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HomeMy WebLinkAboutSeptember 7, 1999 PRIOR lAKE CITY COUNCil WORK SESSION Tuesday, September 7, 1999 5:00 p.m. Fire Station City Council Chambers (1) City Council Legislative and Quasi-Judicial Decision- making Authority in land Use. (2) Adjourn (6:50pm) 16200 ffi@a~OOCAve. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER MEMORANDUM TO: CITY COUNCIL FROM: DONALD RYE, PLANNING DIRECTOR SUBJECT: SEPTEMBER 7, 1999 WORKSHOP Attached are some materials for your review prior to the workshop on legislative and quasi-judicial decision-making in land use decisions. The primary difference between the two is that legislative decisions involve the creation of policy and rules while quasi- judicial decisions involve the application or interpretation of existing rules and policies, however, both types of decisions are held to the same standard of judicial review. This standard holds that both types of decisions will be upheld where there is adequate evidence in the record that the Council had a rational factual basis for it's decision and did not act arbitrarily or capriciously. The Earthburners case illustrates a quasi-judicial decision as it involves the issuance of a conditional use permit under an existing ordinance. The material regarding D.R. Horton is an example of a legislative decision. The Swanson case set the standard for judicial review based solely on the record of decision, rather than by trail where new information may be introduced for consideration by the court. 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER 460 MLm. 513 NORTH WESTERN REPORTER, 2d SERIES EARTHBURNERS, INC., Respondent, v. COUNTY OF CARLTON, Petitioner, Appellant. No. C5-93-110. Supreme Court o~esota. March 18, ~ Applicant sought declaratory judgment that county board acted arbitrarily when it denied conditional use permit for operating "soil roaster" on leased land used as gravel pit. The District Court, Carlton County, Kenneth A Sandvik, J., entered summary judgment for applicant, and county appealed. The Court of Appeals, 504 NW.2d 66, af- firmed, and county petitioned for review. The Supreme Court, Coyne, J., held that remand to board for reconsideration was nec- essary in absence of any articulated basis for denial of application for permit. Reversed and remanded. Zoning and Planning <'?439, 726 County board's bald reference to "public testimony in opposition" provided insufficient justification for its denial of application for conditional use permit for operation of "soil roaster" at gravel pit, and therefore remand was required for renewed consideration of application and for articulation of reasons for ultimate decision, provided that, to prevent any unfairness to applicant, board would have to confine its inquiry to those issues raised in earlier proceedings while allowing adequate opportunity for meaningful discus- sion of those issues. Syllabus by the Court In the absence of any articulated basis for the denial of Earthburners' application for a conditional use permit, the matter is remanded to the Carlton County Board for its reconsideration. White Bear Rod and Gun Club v. City of Hugo, 388 NW.2d 739 (Minn.1986). James M. Ross, Jr., Carlton, for appellant. Robert C. Maki, Duluth, for respondent. Carla Heyl, League of MN Cities, Shore- view, for amicus curiae. Heard, considered, and decided by the court en banco OPINION COYNE, Justice. We granted the petition of Carlton County to consider whether the proceedings of its county board were in compliance with Carl- ton County, Mn. Ordinance 6, ~ 20 (Aug. I, 1978), with respect to Earthburners, Inc.'s application for a conditional use permit. Be- cause we conclude that the proceedings were deficient, we reverse and remand for the board's reconsideration of the application. Earthburners is interested in operating a "soil roaster" in Carlton County on leased land currently used as a gravel pit. The facility is designed to heat dirt collected from service station sites in order to remove the oil and gas in the soil. As the soil dries, a "drop out box" and "baghouse filter system" catch emissions. Once purified, the soil may be mixed with gravel for use in road con- struction and repair or, if further refined, used for "common fill." Earthburners ap- plied to the Minnesota Pollution Control Agency for, and was granted, an air emission permit on December 17, 1991. Thereafter, on January 7, 1992, Earthbur- ners applied to Carlton County for a condi- tional use permit. Bruce Benson, county zoning administrator, recommended approval with certain specified conditions. The county planning commission then held a public hear- ing on February 5 to consider, among other matters, Earthburners' application. Terry Anderson, Earthburners' president, and the company's attorney, Robert Maki, were pres- ent at the hearing, during which several local residents offered complaints about h~1- nf notice and insufficient information, while oth- ers expressed their fears about the project's impact on the area because of increased truck traffic, possible pollution and danger to children. One resident was concerned that t1lelOCation of the facility would result in a devaluation of her property for its upcoming a EARTHBURNERS, INC. v. COUNTY OF CARLTON Cite as 513 N.W.2d 460 (Minn. 1994) Minn. 461 sale. None of the residents present made detailed statements, but an attorney read a letter submitted by a non-resident landown- er, Professor Andrew McFarland, who, after extensive study of air and ground pollution, offered general criticisms. The commission unanimously voted to recommend denial of the applicatIOn. Two days after the planning colllllllSSlOn hearing, Earthburners provided the county board with a detailed written response to the issues and concerns which had been raised, in which the company's president assured the board that Earthburners "welcomes close su- pervision" and conditions on the permit's is- suance. He recommended a test period and offered specific remedies to minimize soil spil.!a~ excessive dust and other problems identified by the objecting lanaowners: Earthburners also agreed to operate the soil roaster only on a 40-acre tract on the leased land. Presumably, the concessions proffered by the permit applicant were intended to be incorporated in the ultimate permit, if issued, but it is unclear whether a formal amend- ment of the application took place or whether the county zoning administrator concurred. The Carlton County Board considered the permit application on February 11. While there were no scheduled speakers, the chair apparently anticipated another lengthy hear- ing and took steps to limit discussion: [W]e have lots of visitors, * * * * We don't want to go over another meetin like we had e other night * * * * [W]e had 150 people there, we spent in excess of 2 hours dealing with both sides of the issue, mostly the [objections,] and I don't think that it is necessary [to] go through that again * * * * [W]hat I would like to do, if this is acceptable with the Board, is to have each side * * * speak for no more than 5 minutes * * * [and then] have the Board members ask questions. Maki offered to "let the opposition go first" so he could answer their questions. One resident again complained of anticipated ex- cessive vehicle trattIc and pOSSIble soil spill- age and the non-resident landowner;tiiroi:igh counsel, reiterated his concerns. ~ Maki re- sponded to each. The chair fIrst suggested that a postpone- ment of the issue might be in order, but then moved the proceedings forward, inviting questions from board members who had not attended and voted at the planning commis- sion hearing. After a general discussion, one board member complained of insufficiimt~ tice of the neat i"~,,"d suggested that more disCUssion should have been required to illlly inform the residenti;:- Earthburners' repre- sentative acknowledl!ed the need to inform the neighboring landowners and respond to their inquiries: I am more than happy to schedule whatev- er public hearings to go to the [local] Township, to get all of the issues on the table and address. I think your concerns are proper, it's not f~ for people not to know what's coming and if this Board wishes, we will take some more time, we will hold a meeting in the Township and we will address all concerns. [We're] not trying to ram it through * * * * [The goal was to] take issues raised [at the Planning Commission meeting] and give you all the information I could gather. My goal is not to walk out of here with a permit today. It is to give you answers to every question [that has been raised to this point] * * * · [M]aybe there are more questions [and] people need more time. I have no prob- lem with that. - The following comment from the board chair demonstrates the inadequacy of the proceed- ings and the interlocutory nature of the deci- sion which later issued: [T]his whole thing is much more comolex than we have the time to give it. * * * · [t]here are many questIOns to be answered and it is going to take more time than we have' * * today * * * * [M]y recommen- dation * * * would be to accept the recom- , mendation of the Planning CommissIOn ana as we get smarter down the IDn: W w. , Eartnburners [could] reapply for a permi.!:.- Despite what appeared to be an indication of a willingness to either postpone or continue the matter so that more information could be provided or Earthburners could reapply or supplement its application, the board voted unanimously to accept the planning commis- sion's recommended denial. The only stated 462 MinH. 513 NORTH WESTERN REPORTER, 2d SERIES reason for the denial was "public testimony presented in opposition." - Rather than resubmitting its application, Earthburners sought a declaratory judgment that the county board acted arbitrarily when it denied the permit. The district court or- dered issuance of the conditional use permit, concluding that the board's basis for denial "is legally insufficient." A split decision of the court of appeals affirmed the district court's declaration. Earthburners, Inc. v. County of Carlton, 504 N.W.2d 66 (Minn. App.I993). Relying upon Honn v. City of Coon Rapids, 313 N.W.2d 409, 415-16 (Minn. 1981), the dissenting opinion argued that the county board should be afforded an opportu- nity at trial to rebut the presumption of arbitrariness of its decision and demonstrate a rational basis for it with evidence and testimony limited in scope to those issues raised before the planning commission and county board. It must be pointed out that neither the district court nor the court of appeals defined the scope of the conditional use permit their decisions mandated. Carlton County adopted a detailed ordi- nance to govern the consideration and dispo- sition of conditional use permit applications. Permitted conditional uses in this district include, but are not limited to, "solid waste disposal sites" and "dumping grounds", "sub- ject to the provisions of Sec. 20, Conditional Use Permits." Carlton County, Mn., Ordi- nance 6, ~~ 8--9 (Aug. 1, 1978). Section 20 provides in pertinent part as follows: Conditional use permits shall be ap- proved by the County Board of Commis- sioners based on recommendations by the County Planning Commission for any and only the uses or purposes for which such permits are required or permitted by [this ordinance]. * * * No conditional use shall be approved by the County Planning Commission unless said Commission shall find: 1. That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity * * * nor substantially diminish and im- pair property values * * * 2. That the [use] will not impede the nor- mal and orderly development [of the area]. 3. [That] adequate utilities, access roads, drainage and other necessary facilities * * * are being provided. 4. That adequate measures have been or will be taken to provide sufficient off- street parking and loading space to serve the proposed use. 5. That adequate measures have been or will be taken to prevent or control offen- sive odor, fumes, dust, noise and vibra- tion, so that none of these will constitute a nuisance * * *. Id. ~ 20, subds. 1, 4. The trial court and court of appeals determined that on the rec- ord, Earthburners' application satisfied t~ criteria of the ordmance and that the condi- tioIlal use permit must issue. In our view, these proceedings and the board's decision are similar to those we ad- dressed in White Bear Rod and Gun Club v. City of Hugo, 388 N.W.2d 739 (Minn.1986), where the gun club sought to amend and expand the special use permit for its shooting range. We concluded that the city council's denial decision lacked specific findings or explanations to facilitate any judicial review: In denying the gun club's application, the city council cryptically listed nine "rea- sons" * * * * These so-called reasons are nothing more than a list of the council's sources of information and tell a reviewing court nothing about how the council may have evaluated or used this information. While the city council was not required to prepare formal findings of fact, it was, "at a minimum," required to "have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion." Id. at 742 (footnotes omitted) (citing Honn, 313 N.W.2d at 416). Because of the wholly inadequate record, in White Bear Rod and Gun Club we remanded to the council for its preparation of appropriate findings to sup- port its decision. The proceedings before and decision of the county board here are even less adequate than those recorded in White Bear Rod and 1.'1 7" .. " '.;, ,I . IN RE PETITION FOR DIS. AGAINST SWERINE Cite as 513 N.W.2d 463 (Minn. 1994) Minn. 463 Gun Club. The county argues that its board's justification for denial-the bald ref- erence to "public testimony in opposition"- should be considered in the con t of ea h board mem er s oral statements and ues- tions an e su stance of the residents' testimony. It urges the court to consider so~ing akin to the "cumulative effect" of the record to sustain the board's deCision. However, the most obvious conclusion from such a generous reading of the record is that board members, residents and even the ap- plicant Earthburners' counsel were unpre- pared for a final determination of the board on February ll-that there remained unan- swered questions, that more time was needed both for consideration of the issue and for testimony and that there was no expectation of finality at that hearing. Under these cir- cumstances, we are of the view that the decision was premature, not necessarily arbi- ~nd it is that characterization which requires a remand to the county board for its renewed consideration of the application. In the proceedings on remand, the board must articulate the reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance. If the permit is granted, the order must demon- strate the board's conclusion that the appli- cant has satisfied each of the five conditions for approval. Carlton County, Mn., Ordi- nance 6, ~ 20, subd. 4. If the application is denied, the order must articulate the board's specific basis for the denial, i.e., an explana- tion of the applicant's failure to satisfy the ordinance criteria. See, e.g., Swanson v. City of Bloomington, 421 N.W.2d 307 (Minn.1988) (subdivision request properly denied; city council