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HomeMy WebLinkAbout4A 05 20 2019 City Council Minutes 1 4646 Dakota Street SE Prior Lake, MN 55372 REGULAR CITY COUNCIL MEETING MINUTES MAY 20, 2019 CALL TO ORDER Mayor Briggs called the meeting to order at 7:00 p.m. Present were Councilors Burkart, Braid, Erickson, and Thompson. None were Absent. Also, in attendance were City Manager Plante, City Attorney Schwarzhoff, Assistant City Manager Olson, Finance Director Erickson, Police Chief Frazer, Fire Chief Steinhaus, Community Development Director McCabe, Public Works Director/City Engineer Brotzler, Assistant City Engineer Monserud and City Clerk Orlofsky. PUBLIC FORUM Briggs: Reviewed the process for the public forum and explained that items scheduled for public hearing or items for which a public hearing has been held but no final action taken, are not eligible for discussion on the public forum. Dave Celski, 4288 Bass Street, addressed the City Council regarding Agenda Item 9B, Sunfish Bay Dock System. Mr. Celski asked where the dock system will be located, will the dock system follow the DNR regulations why is the City allowing a 12 -17 dock system on a residential lot and can anyone do this. Schwarzhoff: Explained that the City Code currently allows six slips per residential riparian lot. Tonight, we are dealing with a Dedicated Waterfront which is not a sinlge residential lot subject to the six slip limit. Each of the land owners, those on the lakeshore and on the back, lots have a right to use this property, including installing docks, slips, etc. As a part of the Resolution before the City Council tonight staff has included a number of conditions. This approval would be limited to Dedicated Waterfront and any Dedicated Waterfront who would want to do something similar would have to meet the same or similar conditions depending on the configuration of the area. This is not a commercial use. It is a residential lot and it is more similar to the controlled access lots. Storage of docks is not an issue the City has discussed because they are currently allowed to store things on the Dedicated Waterfront if they comply with City Code storage requirements. Staff will talk to the HOA to see if there is a way to screen the storage of docks. All of this is sub- ject to DNR approval. City staff and the DNR will review the placement and location to ensure it has as little impact as possible on the neighbors. Burkart: Asked the City Attorney if they had any information before the City Council this evening about Associations that do not allow boat lifts in their dock systems. He was thinking of Lakeside Manor or The Willows. Burkart was looking for a compromise for the neighbors where maybe boat lifts would not be allowed because of the neighborhood issues. DRAFT 05 20 2019 City Council Meeting Minutes 2 Schwarzhoff: Clarified that she did not have any information before her tonight. She would need to go back and have a discussion with the HOA, it is something the City Council could add as a condition. Staff would like the opportunity to discuss it with the property owners. Erickson: Would the City Council consider a comprise that boat lifts could not be stored on resi- dential property. That would still allow the boat owners to use lifts, but they could not store them there. Schwarzhoff: Advised that, if this is a concern, the staff go back and discuss this concern with the HOA and then bring this back to the City Council. APPROVAL OF AGENDA MOTION BY BURKART, SECOND BY BRAID, TO APPROVE THE AGENDA VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. APPROVAL OF CITY COUNCIL MEETING MINUTES MOTION BY ERICKSON, SECOND BY BURKART, TO APPROVE THE MINUTES OF THE MAY 6, 2019 REGULAR MEETING AS AMENDED VOTE Briggs Thompson Burkart Braid Erickson Aye ☐ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☒ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. CONSENT AGENDA Plante: Reviewed the items on the consent agenda. 5A. Consider Approval of Claims Listing 5B. Consider Approval of Building Permit Summary Report 5C. Consider Approval of Animal Control Services Report 5D. Consider Approval of March 2019 Treasurer’s Report 5E. Consider Approval of Fire Department Report 5F. Consider Approval of a Resolution Accepting Bids and Awarding the City’s Standardized Construction Contract for the County Road 21 Trail Improvement Project 5G. Consider Approval of a Resolution Approving The Prior Lake- Savage Optimist Club Gambling A Premise Permit for Lawful Gambling MOTION BY BURKART, SECOND BY BRAID TO APPROVE THE CONSENT AGENDA AS PRESENTED. DRAFT 05 20 2019 City Council Meeting Minutes 3 VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. Briggs: Commented on Item 5F. Briggs thanked the SMSC for $100,000 on the trail improve- ment. Would also like to make comment on the generosity of the SMSC as they recently adopted Ponds Park. PRESENTATIONS 6A. Introduction and Oath of Office - Police Chief Steve Frazer Briggs administered the Oath of Office to Police Chief