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HomeMy WebLinkAboutCC November 16, 1993 ~ CITY of ANDOVER Regular City Council Meeting - November 16, 1993 Call to Order - 7:30 P.M. Resident Forum Agenda Approval Approval of Minutes Discussion Items 1. Home Health Care Week Proclamation 2. Assessment Hearing/89-1B, Cont. 3. Adopt Assessment Roll/92-18, Cont. 4. Rezoning/Ashford Develop~ent/Sec. 25 & 26, Cont. S. Variance/1433 - 161st Av~nue N.W. 6. Approve Annual Improveme1t Program Guidelines, Cont. 7. Option Agreement/Wasteco Site Closed Meeting with Attorney Staff, Committees, Commissions 8. Accept Bids/Skid Steer LJader 9. Approve 1994 Liquor and Cigarette Licenses 10. Approve Classification & Sale of Forfeit Lands 11. Accept Withdrawal of Variance/J. Kunza/Crooked Lake Tire 12. Amend 1993 Budgets 13. Extend Acting Administr~tor's Temporary Salary 14. Approve TKDA Temporary City Engineer 15. Consider Reduction of A,:CAP Assessments Non-Discussion Items 16. Release Escrow/Leeman La~e Estates 17. Approve Agreement/91-28/Grace Lutheran Church/professional Bldg. lB. Accept Easements/1S9th Avenue/91-16 Mayor-Council Input Approval of Claims Adjournment . -- ._, ... REGULAR ANDOVER CITY COUNCIL MEETING MINUTES - NOVEMBER 16, 1993 TABLE OF CONTENTS AGENDA APPROVAL . . · · · · · · · · · · · · · · · · · · · · · · · 1 APPROVAL OF MINUTES · · · · · · · · · · · · · · · · · · · · · · · 1 HOME HEALTH CARE WEEK PROCLAMATION · · · · · · · · · · · · · · · 1 ASSESSMENT HEARING/IP89-18 Resolution R271-93 adopting assessment roll · · · · · · · · 2 ASSESSMENT ROLL/IP92-18 Resolution R272-93 adopting assessment roll · · · · · · · · 2 ANOKA-HENNEPIN DISTRICT #11 CONSTRUCTION DISCUSSION . · · · · · · 2 REZONING/ASHFORD DEVELOPMENT/SECTION 25 AND 26 · · · · · · · · · 3 Motion to approve (Died for lack of Second) ..... · · · 9 Motion to deny/changed to refer to Planning Commission · · · 9 Resolution R273-93 to prepare an EAW . · · · · · · · · · · · 10 VARIANCE/1433 161ST AVENUE NW Resolution R274-93 to approve · · · · · · · · · · · · · · 12 ANNUAL IMPROVEMENT PROGRAM GUIDELINES Motion to approve · · · · · · · · · · · · · · · · · · · · · 12 OPTION AGREEMENT/WASTECO SITE Motion to offer 4-month period option for purchase . · · · · 13 NON-DISCUSSION ITEMS Approval 1994 liquor and cigarette licenses · · · · · · · · 13 Accept withdraw of variance/J. Kunza/Crooked Lake Tire · · · 13 ---.. Extend Acting Administrator's temporary salary. · · · · · · 13 Approve TKDA temporary City Engineer . · · · · · · · · · · · 13 Release escrow/Leeman Lake Estates · · · · · · · · · · · · · 13 Accept easements/159th Avenue/IP91-16 · · · · · · · · · · · 13 1994 PROPOSED TAX RATE Motion to table (to November 30, 1993) · · · · · · · · · · · 13 BIDS/SKID-STEER LOADER Motion to purchase from Tri-State Bobcat . · · · · · · · · · 13 CLASSIFICATION AND SALE OF FORFEIT LANDS Motion to purchase three tax forfeit properties · · · · · · 14 AMEND 1993 BUDGETS Resolution R275-93 amending budgets · · · · · · · · · · · · 14 REDUCTION OF ACCAP ASSESSMENTS Motion to deny request · · · · · · · · · · · · · · · · · · · 14 RESIGNATION/CITY ADMINISTRATOR/ENGINEER Motion to accept resignation with regret · · · · · · · · · · 14 Agreement/IP91-28/Grace Lutheran Church . · · · · · · · · · · · · 15 APPROVAL OF CLAIMS · · · · · · · · · · · · · · · · · · · · · · · 15 MAYOR/COUNCIL INPUT Set Special Meeting on November 30, 1993 · · · · · · · · · · 15 ADJOURNMENT . . . . · · · · · · · · · · · · · · · · · · · · · · · 15 .- . ·~ QMD ~ \ ~111(l3 ~ CITY of ANDOVER REGULAR CITY COUNCIL MEETING - NOVEMBER 16, 1993 MINUTES The Regular Bi-Monthly Meeting of the Andover City council was called to order by Mayor Jack McKelvey on November 16, 1993, 7:30 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW, Andover, Minnesota. Councilmembers present: Dalien, Jacobson, Knight, Perry Councilmembers absent: None Also present: City Attorney, William G. Hawkins TKDA Engineers John Davidson and Tom Syfko Assistant City Engineer, Todd Haas City Planner, Dave Carlberg City Finance Director, Daryl Sulander Others AGENDA APPROVAL Add Items 3a, Anoka-Hennepin District *11 Construction Discussion;; l5a, Accept Resignation/City Administrator/Engineer; and 15b, 1994 Proposed Tax Rate. MOTION by Jacobson, Seconded by Dalien, approval of the amended Agenda. Motion carried unanimously. APPROVAL OF MINUTES October 19, 1993: Mayor McKelvey referenced the question raised at the November 2, 1993, Resident Forum regarding conversations which took place during the Council break. He explained the audio and video tapes were turned off during the break, so nothing could be verified. Correct as written. October 27, 1993: Correct as written. November 2, 1993: Correct as written. MOTION by Knight, Seconded by Jacobson, approval of the Minutes of October 27, November 2, and October 19 as presented. Motion carried unanimously, with Councilmember Perry voting present for the October 27 meeting minutes. HOME HEALTH CARE WEEK PROCLAMATION Mayor McKelvey read the proclamation proclaiming November 28 through December 4 as National Home Care Week. Bob Loftus, Metro Home Health Care, also addressed the Council explaining the service they have been providing over the past 17 years, and thanked the Council for their recognition and support of the care givers in Andover. ~ .