made specific findings under zoning ordinance). Along with a clearly articulated rationale for its decision, sRecific reference t&. the local ordinance is essential to facilitate effectIve judicial review. As with the lower courts, we have been reluctant to allow local boards an opportunity after the fact to substantiate or justify earlier decisions. See Metro 500, 1m;. v. City of Brooklyn Park, 211 N.W.2d 358, 362 (Minn. 1973). However, where, as here, the board has failed to discharge its responsibilities in connection with this application, we are com- pelled to offer it the opportunity to do so and to develop a record to allow meaningful ap- pellate review. However, to prevent any un- fairness to the applicant, the board must confine its inquiry to those issues raised in earlier proceedings before the planning com- mission and county board while allowing ade- quate opportunity for a meaningful discus- sion of those issues. Both Honn, 313 N.W.2d at 416, and Swan- son, 421 N.W.2d at 312-13, reflect our con- cern that decisions be deliberative, fair and well-documented. The effect of our decision is to reopen these proceedings with proper notice, to facilitate full discussion by all inter- ested parties by providing the applicant am- ple opportunity to disseminate information concerning its proposed facility and its opera- tion so that board members and other inter- ested parties are afforded adequate prepara- tion time, and ultimately to allow the board to articulate the reasons for whatever action it takes and, in the event it approves the application, to define the scope and terms of the conditional use permit. Reversed and remanded to the county board for its reconsideration of the permit application. In re Petition for DISCIPLINARY AC- TION AGAINST Brian A. SWERINE, an Attorney at Law of the State of Minne- sota. No. CX-93-1799. Supreme Court of Minnesota. March 18, 1994. In attorney disciplinary proceeding, the Supreme Court held that misappropriating client funds, making misrepresentations in effort to conceal misappropriations, forging, or endorsing without authorization, client set- tlement checks, failing to maintain proper 421 NORTH WESTERN REPORTER, 2d SERIES with the prosecutor and with defendant in chambers, then should have met with the jury in open court. State v. Richardson, 332 N.W.2d 912 (Minn.1983). We cannot tell from the transcript whether the trial court discussed the matter with the prose- cutor and with defendant in chambers; the trial court's on-the-record explanation to defendant when the court was granting the request to reread the instru~o~ sugge~ts that maybe the trial court did discuss with defendant the requests for the rereading of testimony. It appears that the trial court did not meet with the jury in open court to respond to the jury's requests for the re- reading of testimony. [1] (2) If the trial court did discuss the matter with defendant in chambers, then the failure of defendant to object on the record ordinarily should constitute a forfei- ture of his right to have the issue of the trial court's handling of the matter decided on appeal. State v. McM01'1'i8, 373 N.W.2d 593 (Minn.1985). The forfeiture rule ap- plies equally to a criminal defendant who rejects representation by the public defend- er and represents hirnselt [2, 3] (3) Our decision in State v. Dan- iels 332 N.W.2d 172 (Minn.1983), discusses the' scope of the trial court's discretion in detail. Here the trial court's statement ("I do not reread the parts of the testimony") arguably suggests that the trial court may have been improperly following some sort of blanket rule against granting jury re- quests for the rereading of testimony. Even so, if there were objective grounds for denYing the requests in this case, then the trial court's decision cannot be said to be erroneous, since the trial court could have denied the requests even if it had not had a blanket rule. We conclude that there were objective grounds for denying the re- quests. Simply because th~ jury app.arent. Iy felt that it was at an Impasse did not mean that the trial court was obligated to grant the jury's requests, as the cou~ of appeals' opinion seems to say. The firB.t request, in effect, was a request for testi- mony that did not exist. The second ~e- quest was equally unreasonable: the gIrl friend was the last witness to testify; she 306 Minn. plicit message to the jury," and (d) that although the defense testimony di? not present a "close case," the error m re- fusing to reread testimony was none~eless "plainly prejudicial" because the testimony of the state's witnesses did not "rule out" · the alibi defense. 416 N.W.2d at 794-95. Mirtn.R.Crim.P. 26.03, subd. 19(2), which I deals with jury requests to review evi- dence, provides: 1. If the jury, after retiring for delib- eration, requests a review of certain tes- timony or other evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to t~e jury and permit the jury to re-examme the requested materials admitted into evi- dence. 2. The court need not submit evidence to the jury for review beyond that specif- ically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to ~e same factual issue so as not to give undue prominence to the evidence re- quested. The leading Minnesota cases dealing with jury requests to review evidence are State v. McMorris, 373 N.W.2d 593 (Minn.1985) (reversing an award of new trial by court of appeals; dealing with issues of failure to ~ object and of whether error. in de~yi~~ or i' . granting a jury request IS preJudlc~al); t State v. Daniels, 332 N.W.2d 172 (Mmn. 1983) (analyzing in detail what is the scope Qf the trial court's considerable discretion in handling such requests and also analyz- ing issue of when error is prejudic~al); State v. Spaulding, 296 N.W.2d 870 (Mmn. 1980) (the rare "close case" where trial court's refusal to reread testimony was so prejudicial and so plainly erroneo~s u~der the circumstances that defendant s failure to object did not prevent us from awarding the defendant a new trial). Relying on these and other cases, we substitute the following analysis for that of the court of appeals: (1) Upon receiving the notes the trial court should have discussed the requests ~ . 9 . ~ , ;~ , "," ~ f I t I t ~ I SWANSON v. CITY OF BLOOMINGTON ace..UI N.W.2d 307 (Minn. 1988) clearly said that the call was received at a. relatively long time in deciding the case 1:15 a.m., and the jury's first request sug- does not mean it was a "close case" on the gests that the jury knew that that is what merits; juries often take a long time decid- the testimony was. The current address of ing cases when the evidence of guilt is the girl friend was totally irrelev:mt; repe- strong. While conceding that this was not tition of her testimony that her address at a "close case," the court of appeals said the time of the offense was West Seventh that any error in denying the requests was in St. Paul would not have helped the jury "plainly prejudicial" because the repetition decide the case properly. Granting the re- of the testimony would have shown that quests might have helped the jury decide the state's evidence bearing on the issue of the case illogically, but that is not the test time did not rule out the alibi defense. 416 of whether a request is reasonable. In any N.W.2d at 795. The trouble with this is event, the fact that a request is reasonable that, in the context of all of the damning does not necessarily mean that the trial evidence of defendant's guilt, the alibi de- court has no discretion to deny the request. fense was simply not worthy of belief by a State v. Daniels, 332 N.W.2d 172 (Minn. reasonable jury. The court of appeals' 1983). While criticizing the trial court's statement suggests that it based its deter- apparently wooden approach, the court of mination of prejudice on its assessment of appeals in effect offers in its s~ad the the possible impact of any error, not on the wooden approach of always grantin~ a re- likely impact of the error on a reasonable ~uest, eve~ ~n unre~onable one, If the jury. Given the strength of the evidence of JUry says It IS at an Impasse. guilt and all of the other factors, we con- [4] (4) We also reject the court of ap- clude that the court of appeals' conclusion peals' conclusion that any error'in denying that any error was prejudicial is wrong. the requests was prejudicial. Defendant Reversed and judgment of conviction was literally caught red-handed in posses. reinstated. sion of burglary tools and the stolen prop- erty just a block from the burgled building 2 hours after the burglary. It is obvious from his condition that he had been secret- ing himself in the rain, waiting for the police to clear out of the area, then had made his way to the car. The fact that the car windows were fogged up suggests that defendant had waited in the car for a peri- John F. SWANSON, et al., Respondents, od of time also. The fact that he gave an obviously false statement to the police af- ter he was stopped is also very damning. Most damning of all is the evidence that when the officer went back to the squad car, defendant took off his black nylon coat and threw it over the burglary tools on the floor of the back seat. Our cases dealing with prejudicial error in this context are summarized in State v. McMorris, 373 N.W.2d 593 (Minn. 1985). The case on which the court of appeals relied in much of its analysis, State v. Spaulding, 296 N.W.2d 870 (Minn.1980), is easily distin. guishable on this point in that we expressly described that case as a "close case." Here the state's evidence of defendant's guilt was very strong. That the jury took Minn. 307 v. CITY OF BLOOMINGTON, Petitioner, Appellant. No. C3-86-782. Supreme Court of Minnesota. March ~ Applicants who were denied permission by city council to subdivide lot brought declaratory judgment action challenging that denial. The District Court, Hennepin County, Charles A. Porter, J., entered judg- ment for city, and applicants appealed. The Court of Appeals, 395 N.W.2d 719, 308 Minn. 421 NORTH WESTERN REPORTER, 2d SERIES reversed and remanded. On review, the Supreme Court, Wahl, J., held that: (1) District Court, in declaratory action chal- lenging denial of subdivision application, may grant summary judgment based' on its review of record consisting of municipal body's findings, memoranda submitted by parties, and verbatim transcripts of all hearings, and (2) city council's decision to deny application was reasonable. Reversed; judgment reinstated. Popovich, J., filed specially concurring opinion in which Yetka, J., joined. 1. Judgment <P185.S(1) District court, in declaratory action challenging denial of subdivision applica- tion, may grant summary judgment based on its review of record consisting of munic- ipal body's findings, memoranda submitted by parties, and verbatim transcripts of all hearings. M.S.A. ~ 462.351. 2. Zoning and Planning <P574, 601 District court should establish scope and conduct of its review of municipality's zoning decision by considering nature, fair- ness and adequacy of proceeding at local level and adequacy of factual and decision- al record of local proceeding; where munic- ipal proceeding was fair and record clear and complete, review should be on the record; where municipal body has proposed formal findings contemporaneously with its decision and there is accurate verbatim transcript of proceeding, record is likely to be clear and complete. M.S.A. ~ 462.351. 3. Zoning and Planning *",610, 641 When review of municipality's zoning decision is conducted on the record, district court should receive additional evidence only on substantive issues raised and con- sidered by municipal body and then only on detennining that additional evidence is ma- terial and that there were good reasons for failure to present it at municipal proceed- ings; standard of review is whether munic- ipal body's decision was unreasonable, arbi- trary or capricious, with review focused on legal sufficiency of and factual basis for reasons given. M.S.A. ~ 462.351. 4. Zoning and Planning e=>641, 642 Where municipal zoning proceeding has not been fair or the record of that proceeding is not clear and complete, par- ties are entitled to trial or opportunity to augment record in district court. M.S.A. ~ 462.351. 5. Zoning and Planning *"'642 Trial court properly reviewed city council's denial of application to subdivide residential lot on the record and was not required to conduct trial de novo, where record consisted of verbatim transcripts of public hearings on matter, including state- ments by experts on both sides, written reports by city director of planning and city forester, and contemporaneous written findings by city council on which council based its decision. M.S.A. ~ 462.351. 6. Zoning and Planning *"'12 While neighborhood feeling may not constitute sole basis for zoning decision, it may still be taken into account. 7. Zoning and Planning <P385 City council's decision to deny applica- tion to subdivide residential lot in subdivi- sion which had been governed by restric- tive covenant which prohibited subdivision of large lots and protected wooded, natural environment was reasonable; city's di- rector of planning, city forester and wild- life biologist all described likely environ- mental effects of subdividing lot, including loss of trees and other vegetation both on lot and on adjacent properties, wind dam- age and loss of windbreak effect. M.S.A. ~ 462.351. Syllabus by the Court 1. The district court properly re- viewed the municipal zoning decision on the record where the municipal proceeding was fair and the record is clear and complete. 