Steve Frazer. RECESS Briggs: Called a recess at 7:25 p.m. allowing for photos in the chamber. RECONVENE Briggs: Reconvened the meeting at 7:30 p.m. 6B. Proclamation Declaring the Week of May 19-25, 2019 as Public Works Week in the City of Prior Lake Director Brotzler addressed the City Council. Briggs: Declared the week of May 19-25, 2019 as Public Works Week in the City of Prior Lake. 6C. Audit Presentation by MMKR and Consider Approval of a Resolution Approving the 2018 Annual Financial Report and Management Letter James Eichten, from the Audit Firm MMKR, presented the audit financial report and management letter to the City Council. Burkart: Thanks to Mr. Eichten for the for the thoughtful presentation. Director Erickson congratu- lations to you and your staff. Job Well Done! Does the GASB 75 have an adjusting journal entry for that and if so, how much or was it just a reporting change. Mr. Eichten: Explained that when the accounting standards change, they are reflected in the City’s report as a change in accounting principal. So, the beginning balance is adjusted and yes, a journal entry is involved. The change for Prior Lake was $417,000.00 of additional liability the Prior Lake needs to recognize. Burkart: Clarified that was a change from the previous GASB 45. Mr. Eichten: Explained that was correct. DRAFT 05 20 2019 City Council Meeting Minutes 4 Burkart: Asked what the Intergovernmental breakdown for Prior Lake is. Erickson: Explained she did not have that information in front of her this evening, but she would get that information for the Council. Braid: Thanked Mr. Eichten for the presentation and congratulated staff. This audit confirms to the City Council that the City is in compliance and is being responsible and the City’s Financial sit- uation is healthy. Braid asked Mr. Eichten to describe what the Single Audit of Federal Awards is. Mr. Eichten: Described that any time the City has a project containing Federal Aid, they do what they call the Single Audit Federal Awards. The best way to describe that is that the Federal Gov- ernment does not do their own auditing, they delegate that down through recipients, and that dele- gation is called Single Audit of Federal Awards. They issue guidelines and audit standards that are lengthy. They are extensive because they audit the dollars coming in and the guidelines com- ing in that are constantly changing, such as procurement. Erickson: Questions the 2018 number, because the City’s percentage of the tax rate was 33.0 and School Districts rate was 33.0 and he wondered if that included referendums. Mr. Eichten: Explained that typically that would include referendums and often there are timing delays with the school district referendums. Erickson: Added that the slide just shows the City’s Net Tax Capacity Rate. Briggs: Thanked Mr. Eichten again, and congratulated Director Erickson and her staff on another wonderful audit. MOTION BY THOMPSON, SECOND BY BRAID, TO ADOPT THE ATTACHED RESOLUTION ACCEPTING THE 2018 ANNUAL FINACIAL REPORT AND MANAGEMENT LETTER AS SUB- MITTED. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. HEARINGS 7A . Consider an Appeal of the Denial of a Variance from the Minimum Rear Yard Setback and Maximum Impervious Surface for a Property Located at 3800 Green Heights Trail SW in the R-1 (Low Density Residential) Zoning District Planner Matzke presented on the Agenda Reort and explained the background of the appeal variance standards and the Planning Commissions actions. Burkart: Were the applicants given information when they first started this process that the wa- terfront section would be included in the impervious surface calculation. Matzke: Explained when the applicants began discussions about the project on their site before applying for variances. As we took a hard look at their survey before they applied we did high- light the waterfront area to the applicant when we saw it on the applicants’ survey which is what DRAFT 05 20 2019 City Council Meeting Minutes 5 sparked the application for the variance. It was when we saw the survey that we notified the ap- plicant of the waterfront issue. We were in the middle of general discussions with the applicant at the time. Burkart: Clarified that they would have started their architectural design knowing that waterfront area was not going to be included. Matzke: Explained that when the applicant reached out to City Staff, they had already started their architectural process in talking about general setback information and general zoning regu- lations. When the applicant referenced their survey, then staff brought forward the waterfront is- sue. Attorney Schwarzhoff: explained that this was an appeal hearing, not a standard public hear- ing. A standard public hearing usually relates to legislative items that affect the City as a whole. This is a quasi-judicial hearing where the Council considers the application of the existing laws to a specific property. We have provided numerous documents related to the variance and ap- peal. They