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HomeMy WebLinkAbout08/28/07• 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 . (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US Andover Planning and Zoning Commission Meeting Agenda August 28, 2007 Andover City Hall Council Chambers 7.00 p.m. 1. Call to Order 2. Approval of Minutes — August 14, 2007. 3. PUBLIC HEARING City Code Amendment establishing Interim Performance Standards for Hughs/Westview Industrial Parks. 4. PUBLIC HEARING City Code Amendment to modify the requirements of City Code 5 -1 Animal Control. • 5. Work Session: a. Subdivision Ordinance Discussion. 6. Other Business 7. Adjournment L J C I T Y O F ND 0VE 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Planning and Zoning Commissioners FROM: Courtney Bednarz, City Planner SUBJECT: Item 2. Approval of Minutes - August 14, 2007 DATE:. August 28, 2007 Request The Planning and Zoning Commission is asked to approve the minutes from the August 14, 2007 meeting. • • LNDO WEA is 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US PLANNING AND ZONING COMMISSION MEETING — AUGUST 14, 2007 The Regular Bi- Monthly Meeting of the Andover Planning and Zoning Commission was called to order by Chairperson Daninger on August 14, 2007, 7:00 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW, Andover, Minnesota. Commissioners present: Chairperson Daninger, Commissioners Tim Kirchof� Michael Casey, Valerie Holthus, Devon Walton, Douglas Falk and Dennis Cleveland. Commissioners absent: None Also present: City Planner, Courtney Bednarz Associate Planner, Andy Cross Associate Planner, Chris Vrchota Others APPROVAL OF MINUTE& July 24, 2007 Motion by Walton, seconded by Falk, to approve the minutes as presented. Motion carried on a 5 -ayes, 0 -nays, 2- present (Holthus, Kirchoff), 0- absent vote. PUBLICIEARING: VARIANCE (07 -02) TO VARYFROMSIDE YARD SETBACK REQUIREMENTS FOR PROPERTYLOC4TED AT 771141 NW. Mr. Vrchota stated the applicant is requesting a variance to the side yard setback to allow for the construction of a deck. Commissioner Walton asked if the original size was for 10 x 13 or was it sized down. Mr. Vrchota indicated it was the original plan. Motion by Walton, seconded by Casey, to open the public hearing at 7:04 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. • No one wished to address the Commission. Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 2 Motion by Casey, seconded by Falk, to close the public hearing at 7:05 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Commissioner Walton asked by the photos shown in the packet, were the buckets where the footings would be. Mr. Vrchota indicated it appeared to be that way. Mr. Tim Ehlers, 771 141` Avenue NW, stated the buckets were ten feet out from the ledge. Commissioner Walton asked if ten foot wide was what Mr. Ehlers wanted or was it to minimi their concerns. Mr. Ehlers stated it is actually thirteen feet wide to match the door but it is ten feet off the house. He stated this was the original size he was looking at. Chairperson Daninger stated they have current zoning ordinances to try to eliminate some of these issues. He wondered if staff had any idea how many they may see before what they have done to correct this starts to work. Mr. Vrchota indicated they do not have any idea but they could pull the surveys of homes built over time if needed. Chairperson Daninger indicated they did not need that. Commissioner Walton stated that was exactly why the correction was made and it fits right in. 0 Motion by Walton, seconded by Casey, to recommend to the City Council approval of the proposed variance. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Mr. Vrchota stated that this item would be before the Council at the August 21, 2007 City Council meeting. PUBLIC HEARING. CONDITIONAL USE PERMIT AMENDMENT (07 -10) TO ALLOW EXPANSION ON THE METROPOLITAN MOSQUITO CONTROL SITE LOCATED AT 1280 BUNKER LAKE BOULEVARD NW. Mr. Bednarz explained the applicant is requesting an amendment to their conditional use permit to allow additional office space, a new storage building and additional parking area. Mr. Bednarz discussed the staff report with the Commission. Commissioner Holthus wondered who the governing board was for the Metropolitan Mosquito Control District. She wondered if it was owned by an individual. I& Richard Gauger, President and Owner of Gauger Engineering, Inc., representing Metropolitan Mosquito Control District for all of their construction work in all seven Regular Andover Planning and Zoning Commission Meeting Minutes — August 14, 2007 • Page 3 counties. He stated the Board consists of County Commissioners from all seven counties. He stated this is a public entity, created by the State. Motion by Walton, seconded by Casey, to open the public hearing at 7:16 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Mr. Richard Gauger reviewed their plans with the Commission. Commissioner Kirchoff asked if they have discussed combining access with the Highway Department. Mr. Gauger stated that issue was discussed at the Park & Recreation Committee meeting this past week and it was determined that the spacing is too great to make the combination. Commissioner Kirchoff asked if there was a concern with having irrigation. Mr. Gauger stated they would work with staff as to whatever that would involve. He stated they have very little green space available to them with the exception of the native plantings around the site. Mr. Wayne Gilbert, Architect, stated the reason for the no irrigation is they are developing a sustainable green project on this site. One of the aspects of that is not having irrigation and using natural or drought resistant plants. Commissioner Holthus asked if they had a sample or photo of the metal material to be used on the building. Mr. Gauger indicated it is intended to have the look of an EIFS or stucco material