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HomeMy WebLinkAboutCC - August 18, 2009 i CIITY lrDo 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US Regular City Council Meeting — Tuesday, August 18, 2009 Call to Order — 7:00 p.m. Pledge of Allegiance Resident Forum Agenda Approval 1. Approval of Minutes (8/5/09 Regular) Consent Items 2. Approve Payment of Claims — Finance 3. Approve Revisions to Assessment Manual (Policies & Procedures Guide) - Engineering 4. Approve Drainage & Utility Easements /09- 30/15005 & 15019 Eagle Street NW - Engineering 5. Amend Fee Ordinance No. 360 — Administration 6. Approve Commercial Refuse/Recycler Hauler License/Lepage & Sons — Administration © Discussion Items 7. Anoka County Sheriff's Department Monthly Report — Sheriff 8. Consider Declaring Dangerous Dog — Administration 9. Public Hearing/Consider Amendment to CUP for Time Extension/Meadow Creek School Subordinate Classroom Structures /3037 Bunker Lake Blvd. -- Planning 10. Consider Revised Planned Unit Development/Andover Clocktower Commons/NE Corner of Hanson & Crosstown Blvds. NW - Planning 11. Consider Awarding Bid /09 -11 /Water Treatment Plant Building Expansion — Engineering Staff Items 12. Schedule September EDA Meeting - Administration 13. Administrator's Report -Administration Mayor /Council Input Executive session — Open Space Negotiations /29- 32 -24 -44 -0022 Adjournment C A I T Y O F © ND OVE 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US REGULAR ANDOVER CITY COUNCIL MEETING — AUGUST 18, 2009 MINUTES The Regular Bi- Monthly Meeting of the Andover City Council was called to order by Mayor Mike Gamache, August 18, 2009, 7:00 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW, Andover, Minnesota. Councilmembers present: Sheri Bukkila, Don Jacobson, Mike Knight, Julie Trude Councilmember absent: None Also present: City Attorney, Scott Baumgartner Director of Public Works /City Engineer, Dave Berkowitz City Administrator, Jim Dickinson Community Development Director, Will Neumeister Others © PLEDGE OFALLEGIANCE RESIDENT FORUM No one wished to address the Council. AGENDA APPROVAL Councilmember Trude asked that Item 3 be moved to discussion for a minor change. Motion by Jacobson, Seconded by Knight, to approve the Agenda as amended above. Motion carried unanimously. APPROVAL OFMINUTES August 5, 2009, Regular Meeting: Correct as amended. Councilmember Trude stated on page 2, line 14, the word should be changed to "severally ". © Motion by Jacobson, Seconded by Trude, to approve the minutes as indicated above. Motion carried unanimously. Regular Andover City Council Meeting Minutes —August 18, 2009 Page 2 CONSENT ITEMS Item 2 Approval of Claims Item 4 Approve Drainage & Utility Easements /09- 30/15005 & 15019 Eagle Street NW Item 5 Amend Fee Ordinance No. 360 (See Ordinance 387) Item 6 Approve Commercial Refuse/Recycler Hauler License /Lepage & Sons Motion by Trude, Seconded by Jacobson, approval of the Consent Agenda as read. Motion carried unanimously. APPROVE REVISIONS TO ASSESSMENT MANUAL (POLICIES & PROCEDURES GUIDE Councilmember Trude stated she wanted to change the last sentence at the bottom of the page. It needs to be rearranged to read "...in cases where high volume neighborhood streets are © assessed..." Motion by Jacobson, Seconded by Trude, to approve the revisions to the Assessment Manual as shown on the attachment. Motion carried unanimously. ANOKA COUNTYSHERIFFS DEPARTMENT MONTHL Y REPOR T Investigator Scott Knealing updated the City Council on Law Enforcement Activities within the City in July. Mayor Gamache asked if there was a fine for inattentive driving and he thought that texting and not paying attention while driving could incur an extra fine if pulled over. Investigator Knealing stated the crime itself is inattentive driving and there are other categories that fall into that. It is a misdemeanor charge. Councilmember Trude asked if having a GPS attached to the front of the vehicle legal in Minnesota. Investigator Knealing stated as long as it does not obstruct your vision it is legal. Anything hanging from the rear view mirror is an obstruction along with a cracked windshield. CONSIDER DECLARING DANGEROUS DOG Mr. Dickinson stated on February 10, 2009 and August 1, 2009 a dog left it's property and attacked a dog causing injury. © Regular Andover City Council Meeting Minutes —August 18, 2009 Page 3 Mr. Dickinson reviewed the information with the Council. Councilmember Jacobson asked if the dog was licensed at the time of the incident. Mr. Dickinson stated it was not. Councilmember Jacobson asked if it was licensed now. Mr. Dickinson stated he did not have time to check with the Deputy City Clerk because she is out of the office. Ms. Krista Uhl clarified that the dog has attacked seven times and she has only called and filed a police report on the last two occasions. She stated incident number five is when he caused bodily harm and she was under the impression that a report was filed at that time which after attack number seven she found out it was not filed appropriately. She indicated she also had a letter from another resident regarding an attack they experienced with the same dog. She felt the dog did not deserve a second chance because the owners have been extremely irresponsible and there have been no apologies and no remorse and no improvement on the dog's part. She asked that the dog be deemed a dangerous dog and be required to comply with all the dangerous dog restrictions. Mayor Gamache asked what happened with the last incident. Ms. Krista Uhl explained the situation to the Council. Q Councilmember Knight asked if it was true that one incident she got between the dogs to break them up and got bit. Ms. Ubl indicated it was but she never reported the incident because she wanted to give them another chance to improve the behavior of the dog. Councilmember Knight asked if the dog deliberately tried to bite her. Ms. Ubl stated she was trying to separate the dogs because the Boxer was clenched onto her dog's neck. Councilmember Bukkila asked what injuries were incurred this last time. Ms. Krista Ubl stated this last time she was able to strike the dog and the dog jumped back from her dog. Mayor Gamache asked for a time period of the seven dog attacks. Ms. Krista Uhl reviewed the dates of the incidences with the Council. Councilmember Knight asked if any human was attacked or if it was all dog on dog attacks. Ms. Krista Ubl stated it was all dog on dog attacks. Councilmember Trude asked what her observation is when she brings her dogs for a walk, does she make sure it is safe to leave her