are complicated so staff is available to answer any questions. Explained the Council was to consider the Planning Commission’s actions and decision and either uphold the Planning Commission’s denial of the variances or reverse the Planning Commission’s denial and grant the variances. The Council agenda packet which included the Planning Commission’s decision, the applicant’s appeal memo and the City Attorney’s response to the appeal memo were all available to the public and the applicant as of Thursday. City also provided to the applicant, in response to a data request, additional information related to the property and the regulation of docks within the City. The City Attorney stated she understands that the applicant may have been out of the country and had trouble accessing the documents until Monday but they were available Thursday. Erickson: Stated he read all of the materials, including the Court order and saw the applicant’s obligation to maintain the area and allowed exclusive right to a dock and a fire ring but said no other buildings. Asked for clarification on the shed and why it is allowed on the property. Schwarzoff: Explained that the shed is an existing non conformity. It pre dates the City’s Zoning requirements. Today City would consider ownership of the land but the shed predates those types of procedures. Braid: Is the Planning Commissions Liaison and he attended the hearing when the variance was denied. Isn’t this an appeal where the applicant did not get what they desired and is now exercising their right to have the Council consider. And it really boils down the common lot and whether that common lot should be used in the equation for the setback and impervious sur- face. Added that the Planning Commission denied it with 4-0 with one Commissioner absent and it is up to the Council to approve/affirm or overturn. Schwarzhoff: That is correct. The Council’s job is to listen to the applicant and see if the Plan- ning Commission handled it appropriately and properly denied the variances. There is a bit of an oddity in this one as the Council could change City policy. Current policy is to not count com- monly owned waterfronts toward lot size. If the Council changes the policy this variance would not be required. Council can consider changing that policy. Otherwise the Council should con- sider if the Planning Commission properly handled the variances. Council can affirm, which would deny the variances; overturn, which would grant the variances, or table and ask for addi- tional information. Briggs: Asked at what point in the process was the applicant made aware that the waterfront portion would not be included in the impervious surface. Matzke: explained there were multiple communications going back and forth with the applicant before seeing a defined plan. As soon as a survey was submitted with a defined plan, it was then that City staff realized that this was a water-front application and notified the applicant. Briggs: invited the appellant to speak. DRAFT 05 20 2019 City Council Meeting Minutes 6 Scott Thielen, 3800 Green Heights Trail SW, addressed the City Council. The applicant ex- plained that in 2012 he went into the purchase of this home with the idea that he would remodel this house. In 2016 he brought in an architect that explained to him that this plan for remodeling became new construction and they began to design the house with the setbacks at the time so no variance would need to be required. In February of 2019 there was a waterline that broke on Green Heights. They had knee high sewage in their basement. The house is unlivable with $80,000 worth of damage. It was at that time the applicant decided to move forward with the re- build and submitted an application. At that time Planner Matzke explained that the applicant could no longer use that area anymore, and the Council has changed their regulations and they no longer grant variances for dedicated waterfront. The applicant explained he has a court order that says he has the right to use it and the right to maintain it. So, he applied for the variance. The Planning Commission denied his request. He doesn’t feel that all the Commissioners un- derstood he had a court order to use the property. Thielen noted he is taxed as waterfront prop- erty. Thielen brought his attorney Paul Haik to speak. They brought a book with additional infor- mation, stateed unfortunately expecting to rebut something given to us at 9:30 this morning to- night is tough. Paul Haik, Attorney for Mr. Thielen, addressed the City Council. Two pieces, the Council’s questions were good ones. Counsel used the term nonconforming use. This lot was grandfa- thered, when you look at that there is a piece of information that was not provided to the Plan- ning Commission. Omission of that information goes directly to the issues in front of you. The piece of information that was not provided was an opinion of the City Attorney on December 11 of 2015. What is clear in that memo, which is in the book the mayor