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HomeMy WebLinkAbout04-02-76 CCMCITY COUNCIL CITY OF LAKE ELMO, MINN. 55042 Special meeting called by the City Council on Thursday, April 1, 1976, at the City Hall 7 to 8 p.m., for the specific purpose to discuss the current high eater situation. All members of the City Council have been contacted and are in favor of holdina this special meeting. Donald Mehsikomer City Clerk Citv of Lake Elmo MAYOR MAYNARD L. EDER COUNCILMEN ROBERT B. ABERCROMBIE FRANCIS J. POTT LLOYD SHERVHEIM COUNCILWOMAN DOROTHY HAMMES LYONS CLERK -TREASURER DONALD MEHSIKOMER C itt .of Uakt �tma ao4instDIl (gOlrilty ,Xa ie gi tto, Minnesota 55842 MEMORANDUM To: Don Mehsikomer, City Clerk From: Lloyd Shervheim, Councilman Subject: Special meeting of Lake Elmo City Council -- April 1, 1976 April 2, 1976 A special meeting of the Lake Elmo City Council was held on April 1, 1976. Present when the meeting was called to order at 7:04 p.m. were Councilmen Francis Pott and Lloyd Shervheim; Mayor Maynard Eder; City Attorney Don Raleigh; and Engineer Tom Noyes. Councilwoman Dorothy Lyons arrived at 7:10 p.m. , and Councilman Bruce Abercrombie arrived at 7:30 p.m. Mayor Eder opened the meeting and informed the many persons in attendance that the pur- pose of the meeting was to consider whether a water emergency exists in Lake Elmo. He referred to the resolution adopted by the Tri-Lakes Improvement Association and to the several calls which members of the Council have received from persons threatened by sigh water, especially in the Tri-Lakes Area. He then opened the meeting to discussion. Resident Kirby Kennedy stated that a telephone call to the Weather Bureau had resulted in an unofficial prediction that April, 1976 would receive double the normal amount of pre- cipitation. Engineer Tom Noyes reported that as of three days ago, Long Lake was in excess of one foot over the overflow, that Demontreville and Olson lakes were overflowing into Lake Jane, that Lake Jane's elevation was 922. 6, that Sunfish Lake was at elevation 892, that Lake Elmo was at elevation 886, and that Eagle Point Lake was at elevation 895. He referred to the prediction of the engineer for the Valley Branch Watershed District that average precipitation without any pumping of water would cause Lake Jane to rise to an elevation of 925. 5 in 1976. He reported that the ground water level this year is two feet higher than last year throughout the city. He stated that last year Long Lake stood at five feet over the overflow but that we still had some storage available on lakes within the city. He reported that the homes currently imperiled numbered two on Olson - Demontre- ville, where the lowestfloor is below the current water level, one on Deer Pond where the home is at or slightly above the water level, one on Lake Jane which is below the water level (922. 6), two homes on Lake Elmo below its current water level, none on Eagle Point or Sunfish lakes, but that numerous septic tanks are flooded. Don Caldwell, a Lake Jane resident, asked what happens if the watershed tributary to ake Jane produces considerable inflow when Lake Jane is full. Engineer Noyes responded that Lake Jane would rise but that the inflow from Long Lake would be somewhat slowed by the limited capacity of a 15 inch culvert under the tracks. Memorandum to Don Mehsikomer, City Clerk -- Lake Elmo page 2 April 2, 1976 Chris Perez, a Lake Jane resident, asked the engineer if .he had an opinion as to the poten- tial damage on Lakes Jane and Sunfish, which have no outlets, if we have normal precipi- tation. Mr. Noyes, referring to the Valley Branch Watershed District study, said that if Lake Jane rises to 925. 5, there would be flood damage to five homes, eleven septic sys- tems, and 5, 400 trees. He stated that Lakes Olson and Demontreville, which have an out- let fixed at 929. 9, would probably have no additional damage to the trees -- the damage was done with last year's flooding. Gunnar Gitlow reported that a current check of lake elevations showed Long Lake to be 8 inches above the top of the culvert, indicating that there are two feet of water on Long Lake which will flow into Jane. He stated that Silver Lake has approximately one foot of water which will outflow, and that the culvert in Mud Lake is running 6 inches above the bottom. Engineer Tom Noyes, responding to additional questions, stated that if the Lake Jane elevation gets to 92 5. 