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HomeMy WebLinkAbout2005.01.14 CC Minutes - Judicial Ditch 2MINUTES FOR THE SPECIAL CITY COUNCIL MEETING OF JANUARY 14, 2005 Mayor Fran Miron called the meeting to order at 8:10 am. PRESENT: GrangelHaas, Petryk, Puleo, Miron City Administrator Mike Ericson; CD Director Bryan Bear; City Attorney Dave Snyder; Water Resource Engineers Pete Willenbring and Phil Belfiori; and City Clerk Mary Ann Creager REPORT FROM SUBCOMMITTEE MEETING HELD ON JANUARY 6, 2005 City Administrator Mike Ericson provided Council with an update from the subcommittee meeting held on January 6, 2005. OUTCOMES/UPDATES FROM JANUARY 12, 2005 RCWD MEETING Water Resource Engineer Pete Willenbring provided Council with a Power Point presentation outlining possible alternatives to move forward with the Hardwood Creek/JD2 Rehabilitation Project. City Attorney Dave Snyder stated that the City was asking the RCWD to rescind/delay their action taken at its meeting of December 15, 2005 to make sure that both the City and RCWD were satisfied with the course of action. Dave stated that the 30 -day appeal to the 12/15/05 action was prepared and ready to be served. Council recessed its meeting at 9:00 an to hold the joint meeting with the Rice Creek Watershed District. MINUTES FOR THE JOINT COUNCIL/RCWD MEETING OF JANUARY 14,2005 RCWD Board Present: Andrew Cardinal, Harvey Karth, Barbara Haake, James Leroux and Roger Aiken Staff Present: Administrator Steve Hobbs; Office Manager Theresa Stasica; Louis Smith and Chuck Holtman of Smith Parker; Brett Emmons, Cecilio Olivier and Marcey Westrick of EOR City of Hugo: Mayor Miron, Council Member Granger, Council Member Puleo, Council Member Haas, and Council Member Petryk Staff Present: Administrator Mike Ericson, CD Director Bryan Bear, and City Attorney Dave Snyder Visitors: Brad Moore, Kent Lokkesmoe and Travis Germundsom of MN Department of Natural Resources; Dr. Sand Verry; Steve Woods, Board of Soil and Water Resources; John Waller, Vince Niemcyzk, Scott Robinson, Terry Young, Dean Stead, Dave Schumann, Jeff Gruett, Joe Marier, Quint Marier, Andy Goiffon, Debra Barnes, Don Steinke President Cardinal called the meeting to order at 9:10 a.m. All Board members were present. Motion by Manager Aiken, seconded by Manager Haake, to amend the agenda to begin with item 6. Proposed Agreement for JD2 Culvert Replacement Project. Manager Leroux requested that the agenda remain the same because of the large audience that may have taken time off to attend the meeting. Manager Aiken suggested there be a time certain for the City Council meeting of January 14, 2005 Page 2 adjournment of the meeting maybe 11:30 a.m. Council Member Puleo asked that there not be an early adjournment because he would like to see resolution of the items on the agenda today. Manager Haake withdrew her second to the motion. Manager Aiken withdrew his motion. Motion by Manager Haake, seconded by Manager Aiken, to adjourn the meeting by 11:30 a.m. Motion Carried 5-0. REVIEW RCWD BOARD ACITON FROM JANUARY 12.2005 Administrator Hobbs summarized the Board meeting of January 12, 2005 where the Board passed a motion to reconsider their 12/15/04 JD2, but delay any action on the motion until today's meeting (1/ 14/04). He also referred to a resolution that was drafted by RCWD and City of Hugo staff. This resolution was made available to the Board at their 1/12/05 meeting, but no action was taken at that time. Manager Haake asked District Counsel Smith that if the Board tables the motion to reconsider could we still proceed with the agenda and bring it up later in the meeting. District Counsel Smith replied that it is not necessary to table it. They can just proceed with the agenda and bring it up at a later time in the meeting. REVIEW AND ADOPT PROPOSED RESOLUTION Mr. Pete Willenbring, Water Resource Engineer from WSB, gave a PowerPoint presentation on the history of JD2. Mr. Willenbring pointed out that the City and District still have different legal opinions on wetland drainage and property rights, if the watershed district stays with the 12/15/04 motion the City may have to utilize the court system. Mr. Willenbring stated that Hugo and RCWD staff had been working over the past two weeks to develop a resolution and to suggest two alternatives for the City and the RCWD to follow, with Alternative 2 being the suggestion of Administrator Hobbs late in the afternoon of 1/13/04 during a conversation with Hugo staff. [Both alternatives were shown in the PowerPoint presentation and left on the screen for the remainder of the meeting]. President Cardinal's opinion was to rescind the 12/15/04 motion and start over with new resolution and work with the City. Manager Haake asked that the City explain their concerns regarding the resolution. Mayor Miron replied that he could not support the resolution but he would like to discuss the additional two alternatives that the City had included in their PowerPoint presentation. Alternative 1 -Support implementation of on-going annual maintenance per the Blue Ribbon Task Force direction, and rescind 12/15/04 RCWD action for specified period of time or indefinitely. Alternative 2 -Selection Option 4 per the 10/29/04 Engineer's Report and 12/15/04 findings, do not rescind RCWD action, but work with Hugo, and if, Hugo drainage needs not addressed, agree that RCWD will petition itself within three years to undertake renewed ditch repair proceedings. City Attorney Dave Snyder explained the City's position regarding