- . ---- . - Regular Andover City Council Meeting Minutes - November 16, 1993 Page 2 ASSESSMENT HEARING/IP89-18, CONTINUED 7:42 p.m. Mr. Syfko reviewed the proposed assessment roll for Project 89-18, noting the adjustments on the interest to Hubert Smith and Tony Emmerich. Hubert Smith - was in agreement with the proposed assessment. Jerrv Windschitl, Ashford Development - stated he supported the Council decision on the Smith and Emmerich property and requested the same concept be applied to their parcels as well. He stated they have the same interest issue on Lots 7 and 8, Watts Garden Acres, in the IP89-18 project. Mr. Davidson stated the parcels on the west side of Jay Street were assessed; therefore, there was no interest carried forwarded because the interest was carried with the assessment. On the east side for the Smith and Emmerich parcels, the assessment was deferred and the City was carrying the interest to today's assessment date. Mr. Windschitl - argued if the assessments are run for the parcels on both sides of the street, the interest would be identical. Mr. Syfko explained the assessment roll before the Council is what is to be acted upon tonight, stating the interest issue is an independent item. He also reviewed the calculations resulting in a reimbursement to Andover from Coon Rapids in the amount of $12,030.09, which includes interest. MOTION by Perry, Seconded by Knight, the Resolution adopting the assessment roll for the improvement of storm drainage for Improvement Project 89-18 for certification and the assessment roll as presented at tonight's meeting will be attached. (See Resolution R271-93) Motion carried unanimously. 7:50 p.m. ADOPT ASSESSMENT ROLL/IP92-18, CONTINUED MOTION by Jacobson, Seconded by Perry, the Resolution adopting the assessment roll for the improvement of sanitary sewer, storm sewer, watermain and streets for Improvement Project 92-18 as presented. (See Resolution R272-93) Motion carried unanimously. ANOKA-HENNEPIN DISTRICT #11 CONSTRUCTION DISCUSSION Dr. Roger Giroux and Dick Nybeck, District 11, reviewed the district's plans for construction of a new middle school and an addition to Andover School. Mr. Nybeck gave a brief history of how they arrived at the proposed locations. Since the bond referendum did not pass, they have not yet made any decisions on whether to try the bond referendum again or to take other actions to accommodate the growing number of students. They have been working with the City Staff with regard to locating the schools at the best locations relative to future development, extension of sanitary sewer, City plans for future park development, etc. Right now they have purchase agreements with three of the five landowners for the property north of City Hall. Soil borings are now being done on those properties, but the intent is to purchase the land and hold it. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 3 (Anoka-Hennepin District #11 Construction Discussion, Continued) council expressed the concern that they were not notified of the district's plans and that the school locations in essence dictates the direction of development in the City. Mr. Nybeck explained it would be cost prohibitive, if not legally impossible, for them to construct the new school without sanitary sewer. They have not discussed financial details with the City to bring the trunk line to service the proposed location of the middle school, but they have worked with City Staff concerning their plans for the schools. They assumed Staff was forwarding that information to the Council. They normally wait until they are invited to appear before the city council of any city. Mr. Nybeck stated there are specific plans for the property south of City Hall on which they had proposed another elementary school, and they would be interested in talking with the City about the purchase of that parcel of land. He stated they will continue to work with the City Staff on these items and will assume the Staff will keep the Council informed. Pat Shroeder, 720 NW Andover Boulevard - stated this deals with an issue raised several weeks ago when discussing additional development in the city. The additional need for schools is one factor that should be a consideration. She felt the City is not taking into consideration all of the factors when discussing new development. Council noted the Planning and Zoning Commission has been directed to discuss the issue of externali ties with regard to development. Mr. Shroeder suggested perhaps the school board should be made aware of the situation also. REZONING/ASHFORD DEVELOPMENT/SECTION 25 AND 26, CONTINUED Mayor McKelvey noted the item was tabled at the October 5, 1993, meeting. Since then a response has been received from the Environmental Quality Board which advised the City has the authority to determine whether an Environmental Assessment Worksheet should be ordered. But they did not mandate that one be done. The Metropolitan Council has not yet made a decision on the requested expansion of the MUSA area, but that is expected the end of December or early January, 1994. Based on a meeting with several members of the Metropolitan Council last week, the Mayor tended to feel the City may be granted its request. He also noted a letter before them from David A. Erickson and family, who was unable to attend the meeting this evening, expressing his concerns over the environmental impact of granting this rezoning. The Planning Commission had recommended approval. Council discussed the options available, that is either vote in favor, against, return to the Planning Commission for further research, ask the petitioner for an extension of time in which to make a decision, or approve contingent upon a favorable EAW. Attorney Hawkins advised against approval with any contingencies. ~ .