2. The district court properly granted summary judgment to the city. David R. Ornstein, Bloomington City Atty., Eric R. Berg, Associate City Atty., Henry E. Wieland, Asst. City Atty., Bloom, ington, for appellant. j i t t " ,1 'i' -i~ /.; 't ~ Ii t .: r SWANSON v. CITY OF BLOOMINGTON Minn. 309 Cite.. 421 N.W.2d 307 (Minn. 1988) Ma~ew L. Fling, John J. Waters, feet with a single-family house. Cadmus Bloommgton, Vance B. Grannis, Jr., South applied for approval of a preliminary and St. Paul, for respondents. final plat subdividing the lot into two resi- Stanley G. Peskar, St. Paul, amicus curi- dential single-family lots. The city council ae. Heard, considered and decided by the court en banco OPINION WAHL, Justice. John Swanson and Danald Cadmus brought a declaratory judgment action in Hennepin County District Court challeng- ing the Bloomington city council's denial of an application to subdivide a residential lot in the Timberglade 2nd Addition into two residential lots. Swanson and Cadmus sought to establish that the city's action was arbitrary, capricious and unreasonable and they requested an order that would compel subdivision or, in the alternative, would find that there was a taking. The district court, after a review of the record, granted summary judgment to the city. The court of appeals reversed and remand- ed, 395 N.W.2d 719 (1986), holding that respondents were entitled to pursue dis- covery and to present additional relevant evidence to the district court. We reverse and reinstate the judgment of the trial court. The Timberglade subdivision of the city of Bloomington is unique in its densely wooded, secluded character and serves as wildlife as well as human habitat. Its sin- gle family homes are typically located on sites exceeding one acre. For thirty years, from the inception of the Timberglade sub- division until two or three years before the present suit was instituted, landowners there were governed by a restrictive cove- nant which prohibited subdivision of the large lots and protected its wooded, natural environment. Danald Cadmus is the fee owner of the real property at 15 Timberglade Road in the Timberglade subdivision. John Swan- son is the contract purchaser of the proper- ty and has resided there since October 1984. The property consists of a resi- dential lot of approximately 46,000 square (hereinafter council) held public hearings and received written reports from the city's Director of Planning and the City Forester. The Director of Planning described the like- ly results of the creation of a new homesite -jeopardy to the vegetation on the lot, stress on the vegetation of the surrounding properties, increased possibility of tree dis- ease and wind damage-and recommended that the subdivision request be denied. The City Forester concurred. A wildlife biologist, testifying on behalf of the neigh- bors, similarly described the disruptive ef- fect of clearings in the woodland area, loss of windbreak benefits and loss of wildlife habitat. A number of neighbors spoke op- posing the subdivision. Speaking in favor of the subdivision were Cadmus, Swanson, and a landscape architect presented by Cadmus and Swanson's attorney. The city council based its decision to deny approval of the preliminary and final plat on section 16.05.01(e) of the Blooming- ton City Code, which provides: (e) In the case of all plattings, the Plan- ning Commission or the Administrative Subdivision Review Committee, which- ever is applicable, shall recommend deni- al of, and the City Council shall deny, approval of a preliminary or final plat if it makes any of the following findings: (1) That the proposed subdivision is in conflict with applicable general and specific plans. (2) That the design or improvement of the proposed subdivision is in conflict with applicable uevelopment plans. (3) That the physical characteristics of the site, including but not limited to topography, vegetation, susceptibility to erosion and siltation, susceptibility to flooding, water storage, and reten- tion, are such that the site is not suit- able for the type of development or use contemplated. (4) That the site is not physically suit- able for the proposed density of devel- opment. 421 NORTH WESTERN REPORTER, 2d SERIES 310 Minn. (5) That the design of the subdivi~ion or the proposed improvements are like- ly to cause substantial environmental damage. (6) That the design of the subdivision or the type of improvements will be detrimental to the health, safety, or general welfare of the public. (7) That the design of the subdivision or the type of improvements will con- flict with easements of record or to easements established by judgment of a court. Specifically, the council made findings under paragraphs (3), (5), and (6) of section 16.05.01(e), concluding that the proposed subdivision would result in substantial de- struction of vegetation on the subject site, creating a large opening which would not only be detrimental to the property in ques- tion but would also jeopardize existing veg- etation on adjacent properties. The council adopted the findings and memoranda of the Director of Planning and the City Forester and on the basis of the significant destruc- tio; of vegetation made the finding in ~ 16.05.01(e)(3), that the site was not suit- able for the type of development or use contemplated. The council made the find- ing in ~ 16.05.01(e)(5) on the basis of the environmental disruption to the site and to the entire Timberglade subdivision that would be created by approving the plat. Finally, the council noted that neighboring property owners were unanimous in their opposition to the proposed plat, and deter- mined that the planned removal of trees and vegetation from the subject property would disrupt the overall integrity of the woodland and thereby have a negative ef- fect on the general welfare of the persons residing in the Timberglade subdivision. On this basis the council made the finding in ~ 16.05.01(e)(6). Swanson and Cadmus brought this action in district court challenging the denial of the subdivision application. The city moved for summary judgment on the record before the council, including tran- scripts of the hearings and other evidence submitted. The plaintiffs moved for an order compelling discovery and asked to submit additional evidence which they hoped to acquire through discovery. The district court determined that because an accurate verbatim record of the complete hearing before the city council was avail- able, it was proper to decide the case based on a review of the record rather than by conducting the trial required of the city in Honn v. City of Coon Rapids, 313 N.W.2d 409 416 (Minn.1981). To require a trial de no;o in this case, in the district court's view would infringe on the decision-mak- ing ~rocess of the city and weigh a~~st the policy of judicial economy. The dlstri~t court reviewed the record of the council, and finding evidentiary support for the cou~cil's findings and a rational basis for the council's decision, granted summary judgment for the city. The court o~ ap- peals reversed that judgment on the sm~le ground that Honn v. City of Coon RapIds required a trial de novo to gIve respon~~nts an opportunity to present n:levant addi.tion- al evidence when the parties had neIther agreed to nor acquiesced in submission of the case by review of the record,. and held that the granting of summary Jud~ent was inappropriate. Swanson v. CIty. of Bloomington, 395 N.W.2d 719, 723 (Mmn. App.1986). We granted review to examine the mat- ter in the context of our decisions in Honn v. City of Coon Rapids, 313 N.W.2d.409, and Hubbard Broadcasting, Inc. v. Ctty of Afton, 323 N.W.2d 757 (Minn.~982~, to har- monize our cases, and to modify, If nec~s- sary, the procedure for review of ~onm.g decisions set out in Honn. Our reVIew IS focused on two issues: first, whether a district court, in a declaratory judgm~~t action challenging the denial of a SUbdiVl- sion application, may grant summary judg- ment based on its review of a record con- sisting, in this case, of a ~unicipal body's findings and accompanymg memoranda, verbatim transcripts of hearings before the municipal body, as well as memorandum submitted by the applicant; and second, whether the district court properly granted summary judgment to the city. 1. Before we determine whether the district court in this case properly granted summa- SWANSON v. CITY OF BLOOMINGTON Clteu421 N.W.2d 307 (Mlnn. 1988) ~ , ry judgment on the record made by the city council, or whether Honn requires a trial in every such case, it is useful to reflect on our traditional approach to zoning matters. In White Bear Docking and Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 175 (Minn.1982), we considered the role of the judiciary in countermanding zon- ing decisions reached by municipal officials and concluded that "[t]he court's authority to interfere in the management of munici- pal affairs is, and should be, limited and sparingly invoked." We reiterated the rule we had set out in Honn v. City of Coon Rapids governing standard of review in zoning matters: "The standard of review is the same for all zoning matters, namely, whether the zoning authority's action was reasonable . · · Is there a 'reasonable ba- sis' for the decision? or is the decision 'unreasonable, arbitrary or capricious'? or is the decision 'reasona.bly debatable'?" 324 N.W.2d at 176, quoting Honn, 313 N.W.2d at 417. We said that, except in those rare cases in which the city's decision has no rational basis, "it is the duty of the judiciary to exercise restraint and accord appropriate deference to civil authorities in the per- formance of their duties." Id. White Bear Docking involved a special use permit which had been denied by the city of White Bear Lake. Plaintiffs obtained a writ of mandamus from the district court directing the council to issue the permit. We re- versed the order of the district court and quashed the writ, finding that the grounds for denial of the permit assigned by the council constituted a rational basis for the decision and were well within the criteria set forth in the city's zoning code. 324 N.W.2d at 177. .!" ~ 'f ~ 3 , 1 l ~ It , I II. [1] The first issue is whether a district court, in a declaratory action challenging the denial of a subdivision application, may grant summary judgment based on its re- view of a record consisting of a municipal body's findings, memoranda submitted by the parties, and verbatim transcripts of all hearings. Minn. 311 We determined in Northwestern College v. City of Arden Hills that the scope of review to be used for zoning matters would be the same as that used for state adminis- trative agency decisionr.. 281 N.W.2d 865, 868 (Minn.1979). We indicated that the re- view would be of the record made before the local zoning body. That is, the review by the district court would be made on the municipal record and the supreme court would make its review on the same record. We said, quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824, (Minn.1977), "[I]t is our function to make an indepen- dent examination of an administrative agency's record and decision and arrive at our own conclusions as to the propriety of that determination without according any special deference to the same review con- ducted by the trial court." Id. Then in Honn v. City of Coon Rapids, we were presented with a case, appealed by the city from an adverse decision below, where the record before the trial court was completely inadequate. In that case we held that review on the record was not appropriate. 313 N.W.2d at 418. Honn involved a declaratory judgment action in which the court required the par- ties to agree upon a record of what had occurred before the city council and present this "agreed-upon" record for re- view. Based on this after-the-fact record, the district court found the city's action in refusing to rezone the plaintiffs land from single family residential to multiple unit residential and commercial to be arbitrary, capricious, and unreasonable. On appeal, we found the "agreed upon" record re- quired by the district court to be inade- quate for judicial rev.ew and remanded the case for trial. Honn, 313 N.W.2d at 419. Concerned that city councils and zoning boards did not ordinarily make records of their proceedings as complete and as for- mal as those of a state agency, we set out a procedure for review of zoning matters which permitted use of a declaratory judg- ment action in which the parties are enti- tled to a trial. [d. at 416. Honn did not directly overrule North- western College and, under its own facts, 312 Minn. 421 NORTH WESTERN REPORTER, 2d SERIES was a proper decision but its broad lan- guage, mandating a trial in every case may go beyond what is necessary in every case. It is not unreasonable, nor unfair, where a city has. failed to make a complete and adequate record of its proceedings in zon- ing matters to require that city to prove the basis of its decision before a district court. We are persuaded by amicus curiae League of Minnesota Cities that Honn has had a salutary effect.! Amicus advises this court that, in reliance on Honn, many cities have borne the expense of verbatim tran- scripts of their proceedings. These cities have carefully made findings supported by transcribed evidence so that their zoning decisions, if challenged, would not be decid- ed by a district court on the basis of evi- dence never considered by them. Accord- ing to amicus, one city hired a state hear- ing examiner to take evidence in a zoning matter which resulted in a 15-day hearing and 3,487 pages of hearing transcript. It becomes clear that this effort and ex- pense would be wasted if every property owner whose zoning request is denied can demand that the case be retried in a district court. Such a procedure, if rigidly fol- lowed in every case, could lead to the result that a property owner, knowing the compo- sition of a particular city council, might withhold part of the relevant evidence, knowing it could be put in when the matter came before the district court on review. Thus, a city, making every effort to afford a property owner a full and fair hearing and to produce a complete record of the basis of its council's decision, could be thwarted in exercising the power granted it by statute to determine and plan the use of land within its boundaries. Minn.Stat. o 462.351 (1982). The court of appeals, in reversing the decision of the district court in the case before us, relied on Hubbard Broadcast- ing, Inc. v. City of Afton, 323 N.W.2d 757 1. The League of Minnesola Cities is a coopera- tive organization of 782 member Minnesota cities. 