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HomeMy WebLinkAbout11-03-87 CCMLAK? _,100 CITY COUNCIL MINUTES NOVEMBER 3, 1987 Mayor Arlyn Christ called the City Council meeting to order at 7:07 p.m. in the City Council chambers. Present: Christ, Johnson, Armstrong, Graves, Moe, City Engineer Bohrer, City Attorney Knaak and City Administrator Overby. Mayor Christ commended Fire Chief Fran Pott and the Lake Elmo Fire Department in doing an excellent job in getting Fire Station No. 2 up and running. 1. Agenda Add: 8A. City Attorney Appeal Vote, 9D. Purchase Additional Ski Licenses, 10A. Letter from Mayor of Afton, 10B. Letter to Robert Overby M/S/P Graves/Armstrong - to approve the November 3, 1987 Lake Elmo City Council agenda as amended. (Motion carried 5-0). 2. Minutes: October 20, 1987 M/S/P Armstrong/Johnson - to approve the October 20, 1987 City Council minutes as amended. (See Page 4, word change from higher to easier). (Motion carried 4-0-1<Abstain: Christ>). 3. Claims City Administrator Overby reported an addition to the claims of Luverne Fire Apparatus for a few corrections made on the fire truck. Fran Pott recommends payment of 950 of what is owed which amounts to $41,800, Claim #89466. M/S/P Graves/Armstrong - to approve the November 3, 1987 Claims #89409 thru #89466 as amended. (Motion carried 5-0). 4. Landfill Update Dan Novak reported that Attorney Chuck Dayton is getting a waiver from the Sunfish Lake residents, but asked the City Council to draft a letter waiving any objections to any conflict of interest which may exist by way of his representation of the Sunfish Lake situation. Attorney Knaak responded that there was no problem with this request. M/S/P Armstrong/Graves - to direct City Administrator Overby to write a letter to Charles Dayton stating that the City has waived the conflict of interest in regard to the Sunfish Lake residents' lawsuit. (Motion carried 5-0). REAPP will be going before the Washington County Board of Commissioners on November 17th. Their intent is to make the Board LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 2 aware of the number of signatures they have on their petition asking them to uphold the covenants. It is not their intent to put the County "on the spot" at this time and ask them to take a position on breaking the covenants. They will also ask the Board for funds to support some of their efforts relative to the landfill which was suggested by Earth Protector and ask the board to include their alternatives in the EAW. There is a tentative appearance planned by REAPP on Good Company, KSTP TV on November 24th. As far as fundraising, REAPP went before the Lions Club and will be going in front of the Oakdale and Woodbury Council asking for their financial support. Novak reminded the City Council of the elected officials breakfast meeting with Steve Keefe on Friday, November 6th in Forest Lake and encouraged a Councilmember or the City Administrator to attend. They have asked the VBWD to draft a letter providing input to the EAW and VBWD has agreed to do so. A resolution has been received from Oakdale in support of their cause. An organization called the Clean Water Action Project will begin canvassing Lake Elmo for the purpose of renewing the membership in their organization. At the same time they will be handing out an informational flyer that has been specially targeted for the Lake Elmo residents and will be soliciting signatures on a new petition. 5. Public Inquiries Based on his understanding that the City has lost a lawsuit brought against them by Hugh Madson regarding an improper commercial business being operated on Ag Preserve land, Mike Mazzara asked the Council why was it necessary to have an executive session at the October 6th Council meeting and what was the basis for the City's appeal. Other questions he had were "why did the City elect to vote prior to the meeting to spend City funds" and "how is it possible that Rose Armstrong was allowed to vote on the appeal when there seems to be a conflict of interest?" Mayor Christ responded that this falls into the category of disclosure which is not appropriate at the present time because of possible litigation. When the appropriate time comes and it no longer is an issue of sensitivity which would be subjecting the City to possible disclosure, then they will discuss it. ,City Attorney Knaak added that because of pending litigation it is not in the City's interest to discuss the strategy and make it public. It was Mazzara's impression that a motion to do something is public knowledge. Knaak explained that he was given a direction to follow at that meeting and he was not able to disclose that direction. Mazzara told the eouncil that, according to legal opinion fie r1as sought, there is an issue of ethics. Knaak responded, that at the time of the vote, there was no conflict of interest. LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 3 Mayor Christ appreciated Mazzara's concerns and would definitely get back to him when the appropriate time comes. Christ did question the articles and why they were submitted to the Press. It seemed to Christ that it was a client/attorney privilege and finds the people that are questioning the very integrity of one individual may have a real serious problem with integrity of their own. Councilman Graves added that he did nothing illegal in discussing anything, but responded to the article he saw in the paper. He was not a party to any disclosure of the first action. Graveshas sought a