and it is an insulated panel. Chair Daninger stated the Sheriffs Department is making a new complex on the site next to this and he wanted to make sure this was addressed and fits into their plans. Mr. Gauger indicated this is something they are aware of and the entire complex has been looked at He noted they are quite a ways east of what they are planning on doing. Chair Daninger asked if this plan was the reason some of those trees were excavated in the front of this building. Mr. Gauger stated nothing has been done on the property they lease but work may have been done on the right -of -way for road improvements. Chair Daninger indicated in the photograph in the packet shows landscaping and he wondered if this was some of the landscaping they are going to see. Mr. Gauger stated that was the concept plan and the Parks Department is providing input for this and the type of trees. He stated they are in the process of making an application to the Building Department for their review and there will be a more detailed presentation. Mr. Gilbert showed the siding sample to the Commission for review. • Motion by Casey, seconded by Kircho$ to close the public hearing at 7:28 pm. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 4 Commissioner Falk stated he would like to have irrigation at this site because he thought it would enhance the building site. Commissioner Kirchoff agreed and thought it would enhance the area around the building. He did not think the entire site would need to be irrigated. Chairperson Daninger asked if everyone was comfortable with the building architecture. Commissioner Kirchoff stated he liked it a lot more than what was there now. The Commission discussed possible wording in the motion for irrigation on site. Commissioner Walton wondered if there was any need to go out the back side of this development to tie into the big complex that the County Sheriffs Office is building. He wondered if they thought that through. He also asked if there could be an opportunity to have an access road back through the County towards Hanson for the large trucks. He also thought if there is an opportunity for a frontage road with the County and their offices and this one, he hoped they would bring it up and talk about it and come up with a plan so there are fewer concerns with traffic on Bunker Lake Boulevard. • Motion by Walton, seconded by Falk, to recommend approval of the proposed conditional use permit amendment with the proposed architecture illustrated in the attachments and a variance for partial irrigation of the property and to have the applicant work with staff to find a suitable compromise on the irrigation plan. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Mr. Bednarz stated that this item would be before the Council at the August 21, 2007 City Council meeting. PUBLIC HEARING: CONDITIONAL USE PERMITAMENDMENT (07 -09) AAIENDIIVGAPPROVAL OFA CHURCHONRESIDENTL4L PROPERTY LOCATED AT 475 ANDOVER BOULEVARD NW. Mr. Cross stated last December, Sambulsa of Minnesota, Inc. received approval for a Conditional Use Permit to add a temple to an existing house located at 475 Andover Boulevard. The applicants would like to change those plans and build a separate prayer room on the site, leaving the existing house untouched. Mr. Cross discussed the staff report with the Commission. Commissioner Kirchoff wondered what they were going to do with the existing house. Mr. Cross said it will continue to be a residence for the one person *pm +�n on site. Commissioner Walton stated they had a double driveway on the property and according • to the site plan they have a double driveway servicing the neighboring property. He asked Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 • Page 5 if they are getting rid of the loop driveway that formerly serviced this property and he wondered if they were fine with the distance to the comer on the new driveway. Mr. Cross indicated they were. He stated the driveway that appears on the drawing is a rough conceptual drawing and the one that will appear on the commercial site plan will undergo a thorough review and will have to meet the minimum safety distance. Commissioner Walton asked if the existing parking lot distance is far enough away from neighboring property line. Mr. Cross stated that it was. The minimum setback for the parking lot is twenty feet and there is also a screening requirement for around the parking lot. Motion by Walton, seconded by Kirchoff� to open the public hearing at 7:41 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Mr. Jack Prescott, Member of Congregation, stated they are running on a small budget and by building a separate building it will save them a considerable amount of money. He proposed to just irrigate the screening on the south and east side of the building because they will have someone on site at all times to water everywhere else. Commissioner Falk wondered what the new structure will look like compared to the existing one. Mr. Prescott stated the present building currently has a rough wood type of siding on it and they will take the siding off that and replace it with vinyl to match the new building. Commissioner Kirchoff stated the reason they gave the variance for irrigation to the Mosquito Control site was because they were planning on having natural draught resistant plantings on site. He stated this was not given just because it was a commercial site. He stated there were two findings for the variance. Bunker Hills Park is a natural native vegetation area. Mr. Bednarz thought it was important to understand the way the Code provides the regulation for irrigation. He reviewed the code with the Commission. Mr. Prescott indicated if they were to irrigate the entire property they would have problems because they do not have City water. The applicant showed the site plan of the area and explained where they planned on putting the building, parking