has, at tab 5, Haik quoted from page 3 “after extensive review of the relevant code provisions it is our opinion that the ded- icated waterfront parcels are legally nonconforming controlled access lots.” The dedicated wa- terfront were declared to be lots in December 2015. What’s missing from today’s discussion is a discussion of your ordinances. Ordinances 114-12 and 115-23 – both of those ordinances are ordinances you took action on before the City attorney’s memo and dealt with the problem of how do you deal with these lots that existed long before. The ordinances identify language that the coverage should come from the ordinary high watermark. If you look at the drawings that is what the architect did. Counsel’s opinion that we got today – was not expressed to the Planning Commission or the applicant. The main point of counsel’s memo was the dedicated waterfront was not a “lot” using paraphrased definition as adopted in ordinance. Clearly the court order stated Mr. Thielen must maintain and has exclusive use which certainly raises some questions. Wants the variances granted, it is a nonconforming use, reduced the size of the home and the impervious. But if not, requests the item be tabled to consider the new information so can re- spond in detail and review the history. Have a dialogue so we can air out the issues. No reason we should not hammer out the issues because our only recourse is to question the attorney’s opinion. What happened in 4 years that a $10,000 opinion reversed itself. More importantly, none of this information was brought to the Planning Commission. Briggs: Conclude comments and bring to close the hearing. Thank you Thielen: Requested to say one more thing. if not going to overturn then please table and let the litigators legally go back and forth. Briggs: Thank you. Closed the hearing and shared comments with the Council. Digested the 73 pages of documentation. Hopefully it’s complete. Called on Braid as liaison to Planning Com- mission to start the conversation. Braid: Unrelated, apologize for sewage backup. Council voted to treat homes affected as if we do have insurance coverage to help clean up. Brought up taxes, waterfront. State has most complicated system which makes it very difficult to do an apples to apples comparison of taxes. Clarified that if there was new information then he would like to review it. But there were things DRAFT 05 20 2019 City Council Meeting Minutes 7 in the narrative to address. There was an allegation that there was violation in due process. Braid was at the meeting and did not think there was any concern of that process. A question of do we affirm or overturn the Planning Commission’s ruling on do we include the common lot or not. When we look at the common lot it is not part of the PID it is not included in your lot it is a separate area. There is a court ruling but if that is what we are talking about I have a real tough time including it because it is a separate lot. Braid also added that he takes property rights very seriously and he does not feel there were any property rights violated. If there is indeed new in- formation, he is open to reviewing it. Schwarzhoff: I would like to address the legal arguments, which are misleading. Specifically, the memo referenced by Haik is a 2015 memo related to the City’s dock regulations. At that time, the City had marinas and controlled access lots – that is all. It didn’t have dedicated water- front and didn’t have any other explanations. People came in and wanted docks and the City was unsure how to address it. The memo was from Gregerson Rosow, I was involved and many Council members were heavily involved. The memo resulted in revising the City Code to address controlled access lots and this new category called dedicated waterfronts, which are “legal nonconforming controlled access lots” meaning they don’t qualify as “controlled access lots” under the City ordinances but they existed prior. So when they mention nonconforming – it is not the lot that Mr. Thielen owns it’s the dedicated waterfront that is nonconforming. And it is not a nonconforming buildable lot. It never was and never will be a buildable lot. It means that the dedicated waterfront does not meet the City standard for a controlled access lot such as depth and width. Rules which we now have in place to ensure developers don’t come in and put a tiny strip of land along the lake and then put up 1000 docks. So the nonconforming argument is not applicable to the dedicated waterfront. The shed is nonconforming, that is a different issue and may factor into your decision. The ordinances Haik mentions are the same. These ordi- nances put in place the new controlled access lot definition and regulations and the dedicated waterfront. Controlled access lots and dedicated waterfronts are for dock placement they are not buildable lots. In the appellant’s memo he argued that the dedicated waterfront is a buildable lot of record and therefore should be included as part of Mr. Thielen’s lot because they are