property now before walking. Ms. Krista Ubl stated that was correct and as a result her Lab is very anxious and nervous around strange dogs and needs to be medicated because he has nightmares. She stated the owners have never been outside when the dog has attacked. © Ms. Krista Ubl stated in incident four the dog was not up -to -date on his vaccinations. Councilmember Jacobson stated in the letter Ms. Krista Ubl presented to the Council from a neighbor it identifies two incidences indicating the dog barked in a non - friendly way with teeth barred but did not say the dog attacked anyone or any other animal. Ms. Ubl stated she was not © Regular Andover City Council Meeting Minutes —August 18, 2009 Page 4 present at those two incidences but what she was told was the dog came out into the street and the neighbor had to kick the dog to get him out of the way. Councilmember Trude stated they received an additional letter from the residence on Dakota Street in Andover about two incidences of the dog leaving the property and confronting the resident and their dog. Mr. Chris Nowak, 14417 Eldorado Street NW, stated he has reviewed the items the City sent him and reviewed the claim and believed that the only incident at issue that falls within the definition under Section 5.1, A -1, is incident number four which occurred on February 7, 2009 and was reported on February 10, 2009. He stated the other six incidents Ms. Ubl named did not result in injury to another animal or person and should not be classified as that. He stated in incident four they felt bad and paid for her dogs vet bill, which was also noted in the police report. He realized he needed to handle his dog's ability to get out of the yard and he will be getting a fence, which he has already received a quote for and will be installed tentatively on August 31, 2009. He did not believe his dog met the criteria under Element B of the dangerous dog/cat law. To assert that he has met the criteria based on he said/she said evidence is extremely harsh financially and emotionally to both his family and himself. He stated his dog can be around his children 24 hours a day without supervision along with other children that enter their house and other dogs. He stated he did have letters from neighbors deeming his kind and behaved demeanor and also had a record of the time he was kenneled and they are professionals deeming his behavior. He stated he was on notice with Ms. Ubls' issues with his dog, resolving it from happening going forward and cannot see how their family dog can be deemed dangerous. He stated he regretted this has escalated to this hearing and was embarrassed he had to get neighbors, friends and family involved in this matter. He stated he could not risk not diligently raising a defense in light of the heavy financial and emotional consequences of deeming his dog a dangerous dog for his family and him. Councilmember Trude asked what kind of fence he got a quote for. Mr. Nowak stated the quote was for either a four -foot galvanized or a four foot vinyl fence but they are actually looking more at a wood fence instead of a galvanized one after talking it over with his wife. Councilmember Trude stated from his comments he is saying that the only one that counted was when the victim had to take her dog to the vet to get sewn up so she thought he was kind of denying this incident on August 1, 2009 that his dog went out and attacked her dog and bit at the dog and keeping it from continuing on its walk even though it did not harm the dog. Mr. Nowak stated he was not at the incident but the person that was at the incident has a completely different story than Ms. Ubl and could talk to that. Councilmember Trude stated the reason he received the letter from the City is because of the many Q incidences that occurred with the dog and he should have received the letter in February 2009 and she thought they can acknowledge what has happened retrospectively and indicated that the dog's behavior is not acceptable in the community. People in the neighborhood should not feel like they cannot use the streets for walking because of fear that his dog will come out and attack them and she wondered if Mr. Nowak felt this was excusable. Mr. Nowak stated he was not saying that was © Regular Andover City Council Meeting Minutes —August 18, 2009 Page 5 excusable but he thought there was a difference between what Ms. Ubl feels is an attack and what he feels is an attack. He saw it more as dogs going up to one another and sniffing and the one incidence where the dogs attacked is where there was bodily harm done. Councilmember Trude did not feel that an attack is only when skin is broken and do not have to find the attack necessarily involves being attended to by a vet. Councilmember Jacobson asked if the dog was currently licensed. Mr. Nowak stated the dog was. Councilmember Jacobson asked if the dog was previously licensed. Mr. Nowak stated it was not. Councilmember Jacobson asked why the dog was not previously licensed. Mr. Nowak stated the dog is 1' /2 years. old and he did not know the City laws in regard to this. Councilmember Jacobson asked if a fence is installed in the yard what will prevent the dog from getting out. Mr. Nowak stated the fence is the containment and he truly believed that since the first incidence there have not been any others that have happened since that point. He has rebuilt their deck and the dog is let outside into the back yard instead of the front. He stated his father -in -law is the one that let the dog outside the day of the attack and his father -in -law stated when their dog saw the other dog he got excited but did not think he would have left the yard if there would not have 10 been any commotion caused by Ms. Ubl. He stated he totally understood her fear but he felt the dog was provoked to leave the yard. Councilmember Knight suggested putting a kenriel in instead of fencing because it is more secure. Mr. Nowak stated he could do this also. Councilmember Jacobson asked if Mr. Nowak has ever been contacted by anybody else in his neighborhood regarding their concern for the dog. Mr. Nowak stated he has not. Councilmember Jacobson asked the City Attorney for the legal description of a dangerous dog. City Attorney Baumgartner reviewed the City Ordinance with the Council. Mayor Gamache stated fences have a tendency to be left open, especially with children. He explained to Mr. Nowak what he would need to do if the dog were labeled a potentially dangerous dog. Councilmember Trude stated she wanted to hear the other family members version of what happened on August 1, 2009 