legal opinion and there was nothing illegal with the comments or the fact that he disclosed this. In an opinion rendered by the League of MN Cities, it states that there would appear very clearly to be a conflict of interest in Rose Armstrong voting on any decision regarding the City's position pursuing this matter. This could be a question of ethics, more so than a legal issues Graves stated. Knaak responded that the direct conflict has not come before the City. If and when it does come before the City, it will be addressed at that time. At this time there was not a conflict even under the technical provisions that have come out of the League of MN Cities handbook --there was no conflict prior to this time. Councilman Moe had some questions about the vote and felt what was needed was an outside opinion on the conflict. Moe added that perhaps it would be appropriate to get the attorney general's opinion on this case. Councilwoman Armstrong wasn't interested in spending more money to get more opinions. She suggested if Councilman Moe was interested in another opinion, he should do this on his own. City Attorney Knaak told the council that circumstances can change, but he was not saying they have. Knaak stated he did render the right opinion. If there were questions about that, Knaak has no problem with requesting another legal opinion. 6. PLANNING, LAND USE & ZONING A. Eden Park Residents' Concerns - Staff Response Residents of the Eden Park neighborhood had presented a list of questions and concerns to the City on 10-6-87. The City Attorney and City Engineer were asked to research these points and report back to the Council on 11-3-87. City Engineer Bohrer's review of the engineering questions are contained in his letter dated November 3, 1987 to the City Council. (See Attachment A). The legal issues that were asked are discussed in City Attorney Knaak's letter dated November 3, 1987 to City Administrator Overby. (See Attachment B). Mary Leslie had talked to Ken Lokkesmoe of the DNR who stated that thp levels that were set on Downs Lake are artificial levels and not set by the DNR. The DNR had come out and established higher levels after the houses were built because they found stains on the trees and other LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 4 signs that show the water was at least 4 feet higher. She also pointed out that Downs Lake did overflow in 1965 because there was a "chinook" where the water mounted up so fast. Mary referred to some sort of a berm that was erected by the 3M Club engineering department that could be opened and closed to save pasture land. An Eden Park resident asked what needs to be done to be included in the City's Surface Water Management Plan. Bohrer responded that the City is required by the State Surface Water Management Act to develop a local plan after the watershed district has finished their plan. The City has asked the watershed district to look at the situation and they do intend to do this, but he does not know how long this will take. Part of this watershed for Downs Lake is outside of Lake Elmo so there is more than local significance here. Ann Bucheck stated that her home and septic systems along with Sandmann's were put in at City elevations but would have "nuisance water" if there was flooding. Mary Leslie felt the new Cty Rd. 15 would increase the waterflow on Downs Lake. She also questioned if they should have to pay for the 509 assessments if they are not in the Valley Branch Watershed District and they do not benefit by any of their water leaving their area? City Attorney Knaak explained that the City waived its review on elevations when it did not address the water issues. Knaak was unable to find any authority for the apparent position on the part of the Eden Park homeowners that the City has acted as some sort of guarantor for any damages that may result from their failure to conform to City ordinances for the submitted plats. There are no written assurances on record with the City containing any such guarantees. Councilman Graves and Johnson felt the City should contact VBWD on what needs to be done or have a joint meeting with the City and VBWD. M/S/P Graves/Moe - to direct the City Administrator to contact the VBWD to find out what needs to be done to get a drainage project underway not only for the Eden Park area but other concerned areas (such as: Downs Pond, Durands Pond, Legion Pond, 32nd St. Pond) of the City and report back with an update at the December 1st City Council meeting. (Motion carried 5-0). B. Final Plat: Packard Park 2nd Addition The City Council gave preliminary plat approval for this subdivision on August 18, 1987. City Engineer Bohrer has reviewed the final plat and recommends approval of the plat, contingent upon provision of the two permanent easements for conveyance of stormwater over the unplatted portion of Peltier's property, upon receiving a letter of credit for site improvements and a Developer's Agreement acceptable to the City, and payment of park dedication fees and pass thru costs. LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 5 The Planning Commission recommended that the City Council not approve the final plat until the water problems are discussed or residents and developer have met with the City and the Valley Branch Watershed District and an agreement has been reached; also that the 24th Street cul-de-sac is longer than the 800 foot maximum that is allowed by City Code and that the Developer has stated his intention to not run