lot and landscaping. Commissioner Falk asked if they are going to be putting in a larger septic. Mr. Cross stated the Engineer has been looking at this and they will be required to submit a septic system plan. 0 Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 6 • Commissioner Falk asked if the driveway will be paved The applicant indicated it would be. Commissioner Falk asked if it would have curb and gutter. The applicant stated it would Motion by Walton, seconded by Kirchoff, to close the public hearing at 7:55 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Commissioner Walton wondered if the parking lot would have lighting. Mr. Cross indicated it would Commissioner Falk asked if the irrigation would be in ground or would it be above ground sprinklers. Mr. Cross stated it would be in ground irrigation. Chairperson Daninger stated if this was denied, this would go back to the original plan. Mr. Cross indicated that was correct, Motion by Walton, seconded by Holthus, to recommend approval of the Conditional Use Permit amendment as presented Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Mr. Cross stated that this item would be before the Council at the August 21, 2007 City Council meeting. 0 WORK SESSION A Consider Interim Performance Standards for Hughs/Westview Industrial Parks Mr. Vrchota stated a couple of months ago City Code Enforcement staff received a complaint about a roll-off dumpster business being operating from a property in the Hughs Industrial Park. After an inspection was done and the owner of the property was contacted, it was determined that the roll-off business had been operating from the property for nearly 2 years. Staff determined that a Conditional Use Permit (CUP) was needed to operate the roll-off service on the property. The City Code requires that when a commercial site is expanded or the use is changed so that a CUP is required, the entire site be brought up to the City's zoning standards, including: parldng lot pavement, curb and gutter, landscaping, lighting, etc. Based on the types of businesses located in the area, the age of the properties, and current land values, the property owners have indicated that it would not be financially feasible to make all of the required site improvements. In response to this issue, staff brought up two options for the Council to consider, as this may also affect other property owners at Hughs/Westview Industrial Park. Option 1 was to create a new zoning district, for instance an "I -2" zone, to establish a different set of • standards for the rural industrial park. Option 2 was to establish a set of interim Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 . Page 7 performance standards that would be in place until city sewer and water become available. After receiving input from the City Attorney, the Council decided that the second option was preferable. If the City were to create a set of interim performance standards in the City Code for use in the rural industrial park, it would create some flexibility over how strictly the City's zoning standards are applied to these businesses. This would allow the City to require essential improvements to the properties while also allowing the businesses to expand or be otherwise improved in a financially feasible way. Mr. Vrchota reviewed the types of requirements that the City could offer flexibility on and the return for the reduced zoning standards. Mr. Vrchota stated the interim performance standards would be crafted so that they only apply to the rural industrial park for the limited period of time. The intent is that the interim performance standards would remain in place until city sewer and water services are available to the industrial park. After these services are made available through the Rural Reserve, all properties in the Hughs/Westview Industrial Park would need to be brought into compliance with the performance standards that are in place at that time if any further expansion, site improvements, or change of use is made. . Mr. Vrchota a- explained that the City cannot waive, modify, or vary from the Building Code, Fire Code, or National Pollutant Discharge Elimination System (NPDES). Any structural changes or expansion to the buildings or changes of use inside the buildings would trigger Fire and Building Code requirements, possibly including the installation of fire suppression systems. Expansion of impervious surface area would trigger storm water ponding/treatment requirements under the NPDES. While meeting this requirement could require a significant investment, they are not negotiable. Laws and statutes adopted at levels higher than the City mandate that they be met. Commissioner Holthus thought the interim performance standards that she read about in the rural area made sense because they do not have City sewer and water and considering the costs associated with putting in the curb and gutter and irrigation, she thought it made sense. As far as how flexible they should be, she thought they should always look at when they decide how much leniency they are going to give based on those previous standards. She thought they should first consider safety. Will their decision affect or create unsafe working or traffic conditions? They should consider the effect on the general public, the neighborhoods around that area. She thought they should consider if the general public is going to that location as customers and she thought they should also consider if it is reasonable and appropriate. She stated they should discuss what level of improvement they should expect so when a business expands or changes a user that requires a CUP, they might have staff review some of the items and determine whether or . not they are appropriate and reasonable. Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 8 • Commissioner Cleveland asked when in the foreseeable future they can see City water and sewer go that far north. Mr. Vrchota stated at this point it is difficult to pin a date on that. He stated it all depended on when the Rural Reserve area develops. Commissioner Cleveland stated he did not want to have an open ended interim time because that would give the businesses an excuse not to improve their site. Commissioner Kirchoff stated he liked what Co Holthus said. He stated they are trying to work their way to improving the area but easing up on some things and getting towards what Commissioner Holthus stated. He liked the idea of having staff review plans. Commissioner Holthus thought they should be able to be flexible in this area because it is a rural type of area and it may not be reasonable to require all the lighting that a typical commercial area would be required to do. The applicant could go to staff to apply for a variance because they felt it was not reasonable or appropriate in the area She did not know how much they want staff to accomplish or how much flexibility they would have. Chairperson Daninger agreed with wondering how much flexibility to give staff. He would rather have this set up as some sort of review standard. Commissioner Falk thought there should be some sort of check and balance sheet for • commercial areas. Mr. Bednarz stated what they have heard from the business owners out there is that they are concerned with approaching the City with a CUP application because they do not know what kind of requirements are going to come into play. He stated if they can put some type of standard in place and be consistent with at least what they can look at or consider would be helpful for them. He did not think a true case by case basis would help. Chairperson Da asked if their goal was to state there should be something and there should be a set standard or is staff looking for the Commission to tell them what the standard is. Mr. Bednarz thought they were looking for a yes or no answer whether this is worth pursuing and if the answer is yes, he suggested instead of taking a numerical or ratio approach, to take a look out there to see what is there now and think about if someone wanted to expand an operation out there what they should do to make it right. Commissioner Walton stated in the commentary it states "the property owners have indicated it would not be financial feasible to make all the required site improvements" and he believed they discussed thoroughly before with the used car dealership they were trying to establish. They imposed standards on him that they have in place today and he did not lice it and came back twice but he did go by the standards they established and put in a nice looking business out there. He stated this was also his comment that it • would not be financially feasible out there. He found a way to do it and got it done. If the City made the used car business come up to their standards why should they develop Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 . Page 9 interim standards just because they have one or two people making the same statements he made at the very beginning? If anything, he was the one they should have given variances and made exceptions for. He thought it would be wrong to change the standards now for a couple of other businesses. Commissioner Kirchoff explained he liked what was said but maybe it was a matter of looking at use changes instead of what is being done on the property. Mr. Bednarz stated the Council did allow a number of variances for the used car business site. He stated a very substantial investment was made by the owner but not to the full measure of the performance standards. Chairperson Daninger asked how their performance standards compared to other cities. He stated he was not in favor of changing the standards. Commissioner Walton wondered how the roll off business came to be established in Andover. Mr. Vrchota stated they are renting some back lot area from the property owner who runs another business in the main building on the site and they are using part of the back storage area. Commissioner Walton asked if the business would have to leave Andover if the City did not grant them some variances for their operation to run. Mr. Vrchota indicated that was correct or they could apply for the conditional use permit and meet all of their performance standards. He stated they would still need the CUP for the exterior storage. What they are looking at is what improvements would need to be made to the site as part of that approval. Chairperson Daninger asked the Commission how they felt about this issue. Commissioner Holthus thought it was a good idea to have the interim performance standards. Commissioner Casey indicated he was leaning towards keeping it the same as a precedence establishment. Chairperson Daninger indicated he also wanted to keep this the same. Commissioner Kirchoff stated they need to keep it the same but they are open to some of the variances that will go on with each individual property as they come along. Commissioner Falk stated he would like to leave it the same and likes the standards that the city has set Commissioner Cleveland stated he was torn. He did not like the idea of having a two tiered system. It doesn't seem that this is an unreasonable request but he also did not think their standards are too high. Commissioner Walton stated he wanted to leave it the same. Consensus of most of the Commission was to leave this policy as is based on recent history. • Commissioner Walton stated they have a variance process and there were some things granted towards the end of the process to help the used car dealership come along and Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 10 • help get it completed but there was also a significant investment out there that was made to get the business going. Chairperson Da stated in reference to the used car dealership he had a lot of neighbors ask him what was going to be done to