1. No constitutional issue was raised on appeal in Swanson's case, only Ihe issue of whether on (Minn.1982). We held in Hubbard the dis- trict court properly conducted the review of certain permit denials on the record be- cause the record in that case was very clear and complete. Id: at 761. We noted "[w]here 'city councils and zoning boards do not. · · make records of their proceed- ings as complete and formal as those of a state administrative agency or commission,' the proper procedure for review before the district court provides that '[n]ew or addi- tional evidence may be received at trial.' Honn v. City of Coon Rapids, 313 N.W_2d 409, 415-16 (emphasis added)." Id. at n. 3. It was important to the Hubbard court, in determining the fullness and fairness of the hearing before the city council on the permit denial issue, that the plaintiffs had the opportunity, by order of the district court, to augment the record by stipulation or motion, an opportunity of which they did not avail themselves. The holding was grounded, however, on the clearness and completeness of the record on which the city council based its decision. Our conclu- sion that both parties acquiesed in the dis- trict court's determining both the permit denial and the constitutional issue on the record went particularly to the constitution- al issue. Even had Hubbard not ac- quiesced, the city had already suggested a trial on the constitutional issue in its memo- randum in support of its motion for partial summary judgment on the permit denial issue.2 323 N.W.2d at 761-762. [2] Hubbard, then, does not stand for the proposition that a permit denial may never be reviewed on the record absent acquiescence of the parties. Nor do we believe that Honn requires a trial or aug- mentation of the record in every case, espe- cially in light of the response of Minnesota cities to our concerns in that case. Rather, we have concluded that a district court should establish the scope and conduct of its review of a municipality's zoning deci- sion by considering the nature, fairness review of a city council's zoning decision parties are entitled 10 a trial or to augment the record made before Ihe city council with additional relevant evidence. t ~ , I I ; i I , SWANSON v. CITY OF BLOOMINGTON Clteu421 N.W.2d 307 (MIno. 1988) and adequacy of the proceeding at the local Swanson's witnesses were allowed to an- lev~l . and the adequacy of the factual and swer questions and react to the testimony deciSional reco~ .of the local. proceedin~. of other participants. Finally, they were Where the mUnicipal proceedmg was fall' given every opportunity to present relevant and the record clear and complete, review material. should be on the record. Where the munic- ipal body has proposed formal findings con- temporaneously with its decision and there is an accurate verbatim transcript of the proceedings, the record is likely to be clear and complete. [3] When the review is conducted on the record, the district court should receive additional evidence only on substantive is- sues raised and considered by the munici- pal body and then only on determining that the additional evidence is material and that there were good reasons for failure to present it at the municipal proceedings. The standard of review is whether the mu- nicipal body's decision was unreasonable, arbitrary or capricious, with review focused on the legal sufficiency of and factual basis for the reasons given. [4] Where the municipal proceeding has not been fair or the record of that proceed- ing is not clear and complete, Honn applies and the parties are entitled to a trial or an opportunity to augment the record in dis- trict court. The meaningful review to which parties are entitled requires no less. [5] In Swanson's case, the trial court properly based its review of the city coun- cil's zoning decision on the record. The record consisted of verbatim transcripts of the public hearings on the matter, including statements by experts on both sides; writ- ten reports by the city director of planning and city forester; and contemporaneous written findings by the city council on which the council based its decision. From this extensive record, a satisfactory review can be made. The record also demon- strates that the proceedings were fair. The matter was considered at four meet- ings of the city council: May 20, June 3, June 10, June 17, 1985. Swanson, Cadmus, Waters (Cadmus' attorney) and Ed Hasek, respondent's landscape architect, were all allowed to testify without any apparent time limits. Hasek's testimony alone cov- ered four transcript pages in small print. Minn. 313 At oral argument, plaintiffs' attorney im- plied that certain photos and graphics were not allowed at the hearing and, therefore, should have been made available to the district court. A review of the transcript reveals, however, that plaintiffs own ex- pert voluntarily withheld the photos. Ha- sek stated: "Perhaps in lieu [sic] of the late hour, I'll go through the graphics for you and if there's any further explanation need- ed, we'll pull the slides out." Further, both Hasek and Mayor Lindau commented on the limited usefulness of the graphics which apparently became distorted on projection. Consequently, Hasek described their content in great detail; and this ver- bal description, contained in the transcript, was available for review by the district court. Swanson and Cadmus argue that, under Honn, in all cases challenging municipal decisions in zoning matters, parties should be allowed to augment the record with additional relevant evidence. They claim that they were denied this opportunity. Al- though they do not challenge the accuracy of the council's verbatim transcript, they argue that the record does not show the extent to which the council's decillion was a response to neighborhood opposition, nor does it disclose data on similar prior appli. cations for subdivision. [6] As to the first argument, the tran- script contains all of the testimony given by the neighbors. Beyond that, we do not believe that evidence on the extent to which neighborhood opposition played a role is relevant. While neighborhood feeling may not constitute the sole basis for a zoning decision, it may still be taken into account. Northwestern College v. City of Arden Hills, 281 N.W.2d at 869. Here, the city council's resolution described the reasons for its decision and made clear that envi. ronmental concern, not neighborhood oppo- 314 Minn. 421 NORTH WESTERN REPORTER, 2d SERIES sition, was the major reason for the denial of the subdivision application. As to data on similar prior applications for subdivision, no claim of unequal treat- ment is set out, and on these facts, there would seem to be none. Swanson is not to be compared with any person ever request- ing and receiving or being denied an appli- cation for subdivision in Bloomington. He is to be compared with other property own- ers in the Timberglade 2nd Addition of Bloomington, the unique environment of which is here at issue. For 30 years, from its inception until two to three years before Swanson's request, that environment has been protected by a restrictive covenant which prohibited subdivision of large lots. Furthennore, the moratorium on the new zoning ordinance was lifted while the coun- cil debated this subdivision application. Thus, it is unlikely that similar prior appli- cations for subdivision have been granted. We hold that the district court properly reviewed the municipal zoning decision on the record where the municipal proceeding was fair and the record is clear and com- plete. III. [7] The second issue is whether the dis- trict court properly granted summary judg- ment to the city. Since review is on the record, the question is whether the city .council's decision was reasonable or wheth- er it was unreasonable, arbitrary or capri- cious. Bonn v. City of Coon Rapids, 313 N.W.2d at 417. The city council is required by the Bloomington City Code, section 16.- 05.01(e)(5) to deny approval of a prelimi- nary or fmal plat if it finds "that the de- sign of the subdivision or the proposed improvements are likely to cause substan- tial environmental damage." The city's Di- rector of Planning, the City Forester and a wildlife biologist all described the likely environmental effects, including loss of trees and other vegetation both on the lot and on adjacent properties, wind damage and loss of windbreak effect. The city council's fmding of a likelihood of substan- tial environmental damage is thus sup- ported by the evidence and provides a ra- tional basis for the municipal decision. Such a finding is sufficient reason, under the ordinance, for denying the plat applica- tion. We hold that the district court prop- erly granted summary judgment to the city. We reverse the decision of the court of appeals and reinstate the judgment of the trial court. Reversed; judgment of district court reinstated. POPOVICH, Justice (concurring special- ly). While I agree with the result in this matter based on the facts here, I am con- cerned that by implication Bonn v. City of Coon Rapids may be considered overruled completely. In my opinion, that would be an inappropriate conclusion. 1. I agree with the court of appeals' analysis of Bonn to provide for a trial to review a zoning matter. This court now circumscribes a full trial as required by Honn when the record of a municipal pro- ceeding was fair, clear and complete; find- ing under the facts of this case that oc- curred. That, of course, was not the law when the court of appeals considered this matter. Thus, this court now modifies Bonn to the extent that a full trial de novo is not required in certain cases and the court of appeals could not have known when it decided this matter that Bonn was to be modified, as we now do. It correctly applied the law as it then existed, in my opinion. New law and new interpretations are properly the function of this court. 2. I have no quarrel with this court's desire to reduce trials de novo in district court and to avoid courts' infringing on the decision-making process of municipalities. That is part of this court's function-to outline, circumscribe and guide the judicial system as part of its supervisory and law development powers. Bonn had an inade- quate record for judicial review, so this court remanded and set out a procedure for reviewing zoning matters. That procedure is still good law and still remains applicable in future cases, but this court now circum- scribes a full trial when the record is fair and complete. STATE v. SMITH . Cite as 421 N.W.2d 315 (Minn. 1988) 3. Thus, m future cases trial courts before denying a full trial, must determin; whether the record before the municipality meets this new criterion. A record before a municipality might be fully transcribed, but were the proceedings adequate, fair and complete? This involves detennining: were hearing examiners utilized in appro- priate proceedings? were witnesses sub- ject to questioning by other parties? was there foundation for opinions expressed? were offers of proof pennitted? were matters outside the record relied on? were appropriate continuances pennitted? was relevant evidence received? were complete contemporaneous findings made to support the municipalities' decision? and other such considerstions. In other words, the trial court must detennine whether the hearing itself was fair and adequ~te and if the parties had a full op- portumty to present their views, or wheth- er the proceedings reflected the will of the decision-makers and not their judgment (majority opinion at 313). 4. In the June 17, 1985, resolution adopted by the city council here, among other factors was a statement to the effect the council also relied upon its experience and knowledge of the area, without greater specificity. I don't know what that was. In the future, such general statements ~~ould .be augmented by proper findings, Jomed m by a majority of the governing body. Parties should know exactly what the decision-makers relied on. The test isn't just verbatim transcripts and neigh- borhood opposition alone. Here, the rest of the record justifies the result expressed in this case. YETKA, Justice. I join in the special concurrence of Mr. Justice Popovich. Minn. 315 STATE of Minnesota, Respondent, v. Michael Edward SMITH, a/k/a Mike Vukovich, a/k/a Mike Smith, a/k/a "Mike," Appellant. No. C4-88-35. Supreme Court of Minnesota. April 1, 1988. Defendant was charged with murder in second degree. The District Court, St. Louis County, Jack J. Litman, J., denied defendant's motion to dismiss complaint for lack of jurisdiction, but certified jurisdic. tional question. The Supreme Court, Am- dahl, C.J., held that Minnesota court was without jurisdiction to hear murder prose- cution in which there was no allegation that any act comprising murder was com- mitted in Minnesota, even though body was discovered in Minnesota. Certified question answered in nega- tive and reversed. 1. Criminal Law *"97 Criminal jurisdiction is premised on concept of territorialism, and jurisdiction can only exist in those places where crime was committed. 2. Criminal Law $:>97 One state or sovereignty cannot en- force penal or criminal laws of another or punish crimes or offenses committed in and against another state or sovereignty. 3. Criminal Law *"97 In order to have jurisdiction over crimi- nal prosecution some operative event must occur within jurisdiction for court to have power to act; some part of crime charged must be committed within jurisdiction. M.S.A. Const. Art. I, 0 6. 4. Criminal Law *"97 Venue rule providing for prosecution of murder in county of injury or death, or where body of deceased is found, did not confer jurisdiction to prosecute murder PLANNING REPORT PRESENTER: PUBLIC HEARING: DATE: 4B CONTINUE PUBLIC HEARING TO CONSIDER AN AMENDMENT TO THE COMPREHENSIVE PLAN AND A ZONE CHANGE REQUEST FOR THE DEERFIELD PROPERTY JANE KANSIER, PLANNING COORDINATOR X YES NO-N/A -- - MAY 10, 1999 AGENDA ITEM: SUBJECT: INTRODUCTION: D. R. Horton and Deerfield Development filed an application for a Comprehensive Plan Amendment and a Zone Change for the property located south and west of CSAH 21, south of Fish Point Road and Wilderness Pond Trail and east of the Ponds Athletic Facility. The proposal included an amendment the Land Use Plan Map from the current R-L/MD (Low to Medium Residential) and C-BO (Business Office Park) designations to the R-HD (High Density Residential) designation on 62.92 acres on the west side of this property. This proposal also included a rezoning from the current A (Agricultural) and C-5 (Business Park) district to the R-4 (High Density Residential) district for the 62.92 acres on the west side of the site, and from the A (Agricultural) district to the R-2 (Low to Medium Density Residential) district for the residual 101.31 acres. The Planning Commission considered this proposal at a public hearing on April 26, 1999. After considerable testimony and discussion, the Planning Commission voted to recommend denial of the proposed Land Use Plan Amendment. There seemed to be some consensus that some R-2 zoning should be permitted on the property. The Commission decided to table action on this item to allow the applicant to submit a revised description of the R-2 location. ANALYSIS: The applicant submitted the attached map identifying the proposed zoning on the property. The east 97.88 acres is proposed for R-1 (Low Density Residential) and the west 66.35 acres is proposed for R-2 (Low to Medium Density Residential). The zoning district boundary follows the approximate alignment of Fish Point Road, as extended into this site. Both the R-1 and the R-2 district are consistent with the Comprehensive Land Use Plan designation of R-L/MD (Urban Low to Medium Density Residential). The major difference between the R-l and R-2 districts is allowable density. Permitted density in 16200 E~~~~lei?i~lf~t~9-g~f~?