the road thru the proposed 3rd Addition with the current Rural Residential zoning and that there is no request for rezoning to R-1 at this time for the proposed 3rd Addition. M/S/ Graves/Moe - to adopt Resolution 87- approving the Final Plat for Packard Park 2nd Addition, contingent upon meeting the conditions specified in the City Engineer's letter of 10-22-87, providing a letter of credit and an acceptable Developer's Agreement, and payment of park dedication fees and pass thru costs. Jean Durand questioned the legality of the proposed pipe and asked what was the elevation of the outlet pipe to the pond. Another question was asked if it would be possible to turn the pipe instead of the water running onto Durand's proerty. Because of ponding concerns from the public that need to be addressed and more information that will be received from the VBWD meeting and the City Engineer's review of the engineering plans and specification, it was decided to table discussion until the December 1st meeting. M/S/P Johnson/Armstrong - to table action on Packard Park Final Plat until the December 1st meeting to allow time for the City Engineer to review construction plans for the holding pond and information from the VBWD meeting. (Motion carried 4-1<Moe>). C. PUBLIC HEARING: Request for Shoreland Permit with Variances, 8126 Hill Trail N. Mayor Christ opened up the public hearing at 8:50 p.m. in the City Council chambers. Joseph and Donna Hinrichs wish to purchase Lots 519 thru 523, and lots 616 thru 620 in Lane's DeMontreville Country Club Addition. The property is located at 8126 Hill Trail N. The applicants want to build a new house on the property. The property is located next to Lake DeMontreville; therefore the Shoreland District regulations apply. Several variances are necessary in order to allow a building permit for a new home and septic system: lot size variance, lot width variance, structure setback from normal high water mark variance, and setback for structure from public road variance and septic drainfield sites. The DNR hydrologist commented to the City Staff on 10-29-87 that the DNR is opposed to giving the variance for the structure setback from the high water mark (as proposed in Plan B). The DNR suggests that the proposed house remodeling -expansion plan be redrawn so that no variances are necessary. The DNR wants to see the septic/soils LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 6 information so that it can be properly reviewed. Attorney Robert Polski, representing the Hinrich's, stated the Hinrich's have a purchase agreement on this property with the understanding that it needs variances. Polski presented a revised plan that did not need a road setback, but still needed a variance for the structure setback from the Normal High Water Mark. The existing structure will be torn down and a two bedroom home will be built. The sewage treatment evaluations were just given to the City Engineer this afternoon. Harry Zabrok, 8120 Hill Trail N., reported that this was an illegal subdivision. He saw that a perc test was taken on Saturday, October 24th starting at 9 a.m. and continued until 6:30 p.m. or later for it to perc down. Perc tests by Twin City Testing in 1974 or 1975 failed. Realtor Stepan also had perc tests done in 1979 which failed. Zabrok contacted the Attorney General's office which told him any variances of the state law is illegal. He is protesting any variances given on this small piece of property that does not comply with Lake Elmo's City code. Connie Marchio, 8130 Hill Trail N., explained the history of the illegal subdivision procedure that Steve Grabski followed. She was told by the City Attorney that this was a civil matter and should be pursued with Steve Grabski. City Attorney Knaak stated that the County has our ordinances on file and they are charged with the responsibility to monitor this. What happened is that this slipped through. The responsibility of the statutes is the County's. City Administrator Overby pointed out that Attorney Knaak had told him that you cannot grant variances to a property that was illegally subdivided. Councilwoman Armstrong explained that according to Section 301.090 Contiguous parcels states any lot or parcel cannot be considered a separate parcel of land for purpose of sale or development. (Amended 11-17-87) it it is a parcel that doesn't meet the requirements for wirith and area, then it could not be further divided -into smaller parcels. Mayor Christ closed the public hearing at 9:20 p.m. M/S/P Armstrong/Johnson - to table action until the November 17th Council meeting to allow time for the City Engineer to review late -submitted septic soils information and for the City Staff to prepare findings of fact on the request. (Motion carried 5-0). D. Zoning Ordinance Amendment: Industrial Park District The City Council reviewed this proposed zoning amendment on 10-20-87. The City Administrator was requested to explain to the City Attorney the City Council's objective (to have the ability of the businesses to continue to exist and operate in a manner that they would have previous to the deletion of the Industrial Zoning) and for him to make the appropriate change in the General Busineses zening so that pre-existing limited businesses are allowed uses and report back at the meeting. LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 7 Councilman Graves stated that this would eliminate Limited Industry, with the exception that existing Industrial Zoned Business would not be restricted