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HomeMy WebLinkAboutAgenda & Minutes 4646 Dakota Street S.E. Prior Lake, MN 55372-1714 REGULAR COUNCIL MEETING AGENDA August 18, 2008 6 p.m. City Hall EDAC Joint Meeting to Discuss RFQlRFP for Downtown Redevelopment 4:30 p.m. This meeting is open to the public. 1. CALL TO ORDER and PLEDGE OF ALLEGIANCE 2. PUBLIC FORUM: The Public Forum is intended to afford the public an opportunity to address concerns to the City Council. The Public Forum will be no longer than 30 minutes in length and each presenter will have no more than ten (10) minutes to speak. Topics of discussion are restricted to City governmental topics rather than private or political agendas. Topics may be addressed at the Public Forum that are on the agenda except those topics that are part of a public hearing or public information hearing. The City Council will not take formal action on Public Forum presentations. 3. APPROVAL OF AGENDA 4. CONSIDER APPROVAL OF AUGUST 4, 2008, CITY COUNCIL MEETING MINUTES 5. CONSENT AGENDA: Those items on the Council Agenda which are considered routine and non- controversial are included as part of the Consent Agenda. Unless the Mayor, a Councilmember, or member of the public specifically requests that an item on the Consent Agenda be removed and considered separately, Items on the Consent Agenda are considered under one motion, second and a roll call vote. Any item removed from the Consent Agenda shall be placed on the City Council Agenda as a separate category. A. Consider Approval of Invoices to be Paid. B. Consider Approval of Treasurer's Report. C. Consider Approval of Building Permit Report. D. Consider Approval of Animal Warden Report. E. Consider Approval of Fire Call Report. F. Consider Approval of a Resolution and Findings of Fact Approving an Off-Sale Intoxicating Liquor License for MGM Wine & Spirits. G. Consider Approval of a Cigarette License for MGM Wine & Spirits. H. Consider Approval of Resolution Authorizing the Purchase of Furnishings, Fixtures and Equipment for Fire Station No.1 and 2. I. Consider Approval of a Resolution Authorizing Safe and Sober Communities Funding for the Period October 1, 2008, to September 30, 2009. 6. ITEMS REMOVED FROM CONSENT AGENDA www.cityofpriorlake.com Phone 952.447.9800 / Fax 952.447.4245 7. PRESENTATIONS A. No presentation is scheduled. 8. PUBLIC HEARINGS A. No public hearing is scheduled. 9. OLD BUSINESS A. Consider Approval of Appointment to the Community Safety Advisory Committee (CSAC). B. Consider Approval of a Report Regarding Refuse Hauling in Prior Lake. 10. NEW BUSINESS A. Consider Approval of a Resolution Updating Bylaws for: 1. City Council 2. CommunicationslTechnology Advisory Committee 3. Community Safety Advisory Committee 4. Lakes Advisory Committee 5. Parks Advisory Committee 6. Planning Commission 11. OTHER BUSINESS/COUNCILMEMBER REPORTS A. Community Events 12. ADJOURNMENT City Council Meeting Minutes August 4, 2008 DRAFT CALL TO ORDER Present were Mayor Haugen, Councilors Erickson, Hedberg, LeMair and Millar, City Manager Boyles, City Attorney Pace, Public Works Director Albrecht, Water Resources Engineer Bintner, Building and Transpor- tation Services Director Kansier, Community Development and Natural Resources Director Walthers, Po- lice Chief O'Rourke, Fire Chief Hartman, Assistant City Manager Meyer, Communications Coordinator Pe- terson and Administrative Assistant Green. ' PUBLIC FORUM The Public Forum is intended to afford the public an opportunity to address concerns to the City Council. It is no longer than 30 minutes in length and each speaker will have a maximum of ten minutes; less if there are more than three speakers. Topics of discussion are restricted to City government topics rather than private or political agendas. Topics on the agenda may be addressed except those topics that are part of a public hearing or public information hearing. The City Council will not take formal action on Public Forum presentations. City Manager Boyles explained the concept of the public forum. Comments: No person stepped forward to speak. APPROVAL OF AGENDA MOTION BY LEMAIR, SECONDED BY MILLAR TO APPROVE THE AGENDA AS PRESENTED. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. APPROVAL OF MEETING MINUTES MOTION BY HEDBERG, SECONDED BY MILLAR TO APPROVE THE JULY 7, 2008, MEETING MIN- UTES AS PRESENTED. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. CONSENT AGENDA City Manager Boyles reviewed the items on the consent agenda. A. Consider Approval of Invoices to be Paid. B. Consider Approval of Treasurer's Report. C. Consider Approval of June and First Half Building Permit Reports. D. Consider Approval of June and Second Quarter Fire Call Report. E. Consider Approval of Resolution 08-100 Extending the Deadline for Submittal of a Final Plat for Golden Pond. F. Consider Approval of Resolution 08.101 Authorizing a Special Hunt for Coyotes on the Vierling Prop- erty. G. Consider Approval of Resolution 08.102 Authorizing Funding for Asbestos Abatement and Soil Testing for Properties at 16318 and 16328 Main Avenue. www.cityofpriorlake.com Phone 952.447.9800 / Fax 952.447.4245 City Council Meeting Minutes August 4, 2008 DRAFT H. Consider Approval of Election Judge Appointments for September 