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
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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
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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
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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
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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
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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
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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
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COUNCIL MINUTES July 9,2012
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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
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