under the provision of this amended ordinance to continue business as they have been allowed in the past and specifically, to rebuild in case of fire or to expand their business on site. M/S/P Graves/Moe - to approve Ordinance 8007 amending Section 301.070D.10 of the 1979 Municipal Code of Lake Elmo to eliminate the Industrial Park zoning district in its entirety as being consistent with the 1986 Comprehensive Plan of Lake Elmo, and to rezone existing Industrial zoned parcels of land to the General Business zoning district. (Motion carried 5-0). E. Zoning Ordinance Amendment: General Business District This amendment was discussed and amended by the City Council on 10-20-87. The Council requested that the Planning Commission review the changes made by the Council. The Planning Commisssion reviewed the amended amendment on 10-26-87 and did not recommend any changes. City Atttorney Knaak stated this amendment was designed with his input as given and he approved it as to form. Section 2. Section 301.070D7a(6) shall be amended as follows: (6) Manufacturing, limited by Conditional Use Permit, except that any industrial manufacturing operation in existence within the City at the effective date of this ordinance, including manufacture of wood products and plastic products, may continue such use as a conforming use without any Conditional Use Permit. Nothing in this provision shall otherwise be construed to require the City to authorize any manufacturing use in the general business zone after the effective date of this ordinance. M/S/P Graves/Johnson - to approve Ordinance No. 8008 amending Section 301.070 D.7. of the 1979 Municipal Code of Lake Elmo to amend the General Business Zoning District as propsoed by the Planning Commission and revised by the City Council and City Staff. (Motion carried 5-0). 7. CITY ENGINEER'S REPORT A. Protected Waters Permit: 3141 Klondike Avenue N. Mr. John Eisele, 3141 Klondike Avenue, has applied to the DNR for a permit to do work in protected public waters: namely, the excavation of a channel on the northwest side of Lake Elmo to provide boat access between Mr. Eisele's property and the lake. The proposed channel will be 4 feet deep, 180 feet long, and 15 feet wide on the bottom. The channel will jut out at right angles from the s ore ine. or y- ive feet of shoreline will be affected. Dredge spoil will be placed between the house and pond to the west. LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 8 Since Ruth's First Addition was platted during a period of low water, the lot lines now extend out into the water. It appears that the Eisele's excavation will be performed on the portion of their property which is in the flood plain. Bohrer has no objection to the permit, but offered the following comments: 1. The north line of Lot 4 has an angle point and changes directions just east of Eisele's house. This lotline is not able to be sighted by eye. To prevent the construction of the channel from going off the Eisele's property, he recommends that the north line of Lot 4 be established in the field by a surveyor so that the permitting agencies can see that the channel remains on the Eisele's property. 2. The Eisele's propose to erect a silt fence or hay bale dikes to enclose the dredge spoil until it dewaters. These dikes shall remain in place until turf is established on the spoil to prevent erosion. M/S/P Graves/Johnson - approve the request by John Eisele, 3141 Klondike Avenue, for a permit to work in protected waters; contingent on the two conditions indicated in Larry Bohrer's letter dated November 2, 1987. (Motion carried 4-0<Armstrong was not present to vote). B. Browns Creek Surface Water Management Plan The Browns Creek Watershed includes a one-half square mile (quarter section) area in the NE corner of Section 1 in the NE corner of Lake Elmo, near the intersections of Co. 15/Manning Avenue and Trunk Highway 36. City Engineer Bohrer reviewed the Water Management Plan for impact on these 160 acres and his comments are listed in his letter dated November 2, 1987 to the City Council. Bohrer stated in his letter that the policies and goals of this Water Management Plan are very close to the way Lake Elmo has been doing things for years. In fact, the City -adopted "1% Rule" is slightly more restrictive than the Brown's Creek Plan. The City will have to pay a little more attention to water quality by adopting rules limiting soil loss and enacting some type of septic system inspection. The Brown's Creek Water Management Organization is soliciting local comments on the Plan. The only objection Bohrer found was with Water Quantity Policy 1D on page 29, which states: "Stormwater management improvement on existing and new systems shall be designed on the Gritieal storfn event for shall not be less than a one-in-100-year frequency storm event (5.9 inches in 24 hours)." LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 9 This would imply that all conveyance systems (culverts, storm sewers, ditches, etc.) must be designed for the 100-year event. This would lead to very large and expensive storm water facilities. Bohrer suggests that storm sewers and culverts be designed for the 100-year event but that overflow paths, waterways, and ponds be designed for the critical event. M/S/P Armstrong/Graves - to direct the City Engineer to forward a letter with his comments as stated in his letter dated November 2, 1987 to the Browns Creek Watershed Management Plan (NE 1/4 of NE 1/4 of Section 1). (Motion carried 5-0). C. 