commonly owned. If Mr. Thielen owned the waterfront we would not be here because the common ownership would require us to treat it as one lot. We see these common ownership situations a lot but they are very technical. For example if a husband owns one lot and a wife another, they are not treated as one lot because they do not have common ownership. The common ownership piece is very technical and only applies if the two buildable lots are owned by the exact same party. Here they are not. Haik states that the 2015 information was not given to the Planning Commission. He is correct, because the 2015 information is not relevant. What was brought to the Planning Commission was the current rules, the standards for variance approval/denial and the application for the vari- ance. The change in the City’s regulations as to what is controlled access lot and what is dedi- cated waterfront simply isn’t relevant. Schwarzhoff stated she did not see value in tabling this decision. All of the information and argu- ments are before the Council. Either the Council wants to count the waterfront or it does not. Schwarzhoff stated that she did not see any due process issues in her review. Mr. Thielen had a variance hearing before the Planning Commission and had notice of that hearing. Now he is in front of the Council for an appeal and he had notice of the appeal. Staff does not generally provide memos just before a hearing, but staff doesn’t generally get ex- tensive legal memos from applicants a week out. Schwarzhoff stated she got to this as quickly as she could and the memo was available on Thursday. It is unfortunate Mr. Thielen had trouble accessing it but it was available. DRAFT 05 20 2019 City Council Meeting Minutes 8 Final note on timing, the policy not to include the waterfront in lot size changed several years ago. When dealing with this particular application, as soon as staff knew about the waterfront staff told the applicant. Staff never told him he could use the waterfront on this specific project. He may have believed or been told he could use the waterfront before any plans were submitted for this project. Addressed legal issues, can answer any questions. Paul Haik: I want to draw your attention to City ordinance 1101-.501 (3) c – can be single own- ership when you have under your ordinance that you adopted and ordinance 1102.403 (7) – it says “lot must be jointly owned by all purchasers of lot in the subdivision or by all purchasers of all riparian lots in the subdivision who are provided access rights on the land”. There is only one human being who has purchased access rights on the land. Don’t think this is the place to argue about it. Thompson: Stated that she holds the Planning Commission in high regard. She would struggle to overturn the Planning Commission on an item such as this. Understands the lot might have a separate PID but does sit right next to his property. Would we consider including waterfronts as a whole? If we include the waterfront he doesn’t have this issues. She asked if the main issue was the water drainage and impervious surface coverage. If that area was included it would cover his impervious surface coverage. Briggs: Stated that he is sensitive and empathetic to when the applicant had access to the Counselor’s response. This is a Council about transparency and doing the right thing for its Community. Briggs thanked the City Attorney for pointing out the fact that the packet was availa- ble for the public on Thursday. Briggs thanked Mr. Thielen for acknowledging the situation in po- tentially overturning the Planning Commission. Not comfortable in doing so and shared why quickly. This was a 4-0 vote with one commissioner not present. City calls on them to do a lot of heavy lifting and when something comes to the Council especially on a 4-0 vote Briggs is chal- lenged to overturn it. Briggs was willing to table and send back to Planning Commission but less inclined to do so this evening. Thielen’s situation is actually identical to Briggs, parcel ID be- tween lot and the lake, going for impervious surface and didn’t have lot area. Put on the road to going after that parcel. 12 months worth of trials and dollars. Have 8 foot driveway instead of 10, far too narrow due to impervious. Braid: Stated that he appreciates the applicant coming forward. Great neighborhood, certain will continue to love it. Impervious surface is a nonstarter. Too many existing residents that Braid hears from constantly that can’t build larger garages, additions, gazebos and sheds due to those restrictions. And Braid is among those residents. That’s why Braid will have a hard time with the impervious surface calculation tonight. MOTION BY BRAID, TO APPROVE THE RESOLUTION AFFIRMING THE VARIANCES DENIED BY THE PLANNING COMMISSION FOR 3800 GREEN HEIGHTS TRAIL SW. Erickson: Stated that he disagrees. He thinks that the applicant’s attorney has brought a good option forward and the item should be tabled for further discussion. If they are willing to discuss options