9,2008 Primary and November 4, 2008 General Elections. I. Consider Approval of Resolution 08.103 Accepting Grant Money ($1,500) from the University of Min- nesota for the Purchase of Anti-icing Equipment. J. Consider Approval of Resolution 08.104 Approving a Joint Powers Agreement with the City of St. Paul for the Republican National Convention. K. Consider Approval of: 1) Ordinance 108.04 Amending Section 605 of the City Code to Include Provi- sions Relating to Noise; and 2) Ordinance 108.05 Amending Section 903 of the City Code to Clarify the Provision for Off-road Vehicles and Combustion Engines. L. Consider Approval of Resolution 08.105 Declaring Costs to be Assessed and Ordering Preparation of an Assessment Roll for the 2008 Improvement Project, and Establishing the Date of the Assessment Hearing for the 2008 Improvement Project (Project 08-011). M. Consider Approval of Temporary On-sale Intoxicating Liquor License for Prior Lake Athletics for Youth (PLAY). N. Consider Approval of Resolution 08.106 Accepting a Proposal to Complete the Cardinal Ridge Park Prairie Restoration. O. Consider Approval of Resolution 08.107 Authorizing a Special Deer Hunt Within the Corporate Limits of the City of Prior Lake. Councilor Hedberg requested that item 5N, Consider Approval of Resolution 08.106 Accepting a Pro- posal to Complete the Cardinal Ridge Park Prairie Restoration, be removed from the Consent Agenda. Councilor Erickson requested that item 51, Consider Approval of Resolution 08.103 Accepting Grant Money ($1,500) from the University of Minnesota for the Purchase of Anti-icing Equipment, be removed from the Consent Agenda. MOTION BY MILLAR, SECONDED BY LEMAIR TO APPROVE THE CONSENT AGENDA AS MODIFIED. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. Comments: Hedberg: Commented that the Cardinal Ridge Park Prairie restoration is part of the water treatment facility project and is an example of the restoration of natural lands that the Parks Department is doing. LeMair: Asked the timeline for having this project completed. Albrecht: Replied that planting would be done this fall when temperatures are cooler and that prairie res- toration is a several year process with maintenance during that period. Erickson: Asked staff to relate why the City received this grant noting that one of the City's staffers is one of the State's most knowledgeable people regarding anti-icing in an environmentally friendly way. Albrecht: Replied that Craig Eldred, Street and Utilities Supervisor, is at the forefront of anti-icing pro- grams in Minnesota. Stated that Prior Lake will test an alternative de-icing method which allows applica- tion of a molasses solution prior to snow events that will stay on the streets for several days. This results in fewer trips that staff has to make for de-icing, less use of polluting vehicles, and a cost savings because cane molasses is cheaper than some of the chemicals that have been used in the past. Erickson: Asked if other cities in the County might benefit from this. Albrecht: Affirmed and stated that Savage started last year and Shakopee is looking into it. 2 City Council Meeting Minutes August 4, 2008 DRAFT MOTION BY HEDBERG, SECONDED BY MILLAR TO APPROVE: RESOLUTION 08.106 ACCEPTING A PROPOSAL TO COMPLETE THE CARDINAL RIDGE PARK PRAIRIE RESTORATION, AND RESOLU. TION 08.103 ACCEPTING GRANT MONEY ($1,500) FROM THE UNIVERSITY OF MINNESOTA FOR THE PURCHASE OF ANTI-ICING EQUIPMENT. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. PRESENTATION Update on City of Prior Lake Transit Services Building and Transportation Services Director Kansier related the history behind developing the transit system and explained partnerships and funding to build the transit station in Shakopee and provide ongoing operation costs. Statistics were provided on ridership growth. Described summer Laker Link services and ridership. Spoke of future plans including another transit station to be built with the County's CR 21 project noting that the current park-and-ride lot at the Shepherd of the Lake parking lot would be relocated to the new site. Service is expected to expand with additional buses and routes to 394 and the University of Min- nesota. Local service expansion possibilities were discussed. Metropolitan Council studies identified need for an additional 600 park and ride spaces along the TH 169 corridor and potential locations were dis- cussed. Transit challenges were identified as need for new buses, increased operational costs and re- duced funding sources. Comments: Erickson: Complimented previous councils for opting out of the metropolitan area transit system which allowed the City to develop this transportation service. Commented on the current status of legislation in regards to a light rail system in Scott County. LeMair: Asked how funding would be provided. Kansier: Replied that monies are received from the Minnesota Valley Transit Authority and state gas tax and service fees vs. expenses are projected to break even in 2009. LeMair: Asked if gas tax is collected per gallon or per dollars spent. Kansier: Replied that it is per gallon. LeMair: Asked if the City's contribution for the second transit station included operating costs. Kansier: Replied that the $300,000+ mentioned for the second