and they also have a provision for nuisance dogs and if another one of these incidences was documented with a police report their dog would not have to attack, it would j ust be declared a nuisance which will allow the City Council to abate the nuisance by requiring them to take the dog out of the City. © Mr. Nowak read into the record a statement from his father -in -law, Mr. Spike Pouphal, who was at the August incident. Councilmember Bukkila stated they are looking at a fairly young dog that is probably hyper and ® Regular Andover City Council Meeting Minutes —August 18, 2009 Page 6 excites easily. She stated the unfortunate thing about a dangerous dog is that ultimately the decision the Council makes impacts the dog. Mr. Nowak has several incidents that should have indicated to him several months ago that he needed to do something to restrain the dog. She was willing to go with a fence option but was concerned with the four -foot height. Mayor Gamache asked for clarification from Ms. Ubl about the photo that was in the Council packet and wondered if that was from the February 2009 incident. Ms. Ubl stated that was correct. Councilmember Trude asked if Ms. Ubl wanted to comment about the August 1, 2009 incident. Ms. Ubl stated there was not anyone out with the dog on the August incident. She reviewed the incident with the Council. Mayor Gamache stated it seems from the February incident that the owners of both dogs were working on this together which was the first documented case. He stated they do not have to label a dog potentially dangerous before the label it a dangerous dog and legally they could move ahead with the dangerous dog label. They have two reports and there was bodily harm to the dog at one time. He stated in the ordinance it indicates what type of injury and how severe but he was not sure how they would determine that. © City Attorney Baumgartner stated there has been discussion about bodily harm and in the ordinance and Statute it talks about substantial bodily harm and there is a difference. He reviewed the Statute with the Council indicating it states "Substantial bodily harm means bodily injury which involves a temporary but substantial disfigurement or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ or which causes a fracture of any bodily member. He stated for the Council there are two routes that can be taken in regard to this, one would be to already have it deemed potentially dangerous and then the second incident. The Council has already acknowledged that has not already occurred because the dog has not been deemed potentially dangerous by notification as required by their ordinance so that leaves them to the second option which is the Council's determination whether or not there has been substantial bodily harm which would classify the dog as a dangerous dog. Councilmember Trude asked if the focus of the Statute was based on physical injury. City Attorney Baumgartner stated that was correct. Councilmember Trude thought this would be a continuing problem with the two dogs because they do not seem to like each other but they still need to look at whether the dog is aggressive to any other animal. Councilmember Jacobson asked if they could look at declaring this dog a nuisance and require © confining it to a kennel or fenced in yard and if there is another incidence that it automatically need to be removed from the City. City Attorney Baumgartner suggested the Council could declare the dog as potentially dangerous by the letter and by the dog owners concession that he will be putting up a fence to defer a determination of a dangerous dog on the condition that the fence be put up and with the understanding that there are two strikes against the dog and a third will require removal. He © Regular Andover City Council Meeting Minutes — August 18, 2009 Page 7 thought this would be a wise decision on the owner's part. If the Council is struggling with whether or not this fits within the dangerous dog category, he thought this might be middle ground to assure this does not happen again and remind the dog owner of the consequences. Councilmember Knight suggested the owner of the dog purchase a six foot tall kennel and then let the dog out once a day on a leash because a dog this size will either climb over a four foot fence or dig under a fence. Councilmember Trude did not think the victim would be comfortable seeing the dog outside of the kennel without a leash. Mayor Gamache thought there was an understanding from the dog owner where he would not take the risk of losing the dog. Mr. Dickinson stated the dog is declared potentially dangerous and if the Council defers on this he asked that some criteria be put on the dog owner. He requested a time frame be put on this. Councilmember Trade stated they could defer the motion to allow the owner to install a fence or kennel and can only be outside on a leash and if any of these conditions are violated they would declare the dog a nuisance. Councilmember Bukkila thought the dog would need to be off the property before it would be declared. Councilmember Trade agreed but indicated she did not want to see the dog in the front yard without a leash on. © Councilmember Jacobson asked why Councilmember Trade would want to wait until another incident to declare the dog a nuisance. Why not declare the dog a nuisance now with the conditions discussed so that if anything else happens the dog can be immediately removed. Councilmember Trade explained the declaration of a nuisance requires them to abate the nuisance by having the dog removed from the City. Councilmember Jacobson stated to abate it would be to have a proper enclosure such as a fence or kennel for the dog and if the dog gets out or is a problem after that then the dog is removed. City Attorney Baumgartner stated if they want to declare this dog to be a nuisance they have to go about it in one of two ways, either that the dog has without provocation inflicted substantial bodily harm which gets them back into the determination of whether or not substantial bodily harm has been met. The other way is that the dog engaged in conduct resulting in three or more established violations of this article. They have two established. Councilmember Trade did not think they could declare the dog a nuisance because their definition of that requires them to abate a nuisance. They could acknowledge that the dog has been off the property at least two times of record because they have to rely on police reports and photographic evidence. Mayor Gamache thought Councilmember Trude may have been on the right track with her motion. © Motion