5, with average precipitation according to the VBWD study, there will be five homes imperiled on Lake Jane, eleven septic systems inoperable, and 5, 400 trees flooded. One resident pointed out, however, that with Lake Jane at its present level, at least one-third of those 5,400 trees are probably flooded now. There is one home flooded on Lake Jane at its present elevation. Mr. Noyes reported with respect to the drainage from the ponds that last year we knew that 550 acre feet of water were due to run into these lakes from higher levels in the watershed, and an estimate at that time showed 90 acre feet of storage on the ponds before overflow. If we had elected to flood Deer Pond, the road and the surrounding area (including the .houses involved), it would .have reduced the number of acre feet of water by less than 20% to 460 acre feet, and wouldn't really have made much difference. Attorney Raleigh inquired whether the ditch on the temporary easement increases the amount of water which gets into Jane. Engineer Noyes responded that we know there is seepage from Lake Olson to Deer Pond and that beyond the 90 acre feet of storage which the ponds would .hold if the ditch were not there, the presence of the ditch does not increase the amount of water which goes to Jane but merely hastens its trip. Scotty Lyall inquired whether with Demontreville higher than the ponds, there is always seepage. The engineer responded that there was. Responding to a question of the Council, Engineer Tom Noyes stated that to alleviate the damage on Lake Jane, pumping will be required. When to pump is a good question. One home is now imperiled. Dr. Franta, President of the Valley Branch Watershed District, asked whether any benefit would be derived from delaying pumping, since all of the lakes appear to be filled to capacity. Engineer Tom Noyes responded that the amount of precipitation we receive and the passage of time may help or hurt the situation. David Morgan, Chairman of the Park Advisory Board, asked whether information was available as to the amount of damage done in the city park last year, and how much addi- tional damage would result from further pumping. Engineer Noyes stated that the damage to be done probably had been done and that not much more damage would be likely to occur. Memorandum to Don Mehsikomer, City Clerk -- Lake Elmo Page 3 April 2, 1976 Brian Crombie asked about the cost of the proposed pumping, how last year's cost was assessed and was proposed to assess this year's cost. Mayor Eder reported that out of $48, 000 of cost incurred last year, $28, 000 was expended during the assessable period follow- ing the assessment .hearing, that the committee appointed to recommend an assessment basis had concluded that of the $28, 000 assessable, $12, 000 should be taxed to the Gen- eral Fund, since it covered "permanent" improvement, and that the remaining $16, 000 should be assessed directly against the properties benefited. He stated that this year's method of assessment had not yet been determined. Councilman Shervheim inquired whether the cost of pumping would be reasonable in rela- tion to the cost of flood -proofing the properties which would be damaged at various levels. Engineer Noyes responded that we can pump Lake Jane for $23, 000, that as an earlier report had showed temporary flood -proofing of the properties imperiled would cost about $7, 000, and that permanent flood -proofing of the buildings would cost at least $33, 000. He stated that recent predictions indicated that without pumping, Lake Jane could be ex- pected to rise to 925. 5 during the summer of 1976, and would probably fall to an elevation of 924 by next fall and winter. The $33, 000 estimated cost of permanent flood -proofing must therefore be weighed against not only any temporaz- y solution achieved this year by pumping, but also against the potential cost of pumping in future years. At Mayor Eder's request, Councilman Shervheim inquired of Attorney Don Raleigh whether a distinction had become evident between "this year's emergency situation" and last year's and whether he felt that the facts presented at this meeting would justify the Council's taking emergency action by pumping this year. Attorney Raleigh reported on the law affecting bodies, courses, or currents of water, especially Minnesota Statutes 105.42 and 105. 