transit station will be for construction costs. Noted that the existing transit station operating costs has included "in-kind" such as Scott County doing plowing and maintenance and Prior Lake's contribution has been used for things like electrical bills. Operating costs have been reasonable and efforts have been made to keep costs down by using such things as efficient lighting. Hedberg: Asked Kansier to explain the rationale why a second transit station is needed so soon after the construction of Southbridge noting that there are stations in Burnsville, Apple Valley and near to 1-35. Kansier: Replied that a second station was identified as an immediate need in the 2005 study. The cur- rent station has 500 stalls and it is filling up rapidly. Many riders come from Jordan and western/southern Scott County. Noted that the transit station in Burnsville is at capacity with room for no more riders on the bus. Predicts that by 2011, when the station is completed, the additional capacity will be needed. Hedberg: Asked if buses will stop at both stations or go to separate stations. Kansier: Replied it is anticipated the buses will stop at both stations. Added that part of the County's CR 21 project is to have a dedicated bus ramp from the station to TH 169. Millar: Stated that the partnership for transit with Scott County and the City of Shakopee was timely with the economic and energy climate currently existing. Believes there is a service vacuum for late night and on weekends noting that it is difficult to get a taxi and that makes it a safety issue. Would like to give con- sideration to whether a solution could be found with the transit service to fill that need. 3 City Council Meeting Minutes August 4, 2008 DRAFT Kansier: Replied that Isanti County has a program that could be researched and a public/private partner- ship could be explored. Haugen: Proposed that the Council discuss Millar's suggestion before staff does research on it. LeMair: Concurred there should be more discussion and suggested it be the topic of a work session. Erickson: Commented that it is an innovative idea and suggested that alternative ideas may already exist wondering if that could be sought out before the Council holds a discussion on the topic. Hedberg: Stated his preference to have discussion in a work session rather than providing direction to staff at this meeting. Haugen: Agreed with a work session discussion. Millar: Stated that any service for late night or weekend services should pay for itself whether it is a part- nership, or leadership with the bar community to involve them with the process or coming up with ways to bring in a private entity to provide such services. Agreed with a work session to discuss it. Update on Downtown Stormwater Study Water Resources Engineer Bintner introduced Bob Barth of Bonestroo. Barth provided an update on the downtown stormwater study and development of a Guide Plan and indicated the City will want to iden- tify best management practices for urban areas such as specially formulated soil matrixes for runoff water, porous pavements and walkways, green roofs, tree islands and underground storage and filtration. Capital recovery, maintenance and rehabilitation costs also need to be considered. Sought direction from the Council on aesthetic qualities and continuation of the downtown look, and the City's role in implementation and funding. Comments: LeMair: Asked what maintenance is required for impervious pavers. Barth: Replied that impervious pavers need to be rehabilitated in 20 to 50 years. If used in parking areas, they would need to be vacuumed regularly. Noted it is not a good use in areas where there are geese droppings. LeMair: Asked how such pavers are tested to see if they still work. Barth: Replied that a three to five foot gravel layer is installed below them for infiltration noting that manu- facturers identify a percolation rate and Bonestroo "over designs" impervious paver use to half the percola- tion rate when calculating needs for a project. LeMair: Stated that development has been taking on a lot of the costs for stormwater, etc. and questioned if the City is changing positions if it takes on the funding responsibility for stormwater in the downtown re- development. Barth: Replied that development parcels in the downtown may be smaller than what is usually dealt with and the cost on smaller parcels is very expensive. Suggested that a city usually is the entity that goes for- ward to initiate the techniques, and part of the determination is whether it can recover the costs later. Noted that a 1/3-acre lot would be too small to install all of the techniques leaving a developer with only green roofs and impervious paver techniques to use, which are the most expensive. Hedberg: Asked how long this type of best management practices will last. Barth: Replied that many of them have not been in place very long and there is not good information about how long they last. Pavers are low technology and last 20 or more years, but the question is whether the infiltration below them will last that long. Believes there are ways to keep it running with maintenance. Hedberg: Believes that the types of investments the City has made, along with concepts included in the 2030 vision, reflect