the resolution and that it would not be acceptable because of drainage rights question. If the District does not agree to the City's City Council meeting of January 14,2 005 Page 3 Alternatives 1 or 2, he will recommend to the City to appeal the RCWD decision. Manager Haake asked that Brad Moore, Assistant Director of the DNR speak at this time. MNDNR VOLUNTARY ACQUISITION PROGRAM Brad Moore, Assistant Commissioner of the DNR, explained that making land acquisitions or easements from willing sellers around Rice Lake is a priority. That the DNR has removed cattails from the channel as noted in the Blue Ribbon Task Force report. He believed that the District is moving in the right direction and hopes that the work will continue. Mayor Miron explained that he supports the water quality initiative of the District downstream of Hwy 61 and questioned if LCMR funds could be used under the maintenance scenario. Travis Germundson, from the DNR, replied that they have seen and discussed with the District Option 4 for minor maintenance and a water quality rehabilitation plan downstream from Highway 61 and that DNR could not answer whether or not LCMR would accept certain expenditures. Mr. Moore replied that he would volunteer to sit down with the City, LCMR and RCWD to discuss the LCMR grant project. RCWD Administrator Hobbs replied that he has already sent a revised work plan to LCMR to include work downstream of Highway 61 under the maintenance scenario and LCMR has agreed to the change. Mayor Miron encouraged DNR to contact landowners around Rice Lake regarding land acquisitions and easements. Mr. Moore replied that they would keep the City and District informed during this process. Mr. Moore thanked the council and board. President Cardinal recessed the meeting for 5 minutes. REVIEW AND ADOPT PROPOSED RESOLUTION Motion by Manager Haake, seconded by Manager Karth to accept resolution 05-01 as written. City Attorney Dave Snyder stated that if the resolution is adopted he will recommend to the City to commence litigation immediately. He would like the Board to focus on the City's two alternatives as presented. Manager Haake commented that she didn't feel comfortable with the 3 -year language in Alternative 2. Manager Aiken asked District Counsel Smith to clarify Alternative 2. District Counsel Smith replied that the District would need the City's cooperation if the District installs culverts under 170th Street, 165th Street, and 157th Street. The language under Alternative 2 to have the District petition itself in 3 years, if necessary, but such action can't make a future Board agree. Mayor Miron asked the Board to defeat the motion and work with the City on the two alternatives. President Cardinal commented that litigation is not a good option. Manager Haake asked for a friendly amendment to the resolution on page 2, under "Therefore Be It Resolved", item 2. should read, "2. That the District commits its good offices to working with Hugo and the MnDNR to reduce future uncertainty and establish the terms of ongoing JD 2 maintenance, and also to seek an MnDNR determination as to its intentions regarding the management of Rice Lake and possible compensation acquisition by fee title or easements to areas riparian landowners; and" Manager Karth accepted the amendment. Motion carried 3-2, Managers Leroux and Cardinal opposed. Manager Leroux stated that he is opposed to the resolution and he would like to move forward with the City to avoid litigation. Mayor Miron asked the Board to focus on of the 2 alternatives. Mayor City Council meeting of January 14,2 005 Page 4 Miron commented that the District's Administrator Steve Hobbs drafted Alternative 2. District Administrator Steve Hobbs explained that Alternative 2 was suggested because the watershed district will be monitoring the minor maintenance for its success and if there is a problem, the district can fix it without re -petitioning and the expenses associated with that. The cost would not be nearly as expensive. Manager Haake withdrew her motion to accept the resolution and Manager Karth withdrew his second. REVIEW RCWD BOARD ACTION FROM JANUARY 12, 2005 Motion by Manager Haake, seconded by Manager Leroux, to bring forward the Board's 12/15/04 motion to reconsider (the motion was read) [Motion on the floor to accept the findings on Hardwood Creek JD2 Repair Petition of 12/9/04 based on the Board's motion of Option 4 for minor maintenance and the implementation of culverts under 170th Street, 165th Street, and 157th Street if needed, and a water quality rehabilitation plan downstream from Highway 61. After the current minor maintenance is completed, the RCWD will explore assigning future minor maintenance of JD2 over to the City of Hugo and an annual fund of up to $40,000 per year be established to support the City of Hugo's minor maintenance for JD2 and its official branches. Motion carried 4-1. (President Cardinal opposed)] President Cardinal took a role call vote on the motion to reconsider the 12/15/04 motion as read: Manager Leroux -Yea Manager Cardinal -Yea Manager Aiken -No Manager Haake-No Manager Karth-No Motion failed 2-3. PROPOSED AGREEMENT FOR JD2 CULVERT REPLACEMENT Mayor Miron commented that he was saddened by the Board's vote. He deferred the discussion to City Attorney Dave Snyder. City Attorney Dave Snyder stated that Hugo would like to have some discussions on Alternatives 1 & 2. The City of Hugo would agree to a shortened time period in Alternative 2 from 3 years to 18 months. At this