- Regular Andover City Council Meeting Minutes - November 16, 1993 Page 4 (Rezoning/Ashford Development/Sections 25 and 26, Continued) Several Councilmembers indicated a desire to have an EAW done before acting on a rezoning because of the concerns that have been raised over the environment, wetlands, etc. Councilmember Jacobson felt an EAW could be done within two weeks, which would provide additional information on which to base a decision; however, the applicant would need to grant an extension of time. Jerrv Windschitl, Ashford Development - stated the only ability the City has for requiring an EAW is based on the evidence submitted, and he quoted the EAW Petition Process regulations, 4410.1100, Subsection 6. He felt the key in the regulations is the City shall deny the petition if the evidence presented demonstrates the project may have the potential for significant, emphasis on significant, environmental effects. As a point of order, he stated the agenda item is not an EAW but a request for a rezoning. He argued the rezoning only allows him to do something with the land in the future. The EAW is not applicable to the rezoning. He asked that a decision be made this evening on the rezoning request. He would not provide an extension of time. Attorney Hawkins advised the issue tonight is making a decision on the rezoning according to the standards of the ordinance, whether or not this property is appropriate to carry the R-4 zone and its potential use for urban density. The EAW at this point is not really a factor, though the fact that the Council does not have it may be a basis for denial along with other factors regarding the suitability of this property for this type of development. The lack of an EAW by itself is not a proper basis for denial. Mr. Carlberg noted if the request is denied, the ordinance requires the applicant cannot make re-application for the rezoning for a period of one year. Attorney Hawkins stated that provision could be varied by the Council, or the Council can initiate a rezoning at any time. Richard Fuller, 13948 prairie Road, Attorney representinq some of the petitioners - stated additional information has come to their attention since the original petition was filed which he believes makes an Environmental Assessment Worksheet mandatory under the regulation. He provided the Council copies of the Environmental Review; Critical Areas 4410.1000, reviewed several sections of the regulations, and concluded that an EAW is mandatory because the total number of units that may ultimately be developed on all contiguous land owned or under an option to purchase by the proposer exceeds the threshold number of 250 units. Counting the 93 units in Weybridge, the 49 units in Crown Point west, and the proposed 110 units in Crown Point East, it exceed the 250 units, thereby mandating an EAW. He stated it appears the developer has carefully staged the developments so no particular stage exceeds the 250 units. But the regulations clearly stated that all contiguous land owned or under option must be considered. Mayor McKelvey stated the staging has actually been done by the Metropolitan Council in their control over what property is to be included in the MUSA. Mr. Fuller - stated nonetheless, it has been staged and the regulations are clear. He submitted the Council has no other option but to proceed in accordance with the regulations, that is require an EAW. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 5 (Rezoning/Ashford Development/Sections 25 and 26, Continued) Mr. Carlberg asked with Burlington Northern Railroad privately owning the strip of land between the properties, would Mr. Windschitl's properties still be considered contiguous. Attorney Hawkins could not give an opinion at this time without looking at the regulations. Mr. Carlberg stated the other question is whether Mr. Windschitl had options on the other properties at the time Weybridge was being developed. If not, those guidelines would not be applicable when Weybridge was done. Mr. Winds chit 1 - stated there are many legal issues that relate to an EAW; and if that is the agenda item, he would prefer to have his attorney present. At some point in time he'd like an opportunity for a rebuttal on some of the issues being raised; because as he understands it, some of what Mr. Fuller has said is not factual. Mayor McKelvey stated the agenda item is for a rezoning, not an EAW. Pat Shroeder. 720 NW Andover Boulevard - sensed that Mr. Windschitl's threat to bring an attorney is causing the Council to fear taking action on this item, which she did not think is fair. With regard to an EAW, there have been problems getting access to the land; as Mr. Windschitl has not allowed access to anyone that she is aware of. He had specifically told her he would talk to his attorney to allow her and her daughter access to ride their horses, but Mr. Windschitl never got back to her on that. How could anyone get out there to get the information for an EAW? Ms. Shroeder also noted that the destruction of the area has already begun. There are huge earth movers there, and much of the wildlife areas are already being destroyed. Plus the quality of her life is being destroyed by the loud machines. She asked if that is legal. Attorney Hawkins advised the Staff would normally investigate the site and report to him before he could make a determination as to its legality. Mr. Carlberg reported Mr. Windschitl has been granted a grading permit by the Building Department under the Uniform Building Code. The permit allows him to grade his property. Ms. Shroeder - quoted from the regulations 4410.3100 that if an EAW petition is filed, a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project until one of four criteria is met. A permit has been granted. In her opinion and those of the residents, the grading is taking place in advance of when it should be. Mr. Carlberg stated the permit was granted prior to the request for an EAW. Ms. Shroeder - agreed an EAW is really important. But she felt the quality of life of the people who live here is something the Council should really be involved with, and not just coast over it as if they are more concerned about the wildlife than the people who purchased the land with the understanding that it was going to be open space. She is asking the Council to defend her right for a certain quality of life. She wished the City would keep the zone at 2 1/2 acres. .