~ri~lt~1e, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (61~)g4h-4245 AN EQUAL OPPORTUNITY EMPLOYER the R-l district is 3.63 units per acre. The R-2 district permits a maximum density of 7.26 units per acre. Both districts permit the construction of single family homes. Both districts also allow the construction of townhouses, with up to 4 units per building, under the conditional use permit process. Under the provisions of a Planned Unit Development, density could increased up to 10%, and the number of units per building for townhouses could also be increased. The 1998 amendment to the Comprehensive Plan that designated this area for Urban Low to Medium Density Residential uses also added the area to the Metropolitan Urban Service Area (MUSA). A study completed at the time of the amendment indicated the existing sewer system had enough capacity for approximately 715 dwelling units. The proposed zoning districts are also consistent with that capacity. The current zoning on this property is A (Agricultural), which is inconsistent with the R- L/MD Comprehensive Plan Land Use Map designation. The Agricultural zoning was applied to this property in 1998 as a temporary zoning, until the developer had a better concept of the type of development to occur on the site. There were some other issues mentioned at the public hearing which also reqUIre clarification. These are listed below. . Traffic on Fish Point Road: Fish Point Road is designated as a major collector street, and will be designed to handle up to 5,000 trips per day. The potential development on this site is consistent with that number of trips. . Sewer and Water: Public sewer and water will be extended to serve this site. As in all new developments, the developer is responsible for the cost of extending these servIces. . Drainage and Stormwater Runoff: The City has several ordinances in place which regulate drainage and runoff. The developer has already been advised that no runoff or drainage will be allowed in Markley Lake. Furthermore, once a preliminary plat is submitted, the drainage plan will be reviewed to ensure that runoff does not exceed predevelopment rates. On-site detention ponds are also required. . Wetlands: This site is subject to the State Wetland Conservation Act. The City reviews all development plans to ensure that the development is consistent with the provisions of this act. . Tree Preservation: The City has a tree preservation ordinance in place. The development plans will be reviewed to ensure compliance with this ordinance. . Environmental Assessment Worksheet (EA W): A project of this scope requires a mandatory EA W. According to Minnesota Rules, Chapter 4410.0200-4410.7800, an EA W is triggered when the project results in the "physical manipulation of the environment". A zone change does not result in the actual physical manipulation of the site. The EA W is triggered by a specific development application, such as a preliminary plat, conditional use permit or a PUD. 1 :\99fi1es\99rezone\99-0 14\990 14pc2.doc Page 2 RECOMMENDATION: The Planning Commission has already taken action on the requested Comprehensive Plan amendment. The remaining issue is the zoning on the property. As noted above, both the R-1 and the R-2 district are consistent with the Comprehensive Land Use Plan designation of Low to Medium Density Residential. One of the concerns voiced at the Planning Commission meeting was to provide a buffer between single family dwellings and townhouses. Major roads, such as Fish Point Road, often serve this purpose. ALTERNATIVES: 1. Recommend approval of the R-1 and R-2 district as shown by the applicant. 2. Recommend approval of some other zoning arrangement. 3. Recommend denial of the request. 4. Other specific action as directed by the Planning Commission RECOMMENDATION: The Planning staff recommends Alternative 1. ACTION REOUIRED: A motion and second to recommend approval of the Zone Change from the A and C-5 district to the R-1 and R-2 district. EXHIBITS: 1. Existing Conditions and Zoning Map I :\99fi1es\99rezone\99-0 14\990 14pc2.doc Page 3 Vote taken signified ayes by all. MOTION CARRIED. MOTION BY CRAMER, SECOND BY CRIEGO, TO ADOPT RESOLUTION 99-03PC TO DENY A 15.7 FOOT VARIANCE TO PERMIT A 9.3 FOOT FRONT YARD SETBACK INSTEAD OF THE 25 FOOT SETBACK FOR A WATER ORIENTED ACCESSORY STRUCTURE. Vote taken signified ayes by all. MOTION CARRIED. The Conditional Use Permit will be heard before the City Council on June 7, 1999. B. Case Files #99-013 and #99-014 (Continued) D.R. Horton requesting an amendment to the City of Prior Lake Year 2010 Comprehensive Plan and a zone change request for the property known as Deerfield located south and west of County Road 21, south ofFish Point Road and Wilderness Trail and east of the Ponds Athletic Facility. Planning Coordinator Jane Kansier presented the Planning Report dated May 10, 1999 on file in the office of the City Planner. D.R. Horton and Deerfield Development filed an application for a Comprehensive Plan Amendment and a Zone Change for the property located south and west of CSAH 21, south of Fish Point Road and Wilderness Pond Trail and east of the Ponds Athletic Facility. The proposal included an amendment the Land Use Plan Map from the current R-L/MD (Low to Medium Residential) and C-BO (Business Office Park) designations to the R-HD (High Density Residential) designation on 62.92 acres on the west side ofthis property. This proposal also included a rezoning from the current A (Agricultural) and C-5 (Business Park) district to the R-4 (High Density Residential) district for the 62.92 acres on the west side ofthe site, and from the A (Agricultural) district to the R-2 (Low to Medium Density Residential) district for the residual 1 01.31 acres. The Planning Commission considered this proposal at a public hearing on April 26, 1999. After considerable testimony and discussion, the Planning Commission voted to recommend denial of the proposed Land Use Plan Amendment. There seemed to be some consensus some R-2 zoning should be permitted on the property. The Commission decided to table action on this item to allow the applicant to submit a revised description of the R-2 location. Staff recommended approval of the R-1 and R-2 district as presented by the applicant. MOTION BY CRAMER, SECOND BY CRIEGO TO OPEN THE PUBLIC HEARING. Vote taken indicated ayes by all. MOTION CARRIED. I :\99files\99plcomm\pcmin\mn051 099 .doc Pt1 ~\lt~ 5 51 [7) l ~Cl Comments from the public: Bob Wiegert, Paramount Engineering and Design, representing the applicant, supported staff's report as it addressed the concerned issues from the last public meeting. Margi Atwood, 16992 Crimson Court, was disappointed with the large proposed R-2 district and felt the neighborhood quality of life will be affected. The wildlife and wetlands are very important to the area. Her impression from the last meeting was there would be less R-2 district than the new proposal. Criego questioned what she thought would be a good number. Atwood responded she would like the entire area zoned single family homes with no townhomes. This R-2 proposal is higher than what was expected two weeks ago. Kuykendall affirmed it was not. Kansier repeated the City's original recommendation was the entire acreage be rezoned to R-2. The density shown on the concept plan was somewhere around four units per acre overall. In this particular case the R-l area would allow 3.2 units per acre, the R-2 would allow 7.2 units per acre and end up with a mix in-between those. Both the R-1 and R-2 districts permit townhouses. R-l is not an exclusive single family district. Also, the original proposal included R-4, High Density. This plan is significantly lower. Criego noted the considerable amount of modification. Duane Hoffman, 16936 Wilderness Trail, believed according to his numbers, the amount ofR-1 and R-2 districts are coming over the 700 units of the MUSA proposal. Kansier explained the density. Hoffman felt it was wrong to rezone something without seeing a proposal. Criego pointed out it was the Commissioners who directed the developer to bring in a new proposal. Stamson explained the process. Hoffman would like to reduce the zoning district to whatever the MUSA allows. Rye mentioned approving the zoning change based on a specific plan can be regarded as contract zoning which is not permitted under State Law. Matt Krueger, 16945 Crimson Court, felt the zoning should be changed to R-1. Krueger questioned what will happen to the sewer with the additional development. McDermott said there are 2 sewer stubs to this development. The Comprehensive Plan has addressed how many units can be served by this sewer and that is the maximum allowed. Krueger questioned what would happen if another parcel was annexed in to Prior Lake. McDermott explained the sewer would then have to connect to the Metropolitan Council interceptor at a different location. Mike Atwood, 16992 Crimson Court, said after leaving the last meeting, his understanding was the buffer would surround the industrial parks. Atwood said this proposal looks like something the builder is trying to get by with. The homeowners 1 :\99fi1es\99plcomm\pcmin\mn051 099 .doc 6 agreed with the Commissioners there was going to be a housing buffer to fit townhomes along the industrial and future industrial park. There would be a flow. This proposal is not where the neighbors want it to be. Atwood questioned if this is the normal process for a builder to come in and chip away until there is some middle ground. Criego responded nothing is normal. David Edwards, 16966 Crimson Court, said he sensed a great lack of support for the developer's plan at the last meeting and questioned what changed staffs mind. Kansier said staffs recommendation was to rezone the entire proposal to R-2. The developer requested a combination ofR-2 and R-4. The staff recommended denial of the high density and suggested the entire area be zoned R-2 which is consistent with the Land Use Plan. Criego clarified the R-2 zone was what the Planning Staff came forward with two weeks ago. There was a lot of discussion among the Commissioners that varied from that point of view. It is important not to confuse the two. Franke Forstner, 5170 Lexington Court, said the Commissioners should be aware a great number of families with special needs children want to mainstream the children into the regular school. If the Commissioners allow the development numbers of the proposal, the school district will be over burdened. She is concerned for the special needs children's education. She felt ifthe numbers are increased, the chances of something going wrong increase. Forstner said she felt townhomes do not belong in the area for they tend to deteriorate rapidly and attract a certain type of people who create vandalism. Forstner as a business owner, and the adjoining businesses are concerned for vandals. Forstner said ifthere were more single family homes there would be more people like herself, fairly upstanding citizens. She feels the service calls from police would be kept down. She would like to recommend the developer form an association. Kuykendall asked Forstner if she participated in any of the neighborhood meetings or was familiar with Horton's developments? She responded she did not. Dan Broderick, 16993 Wilderness Trail, questioned when the roadways would be designed. Kansier responded when the developer submits a preliminary plat, maybe sometime in June. Another hearing and notification would go out for the preliminary plat. Anyone within 500 feet would be notified. Bryce Huemoeller, attorney for Deerfield Development and John Mesenbrink, has worked with the property since it was annexed into Prior Lake. Huemoeller explained the property was originally submitted with low to medium density and approved by the Metropolitan Council, City Council and the Comprehensive Plan. This is a community issue set out in the Comprehensive Plan district. It is consistent and necessary for the area because it is a transitional zone between residential and commercial activity. On behalf of the land owners he requested the Commissioners make their decision in the context of the Comprehensive Plan and the low to medium density plan set forth. 1 :\99fi1es\99plcomm\pcmin\mn051 099 .doc 7 Matt Krueger, 16945 Crimson Court, commented after hearing Huemoeller say the Comprehensive Plan indicated the district should be zoned R-l and R-2. Krueger recalled at the last meeting the Commissioners felt there should be a small buffer ofR-2 between the industry and single family homes. He also felt the smaller amount ofR-2 would be appropriate. Why max out the property and congest the neighborhood? Krueger said he is sure Horton does a good job and said he lived in a townhome. It is a fun community and a great starter for families. Krueger questioned if this project should be on this piece of property and stated this area does not need higher density. Mike Atwood, 16992 Crimson Court, said the Commissioners designated an area north of County Road 42 for high density and would like to see these townhomes moved to that area. The hearing was closed at 7:50 p.m. Comments from the Commissioners: Kuykendall: . The low to medium density policy for this is consistent with the Comprehensive Plan, there is no question about it. . There has been great strides made from the original proposal with more R1 districts. . The issue of district fairness has been addressed. . The sewer and traffic will been handled. . Accept what is presented. . The Commissioners agreed the principles have been addressed by the developer. . Commend the developer. Stamson: . Concurred with Kuykendall, the developer addressed most of their concerns. . Last meeting expressed the area should be all R-1; however, in looking at the zoning ordinance felt this is a good compromise. . Probably will not support total buildout in R-2 in the future. This is appropriate for the area. . There are a lot of natural features, wetlands, etc. in the area designated as R-1, while the portion designated as R-2 is primarily open land. . The proposed zoning arrangement is appropriate. Criego: . Opinion has not changed, the majority area should be R-I with a buffer zone ofR-2. . Feels both R-1 and R-2 are consistent with the Comprehensive Plan with low to medium housing. . There should be a smaller buffer area than presented. . Suggest the area be totally R-1 with a conditional use permit to allow multi-unit housing. I :\99fi1es\99plcomm\pcmin \mn051 099.doc 8 Cramer: . Felt it is not the perfect zoning request, but it does fall into the Comprehensive Plan. The Commissioners said everything west ofFish Point Road should be zoned R-1 and that is the new proposal. The other side of the road should have R-2100ked at. This plan does address those concerns. . There will be no R-4 district. . This development will happen in Prior Lake. . Horton's development in Savage is very good and has no fears with zoning R-2 in the area. Prior Lake's standards will ensure quality housing. Kuykendall: . The Commissioners are guided by State Law - questioned the rationale for the new concept. . Bob Wiegert, Paramount Engineering and Design, explained the concept came from the surrounding designs, topography of the land and natural features. The developer tried to have transitional housing from the north to the south. The natural features on the property dictated this area should be single family. The City wanted a north/south major collector, so that was the dividing line. The north was zoned business leaving the east area with a transitional buffer ofR-2. It is a standard design. Fish Point Road is the dividing line. . Tovar said Fish Point Road has been laid out in the Comprehensive Plan. . Supports some R-2 in the area but would like to see less. Stamson: . Would also like to see a lower density than R-2 allows. But does not necessarily mean to cut down on the R-2. . The developer has to hit the density. The R-1 district has a lot of lake and wetlands, R-2 is largely open. In order for the developer to make this development work, the R- 1 will be maxed out. Allowing R-2 will give a better density for both districts. The advantage to having more R-2 rather than none allows flexibility in dealing with the topography on the other side. Criego: . If the Commissioners allocate some of it as R-2, there will be parts of it as high density. The R-1, through the conditional use permit could have four units under one roofbut does not increase the acreage. The maximum would be around 580 units. . The road is a reasonable partition point between R-1 and R-2. MOTION BY STAMSON, SECOND BY CRAMER, RECOMMEND CITY COUNCIL APPROVE THE ZONE CHANGE REQUEST FOR THE DEERFIELD PROPERTY AS PRESENTED IN THE STAFF REPORT. Kansier explained the legal description and division ofFish Point Road. Vote taken signified ayes by all. MOTION CARRIED. 