by Trade, Seconded by Bukkila, to defer a decision about the declaration of the dog being a nuisance which requires abatement according to their City ordinances so long as the dog is not observed off the property or outdoors without a leash. The owner will determine how to best comply with that by either constructing a fence or kennel for the dog to be contained within the yard by Regular Andover City Council Meeting Minutes —August 18, 2009 Page 8 September 1, 2009. Councilmember Knight once again suggested a kennel because a fence will not contain a dog and allows a dog to be very threatening to others. Councilmember Trade stated in the future when an officer is called on an issue like this the Council would not want them to be concerned with neighborhood relationships and a citation should be issued. Mr. Dickinson stated the Sheriff's Department has been notified of this and believed the due diligence process is underway now. City Attorney Baumgartner asked for a point of clarification. He stated the motion talked about deferring the determination as to whether it is a nuisance now. The notice was for a dangerous dog and if they are going to deter the determination and if it comes back on the Council agenda as a nuisance, if that is what the Council decides to do, the Council then has a different set of alternatives that it can use and he wanted to be sure the Council understands that with a nuisance they have the right to abate the nuisance by either putting the dog down or removing the dog from the City. The alternative is if they want to defer a determination if this is a dangerous dog and should that come back on the Council agenda and the Council deems it a dangerous dog there is different mechanisms © that can be put into place such as allowing the dog to remain with the proper enclosure, the insurance policy so he wanted to make sure that the Council is aware that if this comes back depending upon what is being deferred tonight will set the options. Councilmember Trade indicated she did not state in her motion and wondered if the City Attorney had any advice on which way to go. She wondered if they could leave this open and defer the designation. Mr. Dickinson stated they could defer the determination of dangerous dog because if there is one other instance on this dog it triggers abatement. Motion was restated by Trade, Seconded by Bukkila, to defer the decision of determining whether the dog is dangerous which if violated will trigger abatement according to their City ordinances so long as the dog is not observed off the property or outdoors without a leash. The owner will determine how to best comply with that by either constructing a fence or kennel for the dog to be contained within the yard by September 1, 2009. Mr. Dickinson stated when the letter of potentially dangerous that goes out rarely do they see these come back to the Council. He noted they have sent out many over the past years. Councilmember Jacobson reviewed the motion. Councilmember Trude knew this was not what Ms. Ubl was looking for but they have to be cautious on how they apply the rules because there are dogs that do not get along with other dogs and then there are some dogs that do not get along with one or t'Wo other dogs. She did not think it was at the point where this dog should be destroyed but this will require the owner to control the dog. Ms. Ubl stated the incidence where the dog did do bodily harm to her dog the officer did not do the © Regular Andover City Council Meeting Minutes —August 18, 2009 Page 9 due diligence and write up the potentially dangerous dog report which when she phoned the officer the officer told her that the report was written and she trusted that the report was filed properly. Only on August 1, 2009 did she know that a dangerous dog report was not filed for the February 2009 incident. She indicated to the officer that she did not want a citation but did want a dangerous dog report. The officers' police report was inconclusive. She felt the dog has already caused bodily harm and now attacked again and believed the dog is a dangerous dog. Councilmember Tiede stated this will prevent the dog from leaving the property. Ms. Ubl did not think that the dog deserved a second chance. She recommended a higher fence since a Boxer can jump fairly high. Councilmember Trude stated if a fence is installed she would like the owner to review the plans with someone on staff before getting a permit so there is a comfort level that they are getting a structure that is going to do the job. Motion carried unanimously. PUBLICHEARINGICONSIDERAMENDMENT TO CUPFOR TIMEEXTENSIONIMEADOW © CREEKSCHOOL SUBORDINATE CLASSROOMSTRUCTURES /3037BUNKERLAKEBLVD Mr. Neumeister stated Meadow Creek School has requested additional time for the existing subordinate classroom structures. No changes to the existing buildings are proposed. Mr. Neumeister reviewed the information with the Council. Motion by Knight, Seconded by Trude, to open the public hearing. Motion carried unanimously. Mr. Shelly Johnson, Meadow Creek School Superintendent, stated they were requesting a two -year extension of the classroom structures. He stated it is something they need and they will be using them. Right now the lease has been extended two years and will be consistent with that. Councilmember Jacobson stated in the letter the premise for the extension of the permit is based upon their plans of constructing a new school at 161 Avenue and Tulip Street. He has heard that this is not an option for them anymore. He stated he has heard a number of rumors that the site will not be built on and that they are looking for another site. Mr. Johnson stated he would not have the appropriate background to answer that except based on what he has heard being on the j ob for three days, it is an option to build on that property and there are other options out there which will be looked at as well. He stated there could also be an option of going back to the church for a third year as far as an extension is concerned so those would be the options he has eyeballed in the short time he has been on board. © Councilmember Trude asked if they wanted the Council to extend this three years until August 2012. She stated the quality of the portables varies somewhat but there are inspections that occur on a regular basis and they do not require renewals on the ones on school property but these are on church property. She wondered if it would make planning easier to pick a different date since she did not © Regular Andover City Council Meeting Minutes —August 18, 2009 Page 10 see a problem with the location