time, however, he would recommend the City initiate litigation against the RCWD President Cardinal stated that he was very disappointed that the Board could not agree and the way the Board voted on the motion that was before them. He stated when they had the DNR, the City Council and the Board of Managers all in one room, and they do not have the chance to do that very often, the Board still could not make an agreement. Motion by Manager Leroux, seconded by Manager Karth to extend the meeting time to noon. Motion carried 5-0. Motion by Manager Karth that the District will proceed to implement its December 15, 2004 decision by: City Council meeting of January 14, 2005 Page 5 a. Completing the cleaning of JD2 to remove impediments to flow and provide positive drainage through the system, with the goal of completing this work by mid- January (apart from the culvert work to be done by Washington County on Branch 2 this spring); b. Proceeding with technical review and legal procedures to restore hydraulic connectivity through road prisms at 170th, 165th and/or 157th Streets; c. Proceeding with technical review and legal procedures and construction activity to identify and construct capital projects in the lower portion of JD 2/Hardwood Creek for water quality and habitat enhancement; d. Establishing with Hugo terms for a transfer of JD 2 maintenance responsibility to Hugo, including some measure of District funding for ongoing maintenance; e. Postpone action on the District Findings of Fact for JD2. Manager Leroux requested Manager Karth to remove his motion until the Board could suspend Robert's Rules of Order. Manager Karth held his motion. Motion by Manager Leroux, seconded by Manager Karth to suspend Robert's Rules of order. Motion carried 3-2, Managers Haake and Aiken opposed. Motion by Manager Karth, seconded by Manager Leroux That the District will proceed to implement its December 15, 2004 decision by: a. Completing the cleaning of JD2 to remove impediments to flow and provide positive drainage through the system, with the goal of completing this work by mid- January (apart from the culvert work to be done by Washington County on Branch 2 this spring); b. Proceeding with technical review and legal procedures to restore hydraulic connectivity through road prisms at 170th, 165'x, and/or 157th Streets; c. Proceeding with technical review and legal procedures and construction activity to identify and construct capital projects in the lower portion of JD 2/Hardwood Creek for water quality and habitat enhancement; d. Establishing with Hugo terms for a transfer of JD 2 maintenance responsibility to Hugo, including some measure of District funding for ongoing maintenance; e. Postpone action on the District Findings of Fact for JD2. Mayor Miron commented that the City would agree with the motion if Item e. would read, "postpone action on the Findings or Fact and Engineer's Report." He stated that without that language litigation hovers. Manager Karth could not agree to that. Motion by Manager Leroux, seconded by Manager Haake to have a 10 minute recess and extend the meeting time to 12:30 p.m. Motion carried 4-1, Manager Aiken opposed. Manager Karth withdrew his motion. Manager Leroux withdrew his second. Motion by Manager Karth, seconded by Manager Leroux, Selection Option 4 per the 10/29/04 Engineer's Report and 12/15/04 findings, do not rescind RCWD action, but work with Hugo, and if, Hugo drainage needs not addressed, agree that RCWD will petition itself within 18 months to undertake renewed ditch repair proceedings. City Council meeting of January 14, 2005 Page 6 Motion carried 4-1. Manager Haake opposed because she felt there was not enough discussion on the motion. Manager Aiken voted on the prevailing side so he could bring the motion up for consideration at another meeting. Manager Haake asked District Attorney Smith to address how does RCWD guarantee the 18 -month stipulation, if there is a different Board or other circumstances. District Attorney Louis Smith replied that the intention would be that the attorney's for RCWD and the City of Hugo would proceed with a cooperative agreement about this process spelling it out in detail. It would be the same as any other agreement or contract. Mr. Smith believed it was beneficial for the perspective of both party's; it gives us a meaningful time to look at how the maintenance is working. The agreement could also include discussion of ditch maintenance responsibility. Motion by Manager Aiken, seconded by Manager Leroux, to adjourn the RCWD meeting at 12:34 p.m. Motion Carried 5-0. The RCWD Board and staff left the Council Chambers. Mayor Miron called a brief recess; Council returned from recess and meeting reconvened by Mayor Miron at 12:45pm. City Attorney Dave Snyder interpreted actions of the RCWD and directed Council that there is no need to file the lawsuit but the final decision is the Council's. Petryk made motion, Haas seconded, to approve Alternate #2 with the RCWD. There will be follow up with agencies and citizens within 18 months to identify progress. All aye. Motion Carried. Haas made motion, Petryk seconded, voted not to file lawsuit. All aye. Motion Carried. Haas made motion, Granger seconded, to have City Attorney send a letter to the RCWD. All aye. Motion Carried. Council member Frank Puleo had to leave the meeting at 12:57 pm. ADJOURNMENT Granger made motion, Petryk seconded, to adjourn at 1:10 pm. All aye. Motion Carried. Respectfully submitted, Michael A. Ericson City Administrator