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HomeMy WebLinkAboutCC MINUTES 12091980 f i Meeting Sheet - 102092 1 BOX::21 Folder: CC MINUTES AND AGENDAS 1980 Document: CC MINUTES 12091980 J CITY OF ST. ANTHONY COUNCIL MINUTES December 9 , 1980 The meeting was called to order by Mayor Haik at 7: 30 P.M. Present for roll call: Letourneau, Ranallo, Haik, Sundland and Marks. Also. present: . Jim Fornell., City Manager; Ron Berg; Administrative Assistant; William. Soth,City Attorney- and Carol Johnson, Clerk/Treasurer. The minutes for- the special Council work session held November 20 , 1980 , were corrected to indicate the meeting was adjourned at "8 : 30 P.M. " rather than "7 :30 P.M. " . Motion by Councilman Sundland and seconded by Councilman Ranallo to approve as corrected the minutes for the Council work session held November 20 , 1980 . Motion carried unanimously. Motion by Councilman Sundland and seconded by Councilman Marks to approve as submitted the minutes for the regular Council meeting held November 20 , 1980 , following the work session. Motion carried unanimously. • The minutes for the special Council meeting held November 25th to select a planning firm to study the revitalization/redevelopment options for the Kenzie Terrace area and to appoint the Kenzie Terrace Task Force were amended to strike. from the motion appointing the task force members the words "and Councilman Marks will check with Mr. Pulscher on his service" . Motion by Councilman Letourneau and seconded by Councilman Ranallo to approve as amended. the minutes for the special Council meeting held November 25 , 1980 . Motion carried unanimously. Doug Jones presented the recommendations to the Council made by the Planning Commission during their meeting November 18 , 1980 , as reflected in the minutes of that meeting. He reported the public hearing on the proposed amendment to the Zoning Ordinance to include video tape sales and rentals as a conditional use in a C, commercial district lasted for over two hours with the 30 to 40 persons in attendance expressing their objections to the ordinance change because they perceived the video movie center now operating in Apache would be dispensing and demonstrating pornographic materials . He quoted various objections made by those present as well a's the questions which the Commission members indicated they believed should be researched before any decision to modify the ordinance is made. Mr. Jones then read the Commission' s recommendation. ,- that ecommendation. _that the Council take no action on the proposed amendment. The Planning Commission representative said the absence of the proprietor of the video center was one of the deciding points in the Commission' s r � -2- decision although Mr. Berg had explained he had told the store owner his presence- was .not necessary until a conditional use permit request is made. . He -also reported that the Administrative Assistant had cautioned the Commission that, in the opinion of the City Attorney, the City might face the expensive proposition of having to .go all the way to the Supreme Court .to defend ,a decision -.of-denial-because of .p:ornography. Joseph Dudley, Jr. ,. 1250 West' First.Natibna-I Bank Building; St. Paul, counsel for Worth Ochs , owner of the Video .Movie Center in the Apache Plaza shopping center, said his client- "had not been invited to the Planning Commissions hearing in November to answer questions about the store; was not selling pornographic movies; doesn' t own any other stores of the same type as the one in Apache , and. .has a 'family oriented' operation" . He said Mr. Ochs does demonstrate on a video replayer, which can be purchased through the store, cassettes from the general film field which are sold in the store but the store is neither a "pornographic movie house;' .nor- an "adult bookstore"' with no comparison to be drawn with the type of operations found on Hennepin Avenue and .St. Paul'. He. said Mr. Ochs is interested only in dispensing "high class" materialswhere costs are such "they will be affordable only to the middle class family" . The attorney said videotapes and cassettes are the "hottest items on the market today" and. Mr. Ochs anticipates he .will do well at the Apache location.