201 Program: Change Order for Blacktop Work on 32nd Street The City of Lake Elmo had planned to construct a bituminous overlay on 32nd Street from Lampert Avenue to Klondike Avenue. A portion of this road will be disturbed in the construction of pressure sewer for Old Village Remote Site C. The pressure sewer trench in 32nd Street will be patched under this contract. The City finds that it is convenient and economical to add the planned bituminous overlay work to this existing contract by means of a non -grant eligible change order. The price to construct a 1-1/2" compacted thickness bituminous overlay on 32nd Street from Lampert Avenue to Klondike Avenue (1360 LF x 18' wide) for the lump sum price of $10,500.00. M/S/P Johnson/Graves - to approve Change Order No. 3 of $10,500.00 to allow for blacktopping work on 32nd Street as part of the 201 Project, Part D - Off -site and Collector Septic Systems. (Motion carried 5-0). 8. CITY ATTORNEY'S REPORT City Attorney Knaak provided a brief written summary of the current status of pending civil matters involving the City of Lake Elmo. In the future, he will have this summary available for packet distribution. Councilman Graves questioned the vote on October 6th on the eligibility, in light of information he has picked up, on appropriateness of Rose Armstrong voting on this decision. Graves asked if it would not be appropriate to get an opinion from the Attorney General on this issue. Attorney Knaak responded that circumstance have changed, and his opinion may change, but he stands by his opinion rendered to the Council at that time. He would not dispute it was a close call. Knaak indicated the issue is out of our control and he again stressed confidentiality toward the matter. Tom Armstrong stated he doesn't care if the City appeals the decision or not. He was not a part to the decision, nor took part in the decisions, did not have an opportunity to call witnesses or cross-examine witnesses, and did not have a chance to take part in that deeisien whatsoever as —a party. "Whether the 15-it or not is of no interest to me" Tom said, "the City can do as they see fit." Tom added "If you feel there is a conflict of interest of my wife in any involvement of the case you are dead wrong. Whether the LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 10 City appeals it or not, there is no legal implication upon him". In order to set the matter to rest; Tom felt he finally did what he should have done a year ago. He filed a suit against the City for Declaratory Judgement action. Tom stated "what Judge Kalina did, which he feels he was totally in error in that particular case, was no consequence to him. If you are trying to imply that my wife somehow is not of good character because she voted on it --you are dead wrong both from a legal and moral standpoint". Tom added "I know, and you know, you raised it for political reasons to benefit your crowd that come down, including Mr. Madson. You and Mr. Moe can do as you see fit". Councilman Graves responded to Mr. Armstrong "that your opinion is only as good as your own voice and opinion are registered." Graves had consulted with other attornies who could differ with Armstrong's opinion. Tom asked if Graves would like to name them. Graves responded "No, I would not". City Attorney Knaak advised the Council not to respond further and encouraged Mr. Armstrong to recall what lawyers are required to do with communication during litigation and to direct any further comments to him. Armstrong responded that this would be settled in Court. 9. CITY ADMINISTRATOR'S REPORT A. Manning Avenue Maintenance Agreement Washington County has built a new segment of County Road 15 (Manning Avenue) to bypass the winding section between Downs Lake and Horseshoe Lake. The County will be acting to officially turn back segments of the area to the City of Lake Elmo and West Lakeland Township. The County agreed to cover the cost of road maintenance for two years, plus putting on a new blacktop overlay and installing street signs at CO. 15 and a warning barricade at 20th St. The County has requested that the City of Lake Elmo perform the road maintenance work for the next two years and bill the County for the cost of this work. The Maintenance Dept. has responded that it can do this extra work. Councilwoman Armstrong stated they had no preference as to what name should be used for "old" Manning Avenue. M/S/P Armstrong/Graves - to authorize the City Administrator to send a letter of understanding to Washington County Public Works indicating the agreement that the City of Lake Elmo will maintain old Manning Avenue and bill all related cost to the County for reimbursement of work done during the next 24 month period. (Motion carried 5-0) B. 1987-1988 Consulting Audit/Accounting Agreement The City's consulting auditing firm, Voto, Tautges, Redpath & Co. has submitted its standard agreement for auditing/accounting services for LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 11 1987-1988. The contract is similar to last years's contract except for a rate increase of 4.5 percent. A copy of the agreement along with an itemized bill for services in 1986-1987 were given to the City Council. City Administrator Overby had asked if the Council wanted to solicit bids from other accounting firms for 1988. Finance Director Marilyn Banister was well satisfied with this accounting firm and suggested renewing their agreement. M/S/P Graves/Moe - to renew the auditing/accounting agreement with