43, stating that last year he .had advised the Council that a distinction might be drawn based on the so-called common enemy doctrine between the types of waters contemplated by those sections of the laws and excess and runoff surface waters. He had advised that the city, in his opinion, had a right under the common enemy doctrine to remove excess surface water so long as in doing so it didn't cause severe damage to someone else. He stated that on the facts now before the Council, the same argument could be made but that a distinction exists be- cause we have .had no comparable amount of precipitation this year, because this year's emergency was predictable, and because no action has been taken since last year to protect the properties imperiled by this year's water. He stated that the city had acted promptly on developing an interim plan for handling the water problem, and that neither the DNR nor the Watershed District .had granted approval of that plan or had issued a permit. He ad- vised the city to consider carefully the possibility that pumping now without a permit may jeopardize the city's opportunity to obtain approval from the appropriate regulatory bodies to implement the interim plan which would provide a method of handling the water problem for the next four or five years until a permanent solution is found by the Watershed District. A question was raised by a citizen concerning what action should have been taken by the property owners, and Attorney Raleigh responded that since this emergency was predict- able, a proper question could be raised whether the property owners could or should have done something to protect themselves. Councilman Shervheim asked Dr. Franta whether, if the city doesn't act to alleviate the cures ~ent crisis, the Watershed District would be likely to do so. He received a negative response. Memorandum to Don Me.hsikomer, City Clerk -- Lake Elmo page 4 April 2, 1976 Councilman Shervheim then moved the adoption of the following resolution, which, after discussion, was seconded by Councilman Abercrombie and carried 5 - 0: RESOLVED, that a hearing be and it hereby is called for the purpose of receiv- ing public comment on a proposal to commence pumping Lake Jane, assessing the cost thereof to the properties benefited thereby, such hearing to be held at 8:00 o'clock p.m. on Tuesday, April 20, 1976, with proper notice and publica- tion to be given in accordance with Minnesota law and with special notice to be given by letter immediately to the Valley Branch Watershed District and the Department of Natural Resources that the city of Lake Elmo intends, promptly on receipt of the permits if it is determined that an emergency then exists, to proceed with the pumping of Lake Jane to the extent that the City Engineer determines is feasible and with the advice of the City Attorney. After some discussion, Councilman Pott then moved to change the date of such hearing from April 20 to April 14, 1976. Such motion was passed by a vote of 4 to 1 with Councilman Shervheim voting negative. After discussion of the reasonableness of advancing the date of such hearing, Councilman Pott then moved to withdraw his motion, thereby returning the date of said hearing to April 20th. This motion was seconded by Councilman Abercrombie, and carried 5 - 0. Mr. Gunnar Gitlow then stated that according to an early map in his possession, a part of the outflow from Lake Elmo which is now occupied by Tartan Park -- in the parking lot area -- has been artificially elevated and should be restored to its original elevation so as to permit the free flow of water. He stated that his early contour map indicated an elevation of 882 and that his observation of water flowing over the parking lot during the 1975 flooding and since, show that this natural waterway may have been elevated in excess of two feet vertical. It was the consensus of the Council that the City Engineer should determine whether these facts can be substantiated so that the Council can decide whether to order this waterway restored to its original elevation. Councilman Shervheim then suggested that in the interval between this meeting and April 20, the engineer monitor the lake levels at least two times weekly, notifying the city office of the elevations and instructing the Deputy Clerk to telephone each Council person relaying this information so that a quick decision to hold an emergency meeting can be made if the facts warrant it. This recommendation was agreed upon. On motion by Councilman Shervheim, seconded by Councilwoman Lyons, the meeting ad- journed at 9:04 p.m. Respe tfully submitted, loyd Shervheim, Councilman LAwsON, RANUM & RALEIGH L A W Y E R S RODERICK A. LAW'SON ALBER'i E. RANUM 104 N0R1'H MAIN B-EET