- He urged the Council to include this type of _sales in its permitted uses and not to- table the request, as recommended by the Planning Commission, which he believes the City Attorney would agree would be "prior restraint .on Mr. Ochs and a limitation of his rights as well as possible harm to his reputation" . Elie J. Dubay, 3012 - 32nd Avenue .N.E.., was upset because he had not known a lawyer would be representing Mr. Ochs at this meeting, commenting he didn' t believe "residents should have to retain a lawyer to appear before the Council" . He drew a comparison with the store and the Fun Center in the St. Anthony Shopping Center which he said he had opposed. He didn' t think the policy of "always having the best in St. Anthony" would be continued with this store and thanked the Planning Commission for listening to the opposition to the store and recommended no action to the change in the ordinance which will permit the operation. Mayor Haik then addressed those present by telling them she believed the controversy had arisen when .a connection had mistakenly been made between Mr. Och' s store in Apache and the request for a video store in St. Anthony Shopping Center whose owners had indicated to City staff they intended to sell "x-rated materials under the counter" for which no follow-.up has been made. ' "This misunderstanding going abroad had persisted in spite of the fact that, . to the Council ' s knowledge, no pornographic materials are being sold in the video center in Apache and we will be certain none is sold. there in. the future. " She replied to Mr. Dubay' s concern that., since Minneapolis is so close, some of the types of operations permitted there might be relocated in St. Anthony, by saying the Councl .will make certain "no such materials are made available in St. Anthony" . Mr. Dubay blamed the "recent increase in crime in St.. Anthony on the operation of the Fun Center, which brought in people walking our streets we didn' t have years ago" . He believed physical harm to persons resulted from that rise in crime. The Mayor told him when the first concerns regarding the operation of the Fun Center were voiced to her -personally, the Police Department had been instructed to watch the center carefully -3- and the owner had appeared several times before the Council to assure . them of .his ..own careful surveillance of the Fun Center as well as his clientele. ., .:The,.' "Mayor said she didn' t . believe the ,type of crimes which have increased such . as vandalism could-- be identified as directly connected to the Fun -Center. Mr.., Dubay then asked whether there had been any rapes in the City lately and was told that 'there. :had been some instances of "attempted rape" in the northern section of the City. She has concluded from her own. conversations with a mother who had called her about the Fun .Center that this was another case "where parents have to assume some of the responsibility for- their own children; especially observance of the City curfew" . Councilman Marks told Mr. Dubay it is a fairly regular occurance for persons appearing before the Council to be represented by counsel and there have even been several occasions ,:where a court reporter took down testimony for- permits . He said he .often rides along with the Police on their rounds and has discussed the Fun Center with the officers and found they believe the center to be "fairly well run" and that the Police "often prefer having the teenagers congregating in a well super- vised location such as the shopping center to other places they hang around" . He said statistics don't show a rise in crime in categories which could be related to the Fun Center.. Councilman Ranallo .told those present the Council "doesn' t intend to have pornography permitted in St. Anthony at...all' . He believed better reporting • methods .by the Police Department might have resulted in higher crime figures this year. Mr. Fornell said certain types of crime have increased with crimes against property up somewhat but other types such as auto theft declining. Mr. Jones responded to Mr. Dudley' s comments by reiterating that Mr. Berg had explained why Mr. Ochs had not been invited to the hearing. He told him all the information regarding the center 's operation had come directly from the residents . who spoke in opposition to the store and he personally had not even known the store was in Apache until the Comm- ' ission hearing was held. He also mentioned -Mr. Lohmar' s belief that the Apache merchants wouldn' t tolerate a business which might be bad for their business. Mr. Ochs then explained that his Apache landlords had anticipated .no problems with his store operating in the center .because they believed the video equipment he offered would qualify the store under the "electronics" classification in the Zoning Ordinance, but staff had later informed him that only a store which is "purely electronic" meets that qualification. He said he has. been a resident of the "northern area' , especially Roseville , for most of. his life and is well aware of the "sensibilities" of the community. He, therefore, has no desire to carry "raunchy material in his store. The center proprietor then "cord- ially invited any intersted person to visit his store and to view anything he has available" . He promised to "remove anything you find objectionable" . Councilman Sundland said he had attended the hearing after receiving several calls regarding the store and had come away with the same per- ception many others had that this operation might be the same as that which had indicated its interest in locating in the St. Anthony Shopping -74- Center. Meetings with .Apache management and merchants since that date have convinced him .of .their . concern about offending the sensibilities of the. City residents and their sincerity in insisting they- wouldn't put up with X-rated materials ,being sold in--the center. The Councilman said he .was- certain the Council- would have undertaken a lawsuit if Mr. Ochs were involved with X-rated materials. Planning Commission member, Judy Makowske,, .:then :reported .that after the November hearing, . she had met at the store with Mr. .Cavanaugh, Apache ' s counsel, and Mr. Ochs and was `.pleased to find .the. store::did not have "adult" written on it . as had been inferred during the- hearing. She said Mr. Ochs had told her that, though the store had a catalog of what might be offensive materials, he would dispense .with its use . .if it would not be acceptable to the community. Mr. Dubay then said there had been nine very good reasons the residents did not want the store permitted at Apache and reiterated his concerns .the store will now produce the same bad effect on the community as the Fun Center. At this point, about a dozen persons who- .had been unable to gain access to the building joined. the discussion. . One of these, Jim Zellmer, 3414 Downers Drive, was informed of the testimony which had already been developed by the Mayor who said she saw two questions regarding the ordinance modification; first, whether .this type of business belongs in :the City' s Zoning Ordinance and finally., whether pornographic materials • are being shown in the Apache store for- which there has been no evidence demonstrated. Steve Kuzma, 1818. Arthur Street N.E. , requested to speak though he is not actually a resident, saying he. is a -long-time shopper in St. Anthony. He said "even though the objections raised regarding .the video store , might not be valid now, granting permission for this type of store could lead to other -businesses which would be objectionable" . .Mrs. Makowske suggested that to "set the minds of the residents at ease, a ' smut ordinance ' should be developed to enable- the . .City to deal with pornography" . Marge Kocon, 3409 Belden Drive, asked for a definition 'of "pornography" and the City Attorney read the state statutes .defining obscenity. Mrs. Kocon then said she believed the Ordinance should be written "to this community 's standards" . Mr. Soth told her that in the .Miller vs . California the Supreme Court had permitted the contemporary community standards could be applied but that no stateor municipal statute may define obscenity in any other language than that adopted by the court. with. elements of community standards included and the City cannot adopt an- ordinance which is more restrictive than the state statute or what had .been defined by the Supreme Court to be "obscene" . As an .example he .said "the City cannot have an ordinance which says any type. of nudity. .is obscene" however, the City can .impose a greater penalty . . for a violation of the ordinance than provided for in the state statute, with a fine up to $500 and a jail sentence up to. 90 days . Mr. Soth reminded those present that the penalty must be