Voto, Tautges, Redpath & Co. for 19887-88. (Motion carried 5-0). C. City Hall Maintenance Service Cleaning and shampooing of the carpet in the City Hall needs to be placed on a regular schedule and done by an outside cleaning service. Quotes were received from Lake Elmo Cleaning and Shopping Services and Servicemaster. M/S/P Johnson/Armstrong - to approve the hiring of Servicemaster to do carpet cleaning and restroom cleaning at the City Hall as stated in his proposal. (Motion carried 5-0). D. Additional Appropriation to Buy More Ski Licenses The City Council on 10-6-87 approved an expenditure of up to $675.00 for the purchase of cross country ski licenses from Washington County and resale at the Lake Elmo City Hall during the 1987-1988 ski season. The North Star Ski Club would like to buy license from the City of Lake Elmo at their big membership meeting on Tuesday, November 10, 1987. Ted Cardozo of the North Star Ski Club has made arrangements to have someone sell the Lake Elmo licensses at their meeting. The problem is that the $675 will not pay for the estimated 200 licenses that could be sold at the Club meeting. Another $1450 is needed to purchase enough licenses. The City collects 50 cents for every license it sells, so the sale of licenses at the North Star meeting could generate up to $100 in direct cash revenue for the City. The State of Minnesota will pay the City of Lake Elmo an amount equal to 20 percent of the City's total license sales this season, in its allocation of ski license program revenue in late 1988. For example, if the City sells $2,000 worth of ski licenses this season, the DNR would allocate $400 to the City of Lake Elmo for ski trail maintenance in 1988. M/S/P Armstrong/Graves - to authorize the City Administrator to purchase an additional $1500 (to be taken out of the Parks Fund and the benefits put back in the -Pa-rkq. Fund) ef Gress-Geuntry ski lieenses to be sold at the North Star Ski Club meeting. (Motion carried 5-0). 10. Other Business LAKE ELMO CITY COUNCIL MINUTES NOVEMBER 3, 1987 PAGE 12 A. Letter from Mayor of Afton Councilwoman Armstrong asked that a letter be sent with Lake Elmo's version of the City of Afton letter to the Valley Branch Watershed District in regard to water management and the Metro East development - initiative. M/S/P Armstrong/Graves - to direct the City Administrator to send Lake Elmo's version of the City of Afton letter to the Valley Branch Watershed District in regard to water management and the Metro East development initiative. (Motion carried 5-0). B. Letter to Robert Overby Councilman Moe brought up a letter that was sent to City Administrator Overby which was signed by three councilpeople. Moe was hurt because he was not approached with this letter and told what the three decided to do. He had no problem with the letter if each one would have written their own letter to Bob and signed it themselves. Moe thought they had to talk to each other about this and felt it was improper procedure. Mayor Christ did contact Councilman Graves and asked him if he would like to be a party to this and he expressed he did not. He did not contact Councilman Moe. Mayor Christ stated this letter was intended to provide an opportunity to go quietly. Anytime you have a sensitive situation the less adverse publicity, that won't hurt us as much as it would hurt the other party. He has a very strong concern about it blowing up. It becomes another political issue or an issue that is - never to the benefit to the party in question. Counilman Moe asked City Attorney Knaak if this was improper procedure. Attorney Knaak responded that Moe's remarks are thoughtful and should be taken a guidance, but there was no illegal action on the part of the City. M/S/P Moe/Graves - to adjourn the City Council meeting at 10:45 p.m. (Motion carried 5-0). ATTACHMENT A 7��� T.OLTZ, KING, DUVALL, ANDERSON AND ASSOCIATES. INCORPORATED ENGINEERS ARCHITECTS PLANNERS 2500 AMEHICAN NATIONAL BANK BUILDING SAINT PAUL. MINNESOTA 55101 -1893 612/292-4400 FAX 612/292-0083 November 3, 1987 Honorable Mayor and City Council Lake Elmo, Minnesota Re: Eden Park Drainage Concerns Lake Elmo, Minnesota Commission No. 7113-007 Dear Mayor and Council: At the October 6, 1987, Council meeting, a number of residents within the Eden Park Subdivision submitted a letter to the Council expressing concerns for drainage. The letter was referred to the City Engineer and City Attorney for comment. The following is our review of the engineering questions contained in that letter. QuestlgnAo. 1 was a two-part question regarding information shown on the preliminary plat. Firstly, the plat stated that the "drainage easement will attempt to delineate elevation 891 around the pond". This was a correction procedure since 891 was the accepted flood elevation by the VBWD and City Engineer at that time. Filling was not necessary around the pond to achieve this elevation. Secondly, the preliminary plat showed areas around the pond where fill was to be added. The question was raised as to whether this work was ever done. From our field observations at the Voge's lot, it cannot be determined if fill was added. The preliminary plat showed that fill would be added below elevation 885. The present pond level is about 886. Whether the fill was or was not placed does not change the situation and would not move the water farther away from the Voge's home. There was no Developer's Agreement on this subdivision. que5tlQn_Ng,.