1 :\99fi1es\99p1comm\pcmin \mn051 099 .doc 9 This will go to the City Council on May 17, 1999. A recess was called at 8:10 p.m. The meeting reconvened at 8:19 p.m. C. Case file #99-024 Mary Gorshe, 4230 Grainwood Circle requesting variances for bluff setback, a front yard setback, lot area and impervious surface. Planner Jenni Tovar presented the Planning Report dated May 10, 1999 on file in the office of the City Planner. The Planning Department received a variance application for the construction of a single family dwelling with attached garage. The existing structure was more than 50% destroyed by a fire in January of this year. This application was received prior to the effective date of the new Zoning Ordinance (May 1, 1999) and is therefore being processed under the previous Zoning Ordinance. The following variances are being requested: . A 9.75 foot variance to the bluff setback to permit a structure to be setback 15.25 feet from the top of bluff rather than the minimum requirement of25 feet [City Code 5-8- 3 (A)]. . A 5.00-foot variance to the front yard setback to permit the structure to be setback 20 feet from the front lot line rather than the minimum required setback of 25 feet (City Code 5-4-1). . A 5% variance to allow impervious surface of 35% rather than the maximum impervious surface coverage of30% [City Code 5-8-3 (B)]. . A 1,070 square foot variance to permit lot area to be 6,430 square feet rather than the minimum lot area required to be buildable of7,500 square feet [City Code 5-8-12 (B)]. Patrick Lynch, Area Hydrologist with the DNR, had no objection to the front yard setback or the lot area variances. However, he suggested the need for the remaining variances could be eliminated by redesigning the house. Staff felt hardships were met with respect to the required minimum lot area. A condition of the variance allows the applicant to maintain a 5-foot side yard setback on one side with a minimum building separation of 10 feet and a setback of 25 feet from the top of bluff as written under the previous zoning ordinance. The variance to impervious surface and the requested setback variances can be reduced or eliminated with a redesign of the structure. I :\99fi1es\99plcomm\pcmin\mn051 099 .doc 10 " Council Meeting Minutes Mav 17.1999 MOTION BY KEDROWSKI, SECOND BY PETERSEN TO APPROVE RESOLUTION 99-43 AUTHORIZING THE PURCHASE OF CARPETING THROUGH THE STATE OF MINNESOTA COOPERATIVE PURCHASING AGREEMENT. VOTE: Ayes by Mader, Kedrowski, Petersen and Wuellner, the motion carried. MOTION BY KEDROWSKI, SECOND BY PETERSEN, TO APPROVE RESOLUTION 99-44 APPROVING THE PLANS AND SPECIFICATIONS AND AUTHORIZING THE SOLICITATION OF BIDS FOR THE PURCHASE AND INSTALLATION OF WOOD FLOORING AND MILLWORK FOR THE LIBRARY RESOURCE CENTER. VOTE: Ayes by Mader, Kedrowski, Petersen and Wuellner, the motion carried. MADER: Asked if the plans and specifications would come back before the council. BOYLES: Advised that the proposed resolution would approve the plans and specifications and authorize the solicitation of bids. The plans and specs are available in the Parks & Rec. Department, but would not be brought back to the Council for further review. VOTE: Ayes by Mader, Kedrowski, Petersen and Wuellner, the motion carried. Consider Approval of Resolution 99-XX Authorizing WSB & Associates, Inc. to Prepare a Storm Water Trunk Fee Justification Report. City Manager BOYLES removed this item from the agenda. NEW BUSINESS: "L Consider Approval of Resolution 99-45 Denying an Amendment to the Comprehensive Plan .,." . and Ordinance 99-XX Approving the Zone Change Request by D.R. Horton and Deerfield Development for 164 Acres Located South of Fish Point Road and Wilderness Trail and East of the Ponds Athletic Facility. City Manager BOYLES reviewed the history of the agenda item, the Planning Commission recommendations, and the issues before the Council. Further stated that the ordinance requires a super-majority (4 out of 5 councilmembers). MADER: Suggested addressing the resolution separately from the proposed ordinance. MOTION BY KEDROWSKI, SECOND BY WUELLNER TO APPROVE RESOLUTION 99-45 DENYING AN AMENDMENT TO THE COMPREHENSIVE PLAN. MADER: Clarified, at the request of Council member KEDROWSKI, that denying the amendment to the Comprehensive Plan would mean that the apartments previously proposed would not be allowed, and asked if anyone wished to address the Council on this specific item. VOTE: Ayes by Mader, Kedrowski, Petersen and Wuellner, the motion carried. Mayor MADER briefly explained the second issue. MOTION BY KEDROWSKI, SECOND BY WUELLNER TO APPROVE ORDINANCE 99-XX APPROVING THE ZONE CHANGE REQUEST BY DR. HORTON AND DEERFIELD 051799.DOC 4 Council Meeting Minutes Mav 17.1999 DEVELOPMENT FOR 164 ACRES LOCATED SOUTH OF FISH POINT ROAD AND WILDERNESS TRAIL AND EAST OF THE PONDS ATHLETIC FACILITY. The MAYOR asked if a representative wished to speak on behalf of the petition. BOB WEIGERT, (Planner/Engineer for the project): Briefly described the D.R. Horton Company, commended staff on helping the company process their petition for this project. The MAYOR asked if a representative to wished to speak in opposition to the rezoning. MARGI ATWOOD (16992 Crimson Court): Presented a petition of 300i: signatures and discussed the neighborhood concerns as to quality of life, increased traffic concerns, level of police and fire service, additional burdens to the school system. Prefers industrial development to R-2 residential. Cannot see the benefits to the neighborhood. There are other options to take into consideration. GARY HORKEY: (Business owner in industrial park). Concerned about security since he will be located directly next door to the high-density residential development. Discussed having security problems at different industrial locations that were near high-density residential developments. Supported a lower density. Asked what will happen when Fish Point Road is extended. KEDROWSKI: Asked if the previous location Mr. Horkey was near was owner-occupied. HORKEY: Confirmed that the parcel they had trouble with was an owner-occupied trailer park. MATT KRUEGER (16945 Crimson Court): Has heard from neighbors and at the Planning Commission meetings that the City supports one large developer coming into Prior Lake to develop. Concerned that local developers/tradesmen are being overlooked. Also asked the Council to address whether the sewer and water system can handle an additional 750 units, and with increased development what will this City do to further address this issue. WUELLNER: Asked the staff to address the issue of the capability of the sewer and water system with respect to the development of this site. KANSIER: Provided that the preliminary plan calls for approximately 650 units, which is subject to some change and/or refinement. Two sewer mains will provide service to this development, one at Fish Point Road and one at Wilderness Trail. In the future, only a lift station would need to be upgraded. The pipes are sized accordingly to handle any additional development. WUELLNER: Asked the City Engineer about the impact to Fish Point Road and the impact on Markley Lake. ILKKA: Stated that we could require the developer to furnish such numbers prior to final plat approval. Early review indicates the viability of this project is good with respect to the impact on Markley Lake. WUELLNER: Asked Mr. Weigert if this density is necessary to make the project viable and/or profitable for the developer. WEIGERT: Did not know the details of the financial impact on the developer in determining whether the project was viable. But, since the developer would be required to build the road, the developer would need to attain a higher density for the project. Did not know what the specific number was. 051799.DOC 5 Council Meeting Minutes Mav 17.1999 WUELLNER: Uncomfortable at this point with a 62 acre buffer to be used as R-2 residential. PETERSEN: Noted that a lesser density would be more acceptable. KEDROWSKI: Commented on the benefits of this type of development including (1) the additional citizens are an asset; (2) creates an adequate buffer zone between single-family residential and commercial/industrial and is a good plan; (3) our ordinances do preserve natural resources and this developer has used these safeguards to create an acceptable development; arid (4) this is quality housing. Asked Mr. Weaver what value range the properties would be in. Also commented that this plan and its multi-family housing plan is good long-term planning and part of our Comprehensive Plan. WEIGERT: The costs of the single-family homes would be comparable to those houses in the neighboring development if not a little higher. The project also preserves many natural amenities. It will be all owner-occupied property. Further explained the plans for land use. Also addressed to whom the various properties will be marketed, including empty-nesters and young professionals which would not significantly impact the school system. KEDROWSKI: There is going to be growth and development, and the Council is responsible for planning for and responding to that growth. Further commented that there is a very nice buffer between the current neighborhood and the proposed development. This proposal complies with our Compo Plan and is environmentally sensitive. It also addresses what this Council has planned for and the needs of the community. There are concerns and legitimate questions that the neighbors have every right to ask, but the developer has been very cooperative in addressing those concerns. This is about building a community and addressing its needs. RYE: Asked if there is an estimated timeframe for the entire project to be built out. WEIGERT: Advised that the project would build at approximately 100 units per year, taking approximately 6-7 years before all phases of the project are complete. VOTE: Ayes by Kedrowski and Petersen, Nay by Wuellner and Mader, the motion failed. The Council took a brief recess. The regular meeting resumed at 9pm. MOTION BY MADER, SECOND BY WUELLNER, TO DIRECT STAFF TO PREPARE A RESOLUTION WITH FINDINGS OF FACT DENYING THE ZONE CHANGE FOR CONSIDERATION AT THE NEXT REGULAR MEETING. VOTE: Ayes by Mader, Kedrowski, Petersen and Wuellner, the motion carried. Consider Approval of Resolution 99-47 Approving the Conditional Use Permit for 21 Townhouse Units and Resolution 99-46 Approving the Preliminary Plat for Wild Oaks. City Manager BOYLES reviewed the agenda item and the action recommended by the Planning Commission subject to its conditions and requested by staff. MOTIONe 2(EDROWSKI, SECOND BY WUELLNER TO APPROVE RESOLUTION 99-47 APPROVI~ THE PRELIMINARY PLAT FOR WILD OAKS. 051799.DOC 6 CITY COUNCIL AGENDA REPORT DATE: AGENDA #: PREPARED BY: REVIEWED BY: SUBJECT: JULY 19, 1999 9A SUE MCDERMOTT, ASSISTANT CITY ENGINEER GREG ILKKA, PUBLIC WORKS DIRECTOR/CITY ENGINEER CONSIDER APPROVAL OF RESOLUTIONS 99-XX AND 99-XX ACCEPTING BIDS AND AWARDING THE CONTRACT FOR CANDY COVE/LAKESIDE MANOR IMPROVEMENTS (CITY PROJECT #99-11 AND LIFT STATION RENOVATIONS (CITY PROJECT #99-02) DISCUSSION: HISTORY Proposed improvements to the Candy Cove/Lakeside Manor Addition streets and lift station renovations was approved in the 1999 Capital Improvement Program. Resolution 98-131 authorizing preparation of plans and specifications for the projects was approved by the City Council on November 2, 1998. At the April 19, 1999 meeting the Council approved plans and specifications and authorized advertisement for bids for both projects. Project # 99-11 involves storm sewer and street reconstruction for Candy Cove Trail north of TH 13, Lemley Circle, Woodlawn Circle, Manor Road and Hill Circle. Project # 99-02 involves renovation of three lift stations (Nos. 9, 12, and 13) in the Candy Cove/Lakeside Manor Additions area. Bids were received and found to be unsatisfactory so at the June 7, 1999 meeting, the City Council adopted Resolution 99-55, rejecting all bids and authorizing readvertisement for bids for work as two separate projects. CURRENT CIRCUMSTANCES Proiect 99-02: Lift Station Renovations Bids were received and opened on July 7, 1999. Four bidders submitted bids. The bids have been checked and tabulated. The low bid was submitted by Braun Pump and Controls of New Prague, MN in the amount of $117,800.00. Their bid was over the Engineer's Estimate of $110,000.00. The summary is as follows: 162~.Creek Ave. S.E., Prior Lake, Minnesota 553y2-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORnJNITY EMPLOYER CONTRACTORS Braun Pump and Control CCS Contracting Lysne Construction Widmer, Inc. BID AMOUNT $117,800.00 $160,000.00 $173,900.00 $217,000.00 Braun Pump and Control is a reputable contractor and has worked with Prior Lake maintenance staff on several lift station repairs. Braun Pump and Control has also performed work for the City of Minneapolis, the City of Pipestone, Alexandria Lakes Area Sewer District, and Chisago Lakes Sanitary Sewer District. Proiect 99-11: Candy Covel Lakeside Manor Bids were received and opened on July 7, 1999. Four bidders submitted bids and they were very competitive. The bids have been checked and tabulated. The low bid was submitted by S. M. Hentges & Sons, Inc. of Jordan, MN in the amount of $679,658.77. The second lowest bid was received by Northwest Asphalt, Inc. in the amount of $696,739.63. Both bids were below the Engineer's Estimate of $746,859.05. The summary is as follows: CONTRACTORS S. M. Hentges & Sons, Inc. Northwest Asphalt, Inc. McNamara Contracting B. H. Heselton Co. BID AMOUNT $679,658.77 $696,739.63 $704,087.31 $706,849.15 Attached to this report is the "Information for Bidders" which was included in the specifications. The "Information for Bidders" was revised for the 1999 projects and outlines the criteria to determine whether a bidder is a responsible bidder. All bidders were required to acknowledge that they fully read and understood this document. In accordance with the "Information for Bidders", S. M. Hentges and Northwest Asphalt supplied staff with five (5) municipal references. Staff called all of the references as well as additional communities the contractors have worked in. Based on the criteria for responsible bidder and responses received from the references including the City's past experience with S. M. Hentges & Sons, Inc., the staff recommends that the City Council award the contract to Northwest Asphalt, Inc. as the lowest responsible bidder. Such action is in the best interest of the City and its taxpayers considering the experiences that various cities have had with S. M. Hentges & Sons on previous similar projects. Northwest Asphalt, Inc., using the same specification supplied criteria has received satisfactory references from other cities for similar projects they have performed. 