imposed by a judge and, often before a jury. Mr. Dubay questioned why the state' s pollution standards can exceed the federal standards and the Attorney told him such standards aren't subject 5- to, the Constitut -to, the. Cons,titut ional. principle. of Free.' Speech as is -pornography. Councilman.. Ranallo.. als.o.. told Mr._ Dubay. that what' s happening at state, and federal- levels in this. area. may set precedents for the City and pointed out. that recently Judge Neil: Reilly had ruled the Minneapolis Police Department cannot .even inves.tigate . an adult bookstore .without a warrant. . He then suggested concerned .residents ..might also look .at the .instances where X-rated printed materials are sold in .grocery stores in St. Anthony. Mary Ann Kuharski , 2709 Pahl Avenue N.E. , said she was sympathetic with the. Council's problems with the Constitutional quest-ions and agreed o "anther store in Apache probably should be picketed for the offensive materials it handles, " .,b.ut.:::she._.disagreed with Mr. Soth' s statements regarding how restrictive a City ordinance ._co.uld .be, saying the Supreme Court has decreed that "standards ofa contemporary community can be imposed" and citing the many books out now .demonstrating how pornography can be fought. She requested the Court' s ruling..be researched fully. The Manager told her there will probably- be different views and -inter- pretations on pornography to be found . in .any community as evidenced by the fact that "probably some St. Anthony people do buy . those magazines" . - He added "this is a very sensitive area- and it is. quite. a different matter for a private citizen to . take. a . stand- on- this question than it is for the City to do so" . Mr. Soth reiterated that no state or municipal state may define obscenity in any other but the language for the Court' s ruling and must meet this test,and a jury may differ with the ordinance, even if it meets this test... Mayor Haik then disagreed with the implication that the Council had found anything to- object- to in .the. video center since it has found the existing store does not carry X-rated materials. She -recommended all should be very careful to differentiate between "X-rated" and "porn- ographic" . Mr. Ochs repeated that he has no X-rated materials on his shelves though he recently received three X-rated movies (soft porno). which he had returned to the -supplier. - He . told Mr. Zellmer he had no financial obligation to accept such materials because he has a franchise, and although he does get all ,.new releases "sixty percent of his 'inventory . is returned every day" . Mrs.. Kuharske asked "what about our .rights not to be offended? . We may not represent all other St. Anthony people' s views but they should be. here to protect their own rights if they feel they are being threatened. " She saw it as the City government'.s duty to protect the community and said the children of the community are not. old enough to make their own decisions regarding questionable materials. Mayor Haik then told the Council she beleived the decision before them is "whether or not a zoning classification should be created for this store for which we have found no objections" . She said there are state statutes against selling pornographic materials. to children under 18 which the City can impose. Mr. Zellmer said although he is happy to hear Mr. Ochs does not intend to ,carry-offensive. materials in his store, he. is convinced there is little the City can do to prevent him from doing so, saying "he will be making money while the City becomes a pauper trying to make him stop through .:the courts!' . -6- Councilman Marks said . "there is nothing- intrinsically wrong with video " tapes" . He then told the history of how 'this media had been developed and the good uses to which ,.it has been applied. _ He conceded that porn- ography has become ..a .large portion of the .video,. market, but said he believed ,the type of..materials carried in a store depends on the sort of people who run the! establishment - He concluded- by saying during several visits to the store in :question, he. had .personal-1-y seen "not an iota of materials which he considered to be offensive.. and- .he believes, from a land use viewpoint, it will be reasonable -to permit this use in the City ordinance. since it fits so':well "with other