because this is a large area. Mr. Johnson stated if their procedures and ordinances allow three years they would be grateful for that since it is possible they will have to go to the church and ask for a third year extension. Councilmember Trude stated she would like to amend the resolution to extend this for three years to 2012 since she has not seen any church or school get things done as fast they hope. She also understood these are inspected. on a regular basis. Fire Chief Winkel stated the Fire Marshall tries to get in to inspect the structures as often as they could. Councilmember Jacobson stated if the school vacates earlier than 2012 he does not want this to be an automatic turn over to the church, they would have to come in and get their own permit since this is granted to the school and not the church. Councilmember Trude stated the underlying property owner is the church. Councilmember Jacobson stated this is to the school. Councilmember Trude thought this complicates their ordinance since they are looking at who the underlying property owner is. Councilmember Jacobson stated that would be the church. Councilmember Trude asked if they could grant a CUP to someone who is a subordinate. Mr. Dickinson indicated the school has a valid lease. Mr. Neumeister stated there is one other church, Andover Christian Church that has an expiration of 2013. This was approved not long ago and thought it was for five years. Councilmember Jacobson stated this was not for a school; it wag for a Sunday school. Motion by Knight, Seconded by Trude, to close the public hearing. Motion carried unanimously. Motion by Trude, Seconded by Knight, to approve the resolution amending the Conditional Use Permit, extending the approval for the subordinate classroom structures for Meadow Creek Christian School, striking the year 2011 and replacing with 2012, August 31, 2012 or upon termination of the lease if earlier. Councilmember Jacobson stated on Item seven in the resolution it indicates the Special Use Permit would expire in June 2012 or earlier upon the sale of the premises. That is not accurate; it would not be upon the sale but upon the termination of the lease, because they are in a lease and cannot sell the property. Motion carried unanimously. (See Resolution R063 -09) CONSIDER REVISED PLANNED UNIT DEVELOPMENT /ANDOVER CLOCKTOWER COMMONS/NE CORNER OF HANSON & CROSSTOWN BLVDS NW Mr. Dickinson stated this item continues the discussion of a 3 /4 direct access to Crosstown Boulevard NW for the Andover Clocktower Commons development. Regular Andover City Council Meeting Minutes— August 18, 2009 Page 11 Mr. Dickinson reviewed the information with the Council. Councilmember Jacobson asked if they took items 14 and 16, deleted them and did not put in a right turn lane, would the questions go away. Mr. Berkowitz stated he would not advise that for safety concerns, they felt a right turn lane is necessary. Mayor Gamache thought there needed to be a right turn lane with the speed limit at 50 mph. Councilmember Trude stated they have the traffic speed study in progress and the school crossing guards would like to have the speed limit lowered in that area. She wondered if they could change the speed limit based on the new State Law. Mr. Berkowitz explained he sat on the speed limit task force and what the determination of the task force was. Mr. Dickinson thought the spacing had to be at three hundred for at least a quarter mile. Mr. Berkowitz stated that was correct and they do have residences periodically throughout that section but would not meet the criteria. Councilmember Knight asked if the school would meet the criteria. Mr. Berkowitz stated it would not because they are talking about rural residential roadways. Councilmember Trude asked to have City Attorney Baumgartner to look into the language of the new law. Councilmember Jacobson stated only items 14 and 16 are the only two items the two groups do not agree upon. Mr. Dickinson stated that was correct in respect to the engineering report. Councilmember Jacobson thought everything else was agreeable to everyone. Mr. Berkowitz stated that was correct and they would support bituminous curb in this situation to help the issue between the trail and right turn lane, if that is acceptable by the City Council since it deviates from the City policy. Councilmember Jacobson asked how far apart the two parties in agreement on the two issues are. Mr. Berkowitz stated the applicant's proposal on the right turn lane is a total of 170 feet, which includes the turn lane plus the taper. City staff is proposing 270 feet, which is less than the standard in the roadway design manual but because of the constraints in the geometries fit within that location. The other item is the storrnwater; the applicant has proposed to pick that up with the French drain which is a hole with rock in there that will speed up the infiltration rate of the water. The concern the City staff has is that it is a shallow ditch and French drains in their experience are the last resort when there is no other feasible option. The concern they have is that in freeze /thaw conditions the water will freeze, pool up and make its way to the emergency overflow which is on Bluebird Street which can cause icing and maintenance problems in that location. Councilmember Trude asked if the turn lane is shortened to the 170 then does the drainage problem disappear or not as difficult. Mr. Berkowitz stated it exists in both conditions. Councilmember Trude stated if they do not have a turn lane then they do not have a storm Regular Andover City Council Meeting Minutes — August 18, 2009 Page 12 problem. Mr. Berkowitz stated there will still be storm water and the opportunity to correct the situation is there. Councilmember Trude asked if there was already a defect in the ditch system. Mr. Berkowitz stated right now there is no ditch system in that location and whenever they make improvements they do whatever they can to make it right. Councilmember Trude stated if they go with the 170 -foot right turn lane there is still the complication and there is not a temporary or interim fix other than connecting the storm sewer all the way under Bluebird Street to that pond. Mr. Berkowitz stated that would not be correct. There is an existing stub off of Bluebird Street and they would look at that connection instead of the French drain. The Council reviewed with staff how they can correct the water problem with the ditch. Councilmember Trude stated she did not have a problem with a shorter turn lane and she would not have a problem if they just stripe the road that