- . -- -- Regular Andover City Council Meeting Minutes - November 16, 1993 Page 6 (Rezoning/Ashford Development/Sections 25 and 26, Continued) Dave Grorud. 14545 Palm Street NW - felt a Council would be ill-advised not to take into account the environmental impacts of a rezoning, even though there may be another chance for control when the development begins. Obviously there is not much control when permits get granted when no one seems to know what is going on. Driving by the property, one can see significant digging with dirt placed on the east side, rolling into the wetlands. Most of the trees along that strip have been covered by dirt, so there is a good chance the roots have been smothered and trees will be eventually lost. He also thought that the machine traffic is now crossing land that is not even owned by the developer. He didn't know if the developer .has permits to do that type of trespassing onto the railroad property. He asked what is the process if a rezoning is granted after-the-fact with permits granted long before someone has to give the Council and citizens a chance to speak out on a project. Even with a successful denial of the rezoning request, there has been damage now affecting some aspect of the drainage. Mr. Grorud continued that there are many external issues that cry out for denial of the request. First, there is no sewer to the property, plus no guarantee that there will be sewer to it. Plus there may be other areas with more pressing needs for sewer, such as the proposed new middle school. So why rezone? The normal process would be to wait until there is sewer and then rezone. Secondly, there are not enough schools. There is not enough schools for the people who are here, so why take steps to rezone to a higher density. That doesn't sound like wise decision making. Another aspect is to look at what the zoning should do, that is protect the public health, safety, morals, comfort, convenience and general welfare, which all cover the environmental issues. A great traffic congestion will be created by the rezoning next to a railroad about which the City already receives numerous complaints. Why rezone it now when there is no need for it in the City? Lastly, the definition of the R-l, Single Family Rural zone, which it is currently zoned, fits this area perfectly. He hasn't heard anything from the developer as to why the low land, which is hard to develop and hard to maintain the lots, should be rezoned for something it is not geared for. Mr. Grorud felt the developer should have the burden of proving why the City now needs to have higher density zoning in that area. Mr. Grorud stated he spoke with Richard Thompson of the Metropolitan Council who indicated that the meeting on the City's MUSA expansion request will be scheduled the middle of December and that the decision has not yet been made. Mr. Thompson has not yet had a chance to visit the site with his engineer, and he again reiterated that the materials they received photocopied so poorly that they did not know the extent of the wetlands involved in this request until a neighbor brought it to their attention. They also have the concern it may not be appropriate to expand the sewer into areas that are not best suited for it because of the wetlands. Mr. Grorud stated he only heard reasons why it should not be rezoned and none as to why it should. He hoped the Council would listen to the residents and deny the rezoning request at this time. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 7 (Rezoning/Ashford Development/Sections 25 and 26, Continued) Mr. Carlberg noted the Council has received a letter that the Metropolitan Council has found the materials complete for review. If there is an issue that they cannot interpret, they should be requesting that information. He did not see that as an issue. Mayor McKelvey explained Mr. Thompson was asked when he got to City Hall if he wanted to view the site, and he chose not to because of the rain. If Mr. Thompson wishes to view the site, the Mayor stated he will arrange it with the owner of the property. Mr. Windschitl - stated this group has been before other governmental units trying to do the same thing and has not made headway with them. He explained to do the grading, permits are needed from three governmental units. They have the permits from all three units. They have satisfied all the water quality issues, runoff issues, water storage and storm water issues. The group lobbying against the rezoning has been furnished copies of the permits. The grading has been inspected by at least two governmental agencies within the last week or two. A preliminary plat has been at City Hall since early August. Mr. Haas stated the grading plan has not been approved by the City. Mr. Windschitl has a permit under the Uniform Building Code and is working on his own. If, as the City