reading of Ordinance No. 07-12 as presented. 311 Council Member O'Donnell seconded the motion. Motion carried on a unanimous voice vote. 312 7 COUNCIL MINUTES July 9,2012 APPROVED 313 6C) 1st Reading of Ordinance No. 08-12, Amending Section 3, Landscaping Requirements of \.3 14 the Zoning Ordinance—City Planner Bengtson explained that this ordinance is a zoning text 315 amendment to approve previously reviewed standards. The requirements for landscaping will be 316 broken into four areas—canopy coverage, open area, foundation and buffers, and screening and 317 boulevard trees. Regarding screening, staff has added language to address the council's concerns 318 about industrial to industrial situations. The Planning & Zoning Board has approved the ordinance. 319 320 Council Member Roeser moved to approve the first reading of Ordinance No. 08-12 as presented. 321 Council Member Rafferty seconded the motion. Motion carried on a unanimous voice vote. 322 323 6D) Resolution No. 12-60, Authorizing Preparation of Plans and Specifications for the 2012 324 Surface Water Management Project - Community Development Director Grochala noted that the 325 city annually implements a surface water management project. The city engineer has submitted a 326 proposal to prepare plans, contracts and administration for this year's project. Funding for the 327 contract is included in the budget. 328 329 Council Member Rafferty moved to approve Resolution No. 12-60 as presented. Council Member 330 Stoesz seconded the motion. Motion carried on a unanimous voice vote. 331 332 UNFINISHED BUSINESS 334 There was no Unfinished Business. 135 336 NEW BUSINESS 337 338 There was no New Business. 339 340 COMMUNITY CALENDAR 341 342 343 . Wednesday,July 11 6:30 pm, Council Chambers Planning&Zoning 344 - Thursday,July 12 6:30 pm, Community Room Charter Commission 345 k Monday, July 23 5:30 pm, Community Room Council Work Session 346 IV Monday,July 23 6:30 pm, Council Chambers City Council Meeting 347 - Monday, July 23 following Council Mtg Special Work Session 348 349 ADJOURN 350 351 There being no further business, Council Member Rafferty moved to adjourn at 8:50 p.m. Council 352 Member Roeser seconded the motion. Motion carried unanimously. 353 354 These minutes were considered and approved at the r,_ular Coun/ eeting, July 23, 2012. 355 357 Julia e Bartell, City Clerk J fff -inert, Mayor 358 8