it was straight or a right turn off the road if it is © just going to get more complicated. Councilmember Knight stated he would not have a problem with that either. Councilmember Jacobson wondered what the applicant had to say about the two items. Mr. Darren Lazan, BDT Holdings, stated they have two issues which one can be easily resolved. He stated deficient conditions exist today and there is no curb there, there is no ditch there. The water runs to the catch basin around the corner and what they have proposed is to improve that condition to what they see constructed immediately west of there which is a ditch section with no outlet. All the area between Bluebird Street and the end of the pond is a ditch section with no outlet. Mr. Lazan reviewed with the Council their plans for the right turn lane and storm sewer improvements they are proposing to make. Mr. Lazan stated in regards to the surety the City is holding their certificate of occupancy on that entire improvement and he would argue that this is adequate surety. Mayor Gamache asked what they are currently holding for a surety on the project. Mr. Dickinson stated for the initial project, developer installed improvements is based on the value of the project and security needed on the project would be 105 %. He stated they are not holding any security at this point. Mr. Dickinson reviewed what City staff is asking for security for the project. The Council discussed the issue of security for the project. Councilmember Jacobson asked if this was interim/temporary and when they sell one of the two lots they have to go to a permanent solution, he assumed the applicant and the City Engineer Regular Andover City Council Meeting Minutes —August 18, 2009 Page 13 have looked at the permanent solution and did not have any major problems with whatever that is going to be. He asked if they were really looking at this interim solution for a very brief time because he wondered if one of the lots was getting ready to be sold. Mr. Lazan stated they did not have any plans to sell either of the lots at this time and have not had any offers to date. Mr. Lazan stated a staged surety is what this project has today in place. They provide sureties as each of the lots come in for development. He stated this was uniquely set up and would be very consistent with what exists today in the PUD. To ask them to post both the interim and the final in today's banking climate is asking them to build the final. Councilmember Jacobson stated in any PUD the City bends the rules and makes unique circumstances and for the ability to do that the City usually asks for something in return. In this particular case what are they getting in return for bending the rules. Mr. Lazan stated what was provided for this project in the way of design, landscape architecture, islands in the parking lot, lighting standards, all those pieces are far beyond City code and he thought if they looked at the project in aggregate he thought the City still received more than what was given in terms of flexibility. The only deviation in the original PUD was zero lot lines and a very small setback at © the McDonald's drive thru. They did not take a lot from the original PUD. Councilmember Bukkila asked what the total cost difference was between the two. Mr. Lazan stated it was around $30,000. Councilmember Bukkila asked what they were looking at as far as big picture and the potential for their businesses and what is their return for the new access. Mr. Lazan stated this is not as easily quantified as the rest of the development. Certainly another access benefits businesses and will add percentages. Councilmember Trude stated on the plans they were given were dated August 10, 2009 and on these plans did they have the deals that were worked out as of Friday, August 14, 2009. Mr. Lazan stated they did not. There was a thirty-one item list that staff made in response to those plans and he and Mr. Berkowitz went through them and whittled them down to three or four items. Those plans need to be revised again to pick up the twenty revisions. Councilmember Trude asked if the Council were to approve the plans submitted and dated with the revisions agreed to as required by the City Engineer in the meeting you had through August 18, 2009 then that would put the applicant in the driver's seat with the length of turn lane and the storm sewer and she wondered if the applicants Engineer would sign the plans. Mr. Lazan stated they would have to go back and look at some of the items that came up during the discussion with Mr. Berkowitz but he believed their engineer would sign them. Mr. Lazan stated what they are proposing is not ideal and he agreed with the City Engineer but felt it was better than what currently exists there. Councilmember Trude wondered if they should just put a stripe straight/right turn arrow on the road until business picks up since there is not much traffic going in there now. Mr. Lazan stated it would certainly alleviate the storm curve /cross load issues that are remaining. Regular Andover City Council Meeting Minutes —August 18, 2009 Page 14 Mr. Dickinson stated the issues are the drainage issue and the turn lane length. He suggested they could vote individually on these issues whether they want them in the resolution or not. The other issue is the security requirements. Mayor Gamache stated this proposal he was not really in favor of from day one but he thought City staff has provided the Council with their professional advice on what the project should be and obviously they are now looking at something less than what was originally advised. The three quarter intersection without the concrete median was the major issue and it does not meet the standards they have set as a policy. Mr. Dickinson has indicated that the Council must have the security issue addressed and he thought what they were looking on the three standards, item 11 was allowing the bituminous curb which is against their policy. The tapering involves looking not only at the length of the right turn lane which they do not have a reduced speed limit at this time which is also going against policy and then they have the storm water issue which can be fixed if they do not do anything and just have a right turn off the road. He knows it was mentioned that these changes will make things more marketable but it does not seem to be something in 2010 there will be development so long term on this project this does not seem to help except to help some of the businesses over there. He is not sure if this is necessary now. His suggestion would be to give them access off the road