with our attorney and try to compromise I think we should go ahead and listen to them. Schwarzhoff: To clarify, City Attorney can’t negotiate with them. Added that she has no author- ity to negotiate with the applicant’s attorney. She has no authority to grant a variance or deny a variance. The most that could be done is to continue to argue about whether the dock regula- DRAFT 05 20 2019 City Council Meeting Minutes 9 tions apply. She wouldn’t be able to come back with any type of compromise position or any- thing like that. The Planning Commission did suggest Mr. Thielen come back with a compromise but that would need to go back to the Planning Commission for a new variance hearing. Erickson: The Mayor has a book with arguments 4 of us have not seen. Schwarzhoff: To clarify, the Council has seen the relevant documents. Tabs 1 through 6 are the 2015 documents – the memo to the Council on controlled access lots, the ordinances adopted in 2014 and 2015, the boat slip language and marina language. Everything else is the City Attorney’s memorandum, the applicant’s memorandum and a copy of the City Code. Noth- ing is new in this book that the Council has not discussed. BRAID WITHDREW HIS MOTION Braid: Interested to know if Council was interested in tabling. Thompson: Asked staff what their thoughts were on changing the policy for how the City wants to view waterfronts. Matzke: This could lead to a policy or different ordinance decision or practice on how the Coun- cil would want to view the waterfront lot area. They do have a court order in this situation. Matzke recommend Mr. Thielen bring the court order to the Planning Commission. That is why the Planning Commission had the Court order to consider and discuss. Planning Commission still decided to deny the variances. Discussions with staff for possible ordinance addressing wa- terfront - situation very tough to set up for every waterfront across the board. So recommenda- tion was to go to Planning Commission to let them consider each situation individually. Schwarzhoff: The City used to count these waterfronts towards the lots size. However, the wa- terfront is not owned by the land owner. Came to City’s attention that there were different types of waterfront – some areas just not included on plat others this type of dedicated to use of lot owners. Policy City had was reasonable but did not match ordinances – a lot is owned by the lot owner. Here the waterfront is not owned by the lot owner. Therefore, staff decided that unless they have proof of ownership the waterfront will not count toward the lot. If the City Council wants to amend that City Policy the Council could do that but staff would recommend an ordi- nance amendment and some details would need to be worked out but it is certainly something staff could do. The recommendation to the Planning Commission was that this is such a compli- cated issue – no mans land, commonly owned, controlled access lot with HOA – it would be hard to put into an ordinance so recommend taking it to the Planning Commission as a variance to consider on a case by case basis. McCabe: Explained the common ownership would also apply if someone lives next to a city park can they use that area, or if someone lives near a wide right-of-way. If the City Council choses to amend the policy, there are several areas the City Council have to address. Erickson: Asked for clarification – heard common ownership but his attorney said there is only one person with the right to it. Can I get clarification on that issue? DRAFT 05 20 2019 City Council Meeting Minutes 10 Schwarzhoff: Explained that the Green Heights Court case was brought forward in 1999 by the property owners in the development. The Court said that there was not enough evidence to side one way or the other. The property owners agreed to a settlement. The language in the set- tlement was included in the Court Order. It was short, only had 3 points. Point 1 regarding walk- ways so not relevant. Point 2 “Fee owners of lakefront lots 1 through shall have the exclusive right to place docks, boatlifts and fire-rings on the waterfront area immediately advance to their respective lot(s) and shall have the sole obligation to maintain same.” This court order doesn’t speak to ownership. It didn’t change ownership and it didn’t exclude the other users. In theory they could still walk on it and use the beach. She doesn’t know if they do but they could. It granted the exclusive right to place docks, boatlifts and fire rings and the obligation to maintain. The Council must consider if this language rises to a level high enough to make this waterfront different to allow Mr. Thielen to use it for lot size. Erickson: Believes that this property would count because the court order says he has the ex- clusive right to put a dock and fire ring, brings it to a different level. Burkart: Asked director McCabe if the City Council approved this would it give the ability of any- one else to count this water front towards their impervious surfaces. McCabe: That is correct. Staff would use the Council’s direction on all dedicated water front’s going forward. Burkart: Director McCabe you mentioned City parks and roads – do you see those as compara- ble. McCabe: No, waterfront are different. Could see similar request on some areas with large right of way but waterfront are different. Briggs: Have another matter on the agenda related to this type of property. If Council goes down this road and creates precedents concerned it will affect a number of areas around the lake. Briggs had to pursue action to connect adjacent fee – other citizens have taken like court action – to add land to PID then file in court of law. Wish this were more straightforward but on this one our Planning Commission did take the action, if Council wants to give the Planning Commission or staff direction to look more broadly at these parcels Council could, but thinks the right thing to do is make a decision this evening on this one rather than to table. Will support the Planning Commission’s decision this evening. Burkart: What is the downside to allowing these lots to utilize this land towards their impervious surface? What is downside to sending it back to the Planning Commission to change the policy in regard to all waterfronts Briggs: Can see dividing up the deeded access up among the common owners. Allow property owner to use their percentage of ownership to be applied to impervious surface. Bring forward a “pervious credit” as a conceivable potential position. Schwarzhoff: That is downside number one. Incredibly complicated. Impervious Surface is one downside. If the City Council allows this property to count the dedicated water front as their im- pervious surface coverage it will increase the impervious surface coverage throughout the City. It would require, at least would recommend, a code update. The biggest downfall is how complicated this could end up being. There would be multiple lots all asking for rights to utilize the lot. Is the City taking position on ownership? What if they ask for a shed? A lot of complications. Staff and Planning Commission could work that out and bring forward a proposal but it’s fairly complex. DRAFT 05 20 2019 City Council Meeting Minutes 11 McCabe: If the City was to move forward staff would prefer ordinance clarifications and re- minded the City council that Shoreline amendments need DNR approval prior to become law. ERICKSON MOVED, TO GRANT BOTH VARIANCES, SINCE THE ADDITIONAL LOT CAN- NOT BE USED BY ANY OTHER PERSON FOR ANY OTHER REASON. FAILURE OF A SECOND, MOTION DIES. MOTION BY BRIGGS, SECOND BY BRAID, TO ADOPT THE ATTACHED RESOLUTION AF- FIRMING THE VARIANCES DENIED BY THE PLANNING COMMISSION FOR 3800 GREEN HEIGHTS TRAIL SW. Thompson: Based on everything I’ve heard, based on all of the information, hearing that others have had to take action to combine PIDs, I think this is the right choice for the City. Mr. Thielen began to speak from the audience. Attorney Schwarzhoff stated if he was going to speak he should come forward to the microphone so that everyone could hear him. Mr. Thielen sat back down. Briggs called the question. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☐ ☒ ☐ Nay ☐ ☐ ☒ ☐ ☒ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. OLD BUSINESS No Old Business Scheduled NEW BUSINESS 9A. Consider Approval of a Resolution Approving the 2040 Comprehensive Plan Update and Authorizing Staff to Submit the Plan to Adjacent and Affected Jurisdictions and the Metropolitan Council for Review and Comment Braid: Thanked Council and staff for making changes that have aligned with the resident’s needs. MOTION BY BURKART, SECOND BY BRAID TO APPROVE A RESOLUTION APPROVING THE 2040 COMPREHENSIVE PLAN UPDATE AND AUTHORIZING STAFF TO SUBMIT THE PLAN TO ADJACENT AND AFFECTED JURISDICTIONS AND THE METROPOLITAN COUNCIL FOR REVIEW AND COMMENT. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ DRAFT 05 20 2019 City Council Meeting Minutes 12 Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. 9B. Consider Approval of a Resolution Approving a Dock System for Dedicated Waterfront for Sunfish Bay Attorney Schwarzhoff: This item was discussed at length at the workshop. Only a brief presenta- tion but happy to answer any questions. Sunfish Bay has waterfront dedicated to use of lot own- ers. One of the lakeshore lots went to Court to get the waterfront abutting their lot terminated and are now registering the entire property. Back lot owners came forward requesting a dock system on the access lot. The purpose is two fold – one to ensure back lot owners retain some access for a boat if the other lakeshore owners withdraw from the waterfront and two hopefully with a slip the back lot owners will not put docks in front of the other lakeshore lots. This option would only be for dedicated waterfront, not something anyone could do. Address Mr. Celski’s comments from public forum. Currently, the back lot owners can put docks etc. in front of the lakeshore lots, this is at least a step in the right