that aesthetic quality and water quality are important factors. Private development can- not do it alone, but to continue consistent policy, the City would want to get as much as possible form pri- vate development fees. Believes that some kind of structure to spread the costs of ongoing maintenance 4 City Council Meeting Minutes August4,2008 DRAFT and rehabilitation should be developed - such as a storm water utility fee rather than special assessments - so there would be flexibility to tap into the broader array of the City's property base. It would be important to discuss how important downtown is to the rest of the community. Millar: Agreed that aesthetic qualities are important, but has concerns about cost. Noted that the City pol- icy has been to have private development cover costs, but the City may have to contribute as well. Com- mented that it seems Bonestroo is not sure that the examples given for stormwater drainage are strong possibilities. Barth: Replied that tree boxes are strong possibilities, but pavers are susceptible to poor maintenance so it is hard to guarantee them. Millar: Commented that gives credence to what we are hearing about the upkeep of pavers. Bintner: Stated that there is a test plot going with pavers that was funded by a grant to observe the ser- vice life. Noted there is also a question of whether they can be swept out with the regenerative air sweeper and we are learning that there are areas that need hand work. Proposed an analogy to the City funding parking in the downtown and queried whether the City would want to fund downtown stormwater manage- ment and suggested that the right-of-way is appropriate for placement of some of the best management practices. Millar: Commented that such pavers were considered an experimental project by Crystal Bay and their use can be monitored. Bintner: Stated that Village Commerce Bank is also using them. Erickson: Asked if there is the same maintenance aspect for porous asphalt and concrete. Barth: Replied that maintenance would be different and the initial cost is prohibitive for asphalt and con- crete, but the cost is coming down and it may soon be cost effective for projects. MnDOT is testing it and having good effect with permeability, and is experimenting with subgrades for heavy trucks. Permeable asphalt and concrete may be a good option in the near future and pavers will be good to use in plazas and pedestrian areas. Erickson: Asked what maintenance would be. Barth: A regenerative air sweeper would be used several times a year on pavers and perhaps once or twice a year with permeable concrete and asphalt. Erickson: Perhaps only tree boxes would be enough. Barth: Replied that tree boxes could capture runoff from the right-of-way and the concrete in front of the building, but it would be difficult to address the needs of the back of buildings. If boulevard tree boxes were funded by the City, perhaps private investments would have to be used for the backs of lots. Erickson: Noted that tree boxes have a higher future benefit because they get better instead of worse. Initial cost would not be much higher, there are lower maintenance costs and there is aesthetic value of having trees on the boulevard. Believes tree boxes would be most beneficial for the projects. Haugen: Agreed that aesthetic qualities are important. Believes private development would continue to be a major player in financing any major improvements. Agreed that tree boxes have a better long-term vi- ability and expressed concerns about the paver perspective with its unknown life span and maintenance. PUBLIC HEARING Public Hearing to Consider the Approval of the Issuance of an Off.sale Intoxicating Liquor License for MGM Wine and Spirits. City Manager Boyles reviewed existing statutory requirements. Explained that the MGM Wine and Spirits corporation received one minor liquor sale and one cigarette sale violation in the past two years in other cities and that such violations would not result in suspension of license had they occurred in Prior Lake. Noted that the proposed location would not be within the 300-foot radius from churches and schools that is prohibited by City Code. Indicated that increased police department activity due to another liquor store 5 City Council Meeting Minutes August4,2008 DRAFT would not be burdensome and that the transportation system on the area is sufficient to serve customers and deliveries since it was designed to commercial standards. Comments: Erickson: Queried whether delivery trucks would use a different route to access the building than a cus- tomer would. Boyles: Replied that MGM may be able to provide that information during the public hearing. LeMair: Asked if the City's criteria for all types of liquor licensing are the same. Boyles: Replied that the licensing criteria are the same for both off-sale and on-sale liquor sales. LeMair: Queried if a company has an on-sale license, would it also qualify for off-sale licensing. Boyles: Given that the criteria are identical, yes. Hedberg: Clarified that four different types of permanent, retailing operations: a full-service off-sale estab- lishment, a full service on-sale establishment, a restaurant that has off-sale, and a business that has off- sale 3.2 only have a difference in the price of licensure, but the criteria for approval or denial of the license is the same. Boyles: Cited ordinance 301.600 and noted that temporary liquor licensure for events has different criteria. MOTION BY HEDBERG, SECONDED BY MILLAR TO OPEN THE PUBLIC HEARING. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing opened at 7:33 p.m. Comments: Bryce Huemoeller, 16670 Franklin Trail, attorney for Dakota Liquors, stated that he filed a letter which he asked to be made part of the record. The letter was an attachment to the staff report. Requested that the Council deny MGM's liquor license application because of a prior liquor violation of MGM and proximity to a school. Referred to prior violations of MGM in Minnetonka and Rosemount and noted that the ordinance has two sections - one dealing with convictions and another dealing with revocations. Believes that the use of the word "shall" in those two sections and tying it to the prior conviction is grounds for requirement that the ap- plication be denied. Believes ordinance section 301.1704 and 301.600.3 should be read together. Stated that the comments of the community safety task force report that relate to issues with alcohol and drug con- sumption in Prior Lake, and a petition signed by 800 people, indicate that the community is already ade- quately served by off-sale establishments and it is not appropriate to issue a license to a company with a prior violation. Huemoeller reiterated that Prior Lake ordinance prohibits liquor licensure to an establishment within 300 feet of a school. Believes that Kids Count Daycare and Learning Center, Inc. qualifies as a school stating that the definition of a school is "a community of those who teach and are taught..." Referred to a Depart- ment of Human Services website which lists organizations such as CAP, Kids Count, etc. as child care cen- ters and that all of them focus on education and qualify as schools. Queried whether the City would want the same protections for the kids who attend them as for the kids who go to any other school. Stated that State Statute allows the Department of Human Services to request an opinion from the Attorney General on what is a school and suggested they be requested to seek that opinion about the Kids Count Daycare and Learning Center. Believes existing liquor licenses in Prior Lake may have been issued within the 300 foot limitation in the past, but that does not mean the ordinance should be violated again. 6 City Council Meeting Minutes August 4, 2008 DRAFT He suggested that other criteria to be considered should include promotion of small town values which means keeping the current number of liquor licenses intact, establish a maximum number of liquor licenses and follow the community safety task force report. Stated that current ordinance is a mess and does not define schools. Huemoeller stated he believes if ordinance is changed while an application is pending, it affects the appli- cation. Believes the Council had concerns about that, and the case reviewed by the City Attorney included a Court ruling that the ordinance was legal and the antitrust issue was not the primary finding of the case. He stated this application has exposed several problems with the ordinance that should be fixed. Believes that if the Council does not deny the license, it should refer the request to the Planning Commission to hold public hearings and ask for an opinion on what a school is. Requested that the City Council adopt specific findings and that he should be provided with a copy for comment before the next meeting if the application is approved. Paul Setter, MGM Wine & Spirits, 1124 Larpenteur Ave. W., St. Paul requested to be able to do business in Prior Lake. Stated that he submitted an application under the existing rules. MGM has been around for 37 years with 42 stores in the chain. Twenty-two independent businesses operate as MGMs. Confirmed one store had a violation in 2006. Explained that Techniques of Alcohol Management (TAM) is used to train employees and all employees are required to complete the training. MGM has programs that prevent under-age access and MGM pays incentives to their employees for catching fake IDs and they continue to look for ways to be more effective. Gerry Proskin, 14755 Glendale Avenue, stated it appears there are legitimate grounds to deny the liquor license. Stated that the comer of CR 42 and TH 13 still has a small town character and is a perfect segue into the downtown. Believes there is no reason to have a "big box" come into the city and that it would change the community. Noted that a petition is the only way that people can speak and 800 signatures signify that this is the wrong thing. MGM would solve someone's real estate problem, but force another business out. Believes the Council should deny the application. Tony Rosell, 6950 France Avenue, Edina. Stated his client purchased the property to be leased by MGM for 1.6 million dollars, which is a substantial investment in the community. Stated that PDQ had an off-sale 3.2 license when it was in the same location and was within 145 feet of the daycare building for years. Be- lieves that MGM will be a solid tenant in this community. MOTION BY LEMAIR, SECONDED BY MILLAR TO CLOSE THE PUBLIC HEARING. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing closed at 8:00 p.m. Comments: LeMair: Asked Huemoeller what the concem is with having a liquor store close to day care facilities. Huemoeller: Replied that the ordinance says liquor stores cannot be within 300 feet of a school and the reason for that ordinance is atmosphere, safety, and how businesses are located in comparison to other uses. Erickson: Asked Setter if there was a revocation of license with the violation. Setter: Replied there was not. Erickson: Asked what the financial obligations of the 22 franchisee are to the MGM corporation. 7 City Council Meeting Minutes August4,2008 DRAFT Setter: Replied that they pay franchise fees. Added that there are nine MGM stores that are corporate- owned. Erickson: Asked if the store with a violation was corporate-owned. Setter: Affirmed that it was. Erickson: Asked if MGM planned to use an electronic 10 system at this Prior Lake location. Setter: Replied that it is available along with training for employees on how to use it. Erickson: Asked what access would be used for delivery vehicles and how many deliveries per day would be typical. Setter: Replied that there is a drive between the buildings that would be used for delivery and there might typically be between three and four deliveries per day. Erickson: Asked the term of lease. Setter: Replied the lease is for seven years with several options behind that. Erickson: Stated that he believes that schools and day cares are very different. LeMair: Expressed empathy for businesses in a market that changes dramatically and having to make the adjustments to continue. Considered what precedent or effect will come from making this decision and re- ferred to statements made about liquor licenses existing that were issued; and if ordinance were changed now, consideration would have to be given about how to change those. Concerned about what would hap- pen in the future with the decision that is made now. Believes it may have a negative effect on day cares to change the ordinance as it could result in day cares having fewer options for leasing spaces. Gave exam- ples of his kids attending Montessori's when off-sale establishments were nearby and that he was never concerned with their safety nor perceived a risk from nearby businesses. Agreed that parents hope their kids will get some kind of education at a day care rather than watching TV all day. Noted there are hun- dreds of in-home day cares in the community. Stated that when considering the violations of MGM and, though it is not condoned, believes it is not unreasonable considering the magnitude of sales and custom- ers. Believes there was no disregard for the law or the safety of individuals with the MGM violations. Questioned what effect there would be on special events or off-sale restaurants if the ordinance is changed. Referred to comments about small town values and the appearance of the City at the CR 42 / TH 13 corner and stated that the planned fa<;ade improvements might make things look better and give it more of a small town feel. Hedberg: Noted that a violation of the ordinance is defined in the ordinance and questioned whether the application is the person serving the customer or the owner of the business. O'Rourke: Replied that the applicant is the owner. The person serving the minor was an employee. Hedberg: Asked if a violation takes place if there is an event at anyone of the stores in the chain or only if the owner is the person serving. O'Rourke: Replied that the differentiation is between a civil penalty which the ownership group would pay and a criminal conviction. The violation was not a criminal conviction. The person that made the sale would be charged criminally and, most likely, convicted for there to subsequently be a finding for a civil vio- lation. There are no convictions on file with the State Department of Safety, Department of Alcohol and Gambling Enforcement, that would preclude MGM from being granted a license. Hedberg: Concurred that the issue of the past violation does not have much weight for the Council. Ex- pressed appreciation for the trials and successes that Bresnahan has had and the contributions he has made to the community, but does not believe the Council can protect one business from another in the competitive market place. Stated that issues around school definitions and what has been done in the past seems tangled and there may be a legitimate argument that day care centers provide the same function as schools. The ordinance has not been administered that way and there seems to be ambiguity around that. Believes that different kinds of liquor establishments should have different kinds of criteria to qualify for a 8 City Council Meeting Minutes August4,2008 DRAFT license. Prefers to table the application for study and a formulate a recommendation on how to administer the issues of a school definition and different kinds of liquor licenses. Millar: Agreed that the violation is not a reason to deny the license. Believes the ordinance is confusing and commented that a strict definition of schools may be hard to come by. Agrees that on-sale and off- sale liquor license criteria should be looked at. Views Kids Count Daycare and Learning Center as a