when they develop lot 3 and lot 4 of block 1 and then they can get all the proper improvements done to their roadway at that time instead of a make shift project right now since this will probably not bring a new business into the site. Mayor Gamache indicated he did not like this and thought they were setting a precedent for future commercial development that is in the City and he was not willing to do that today. Mr. Lazan explained the reason why they needed this entrance for their existing businesses to survive in the current economy. Councilmember Knight asked what other items would go against City policy. Mr. Berkowitz explained some of the items such as a shortened right turn lane to the Council, which was discussed. Motion by Trude to approve the resolution to approve the amendment to the approved PUD. Mayor Gamache asked what about the points that are outstanding. Councilmember Trude indicated they would work their way through it. On the Resolution it says "Now Therefore It Be Resolved" should state "The City Council, the City of Andover hereby approves the proposed amendment and on item one design and construction of the interim intersection improvements shall conform to the commercial site plan submitted by Clocktower Commons dated August 10, 2009 with all the revisions agreed to in discussions with City engineers staff as of August 18, 2009." Item two stays as is, which are the development contract and the financial security. Item three they need to insert the word permanent in front of improvements and the financial security section, she thought the sentence needs to be changed so Regular Andover City Council Meeting Minutes —August 18, 2009 Page 15 that it reads: The applicant shall provide financial security at the time of permitting of either lot 3 or lot 4 of block 1 for the permanent improvements ". Mayor Gamache asked if they were removing City Code 1 -7 -3. Councilmember Trude stated it should read "the financial security as determined by City Code 1 -7 -3 in a form acceptable to the city to guarantee that these improvements will be completed at the time a building permit is approved for Lot 3 or Lot 4 of Block 1." Councilmember Trude stated she understood the way she drafted this because they did not have one presented to them that had something they could work from that would go with the shortened right turn lane and the storm sewer improvements that have been agreed to date. Mayor Gamache asked if Councilmember Trude is adding on a number 4 condition in regard to the lane. Councilmember Trude stated this was covered by the plans presented to the Council. Mr. Dickinson indicated what will happen is the applicant will submit a modified plan with the improvements on it. Councilmember Knight seconded the motion for discussion. Councilmember Knight asked if they had a shortened turn lane and at some time in the future after development the change is needed can't they at that point extend the lane. Mr. Berkowitz stated the way it is set up now is the interim improvements would be built now and when a lot is sold the permanent improvement which includes the full turn lane would be done. Councilmember Trude wondered if the whereas clause should be a condition because it just clarifies and maybe should read "...of the west bound right turn lane accessing Clocktower Commons as described by the feasibility study of City project file 08 -20A at the time lot 3 or lot 4, block 1 is built upon." Because they cannot do a permanent full improvement because that would include Mr. Holasek's property, which may never be developed. Mr. Dickinson indicated this would be covered under item three in the Now, Therefore, Be It Resolved that it does identify right turn lane improvements. Councilmember Bukkila asked what the liability was going with the shortened interim with deviating from the standards. Councilmember Trude stated it is a discretionary decision. City Attorney Baumgartner stated this is an unknown and anything is possible. What he thought looking forward if there was to be a lawsuit typically what an attorney would do on behalf of his injured client would look to see whether or not there were certain requirements or design standards that are typical or industry standards out there and to see whether or not there is a deviation from those. Councilmember Jacobson stated his understanding was they needed to do something tonight. Mr. Dickinson stated they needed to do something or ask for an extension from the applicant. Councilmember Jacobson stated when this started out he asked the number of people who asked Regular Andover City Council Meeting Minutes —August 18, 2009 Page 16 for the improvement was below the minimum so it brought into question if they needed a simple majority on this vote or sixty percent. Mr. Dickinson stated they just needed the simple majority since it is not a 429. Councilmember Jacobson stated when it says in the resolution that this is to be designed and constructed to conform to the recommendations of the engineering department memorandum dated on the 14' There are two questions in the memorandum that they do not agree upon. Councilmember Trude stated she struck that clause in her motion. Mr. Dickinson stated it was changed to accept what was proposed by the applicant. Councilmember Jacobson stated other than from the Cities point of view that they are violating some design guidelines does staff see any other problems if the motion were to pass. Mr. Dickinson stated it is reflected in the record the staff recommendations and they are under the PUD process, which provides them with the opportunity to negotiate a development. Absent this process, some of these items relating to code would require a variance and that would likely not be a successful process based on the proving of a hardship. The Council, staff and the applicant reviewed the motion, changes and if it was acceptable to everyone. Councilmember Trude stated the City Attorney suggested in the resolution under item 1 instead of striking the reference to the engineering memorandum dated August 14, 2009 that they leave that in since it does incorporate all of these pages back and forth between City staff and the other engineers and then omit the ones they would defer to the applicants plan on. Councilmember Trude stated she would amend the resolution. Item 1 to read: "Design and construction of the interim intersection improvements shall conform to the recommendations of the Engineering Department memorandum dated August 14, 2009 and follows City policy for developer installed improvements except for on item 11, the Council authorizes