reviews the plan, changes are made in the grading plan, the developer must comply. The developer is allowed to do this. If the property is not rezoned, any work done is at the developer's expense. Mr. Windschitl - stated whether the property is zoned R-4 or R-l, he still has the right to do this grading. For the record he again noted the rezoning request is based upon: 1) It is consistent with and conforming to the Comprehensive Plan approved by Andover and submitted to the Metropolitan Council; 2) It is consistent with and conforms to the request for MUSA extension requested by the City of Andover and is being reviewed by the Metropolitan Council; 3) The adjacent property on the south and west is zoned R-4; 4) The adjacent property on the north has been requested to be included in the MUSA extension; 5 ) It is consistent with accepted development growth and land planning issues; and 6) The rezoning will not cause any assessments for anyone in the area, as the sewer and water lines are either on the property already or are available on the adjacent property. Mr. Fuller - had a letter from the EQB addressed to the City with a copy to Mr. Windschitl dated November 5. Paragraph one provides instructions that no final governmental approvals may be given to the property nor may construction on the project be started until the need for an EAW has been determined. Project construction includes any activities which directly affect the environment, including the preparation of land. There is no question that Mr. Windschitl has been specifically instructed by the State to cease any construction activity, including any grading activities. He alleged Mr. Windschitl has chosen to ignore that letter by continuing those activities, which does not show good faith. . .~."-. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 8 (Rezoning/Ashford Development/Sections 25 and 26, Continued) Councilmember Jacobson again asked if Mr. Windschitl would be willing to wait another two weeks to allow him to consult with his attorney and to allow the Council to obtain further information. Mr. Windschitl - stated the questions he raised about having an attorney deals with the EAW because that is a legal process. He felt he had the right to have the rezoning request acted upon tonight. In reviewing the State regulations, Councilmember Jacobson questioned if the Council has the authority to make a decision on the rezoning because an EAW has already been asked for. There is also the question of whether Mr. Windschit1's developments meet the threshold of 250 units, which mandates an EAW be prepared. If houses already built in Weybridge are not included, then his interpretation of the regulations is that 250 threshold has not yet been reached; but he was not sure if that is the legal interpretation. He didn't feel safe voting it up or down this evening based on the number of legal issues that are unanswered. He did not want to violate State law. Mr. Windschitl - felt this could be resolved by having Mr. Hawkins give an interpretation of whether a rezoning is a project. It is his understanding that it is not a considered a project. He felt there may be some validity of the EAW argument if they were dealing with a preliminary plat. He did not think it applied to a rezoning. He noted there are other parcels that have the R-4 zone that are not yet in the MUSA; this is not an uncommon request. Councilmember Perry stated in the other instances there weren't the kinds of concerns heard with this proposal. So she felt it was appropriate to rezone for those other areas; but in this case, she has heard and read enough that she needs more information to justify her vote. Mr. Windschitl - again stated anything dealing with the environmental issues have already been approved by the agencies that govern them via the issuance of the permits. All of these issues have already been satisfied. He again asked for the City Attorney's opinion on whether the rezoning is a project. Mr. Fuller - pointed out the regulations are the EQB will not accept a petition unless they have made a decision that there is a prima facia showing that it is a project subject to the regulations dealing with the EAW and that there is a likelihood of an environmental effect. They have made that decision by referring the matter to the City Council. Another resident stressed that there are not enough schools for the existing residents, let alone for others that would be coming into the City as a result of this development. Someone has to vote their conscience here. The residents have voted down the bond issue to build new schools. Obviously development is not what they want in the City. She didn't feel the school issue has been looked at. Councilmember Jacobson stated that falls in the category of externalities that has been forwarded to the Planning Commission. However, right now they can only operate within the existing ordinances. ----~"..-_. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 9 (Rezoning/Ashford Development/Sections 25 and 26, Continued) MOTION by McKelvey introducing the Resolution as stated approving the rezoning request of Ashford Development Corporation to rezone property located in Sections 25 and 26 from R-l, Single Family Rural to R-4, Single Family Urban. Motion dies for lack of a Second. MOTION by Jacobson, Seconded by Perry, that the Andover City Council move to deny the petition for rezoning for Ashford Development, the described parcel, for the following reasons: The Council is unsure that by granting a rezoning of this parcel if we would be violating State Statutes or not. The Council is concerned over the violating of the Environmental Quality Board rules and regulations. Legal counsel for the City was not able at the present time to give a definitive statement on what the rules mean to the City and how they should be addressed. There is confusion in the Council's mind over what can be counted and what the term contiguous means, what the word project means in the State regulations. There is also concern in the State regulations which apparently says that no final governmental approvals can be given to a project nor can construction on the project be started until the need for an EAW has been determined. Council has not yet determined whether an EAW is needed. In addition, the requests by the Council to the developer to extend the time period for approval in order to answer these questions have been denied by the developer, who has requested the Council act immediately at this evening's meeting. Council also recognizes that in the Comprehensive Plan that the area is ultimately designated for an R-4 zoning. Council recognizes that application has been made to the Metropolitan Council for sewer service to the area; but it has not yet been granted. But the Council also understands that the Comprehensive Plan is a guideline; and those guidelines can and have, in the past, been changed when matters have been brought to the Council's attention which need to be addressed and were not addressed in the Comprehensive Plan, and realize that it is a planning instrument only. For those reasons, and those reasons only, the petition for rezoning is turned down. DISCUSSION: Councilmember Knight suggested a provision be added that the item can be reconsidered before the provision of one year expires if these issues are clarified. Attorney Hawkins explained the City can waive that provision or it can initiate the rezoning at any time. He suggested the decision for the rezoning be based on what they think is in the best interest of this property and how it should be developed. Whether or not this is a project is a planning decision. If more information is needed, ask the developer or the Staff. Councilmembers Jacobson and Perry stated the concern is the developer is not willing to waive the time frame to get those answers, and they wanted answers as to whether or not there are environmental concerns before making a decision. Attorney Hawkins felt the question on environmental effects that the development may have on the parcel are legitimate considerations. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 10 (Rezoning/Ashford Development/Sections 25 and 26, Continued) Councilmember Jacobson also didn't know the answer of whether or not the City would be in violation of State law if the rezoning was granted. Councilmember Dalien suggested the item be referred to the Planning Commission rather than deny the request. By making that referral, the City then has 30 days to obtain the answers to the issues that have been raised. In the mean time, an EAW could be ordered. Councilmember Perry was concerned about the information provided that there may be some endangered plant species on that property¡ and if that grading is taking place on the site, it will be destroyed. Can the grading continue if the rezoning is denied or if it is sent back to the Planning Commission? Councilmember Jacobson thought Mr. Windschitl would be able to continue the grading. Mr. Windschitl - clarified the information provided by the petitioners contains no documentation that there is any endangered species on the property, and he understands the petitioners have been advised of this. Councilmember Jacobson then CHANGED his motion: Instead of moving to deny, move to send the issue back to the Planning and Zoning Commission for the questions and the issues that I raised in the rest of the resolution. Have them address them and return it back to us within 30 days. Councilmember Perry WITHDREW the Second. The amended motion was seconded by Knight. DISCUSSION: It was noted the item would have to be brought back to the City Council at the December 7, 1993, meeting because the second meeting in December would be beyond the 30-day time requirement. Motion carried unanimously. Attorney Hawkins advised the EAW is an element of the rezoning and an issue that has been discussed. If the Council feels an EAW will assist them in making a decision on the rezoning, he felt the Council could order that this evening. MOTION by Perry, Seconded by Dalien, that the Staff be directed to prepare an Environmental Assessment Worksheet on the project known as Crown Point East and Crown Point West and return that to us for discussion at the Council meeting following the Planning and Zoning Commission discussion. (See Resolution R273-93) DISCUSSION: Mr. Haas stated in the past the City has asked the developer to provide all of the information. Council was of the opinion that in this case, the EAW is to be prepared by Staff without the assistance of the developer. Mr. Windschitl - asked to follow the regulations, Subsection 6, and specify what is going to be considered and tell what evidence has been presented to demonstrate the project may have the potential for significant effects, again emphasizing the word significant, that is causing an EAW to be done. If the list of plants is to be used, he Regular Andover City Council Meeting Minutes - November 16, 1993 Page 11 (Rezoning/Ashford Development/Sections 25 and 26, Continued) raised a trespass issue; as these items were taken from his property without permission and becomes evidence that cannot be admitted in these