99AWCC2.DOC 2 ISSUES Contract Award Proiect 99-02: Lift Station Renovations Renovations of lift stations Nos. 9, 12 and 13 are included in this project. The proposed work includes replacement of pumps, valves, control panels, guide rails, structure repair and appurtenant work. This project was originally bid with the Candy Cove/Lakeside Manor street reconstruction project at which time the bids for the lift station renovations ranged from $143,125.50 to $235,627.60. Staff revised plans by deleting valve manholes from two of the three lift stations and by bidding this project separately from the street work. Braun Pump and Controls' bid of $117,800.00 is substantially lower than previous bids. Proiect 99-11: Candy Cove/lakeside Manor Improvements It is staffs opinion that it is not in the best interest of the City to award the contract to the lowest bidder based on a finding of irresponsibility. Both City staff and staff from other communities have indicated that S. M. Hentges & Sons fail to meet the following criteria as outlined in the Project specifications under "Information for Bidders" (attached): 1. Failed to complete the work in a timely fashion, 2. Failed to follow the OWNER'S directions during the progress of the work, 3. Failed to inform the OWNER in a timely fashion of any problems incurred in completing the work, and 4. Requesting change orders in excess of 20% of the work (Duluth Avenue - $30,000 requested on a bid of $39,000 for sanitary sewer). Based on the findings, staff recommends award of the contract to Northwest Asphalt in the amount of $696,739.63. Assessments The Special Assessment Policy provides for the creation of an Assessment Review Committee of two Councilmembers and three staff members (Council members Petersen and Schenck and staff members Boyles, Teschner, and IIkka). This committee met prior to bids being received to review the proposed assessments. The committee recommends to assess the properties on a unit basis and to conduct the special assessment hearing in September. Based on the bid, the unit assessment would be $3,357.27 which includes 30% indirect costs. Due to the scope of the project, the contractor as well as the City staff would like to start work as soon as the contracts are 99AWCC2.DOC 3 FINANCIAL IMPACT: ALTERNATIVES: 99AWCC2.DOC executed, and the City is in receipt of all applicable bonds. The special assessment hearing will be held after award of the contract. Based on the success of utilizing staff for construction observation on the 1998 Improvement projects and the scope of this project, we propose to do in-house construction observation and construction staking on these projects. CONCLUSIONS Staff recommends that the Council award the contract for the construction of the Lift Station Renovations to Braun Pump and Controls and Candy Cove/Lakeside Manor Improvements to Northwest Asphalt, Inc. It is the recommendation of the staff and the Assessment Review Committee that the assessment hearing for Candy Cove/lakeside Manor Improvements be held after the contract is awarded. Financing of the improvements are recommended as follows: Funding Lift Station Candy Covel Renovations Lakeside Manor Assessments $305,511.87* Tax levy $458,267.81* Water Resources $58,800.00 Trunk Reserve $117,800.00 $50,416.80 Project Total $117,800.00 $872,996.48* * These numbers include 30% indirect costs for design, survey, inspection, administration and financing. There are three alternatives for the City Council to consider: 1. Approve Resolutions 99-XX accepting bids and awarding the contract for Project 99-02 Lift Station Renovations to the lowest responsible bidder, Braun Pump and Controls for the bid amounting to $117,800.00 and Resolution 99-XX accepting bids and awarding the contract for Project 99-11 Candy Cove/lakeside Manor Improvements to Northwest Asphalt for the bid amounting to $696,739.63. 2. Deny this item for a specific reason and provide staff with direction. 3. Table this item until some date in the future. 4 RECOMMENDED MOTION: A motion and second to adopt Resolutions 99-XX and 99-XX accepting bids and awarding the contracts for Lift Station Renovations to Braun Pump and Controls and for Candy Cove/Lakeside Manor Improvements to Northwest Asphalt, Inc. 99AWCC2.DOC 5 RESOLUTION 99-XX ACCEPTING BIDS AND AWARDING CONTRACT FOR LIFT STATION RENOVATIONS (CITY PROJECT #99-02) MOTION BY: SECOND BY: WHEREAS, pursuant to an advertisement for bids for the Lift Station Renovation improvement project (Project 99-02) which includes renovations of lift stations #9, 12, and 13, and appurtenant work; and WHEREAS, the following bids were received, opened, and tabulated according to law following bids were received complying with the advertisement: and the CONTRACTORS Braun Pump and Control CCS Contracting Lysne Construction Widmer, Inc. BID AMOUNT $ 117,800.00 $ 160,000.00 $ 173,000.00 $ 217,000.00 WHEREAS, it appears that Braun Pump and Controls of New Prague, Minnesota is the lowest responsible bidder. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA: 1. The Mayor and City Manager are hereby authorized to enter into a contract with Braun Pump and Controls of New Prague, Minnesota in the name of the City of Prior Lake for the Lift Station Renovations improvement project (Project 99-02) in the amount of $117,800.00. 2. The City Manager is hereby authorized and directed to return to all bidders the deposits made with their bids once a contract has been signed. Passed and adopted this 19th day of July, 1999. YES NO Mader Kedrowski Petersen Schenk Wuellner Mader Kedrowski Petersen Schenck Wuellner Frank Boyles, City Manager Al,~QQJ'.agle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY' EMPLOYER RESOLUTION 99-XX ACCEPTING BIDS AND AWARDING CONTRACT FOR CANDY COVE/LAKESIDE MANOR IMPROVEMENT PROJECT (CITY PROJECT #99-11) MOTION BY: SECOND BY: WHEREAS, pursuant to an advertisement for bids for the Candy Cove/Lakeside Manor Improvement Project (Project 99-11) which includes reconstruction of streets, storm sewer, and appurtenant work; and WHEREAS, the following bids were received, opened, and tabulated according to law following bids were received complying with the advertisement: and the CONTRACTORS S.M. Hentges & Sons, Inc. Northwest Asphalt McNamara Contracting S.H. Heselton Co. BID AMOUNT $ 679,658.77 $ 696,739.63 $ 704,087.31 $ 706,849.15 WHEREAS, the City Council has determined that Northwest Asphalt of Shakopee, Minnesota is the lowest responsible bidder. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA: 1. The Mayor and City Manager are hereby authorized to enter into a contract with Northwest Asphalt of Shakopee, Minnesota in the name of the City of Prior Lake for the Candy Cove/Lakeside Manor Improvement Project (Project 99-11) in the amount of $696,739.63. 2. The City Manager is hereby authorized and directed to return to all bidders the deposits made with their bids once a contract has been signed. Passed and adopted this 19th day of July, 1999. YES NO Mader Kedrowski Petersen Schenk Wuellner Mader Kedrowski Petersen Schenck Wuellner {Seal) At~&agle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER Frank Boyles, City Manager INFORMA nON FOR BIDDERS BIDS will be received by the City of Prior Lake (herein called the OWNER), at City Hall. 16200 Eagle Creek Avenue SE. Prior Lake. MN 55372 until 10:15 a.moo local time. Wednesdav. July 7. 1999 and then at said office publicly opened and read aloud. Each BID must be submitted in a sealed envelope, addressed to City Engineer. City of Prior Lake at 16200 Eagle Creek Avenue SE. Prior Lake. MN 55372 , Each sealed envelope containing a BID must be plainly marked on the outside as BID for Candy Cove/Lake Side Manor Street Improvement Proiect No. 99-11 and, the envelope should bear on the outside the name of the BIDDER, his address, his license number if applicable, and the name of the project for which the BID is submitted. If forwarded by mail, the sealed envelope containing the BID must be enclosed in another envelope addressed to the OWNER at City of Prior Lake. 16200 Eagle Creek Avenue SE. Prior Lake. MN 55372 . The envelope must be received by the OWNER on or before the date specified herein for receipt of BIDS. All BIDS must be made on the required BID form. All blank spaces for BID prices must be filled in, in ink or typewritten, and the BID form must be fully completed and executed when submitted. Only one copy of the BID form is required. The OWNER may waive any informalities or minor defects. The OWNER reserves the right to reject any or all BIDS. Any BID may be withdrawn prior to the above schedule time for the opening of BIDS or authorized postponed thereof. Any BID received after the time and date specified shall not be considered. No BIDDER may withdraw a BID within 60 days after the actual date of the opening thereof. Should there be reasons why th.e contract cannot be awarded within the specified period, the time may be extended by mutual agreement between the OWNER and the BIDDER. BIDDERS must satisfy themselves of the accuracy of the estimated quantities in the BID Schedule by examination of the site and a review of the drawings and specifications including ADDENDA. After BIDS have been submitted, the BIDDER shall not assert that there was a misunderstanding concerning the quantities required to complete the WORK or of the nature of the WORK to be done. The OWNER shall provide to BIDDERS prior to BIDDING, all information which is pertinent to, and delineates and describes, the land owned and rights-of-way acquired or to be acquired. The CONTRACT DOCUMENTS contain the provisions required for the construction of the PROJECT. Information obtained from an officer, agent, or employee of the OWNER or any other person shall not affect the risks or obligations assumed by the CONTRACTOR, or relieve him from fulfilling any of the conditions of the CONTRACT DOCUMENTS. Each BID must be accompanied by a BID bond payable to the OWNER for five percent of the total amount of the BID. As soon as the BID prices have been compared, the OWNER will return the BONDS of all BIDDERS except the three lowest responsible BIDDERS. When the CONTRACT DOCUMENTS are executed, the bonds of the two remaining unsuccessful BIDDERS will be returned. The BID BOND of the successful BIDDER will be retained until the payment BOND and performance BOND have been executed and approved, after which it will be returned. A certified check may be used in lieu of a BID BOND. A performance BOND and a payment BOND, each in the amount of 100 percent of the CONTRACT PRICE, provided by a corporate surety approved by the OWNER, will be required at the time the CONTRACT DOCUMENTS are executed. Attorneys-in-fact who signs BID BONDS or payment BONDS and performance BONDS must file with each BOND a certified and effective dated copy of their power of attorney. The BIDDER that is awarded the WORK will be required to execute the CONTRACT DOCUMENTS and obtain the performance BOND and payment BOND within ten (10) calendar days from the date when NOTICE OF AWARD is delivered to the BIDDER. The NOTICE OF AWARD shall be accomplished by the necessary CONTRACT DOCUMENTS and BOND forms. In case of failure of the BIDDER to execute the CONTRACT DOCUMENTS, the OWNER may at its option consider the BIDDER in default, in which case the BID BOND accompanying the proposal shall 3 G:\projects\ 1999\11candy\front.doc become the property of the OWNER. The OWNERS within ten (10) days of receipt of acceptable performance BOND, payment BOND, and executed CONTRACT DOCUMENTS signed by the party to whom the WORK was awarded shall sign the CONTACT DOCUMENTS and return to such party an executed duplicate of the CONTRACT DOCUMENTS to the CONTRACTOR. Should the OWNER not execute the CONTRACT DOCUMENTS within such period, the BIDDER may by WRITTEN NOTICE withdraw its signed CONTRACT DOCUMENTS. Such notice of withdrawal shall be effective upon receipt of the notice by the OWNER. The NOTICE TO PROCEED shall be issued within ten (10) days of the execution of the CONTRACT DOCUMENTS by the OWNER. Should there be reasons why the NOTICE TO PROCEED cannot be issued within such period, the time may be extended by mutual agreement between the OWNER and CONTRACTOR. If the NOTICE TO PROCEED has not been issued within the ten (10) day period or within the period mutually agreed upon, the CONTRACTOR may terminate the CONTRACT DOCUMENTS without further liability on the part of either party. The OWNER may make such investigation as the OWNER deems necessary to determine the ability of the BIDDER to perform the WORK, and the BIDDER shall furnish to the OWNER all such information and data for this purpose as the OWNER may request to determine whether the BIDDER meets the requirements set out below for determining whether the BIDDER qualifies as a responsible BIDDER. A responsible BIDDER is one that can perform the work in a timely fashion and with minimal change orders. The OWNER may request BIDDERS to submit references from projects where the WORK was similar in nature to the WORK described in the BID DOCUMENTS and the Plans and Specifications. The BIDDER shall provide five (5) references and identify all work done for any political subdivision ("municipal") within the State of Minnesota within the most recent five (5) years. Failure to identify municipal reference shall be sufficient basis to reject a BIDDER'S BID. For each municipal reference provided, the BIDDER must specify the nature of the project or work. The OWNER may require additional information from references such as the amount of the original contract and the amount of any change orders requested by the BIDDER. The OWNER may find a BIDDER is not responsible and reject its BID if the OWNER finds that the BIDDER has a reputation for submitting a low BID and thereafter excessive change orders. The OWNER may also consider information provided by references concerning whether a BIDDER (1) failed to complete work in a timely fashion; (2) failed to follow the reference OWNER'S directions during the progress of the WORK; (3) failed to inform the reference OWNER in a timely fashion of any problems it incurred in completing the WORK; or (4) requested of the reference OWNER change orders initiated by the BIDDER in excess of twenty (20) percent of the amount the BIDDER bid for the reference OWNER'S WORK. The OWNER may also consider the OWNER'S past experience with a BIDDER. Based on information provided by reference OWNERS or the OWNER'S past experience, the OWNER may reject the BIDDER'S BID as not responsible. It is the OWNER'S responsibility to the tax payers of Prior Lake to obtain the lowest responsible BID. Municipalities are required by Minnesota Statute 471.345 to competitively bid all work over $25,000 "for the sale or purchase of supplies, materials, equipment or the rental thereof, or the construction, alteration, repair or maintenance of real or personal property" and to accept the lowest responsible bid. It is the OWNER'S experience that some BIDDER'S submit a BID lower than the amount they actually believe the WORK will cost, in order to be the "low bidder." Once awarded the WORK, these BIDDER'S submit requests for change orders for costs that more appropriately should have been included in their original BID. In cases where this type of situation arises, the BIDDER may not have been the lowest BID. Where the OWNER receives information from a reference OWNER that the reference OWNER had this type of experience with the BIDDER or the OWNER itself had this type of experience on past WORK of the BIDDER, the OWNER may find that the BIDDER is not responsible and reject its BID. Further, the OWNER reserves the right to reject any BID if the evidence submitted by, or investigation of, such BIDDER fails to satisfy the OWNER that such BIDDER is properly qualified to 4 G:\projects\1999\11candy\front.doc A carry out the obligations of the CONTRACT DOCUMENTS or to complete the WORK contemplated ..