DONALD T. RALEIGH STILLWATER, MINNESOTA 55062 RAYMONO ❑. MARSHALL IS 12) 4 3 9 - 4 1 4 3 Please Reply to: OF COUNSEL: 11329 STIL Ll/ATER BLV D. NORTH CHESTER S. W;LSON LAKE ELMO, MINNESOTA 55042 VACIL O. KALINOFF (612) 777-6960 April 5, 1976 FORMERLY WILBON A THOREEN 19 2-1925 W "BON. THOREEN 6 LINOB,DDN 1.25-1936 REUBEN O. THOREEN 1936 1941 THOREEN, THDREEN 6 LAWSDN 1948 1969 Mr. Lloyd Shervheim 3065 Klondike Avenue North Lake Elmo, MN 55042 Dear Lloyd: I have looked over the memorandum prepared by you on April 2, 1976, from the minutes you kept of that meeting. Following are my comments: 1. On page 2, third paragraph, second line, I believe the elevation reference should be 925.5 instead of 929.5. 2. On page 3, second paragraph, Tom Noyes' response to your question that we could pump Lake Jane for $23,000.00 as compared to $7,000.00 in temporary flood -proofing. I think it might be helpful to PQ o t that the $33,000.00 permanent flood -proofing cost should be►�,t "rAt only in this year's pumping cost of $23,000.00 but the potential cost of pumping in future years. 3. On page 3, third paragraph, relating to my opinion, the sentence be- ginning in the 8th line with the words "He had advised that the city had a right under the common enemy doctrine to remove excess surface water . . I might suggest you change that to read "He had advised that the City, in his opinion, had a right . . ." My purpose in this correction is to emphasize that the distinction I made to justify the emergency of last year, while it is in my opinion a valid and compel- ling distinction under the circumstances which existed last year, nonetheless arguable and in fact rejected by the DNR - although I have yet to hear the argument rejected by the DNR's legal advisors. Except for the one correction and the two additions I suggest I think your memorandum states completely and with appropriate emphasis the relevant comments and the action taken at the meeting. YourXTRaleigh, Dona for LAWSON, RANUM & RALEIGH DTR:ml Attorneys for City of Lake Elmo LAWSON, RANUM & RALEIGH RODERICK A. LAWSON L A W Y E R S ALBERT E. RANUM 104 NORTH MAIN STREET ❑ONALD T. RALEIGH STILLWATE R, MIN NES OTA 55O132 Please (612) 439-4143 Reply to: OF COUNSEL: 1132.9 STILLWATER BLVD. NORTH CHESTER S. WILSON LAKE ELMO, MINNESOTA 55042 (612) 777-6960 I j�� April 5, 1976 1��V 1✓ � N� r. Lloyd Shervheim 3065 Klondike Avenue North �} Lake Elmo, MN 55042 Dear Lloyd: FORMERLY WILSON 6 THDREEN 1912-1925 W ILSDN, THDREEN 6 LINDBLDOM 1921-1936 REUBEN G. THDREEN 1936.1-1 THDREEN, THDREEN 6 LAWSDN 1948-1 7 T have looked over the memorandum prepared by you on April 2, 1976, from the minutes you kept of that meeting. Following are my comments: 1. On page 2, third paragraph, second line, I believe the elevation reference should be 925.5 instead of 929.5. 2. On page 3, second paragraph, Tom Noyes' response to your question that we could pump Lake Jane for $23,000.00 as compared to $7,000.00 in temporary flood -proofing. I think it might be helpful to point out that the $33,000.00 permanent flood -proofing cost should be waived not only in this year's pumping cost of $$23,000.00 but the potential. cost of pumping in future years. 3. On page 3, third paragraph, relating to my opinion, the sentence be- ginning in the 8th line with the words "He had advised that the city had a right under the common enemy doctrine to remove excess surface water I might suggest you change that to read "He had advised that the City, in his opinion, had a right My purpose in this correction is to emphasize that the distinction I made to justify the emergency of last year, while it is in my opinion a valid and compel- ling distinction under the circumstances which existed last year, nonetheless arguable and in fact rejected by the DNR - although I have yet to hear the argument rejected by the DNR's legal advisors. Except for the one correction and the two additions T suggest I think your memorandum states completely and with appropriate emphasis the relevant comments and the action taken at the meeting. Yours truly, Donald T. Raleigh, for LAWSON, RANUM & RALEIGH DTR:ml eys for City of Lake Elmo OOPT P L F A S F N 0 T I C r The r.ecxularly scheduled Council Meeting for Tuesday, April 6, 1976, will not be held, due to a 3T-1- PIS Meeting on April 6, at the Auditorium of the Senior ITiah School at Stillwater "'inn. 11 at 7:30 p.m. The next City Council meeting will he held on Tuesday, April 20, 1976. Donald Mehsi_koner City Merl-, City of T,ake FJ roc,