procedures. Councilmember Perry stated the specific finding would be they want an answer as to whether or not this project falls under the provision of the 250 unit threshold. From the information they have been given, it appears that has been exceeded; therefore, an EAW is required. Mayor McKelvey felt that is a condition of whether or not an EAW is mandatory, not a specific finding. Mr. Windschitl - argued that would be a mandatory requirement and would not be one that would be directed by the Council, and the EQB has not found an EAW to be mandatory. If there isn't evidence as noted in Subsection 6, the Council must deny the petition. He stated he does not have over 250 contiguous units. There are 159 maximum units in the contiguous property. Mr. Carlberg stated it is a legal question whether the strip owned by Burlington Northern Railroad subdivides the contiguous property. That needs to be addressed. Councilmember Jacobson felt the intent of the State law is if there is property on either side of a public road, it clearly falls under contiguous property. The railroad tracks is the same principle, as it is considered a utility even though it is privately owned. Attorney Hawkins stated if the Council finds the EAW is mandatory because it falls within the 250 contiguous lot requirement, then they do not have to make a findings. The findings section applies only if the EAW is the Council's option. Mr. Winds chit 1 - again asked for a legal opinion of contiguous property, arguing under any real estate definition it would not be considered contiguous because of the railroad tracks. Attorney Hawkins did not know, as there may be some definition in their regulations. They must look at the intent of that Statute in making sure that property is developed in a pattern next to each other. Mr. Grorud - stated they are not a "group" opposing the rezoning as alleged by Mr. Windschitl. It is individual residents trying to do what they can. If the EQB didn't find that the EAW is mandatory, it probably is just because they did not have all the information. He found it illogical that in addressing the environmental concerns, which is what the Statute is trying to address, that the separation of a 300-foot strip of railroad track would allow one to ignore the combined environmental effects that the two pieces of property would have on traffic congestion and the wetlands. The reason for the EAW is to determine what impact the higher density would have on the wetlands area. He didn't think the Council should assume that all of the information has been provided to the EQB by the members of the community. Mr. Windschitl - again stated all environmental issues dealing with water, water runoff, water quality, etc. , have already been addressed and permitted. Councilmember Jacobson called the question. .- , - - --- Regular Andover City Council Meeting Minutes - November 16, 1993 Page 12 (Rezoning/Ashford Development/Sections 25 and 26, Continued) VOTE to call the question: carried unanimously. VOTE on Motion for EAW: Carried unanimously. Mr. Windschitl - asked for a copy of the motion as soon as possible. In the event tomorrow between his attorney and the City Attorney there is a determination made that the action was contrary to the law, what is to happen? Attorney Hawkins stated he will deal with that issue if it comes about. He suggested Mr. Windschitl's attorney call him tomorrow. VARIANCE/1433 161ST AVENUE NW MOTION by Knight, Seconded by Jacobson, the Resolution presented granting the variance request of Tony Emmerich ¡~gstruction, Inc., to Ordinance No.8, Section 6.02 which requires a foot setback from a major arterial to allow for the construction of an addition to a single- family residence encroaching 11.4 feet into the required setback; insert in the second WHEREAS, ".. .which would preclude the property owner reasonable use of the property, caused by the county's widening of CoRd 20;". (See Resolution R274-93) Motion carried unanimously. APPROVE ANNUAL IMPROVEMENT PROGRAM GUIDELINES, CONTINUED MOTION by Jacobson, Seconded by Knight, approval of the Annual Improvement Program Guidelines as presented with the following changes: Page 3, Section B, Developer Guarantees, Item No.4, which reads "Developer-Constructed Public Improvements"; add "Developer-Constructed Public Improvements if so approved by the City." Last Page, Section 8, Non-Municipal Utilities, change to, "The developer shall deposit with a non-municipal utility a sum equal..." DISCUSSION: After some discussion, it was agreed that because the City is not involved in the deposit for relocation of non-municipal utilities, Subdivision B is to be deleted entirely. Councilmember Jacobson CHANGED motion to delete Subdivision B of Section 8 on the last page. Second Stands. DISCUSSION CONTINUED: There was some concern that Section 6, Improvement Ahead of Schedule, on Page 4 actually negates the entire policy. Mr. Davidson stated in other cities this section was in conjunction with allowing the developer to escrow the funds themselves outside of the normal procedure. To date the City has not had any developer-funded projects. Mr. Haas felt this procedure is what is normally done now under the 429 procedure when the public hearings are waived. Mayor McKelvey felt this section will be needed if the expansion of the MUSA area is not provided in a timely manner. Councilmember Jacobson CHANGED motion to change the first sentence under Section 6 to, "The Council may give consideration to advancing developer financed improvements subject to the following:". Second Stands. Motion carried unanimously. Regular