-:.I-.-therein. A conditional or qualified BID will not be accepted. The award will be made to the lowest responsible BIDDER. All applicable laws, ordinances, and the rules and regulations of all authorities having jurisdiction over construction of the PROJECT shall apply to the contract throughout. Each BIDDER is responsible for inspecting the site and for reading and being thoroughly familiar with the CONTRACT DOCUMENTS. The failure or omission of the BIDDER to do any of the foregoing shall in no way relieve any BIDDER from any obligation in respect to his BID or be the basis for any change order request. The BIDDER agrees to abide by the requirements under Executive Order No. 11246, as amended, including specifically the provisions of the equal opportunity clause set forth in the SUPPLEMENTAL GENERAL CONDITIONS. The OWNER shall not reimburse any BIDDER for its BID preparation costs. The low BIDDER shall supply the names and addresses of major material SUPPLIERS and SUBCONTRACTORS when requested to do so by the OWNER. The ENGINEER is City of Prior Lake their address is 16200 Eagle Creek Avenue SE. Prior Lake. MN 55372 G:\projects\1999\11candy\front.doc 5 RESOLUTION 99-71 ACCEPTING BIDS AND AWARDING CONTRACT FOR CANDY COVE/LAKESIDE MANOR IMPROVEMENT PROJECT (CITY PROJECT #99-11) MOTION BY: Schenck SECOND BY: Kedrowski WHEREAS, pursuant to an advertisement for bids for the Candy Cove/Lakeside Manor Improvement Project (Project 99-11) which includes reconstruction of streets, storm sewer, and appurtenant work; and WHEREAS, the following bids were received, opened, and tabulated according to law and the following bids were received complying with the advertisement: CONTRACTORS S.M. Hentges & Sons, Inc. Northwest Asphalt McNamara Contracting RH. Heselton Co. BID AMOUNT $ 679,658.77 $ 696,739.63 $ 704,087.31 $ 706,849.15 WHEREAS, the City Council has determined that Northwest Asphalt of Shakopee, Minnesota is the lowest responsible bidder. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA: 1. The Mayor and City Manager are hereby authorized to enter into a contract with Northwest Asphalt of Shakopee, Minnesota in the name of the City of Prior Lake for the Candy Cove/Lakeside Manor Improvement Project (Project 99-11) in the amount of $696,739.63. 2. The City Manager is hereby authorized and directed to return to all bidders the deposits made with their bids once a contract has been signed. Passed and adopted this 19th day of July, 1999. YES NO Mader X Mader Kedrowski X Kedrowski Petersen X Petersen Schenk X Schenck Wuellner X Wuellner {Seal) J.,~O Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTIJNITY EMPLOYER Frank Boyles, i Council Meeting Minutes Julv 19. 1999 HOKENESS: The tax credit was part of the bid package. The bidders knew when they bid the Library that they would not be paying state sales tax and that was reflected in their bid amounts. The supplier has not paid any sales tax for any of the construction materials. MADER: Questioned if that was accurate because the $2.5 million budget for the Library was approved prior to addressing the issue of tax exemption. Also noted that staff had advised that the only way the City could qualify for the tax exemption was if certain items were held out from the main contract and bid and awarded separately. HOKENESS: Said he would verify his answer through the Architect and the specifications. PACE: Clarified that when the Department of Revenue advised the City how to take advantage of the tax exemption, it was clear that the bid documents had to be written in such a way as to break out labor and materials on certain items. The Architect prepared the bid specifications so that the contractor would not pay sales tax on construction materials, nor would he bid it that way. MADER: Noted that then the $2.5 million project before tax exemption, remained $2.5 million with the sales tax credit. PACE: Advised that that is the part staff still needs to clarify. The sales tax exemption has been taken advantage of by the contractor through the use of a special sales tax exemption for the purchase of the construction materials. MADER: Commented that the contractors bid was an estimate with specific estimated material numbers. If those are only estimates, and the only way the contractor qualifies for the tax exemption is upon purchase of the materials, then the actual tax exemption may be different that what was reflected in the bid. If the Architect built the savings into the overall budget, then the project costs were elevated above $2.5 million pre-tax dollars. Asked the staff to bring a report on the subject back to the Council for clarification. VOTE: Ayes by Mader, Kedrowski, Petersen, Wuellner and Schenck, the motion carried. NEW BUSINESS: Consider Approval of Resolutions 99-71 and 99-70 Accepting Bids and Awarding Contract for Candy Cove/Lakeside Manor Improvements (City Project 99-11) and Lift Station Renovations (City Project 99-02). MOTION BY SCHENCK, SECOND BY KEDROWSKI TO APPROVE RESOLUTION 99-70 ACCEPTING BIDS AND AWARDING CONTRACT FOR LIFT STATION RENOVATIONS (CITY PROJECT 99-02). BOYLES: Reviewed the item in connection with the staff report and advised the Council of the improvements proposed for each of the two projects. Also noted that the lift stations were bid separately from the Candy Cove/Lakeside improvement project specifically because initial bids were substantially more than expected with respect to the lift stations. Staff's opinion was that the City could get better numbers if the project was re-bid. MADER: Asked if the earlier bid that was rejected which was approximately $150,000 itemized the lift station renovations, and if the new bid was approximately $117,000? 071999.DOC 5 Council Meeting Minutes July 19. 1999 ILKKA: Confirmed. The difference is that the earlier bid was for one project. This bid is for two separate projects. WUELLNER: Asked if staff is comfortable with this bidder given the broad range of the bids submitted. ILKKA: The staff is comfortable that Braun is a responsible bidder. VOTE: Ayes by Mader, Kedrowski, Petersen, Wuellner and Schenck, the motion carried. MOTION BY SCHENCK, SECOND BY KEDROWSKI TO APPROVE RESOLUTION 99-71 ACCEPTING BIDS AND AWARDING CONTRACT FOR CANDY COVE/LAKESIDE MANOR IMPROVEMENTS (CITY PROJECT 99-11) TO NORTHWEST ASPHALT, INC. BOYLES: Reviewed the item in connection with the staff report on the matter and advised that the staff recommendation involves much consideration so that the project most benefits the taxpayer of the City of Prior Lake, the residents in the project area, and the City staff. Discussed the City's responsibility to select the lowest resDonsible bidder, and the City's experiences with Hentges Company, the apparent low bidder for this project. Noted eleven examples of irresponsible practices by S.M. Hentges & Sons on past Prior Lake projects. He cited reports from previous Hentges projects. ILKKA: Outlined a number of experiences where S.M. Hentges & Sons acted irresponsibly and below City standard as per the provisions of the standard contract on a 1998 street reconstruction project, including numerous resident complaints regarding dust control, lack of a superintendent on the project, as well as lack of adequate traffic control measures and devices. Cited several written examples and reviewed several documents including a memo regarding a blocked sewage line, change order procedures in general, and an article from the 8/5/95 Star Tribune regarding a marked gas line cut by Hentges for the second time. This information was shared with Hentges at the time of the project and at the Council meeting. BOYLES: Noted the correlation between the 1995 and 1999 Hentges projects where the Prior Lake taxpayers were affected by not only inconvenience, but also higher costs for vehicle repairs, emergency services because of the cut utility lines, and additional staff time for administering contracts and repairs all of which lead staff to recommend Northwest Asphalt, Inc. as the lowest responsible bidder. KEDROWSKI: Commented that approving street improvement projects is a difficult task that affects a large number of residents at anyone time through assessments and inconvenience. Bad workmanship may be the fault of the contractors, but it reflects badly upon the City who hires them. The Council has a responsibility to the taxpayer to provide responsible contractors. Supported the motion. PETERSEN: Stated that it seems common courtesy. If other contractors can do the responsible little things, sees no reason to use a contractor that doesn't provide responsible workmanship. WUELLNER: Supported the staff recommendation as well. Commented that the number of resident complaints on the 1995 Ridgmont project indicate the City does not have a responsible low bidder in this case. SCHENCK: Commented that a one-time aberration can be excused, but continued irresponsible workmanship as seen in the 1995 and again in the 1999 projects is unacceptable. 071999.DOC 6 Council Meeting Minutes Julv 19.1999 MADER: Commented on the past procedures with respect to change orders early on for substantial amount that seemed out of proportion for the Duluth Avenue project. Noted the many calls received by him on past irresponsible workmanship where Hentges was the contractor. Also noted several examples of careless workmanship by the contractor. Commented that it is his perception that subcontractors believe business with a government entities provides them an opportunity to bid low enough to get the contract, and then increase the contract with numerous change orders. Commended the engineering staff on their courage and efforts to document the past unacceptable practices by this contractor and bringing it to the Council for consideration. BOB HUBER (Leonard, Street & Dienhard, counsel for S.M. Hentges): Advised that many of the items brought up tonight are new to S.M. Hentges. Asked for a deferral of this agenda item until S.M. Hentges can respond. Commented that complaints from neighbors are a part of all construction projects, and that it has not been determined that the gas lines were appropriately marked. [handed out materials] Noted many positive attributes of the company, and advised that no owner, in 339 projects, has ever claimed that the company is irresponsible. Also noted many references given by surrounding communities. Further stated that there is no question that Hentges is the low bidder, and that Hentges is responsible. The City is required by law to accept the lowest responsible bidder. Discussed past change order procedures and commented that the 1998 project only had 4% in change orders. Again asked for deferral to give Hentges due process to respond to the issues and allegations raised before Hentges is determined an irresponsible contractor. GARY ZAJAC: Advised that Hentges does not intentionally bid low, and then come in with change orders. Further commented that the approved change orders on the Duluth project ($1.25 M) amount to approximately $51,000, half of which were requested by the City due to design. Discussed the change orders requested as part of the 1998 project. Commented that often times contractors have only two weeks to review a job and submit a proposal. The more utilities identified by the plans, the more able the contractor is to understand the project. Hentges is not out to gouge the City, and believes they will do a responsible job on this project. SCHENCK: Commented that the Council has only considered Prior Lake experience. Noted comments staff received from other cities, notably Dundas, Minnesota, that compare to the experiences in Prior Lake. Cannot see putting our residents through more of the same situation. WUELLNER: The rationale behind the Council's decision is the contractor's record in Prior Lake, and the circumstances involving traffic control, gas lines, and overall public safety are not acceptable. HUBER: Stated that S.M. Hentges was told that there was a report from the Asst. City Engineer recommending rejection of the Hentges bid and the reasoning for doing so. Gas line breaks and utility cuts can happen for a number of reasons that mayor may not have anything to do with contractor fault. This recommendation comes from the City Manager and Asst. City Manager neither of whom are engineers or lawyers who are qualified to make such a determination. We did not assume anything other than the staff recommendation would be addressed in this circumstance. There is a due process right under the constitution. MOTION BY KEDROWSKI, SECOND BY SCHENCK, TO CALL THE QUESTION. Mayor Mader clarified that a motion and second to call the question is not a debatable motion. 071999.DOC 7 Council Meeting Minutes Julv 19. 1999 VOTE ON THE MOTION TO AWARD THE CONTRACT TO NORTHWEST ASPHALT, INC.: Ayes by Mader, Kedrowski, Petersen, Wuellner and Schenck, the motion carried. The Council took a brief recess. MADER: Commented that Mr. Huber suggested that S.M. Hentges was unaware of the complaints discussed by the Council and staff on the last agenda item. In fact, many of the complaints and memos cited by staff were addressed to Hentges themselves. Also reminded the Council that at the beginning of the Duluth project, staff was inundated with change orders and at that point the City Attorney met with S.M. Hentges to attempt to address the change order procedures and come to some resolution. So, the company has been aware of these complaints both verbally and in writing for some time. [The public hearing to consider Triax's request to assign the cable television franchise became the next item on the agenda.] Consider Approval of Resolution 99-XX Authorizing WSB & Associates, Inc. to Prepare a Corridor Study for a Supporting Roadway North of and Parallel to County State Aid Highway (CSAH) 42. MOTION BY KEDROWSKI, SECOND BY PETERSEN TO APPROVE RESOLUTION 99-XX AUTHORIZING WSB & ASSOCIATES, INC. TO PREPARE A CORRIDOR STUDY FOR A SUPPORTING ROADWAY NORTH OF AND PARALLEL TO COUNTY STATE AID HIGHWAY (CSAH) 42. BOYLES: Reviewed the staff report and recommendations in light of the County Road 42 Corridor Study. MADER: Commented that the Council would be authorizing an expenditure of $4,875 with Savage picking up the same amount. If Shakopee chooses to participate, the costs would be reduced. Asked about the impact the proposed configuration would have on the neighborhood. ILKKA: Confirmed that the costs would be split with Savage, and that the intent of the study is to identify what, if any, configuration is feasible. WUELLNER: Questioned the need for this road at all, when existing County Road 16 would be a more likely alternative. ILKKA: Clarified that the City is acting in response to the County Road 42 Corridor Study. Connelly Parkway is intended to take pressure off or augment County Road 42, so that in the future CSAH 42 doesn't need to become a six lane roadway. There is no suggestion that the road will be built in the next 5 years. The objective is to do some good planning and identify where on the border the crossing will be located. There was discussion regarding the potential location of the roadway in connection with the City of Savage's transportation plan. 071999.DOC 8