school. Does not see a long-term advantage to the City having MGM as a lessee since three businesses would be lost on that corner if they move in. Believes the Council needs to be careful when looking at the physical and people resources of a city. Stated he sees value in petitions and they are used to get things on a ballot when people think their representatives are not listening. Stated he has no issue with MGM coming to Prior Lake, but believes that placing two liquor stores so close at a gateway area into the city, especially when the community safety task force gave alcohol abuse such high priority, would be sending the wrong message. Believes it is the wrong place for it. Believes that considering the ordinance can ad- dress some of LeMair's concerns about the "trickle down" impact. LeMair: Recalled that the question before the Council is whether the MGM application is approved rather than whether there should be two liquor stores on that corner. Haugen: Stated that the intent of his statement at the last meeting about placing no stock in petitions meant that he will make a decision based on his beliefs and that basing his vote on the petition would be in error. Asked if Huemoeller has copy of petition. Attorney Huemoeller brought the petition forward. Haugen: Stated the header on the petition read, "the undersigned is the owner of a business in Prior Lake who requested the City Council to enact an ordinance that allows only one off-sale liquor store within one- half mile of another off-sale liquor store or 300 feet of a school or business." Mayor Haugen returned the petition to Huemoeller. Haugen: Recalled that this started a month ago with a request asking for a restriction of distances be- tween liquor stores, which is a protection of a liquor store. Then we had the question to protect limiting the number of licenses of a kind of entity. The Council does not belong in the business of determining how many kinds of entities should be in the community. Referred to Tractor Supply Company entering this mar- ket with no protests about having a "big box" business. Stated that businesses evolve and it is a fact of life. Asked Pace to clarify the references to Department of Human Services and the Department of Education licensing schools. Pace: Stated that facilities are licensed by state agencies that have expertise in dealing with the facility's kind of activity. The Department of Human Services licenses day cares and the Department of Education licenses schools. The two are very different. Noted that Huemoeller's letter referred to the licensing of Kids Count as a day care. Stated there is no ambiguity in the ordinance and if there were, Minnesota Stat- ute tells the Council how to go about interpreting it. Haugen: Read from Huemoeller's letter which referred to the licensure of Kids Count as a day care that provides child care for school-aged children and the school-aged children who attend Kids Count take the public school bus from the day care center to their schools. Agreed with Hedberg that the ordinance needs to be strengthened and clarified. States he looks for consistency and gave examples of on-sale and off- sale licensing of businesses that were within a 300-foot proximity of day cares. Proposed that the Council should not arbitrarily state that those licensures fit the ordinance then and do not now. Noted that this day care facility did not question it when the PDQ, which had the same criteria for licensure that the current ap- plicant has, applied for licensure. Questioned whether the Council is going through this exercise to protect 9 City Council Meeting Minutes August 4, 2008 DRAFT one business and stated that the Council needs to look out for the entire community. Stated there is no evidence that the number of liquor establishments enhances alcohol usage or youth drinking problems. Believes there is less risk in an off-sale environment where the consumer picks up the product and leaves. Believes the Council has an obligation to implement ordinances in a consistent manner until they are changed and does not agree that the ordinance should be changed when an application is in progress. Huemoeller: Stated that the ordinance is not worded to identify 300 feet from schools as defined by the Minnesota Department of Education or as defined by the Minnesota Department of Human services, it just says "schools" and the ordinary meaning of the word "school" is a place of education. Believes since it is not defined, the common meaning should be used. Believes day cares are places of education and the Council should manage the ordinance accordingly or change it before another liquor license is granted. LeMair: Responded that anyone can title a businesses as a school such as the Foss Swim School. Learn- ing, teaching or education could be any number of things. Haugen: Asked for an explanation of the ordinance as it pertains to State Statute. Boyles: Replied that ordinance 301.100 adopt the provisions of Minnesota law 340A relating to alcohol as though fully set forward. Pace: Stated this statute does not make a distinction as far as distance between various types of licenses. It applies restrictions in the proximity of a public school within 1500 feet not within a city and assumes that sensitivity to