Andover City Council Meeting Minutes - November 16, 1993 Page 13 OPTION AGREEMENT/WASTECO SITE Attorney Hawkins stated the owner of the Wasteco Site does not want to tie up the property for six months, the term of the option authorized by the Council for that property. He also wants some type of affirmative statement from the City as to what is being considered for development of the site. The Council noted the purpose of the six-month time period is to determine how to develop the property. After further discussion, it was generally agreed to attempt to negotiate a four-month option. MOTION by Jacobson, Seconded by Knight, the offer be for a four-month period for the same amount of money to the owner of the Wasteco Site. Motion carried unanimously. NON-DISCUSSION ITEMS MOTION by Knight, Seconded by Perry, to approve Items: 9 . Approve 1994 Liquor and Cigarette Licenses 11. Accept Withdrawal of Variance/J. Kunza/Crooked Lake Tire with no refund money 13. Extend Acting Administrator's Temporary Salary 14. Approve TKDA Temporary City Engineer 16. Release Escrow/Leeman Lake Estates 18. Accept Easements/159th Avenue/IP91-16 Motion carried on a 4-Yes, 1-present (Jacobson) vote. 1994 PROPOSED TAX RATE MOTION by Knight, Seconded by Jacobson, Item 15b be tabled to some later date as the Council should not be discussing money at this time of night. Motion carried unanimously. (Note: See Mayor/Council Input, Page 15) ACCEPT BIDS/SKID-STEER LOADER Frank Stone, Public Works Supervisor, reviewed the bids for a Skid-Steer Loader and attachments. He recommended the low bid, with the funds to come from the 1992 Equipment Bond. MOTION by Jacobson, Seconded by Dalien, that we authorize the City Staff and Mayor to sign the necessary documents to purchase a 7753 Bobcat Skid-Steer Loader from Tri-State Bobcat with the attachments for total purchase price including tax of $23,729.58; funds to come from the Equipment Bonds 1992 . Motion carried unanimously. .- . Regular Andover City Council Meeting Minutes - November 16, 1993 Page 14 The Council recessed at this time to meet with the City Attorney in closed session regarding three cases of litigation, 10:40; reconvened at 11:31 p.m. APPROVE CLASSIFICATION AND SALE OF FORFEIT LANDS MOTION by Knight, Seconded by Jacobson, we purchase the following tax forfeit properties: PIN 34 32 24 31 0009, PIN 34 32 24 23 0055; and PIN 17 32 24 23 0007. Motion carried unanimously. AMEND 1993 BUDGETS Mr. Sulander reviewed ~he proposed amendments to the 1993 budgets for the General Fund, the PIR Fund, the Water and Sewer Funds, and for the Central Equipment Fund. MOTION by Perry, Seconded by Dalien, the Resolution amending the 1993 General Fund, Permanent Improvement Revolving Fund, Water Fund, Sewer Fund and Central Equipment Fund budgets as presented. (See Resolution R275-93) Motion carried unanimously. CONSIDER REDUCTION OF ACCAP ASSESSMENTS Mayor McKelvey noted the request from the Anoka County Community Action Program to abate the special assessments of $9,406 for the properties at 13595 and 13587 Poppy Street NW. The Council generally felt that was a lot of money to abate with no apparent source to make up that for the assessments. It was also learned that the price for the lots was reduced for the ACCAP by the county. MOTION by Jacobson, Seconded by Perry, that the City not abate the amounts of the assessment of $9,406 across the properties as per the request on November 8, 1993, from the Anoka County Community Action program, address on the two lots being 13595 and 13587 Poppy Street. Motion carried unanimously. ACCEPT RESIGNATION/CITY ADMINISTRATOR/ENGINEER Mayor McKelvey noted the letter of resignation from Jim Schrantz as he is unable to work, and he read the letter of appreciation to be signed by the Council for the years of dedication and service to the City the past 12 years. The Council discussed other means of acknowledging appreciation to those who have served the City. Councilmember Perry suggested a tree be planted in one of the City parks on Arbor Day with a met: 1 garden marker indicating the dedication to a specific employee, Councilmernber, etc. The Council agreed. MOTION by Perry, Seconded by Jacobson, to accept the resignation of Jiw Schrantz with regret. Motion carried unanimously. ~ I Regular Andover City Council Meeting Minutes - November 16, 1993 Page 15 APPROVE AGREEMENT/IP91-28/GRACE LUTHERAN CHURCH/PROFESSIONAL BUILDING It was the opinion of the Council that the agreement presented did not accurately reflect the prior agreement per Council motion on June 15, 1993. The street is to be maintained like any other street, with the costs being assessed if it is ever re-constructed. It was agreed to send the agreement back to Meadow Creek Associates and Grace Lutheran Church to be redrafted according to the original agreement, after which it should be reviewed by the City Attorney. Councilmember Dalien also noted the documents are written such that the east-west portion of the street is stated to be a driveway easement. He will see that those are reworded to be designated a City street. The Council agreed. APPROVAL OF CLAIMS MOTION by Knight, Seconded by Perry, the payment of claims of $1,975,031.55. Motion carried unanimously. MAYOR/COUNCIL INPUT Special City Council Meeting - Council agreed to discuss Item 15b, which was tabled previously in the meeting, at a special meeting on Tuesday, November 30, 1993, 7:00 p.m. at the Public Works Building. MOTION by Perry to adjourn. Motion carried unanimously. The meeting was adjourned at 12:08 a.m. Respectfully mitted, '\'v~a:=;' <ccUL Recording Secretary