permitted categories . He saw no reason to exclude the use- and believed its use should be separated from the issue of pornography. Mr. Kuzma said he believed the "Council has already made -up its mind on the question and. their decision,- though it might be correct from -a civic viewpoint might be morally wrong".. Mayor Ha,ik agreed that the Council members seemed to have made up their minds but didn't accept the premise that there was a moral issue involved. ' Councilman - Ranallo agreed saying inboth his regular and part time, employment he -is involved in the distribution- of video tapes',, none of-- which are X-rated. He could find "nothing morally wrong with selling educational materials to schools,. etc" . . He promised "if Mr. Ochs sells X-rated materials , we 'll close him down Motion by Councilman Sundland and seconded by Councilman Marks to waive further readings and adopt Ordinance 1980-010 . ORDINANCE 1980=010 AN ORDINANCE RELATING TO-LAND USE IN A COMMERCIAL .DISTRICT, AMENDING THE ZONING ORDINANCE OF'. THE- CITY OF -ST. ANTHONY, ATTACHED AS APPENDIX I .TO THE 1973 CODE OF ORDINANCES OF THE CIT.Y' OF ST. ANTHONY. Motion carried unanimously- The Council then agreed that tfie City Attorney should be .directed to prepare an-, -ordinance dealing with .pornography. When Councilman Ranallo suggested the ordinance should include a provision for saunas the City Attorney suggested- a.- more effective sauna ordinance ,could be developed separtately. Motion by Councilman Ranallo .and seconded by'. Councilman Marks to direct the. City Attorney to develop for- Council consideration an ordinance dealing with pornography with another related to saunas . Motion carried, unanimously. Mr. Jones concluded his presentation- by telling the ,Council. the Commission members wil_l. let them know soon whether or .not they desire to continue their service on the Commission in 1981. -7= Accepted as agenda: addendum .were .Resol.ution 80-093 under 7K; the November 21s.t MWCC request under ,10B. and Councilman Ranallo's. report on the City Biannual Ball under 11D. Motion by Councilman Sundland and .seconded by Councilman Letourneau to adopt Ordinance 19.80-008 . ORDINANCE 1980-008 . AN ORDINANCE RELATING TO THE USE OF BEER AND LIQUORS - IN CITY PARKS, AMEND- ING SUBDIVISION 1.4 OF SECTION 220 : 05 OF THE 1973 CODE OF ORDINANCES . Voting on the motion: Aye : Sundland, Letourneau, Haik and Ranallo. Nay: Marks Motion Carried. Motion by Councilman Letourneau and seconded by Councilman Sundland . to adopt Resolution 80-085 with the correction in wording suggested by Mr. Fornell. RESOLUTION 80-085 . A'.:RESOLUTION, APPROVING.,THE, POLICY FOR MUNICIPAL SERVICE FOR THE REMOVAL OR CHIPPING OF SHADE TREES . Motion carried unanimously. Motion by- Councilman Sundland and seconded .by Coun cilman Marks to adopt Resolution 80-086 . RESOLUTION 80-086 A RESOLUTION OPPOSING THE AMENDMENTS TO THE RULES AND . REGULATIONS OF THE RICE CREEK WATERSHED DISTRICT. Motion carried unanimously. In his -memo of December 3rd, the City Manager had recommended a severance payment fund of $40 ,000 be established for City employees and the deferred payments made' to .three former employees . Motion by Councilman Sundland and seconded by Councilman Ranallo to ' adopt Resolution 80-087 . • -8 • RESOLUTION 80=087 A. RESOLUTION ESTABLISHING A FUND FOR SEVERANCE -PAYMENTS. Motion carried unanimously. Richard Kristyniak, a City Public Works employee who previously-served as a Fire Department employee, was present to discuss..the question of whether the Council should approve the implementation of the..state statute which would...permit Mr. Kristyniak to-be..- declared a City firefighter for pension: purposes. Mr. Fornell had suggested. in his December 4th memorandum .the .approval of the resolution.-. accomplishing this should be subject to a .clause added, _to,.the agreement between the City and Mr. Kristyni.ak whereby he will "pick 'up any City cost-:liabilities res- . ulting .from passage of: the statute This was agreed to by the Public Works employee .who .said he wanted the law to be passed and was "willing to take his chances with the problems regarding. its retroactivity being solved through further legislation" . Motion by. Councilman Sundland and seconded by Councilman Ranallo to adopt Resolution 80-0.88 subject to inclusion of Clause No. 5 in the agreement with Mr. Kristyniak which_ .will . be ,developed by the City Attorney as recommended by Mr. Fornell. RESOLUTION 80-088 A RESOLUTION APPROVING MINNESOTA LAWS 1980, CH. 341 , SEC. . 