public schools in non-incorporated areas is desired, but it does not set restrictions for schools within a city. Commented on references to the ordinance being confusing stating that the ordinance paral- lels State Statute and the City has adopted the State Statute in its entirety. Noted that the Statute includes a section on distances, a section for revocation or restriction of licensure and a section that requires hear- ings before licensure is granted. Believes there is no confusion in the ordinance. Noted that the City's zoning ordinance also regulates where a licensed liquor establishment can exist. Regarding comments about using an ordinance in effect at the time of application does not imply a vested right for the applica- tion, but that courts would look at past practices. Stated that in this highly regulated industry, there is case law that would support the Council applying any criteria needed to protect the health, safety and welfare of citizens. Noted that the Prior Lake ordinance also provides for the use of criteria other than those enumer- ated. Referred to the anti-trust discussion stating that she spoke with other city attorneys who have had similar situations and the consensus is that it is risky to get into using protecting competition as a basis for determining licensing. Hedberg: Stated that a primary screening criterion parents use for selecting a day care is the level of learning and education their child would receive. Believes that the common definition of a school includes the day care experience that children get and that there are many schools beyond the public schools. Be- lieves the ordinance should be clarified before acting on the MGM license application. Pace: Stated that another tool for the Council to use in interpreting an ordinance is to look to intent. When doing so, the Council should consider what harm the ordinance is intended to protect against; e.g., what harm was the Council trying to protect against when it adopted an ordinance that restricted the distance between and business that sells liquor and schools. LeMair: Commented that a vote one way or the other should not be construed as not favoring small town values or wanting to protect kids or valuing the businesses in town. MOTION BY LEMAIR, SECONDED BY ERICKSON TO APPROVE AN OFF-SALE INTOXICATING LIQ- UOR LICENSE FOR MGM WINE & SPIRITS. Hedberg: Believes that the ordinance as it stands talks about distance restrictions from schools. Believes the ordinance should be reviewed and recognizes that the City may have been acting against its own ordi- 10 City Council Meeting Minutes August 4, 2008 DRAFT nances. Noted he would not vote to deny an application for the purpose of protecting Dakota Liquor as that is not the business of the City government. Haugen: Commented that small town values discussion does not fit the situation. This decision is about providing an opportunity; not about small town values or the DARE program, etc. VOTE: Ayes by Haugen, Erickson and LeMair. Hedberg and Millar opposed. The motion carried. LeMair: Stated that that his vote was not based on last two comments, but rather on his comments prior to making the motion. RECESS Mayor Haugen called a recess at 9:06 p.m. RECONVENE The meeting reconvened at 9:15 p.m. MOTION BY LEMAIR, SECONDED BY HAUGEN TO RECONSIDER THE MGM LIQUOR LICENSE AP- PLICATION. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried MOTION BY LEMAIR, SECONDED BY HAUGEN TO DIRECT STAFF TO PREPARE A RESOLUTION WITH THE FINDINGS OF FACT CONSISTENT WITH THE COMMENTS MADE BY THE COUNCIL TO APPROVE MGM'S APPLICATION OF AN OFF-SALE LIQUOR LICENSE AND BRING THE RESOLUTION BACK TO THE COUNCIL FOR ACTION AT ITS NEXT MEETING. VOTE: Ayes by Haugen, Erickson and LeMair. Hedberg and Millar opposed. The motion carried. OLD BUSINESS Consider Approval of a Report Regarding 14020 Shady Beach Trail. Public Works Director Albrecht described the history of the project and the area that Giles stated has been flooded. The City performed some work on the parcel which has stopped the flooding. Giles stated he is seeking restitution from the County for past damages to his basement. Described contacts with the County regarding this situation. Explained that a party can make a claim against the City and the City would tender the claim to the League of Minnesota, its insurance carrier, for investigation and a decision on the merits of the claim. Noted that this incident happened 15 years ago and no claim has been filed. Has explained to Mr. Giles the processes for filing a claim for restitution. Comments: Hedberg: Believes this is an unfortunate circumstance and that the resident did not understand the steps he could take. Hopes documentation can be provided so the claim can be processed. Millar: Stated it is unfortunate the claim was not followed through in earlier stages of the event, but the resident has been advised of his right to file a claim. LeMair: Concurred with previous remarks. Appears that the problem was fixed when the asphalt swale was installed by the City and prevented further flooding in the basement. Erickson: Expressed appreciation that the fix provided by the City appeared to solve the problem. Asked if direction was given about filing against both the City and the County. 11