direction because it would limit back lot owners to the access. As for storage of boat lifts, there is no specific discussion of stor- age. Only limit would be City’s standard storage rules. There are many areas around the City where people store docks in winter – not pleasant but part of living on the lake. Currently the ac- cess is for use of all owners – as long as they follow the code they have the right to use the ac- cess for storage. The Council can direct staff to address storage but up to this point the City has not taken any position on the ownership or use of the waterfront – only the dock system. Staff’s recommendation is to limit the approval to the dock system. Per the work session, added a condition to the Resolution that the HOA must provide information on membership on the City’s request. Briggs: Question for Director McCabe on storage – in terms of area on access lot storage of the dock system alone would consume most of the area. As long as stored on the lot no Code en- forcement issue Schwarzhoff: storage must be 30 feet from ordinary high water mark and might be a 5 foot set- back from adjoining lots. Would need to check. Briggs: will run out of storage space so issue of lift storage a moot point. Erickson: Would be able to store dock but doubt very many lifts at all. Especially if lot 7 decided to go all the way to the shoreline through legal action. Does Council want to address lifts or not. Dock not a question just lifts and other equipment. Briggs: Caution against adding other conditions. Opportunity to provide significant benefit. Al- ready requiring 10 people to be signed on by August 31. With that condition I think this is signifi- cant. I am cautiously optimistic. Will support staff’s recommendation on this item. DRAFT 05 20 2019 City Council Meeting Minutes 13 Thompson: Agrees with staff’s recommendation. MOTION BY ERICKSON, SECOND BY BRIAD, TO ADOPT A RESOLUTION APPROVING A DOCK SYSTEM FOR DEDICATED WATERFRONT FOR SUNFISH BAY. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. 9C. Consider Approval to Establish Limited Clean Up and Property Damage Protection for Sewer Back-Ups and Water Main Breaks for Water and Sewer Customers MOTION BY BURKART, SECOND BY ERICKSON TO ADOPT A RESOLUTION TO ESTABLISH LIMITED CLEAN UP AND PROPERTY DAMAGE PROTECTION FOR SEWER BACKUPS AND WATERMAIN BREAKS FOR WATER AND SEWER CUSTOMERS. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. MOTION BY BURKART, SECOND BY BRAID TO ADOPT A RESOLUTION HANDLING THE FOUR GREEN HEIGHTS TRAIL SEWER BACKUP/WATER MAIN BREAK CLAIMS IN A MAN- NER THAT WOULD BE CONSISTENT WITH THE NFSB INSURANCE COVERAGE. Burkart: This was a unique situation and he is comfortable supporting the residents. Braid: He would be in support of this resolution because it’s the right thing to do. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. ITEMS REMOVED FROM THE CONSENT AGENDA DRAFT 05 20 2019 City Council Meeting Minutes 14 No Items Removed from the Consent Agenda COUNCILMEMBER LIAISON UPDATES Erickson: Attended Community Safety Committee Meeting, SCALE affordable housing meeting, Reboot of the SCALE committee. Braid: Attended the SCALE meeting on 5/10. EDA meeting on 5/13, PC meeting for Comp Plan 5/13, City Events during construction 5/14, Prior Lake Scott County Board Meeting on 5/15, Agenda review on 5/17. Burkart: Met with Director McCabe to discuss MNVT on 5/9, SCALE 5/10, MNVT meeting 5/13, Mental Illness 5/15, Sunfish Bay Meeting on 5\15 Thompson: Attended SCALE meeting on 5/10,. Briggs: Attended MN Mayors Meeting in Stillwater on 4/26 and 4/27, SCALE Meeting on 4/29, SMSC Meeting with Manager Plante on 4/30, Prior Lake Chamber Meeting on 5/1, Scott County Mayors Meeting on 5/1, SCALE Executive Meeting on 5/3, Regional Council of Mayors Meeting with Manager Plante on 5/13, Quarterly SCALE Planning Meeting on 5/14, Quarterly Prior Lake/ County Meeting on 5/15, MN Mayors Together Meeting 5/17, Kids Day at the City Maintenance Center 5/18, Eagle Scout Court of Honor 5/18, Director McCabe and Mayor attended a Mayor/ City Staff information exchange hosted by the Woodbury Mayor and City Administrator. OTHER BUSINESS / COUNCILMEMBER REPORTS 12A Street Project Update Public Works Director/City Engineer Brotzler provided an update. CLOSED SESSION 13A. Closed session pursuant to attorney-client privilege to discuss potential litigation related to the 150th street project professional services per Minn. Stat. 13D.05, Subd 3 (b). MOTION BY BURKART, SECONDED BY BRAID, TO ENTER THE CLOSED SESSION TO FA- CILITATE ATTORNEY-CLIENT PRIVILEGE COMMUNICATION REGARDING THE POTENTIAL LITIGATION RELATED TO THE 150th STREET PROJECT PROFESSIONAL SERVICES per MINN. STAT. 13D. 05, Subd. 3(B). ADJOURNMENT MOTION BY THOMPSON, SECONDED BY BRAID, TO ADJOURN THE MEETING AT 10:01 P.M. VOTE Briggs Thompson Burkart Braid Erickson Aye ☒ ☒ ☒ ☒ ☒ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. DRAFT 05 20 2019 City Council Meeting Minutes 15 _______________________ Michael Plante, City Manager