-2 asked about a City policy on flooded streets. The City has no "policy" on flooded streets; however, flooded streets are not new to the City. 20th Street, 50th Street, Hill Trail and the end of 32nd have been under water at least once in recent history. In each case the City hauled in fill as necessary with no local assessment. The possibility of flooded streets brings up the more serious issue of access. Keep in mind that when Eden Park was platted, 891 was the official flood elevation. Under these conditions, the low spot in Legion Avenue would be covered with two feet of water and the low spot on Legion Lane would be covered with three Inches of wa er. Although not desirable, Legion Lane would still be traversable and access would be maintained. Honorable Mayor and City Council Lake Elmo, Minnesota November 3, 1987 Page 2 In 1978, the VBWD did additional studies on the Downs Lake's Watershed and revised the flood elevation to 894. Downs Lake begins to run out at 891.5 but because inflow would exceed outflow, the lake could temporarily rise to 894. This would mean that both Legion Avenue and Legion Lane would be impassable for a period of time. This would cut off access to 26 lots in Eden Park and to the lots in Packard Park Additions. This situation would only occur if Downs Lake overflowed into Eden Park Pond. This situation could be prevented with some diking between Lots 9 and 10, Block 2. Que5±jQn_NQ._3 asked about a City policy on flooded septic systems. The City has no "policy" of assistance for flooded septic systems. The City has helped out in the past with coordination of satellite toilets but has not participated financially in replacing systems. It is interesting to note that in our investigation we did find that the building inspector did require the minimum building elevation be established in the field by a surveyor on at least one lot (Lot 6, Block 3). We also found that a site plan was submitted for the Voge lot (attached) which showed the land around the house to be elevation 900. The elevation Is actually 891.6 at the walkout level. QA&_-,ti.Qn_N4__A asked about the possible blockage of Downs Lake outlet due to Tartan Park Golf Course construction. We have not been able to confirm whether any Tartan Park construction changed the outlet elevation of Downs Lake. This embankment, if it exists, does not contribute to the present problems in Eden Park. It may be significant only when Downs Lake begins to overflow, which has not happened since 1965. Qne_,,_tIQ_iLNQz_5 asks the City to perform a rough cost estimate to provide an improved outlet to Downs Lake, Eden Park Pond and Durand's Pond. Such a cost estimate is outside the scope of this letter -type report and would best be included as part of the City's Surface Water Management Plan which the City must prepare now that the VBWD Overall Plan is done "e5t1Qn_NQt_6_ asks the City to impose a development moratorium around the Eden Park area until these drainage issues are resolved. Since this is not an engineering question, we cannot respond to it. Sincerely yours, ,& A-zuz� Larry D. Bohrer, P.E. LDB:adh ATTACHPTENT B RAUENHORST CARLSON & KNAAK ATTORNEYS AT LAW ARDEN PLAZA 3585 NORTH LEXINGTON AVENUE ARDEN HILLS. MINNESOTA 55126 KATHLEEN K.RAUENHORST STEVEN P.CARLSON FREDERIC W. KNAAK November 3, 1987 Mr. Robert L. Overby City Administrator 3800 Laverne Avenue North Lake Elmo, Minnesota 55042 Re: Eden Park Pond, Homeowners' Issues of September 29, 1987 Dear Bob: TELEPHONE: (612) 484-2727 As per the directions of the City Council at its last meeting concerning the above referenced issue, as well as our discussion with Larry Bohrer last Friday, I have reviewed the letter directed to the City in which the Eden Park residents raise a number of issues for comment. As we discussed, my remarks will be focusing exclusively in the legal issues raised in the letter. We will deal with the second issue first. Paragraph 6 of the letter raises a question as to whether the City Council could place a moratorium on any development in these areas that contribute water to the flood zone until the water problem is solved". The sole authority for a City to impose a development moratorium is found in Minnesota Statute §462.355, subd. 4, which provides as follows: "If a municipality is conducting studies or has authorized a study to be conducted or has held or has scheduled a hearing for the purpose of considering adoption or amendment of a comprehensive plan or official controls as defined in section 462.352, subdivision 15, or if new territory for which plans or controls have not been adopted is annexed to a municipa- lity, the governing body of the municipality may adopt an interim ordinance applicable to all or part of its jurisdic- tion for the purpose of protecting the planning process and the health, safety and welfare of its citizens. The interim ordinance may regulate, restrict or prohibit any use, deve- lopment, or subdivision within the jurisdiction or a portion thereof for a period not to exceed one year from the date it is effective, and may be extended for such additional periods as the municipality may deem appropriate, not exceeding a total additional period of 18 months. No interim ordinance may halt, delay, or impede a subdivision which has been given preliminary approval prior to the effective date of the interim ordinance." (Emphasis added). Mr. Robert Overby November 3, 1987 Page Two The statutory reference in the above -cited statute is to Minnesota Statute §462.352, subd. 15, which provides as follows: "Official controls" or "controls" means ordinances and regu- lations which control the physical development of a city, county or town or any part thereof including air space and subsurface areas necessary for mined underground space deve- lopment pursuant to sections 472B.03 to 472B.07, or any detail thereof and implement the general objectives of the comprehensive plan. Official controls may include ordinan- ces establishing zoning, subdivision controls, site plan regulations, sanitary codes, building codes and official maps." On the basis of the express language of the statute, it is clear that any deve- lopment which has already received preliminary plat approval from the City of Lake Elmo could not be included in a su Sequent moratorium. I would conclude that if the City were to decide, for a reason allowed under the statute, to impose a development moratorium, the Packard Park Second Addition Development could not, in any case, be included. For the City to seek a moratorium on development in an existing territory of the City, one of three statutory conditions must be met: 1) The City must be currently conducting a study for the purpose of amending the Comprehensive Plan; or 2) the City must have authorized a study to be conducted for the purpose of amending the Comprehensive Plan; or 3) the City must have already scheduled a hearing for the purpose of considering the adoption or amendment to the Comprehensive Plan or "official controls" as defined. In this particular case, "official controls" would be the zoning code and its ordinances as they would apply to land use control. It is my understanding that no study, or authorization of a study, or hearing on either the overall Comprehensive Plan as it applies to this area or the zoning code has occurred. I would, therefore, conclude on this issue that the City currently is not in any position to impose a moratorium on development in the area, nor would, in any case, such a moratorium in any way have an impact on the Packard Park Second Addition Development proposal. Another issue that was raised in the letter of September 29th was whether an embankment in Tartan Park was "legal". We are unaware of any authorization, or lack of authorization, for any embankment of the sort described for Tartan Park in the City of Lake Elmo. We understand that inquiry is being made as to the Mr. Robert Overby November 3, 1987 Page Three history of the flowage through Tartan Park. It should be the City's position on this matter, however, that any action on the part of a property owner that diverts water in a way injurious to another property owner is a private matter between those individuals unless the land involved is owned by the City or some remedial action on the part of the City has occurred to make the problem worse. Finally, the first issue raised was that the Eden Park Homeowners "do not feel it should be the financial responsibility of these homeowners to correct a mistake which was blessed by the City". The "blessing" referred to in the letter apparently consists of the "failure" on the part of the City to record any objection to the plan submitted by the homeowners to the City for review or approval. I have been unable to find any authority for the apparent position on the part of the Eden Park homeowners that the City has acted as some sort of guarantor for any damages that may result from their failure to conform to City ordinances for the submitted plats. Understandably, there are no written assurances on record with the City containing any such guarantees. Please advise if you feel further legal analysis is required on these issues. I will, of course, be available at the Council meeting to expand on any of these points, if requested. Sincerely, RAUENHORST CARLSON &;KNAAK V ederic W. Knaak City Attorney FWK : wj m Since we do not have time to discuss every point presented, it may seem that decisions are preconceived. However, background information is provided for the City Council on each agenda item in advance from City Staff and appointed Commissions; and decisions are based on this information and past experiences. In addition, some items may also have been discussed at previous Council meetings. If you are aware of information that hasn't been discussed, please fill out a "Request to Appear Before the City Council" slip; or, if you came late, raise your hand to be recognized. Comments that are pertinent are appreciated. Items requiring excessive time may be continued to another meeting. AGENDA LAKE ELMO CITY COUNCIL NOVEMBER 3, 1987 6:30 p.m. OPEN HOUSE at Fire Station #2 on Jamaca Avenue 7:00 p.m. MEETING CONVENES 1. Agenda 2. Minutes: October 20, 1987 3. Claims 7:05 p.m. 4. Landfill Update 7:15 p.m. 5. Public Inquiries 6. PLANNING, LAND USE & ZONING A. Eden Park Residents' Concerns - Staff Response B. Final Plat: Packard Park 2nd Addition 8:00 p.m. C. PUBLIC HEARING: Request for Shoreland Permit with variances, 8126 Hill Trail N. 8:30 p.m. D. Zoning Ordinance Amendment: Industrial Park District E. Zoning Ordinance Amendment: General Business District 9:00 p.m.- - - - - - - - - -B R E A K- - - - - - - - - - - - - - - 9:10 P.M. 7. CITY ENGINEER'S REPORT A. Protected Waters Permit: 3141 Klondike Ave. N. B. Browns Creek Surface Water Management Plan C. 201 Program: Change Order for Blacktop Work on 32nd Street 8. CITY ATTORNEY'S REPORT 9. CITY AnMTNTSTRATnR'C RFDnDM A. Manning Avenue Maintenance Agreement B. 1987-1988 Consulting Audit/Accoutning Agreement C. City Hall Maintenance Service 10. Other Business 11. Adjourn