bituminous curb, on item 14 the Council accepts that the professional engineer of the developer as far as the length of the turn lane and of item 16 the Council accepts the recommendation of the developers engineer" so then the rest of the recommendations in the memorandum stand. Councilmember Knight agreed to the changes. Mr. Lazan stated their proposal was to allow the process of establishing the speed limit to determine the taper lengths and staff indicated the speed limit was 50 and needs to be 50. He would like it to be included that if the speed limit were to be lowered he would like to bring the tapers back to not extend through Bluebird Street. Councilmember Trude stated she would like to add item 4 to the resolution to read "The subsequent speed study, if the speed limit is reduced that the length of the tapers are reduced." Councilmember Bukkila indicated they were already reducing it. Mr. Berkowitz explained what Regular Andover City Council Meeting Minutes —August 18, 2009 Page 17 a taper is. Councilmember Trude withdrew the addition of item #4. Councilmember Trude suggested if there was a difficulty in reconciling the resolution with the intention of the Council they authorize the City Attorney to help draft the final resolution to conform to the discussions they have had. Mr. Dickinson indicated he was clear on the intent of the Council and was confident in his notes. Motion following the restatement by Trude, Seconded by Knight, to approve the amended resolution based on discussion from the above minutes. Motion carried 3 ayes, 2 nays (Gamache, Jacobson). (See Resolution R064 -09) CONSIDERAWARDINGBID 109- 11/WATER TREATMENTPLANTBUILDINGEXPANSION Mr. Berkowitz stated the City Council is requested to receive bids and consider awarding the contract for Project 09 -11, Water Treatment Plant Building Expansion. Motion by Jacobson, Seconded by Knight, to accept bids and award the contract to Gridor Construction in the amount of $699,500 for Project 09 -11, Water Treatment Plant Building Expansion. Motion carried unanimously. (See Resolution R065 -09) SCHEDULE EDA MEETING The Council is requested to schedule an Economic Development Authority (EDA) meeting at 6:00 p.m. before the September 1, 2009 City Council meeting. Motion by Jacobson, Seconded by Trude, to schedule an EDA Meeting for September 1, 2009 at 6:00 p.m. Motion carried unanimously. ADMINISTRATOR REPORT City Administrator Dickinson updated the Council on the administration and city department activities, meeting reminders, and miscellaneous items. Mr. Berkowitz updated the Council on engineering activities in the City. Mr. Neumeister updated the Council on development activities in the City. MAYOR/COUNCIL INPUT Regular Andover City Council Meeting Minutes — August 18, 2009 Page 18 (Firefighter Update) — Councilmember Jacobson stated there was a fire last week. which required one of the firefighters to go to the hospital and he wondered what became of that. Mr. Dickinson stated he did not know the full story but the firefighter is fine. (Storm Damage) — Councilmember Knight asked if they had any tornado damage in the previous storm. Mr. Dickinson indicated they did not. The Council recessed at 9:45 p.m. to the Closed Session to discuss open space negotiations — PID 29- 32 -24 -44 -0022. The Council returned from Closed Session at 10:28 p.m. Motion by Trude, Seconded by Jacobson, to adjourn. Motion carried unanimously. The meeting adjourned at 10:28 p.m. Respectfully submitted, Susan Osbeck, Recording Secretary fl Regular Andover City Council Meeting Minutes —August 18, 2009 Page 19 REGULAR ANDOVER CITY COUNCIL MEETING MINUTES — AUGUST 18, 2009 TABLE OF CONTENTS PLEDGE OF ALLEGIANCE .......................................................................... ............................... 1 RESIDENTFORUM ....................................................................................... ............................... 1 AGENDA APPROVAL ................................................................................... ............................... 1 APPROVAL OF MINUTES ............................................................................ ............................... I CONSENTITEMS .......................................................................................... ............................... 2 Approvalof Claims ..................................................................................... ............................... 2 Approve Drainage & Utility Easements /09- 30/15005 & 15019 Eagle Street NW .................... 2 Amend Fee Ordinance No. 360 (See Ordinance 387) ................................. ............................... 2 Approve Commercial Refuse /Recycles Hauler License /Lepage & Sons .... ............................... 2 APPROVE REVISIONS TO ASSESSMENT MANUAL (POLICIES & PROCEDURES GUIDE) ................................................................................................... ............................... 2 ANOKA COUNTY SHERIFF'S DEPARTMENT MONTHLY REPORT .... ............................... 2 CONSIDER DECLARING DANGEROUS DOG .......................................... ............................... 2 PUBLIC HEARING /CONSIDER AMENDMENT TO CUP FOR TIME EXTENSION/MEADOW CREEK SCHOOL SUBORDINATE CLASSROOM STRUCTURES /3037 BUNKER LAKE BLVD (See Resolution R063 -09) ......................... 9 CONSIDER REVISED PLANNED UNIT DEVELOPMENT /ANDOVER CLOCKTOWER COMMONS/NE CORNER OF HANSON & CROSSTOWN BLVDS NW (See Resolution R064 -09) ............................................................................................... ............................... 10 CONSIDER AWARDING BID /09 -11 /WATER TREATMENT PLANT BUILDING EXPANSION (See Resolution R065 -09) ............................................. ............................... 17 SCHEDULE EDA MEETING ....................................................................... ............................... 17 ADMINISTRATOR REPORT ...................................................................... ............................... 17 MAYOR/COUNCIL INPUT ......................................................................... ............................... 17 FirefighterUpdate ..................................................................................... ............................... 18, StormDamage .......................................................................................... ............................... 18 ADJOURNMENT.......................................................................................... ............................... 18 Q