7 AND DECLARING. RICHARD KRISTYNIAK TO BE A FIREFIGHTER FOR PENSION PURPOSES (Agreement Attached) . Motion .carried unanimously. Motion by :Councilman Sundland and seconded by Mayor Haik to adopt the resolution -which authorizes the budget .transfers - necessitated by changes in the Fire Department operations .since the preparation of the 1980 budget. RESOLUTION 80-089 A: RESOLUTION MODIFYING THE 1980 BUDGET. Motion carried unanimously. Motion by .Councilman Ranallo and-.seconded by Councilman Letourneau to adopt the -resolution which .authorizes .the budget transfers covering additional equipment purchases .for the Fire Department. RESOLUTION 80-090 aA RESOLUTION MODIFYING THE 1980 BUDGET. Motion carried unanimously. -9- Motion by Councilman Ranallo and seconded by Councilman Marks to adopt Resolution 80-091. RESOLTUION 80-091 . A RESOLUTION SUPPORTING THE REAPPOINTMENT OF JOAN CAMPBELL TO .THE METROPOLITAN COUNCIL. Motion carried unanimoulsy. Motion by Councilman .Sundland and seconded by Councilman .Letourneau to adopt the .resolution which authorizes ,.the County Auditor to apportion the outstanding special assessment's for: the 'Blanske Addition. RESOLUTION 80-092 A RESOLUTION RELATING TO THE REAPPORT- IONMENT OF SPECIAL. ASSESSMENTS FOR LOCAL IMPROVEMENTS . Motion carried unanimously. Motion by Councilman Ranallo .and .seconded by Mayor Haik to adopt Resolution 80-093. RESOLUTION 80-093 A RESOLUTION OPPOSING THE. ESTABLISHMENT_. OF HENNEPIN COUNTY JAIL BOOKING FEES. Motion carried unanimously. Mayor Haik emphasized that she had understood the Kenzie Terrace Study would encompass the total triangle of property bound by Kenzie Terrace, Lowry Avenue N..E. and Highway 88 . Motion -by Councilman Marks and seconded by Mayor Haik to appoint .Roman Hentges as the senior group representative; John Duranc, representing I.S.D. #k282 School Board and Mary" Cotroneo, as a shopping center merchant representative, to complete the slate for .the Kenzie Terrace Task Force. Motion carried unanimously. . Councilman Marks said :Mr. Pulscher had indicated a willingness to aid the task force in any way they felt his expertise was needed. Informational data on the,..parking problem on Skycroft from Mr. Hamer and Mr. '_Fornell had been included in .the agenda packet. The Manager said Mr. Simonson had concurred with staff suggestions for solving those problems . Motion by Councilman Sundland .and seconded .by Councilman Letourneau to approve the purchase .of a Chevette .with .a tilt steering wheel for the Public Works Department at a cost . of $5 ,102 .03 to be paid from the 1981 budget as recommended by the City Manager. Motion Carried unanimously. -10- It was .agreed the December 23rd Council meeting .will be held as scheduled unless nothing of pressing . importance is to be considered. Correspondence between the City and school district .regarding the fuel conservation plan for the Parkview -building -was noted and ordered filed. _Motion by .Councilman .Ranallo and seconded by Councilman Letourneau to -appoint Larry Hamer_to .serve as -the City' s representative on the Metro- politan Waste- Control Commission -Advisory Board with Jim Fornell as his .alternate. .Motion carried unanimously. The November Fir-e. Department report and the September and October reports from the Police Department were ordered filed. Councilman Ranallo -reported on preparations . for the 'S't. .Anthony Biannual .Ball to be held January 31st in the Apache Plaza mall. Motion by Councilman .Sundland and seconded by Councilman Marks to approve payment of all verified claims listed in the December 9 , 1980, agenda. Motion carried unanimously. Motion by Councilman Ranallo and .seconded by Councilman Sundland to approve payment of $76 . 55 to Dolphin. Temporary Help Services; $1, 452 .00 to Arcon Construction, Inc. ; $188 . 51 to' Short-Elliott-Hendrickson, Inc. and $876. 64 to Planning, Design & Research Engineers, Inc. Motion carried unanimously. Motion by Councilman Marks and seconded by -Councilman Ranallo to adjourn the meeting at 9:20 P.M. Motion carried unanimously. Respectfully submitted, Helen Crowe, Secretary I Lmz Mayor ATTEST:- City TTEST:City Clerk