make it look nicer because they drive by it everyday and there is an expectation in Andover that they want their neighborhood to look good. Commissioner Holthus did not think the interim standards are to allow things to not look good. Chairperson Daninger stated that was correct but how long could they not improve their property. Commissioner Holthus did not think it was something that would create a lower standard or something that is not attractive. She thought it was something to ease the current standards and make it more reasonable for those businesses. Chairperson Daninger agreed and indicated he was still willing to work on it because they make it so difficult to not meet the standards that nothing gets done. Something that Commissioner Holthus is suggesting is not something he disagrees with and there is some merit there and if Council guides them to review that further they will. Commissioner Walton stated a suggestion was made when they reviewed the used car dealership about the applicant not know if the business will do good and that he did not want to spend a lot of money to improve the site if it was not going to survive. The applicant asked the City to allow him to try to get off the ground with the business and • get it going before the improvements were imposed and the City would not allow it They could have had that applicant do part of the improvements but that did not happen. He thought they will be looking at this again in the near future. B. Receive Copy of Land Use and Sewer Chapter of Comprehensive Plan for future discussion. Mr. Bednarz stated preparation of the decennial comprehensive plan update has reached a point where substantive review can be made by the Planning Commission and City Council. Mr. Bednarz reviewed the intent of the future discussion with the Commission. Mr. Bednarz updated the Planning Commission on related items. Mr. Bednarz mentioned that on September 11, the St. Francis District is going to have a bond referendum, which means the Commission cannot start their meeting until 8:01 or they could move the date. The Commission decided to start the meeting at 8:01 p.m. on September 11, 2007. • Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 • Page 11 Chairperson Daninger asked about Clocktower Commons and the progress. Mr. Bednarz updated the Commission on what is happening. Commissioner Walton wondered if a person can live on the Sambulsa church site because he thought this was a commercial site or does it fall into another category. Mr. Bednarz indicated the CUP for a church on a residential property is what they approved and is really the same as it is for any church in town. Mr. Cross noted this does not change the zoning of the property; it remains a residentially zoned property. ADJOURNMENT: Motion by Falk, seconded by Casey, to adjourn the meeting at 8:46 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Respectfully Submitted, Sue Osbeck, Recording Secretary • TimeSaver Off Site Secretarial, Inc. ` C I T Y O F NDOVE� • 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Planning and Zoning Commission FROM: Chris Vrchota, Associate Planner N SUBJECT: PUBLIC HEARING: City Code Amendment establishing Interim Performance Standards for Hughs/Westview Industrial Parks. DATE: August 28, 2007 INTRODUCTION The Planning Commission reviewed a proposal for the creation of interim performance standards for the Hughs /Westview industrial park area at the August 14 ' meeting. The Planning Commission was not in favor of creating interim standards, but indicated a willingness to review and provide input on a potential code amendment if the City Council wanted them to do so. The City Council has indicated that they want to proceed with a code amendment to create interim performance standards for the Hughs /Westview industrial park area. DISCUSSION The goal of the interim performance standards is to create some flexibility in how the City's zoning standards are applied in this area. This would allow the City to require essential improvements to the properties while also allowing the businesses to expand or be otherwise improved in a financially feasible way. The interim performance standards will only apply to the rural industrial park and only for a limited period of time. The interim performance standards will remain in place until city sewer and water services are available to the industrial park area. After these services are made available through the Rural Reserve, all properties in the Hughs/Westview industrial park area will need to follow the normal performance standards that are in place at the time any further expansion, site improvements, or change of use is made. A Conditional Use Permit application will need to be submitted to allow for the interim performance standards to be used. This will allow staff, the Planning Commission, and the City Council to review the sites in detail and make decisions on a case -by -case basis. The City cannot waive, modify, or vary from the Building Code, Fire Code, or National Pollutant Discharge Elimination System (NPDES). Significant structural changes or expansion to the buildings or changes of use inside the buildings could trigger Fire and Building Code requirements, possibly including the installation of fire suppression systems. Expansion of impervious surface area (additional building space, paved areas, etc...) would trigger storm water ponding/treatment requirements, under the NPDES. While meeting these requirements could require a significant investment, they are not negotiable. Laws and statutes adopted at levels higher than the City mandate that they be met. Attachments Ordinance Council Minutes- July 24, 2007 Planning Commission Minutes- August 14, 2007 Map • ACTION REQUESTED The Planning Commission is asked to hold a public hearing, review the proposed code amendment, and make a re�com ndation of approval or denial to the City Council. R�p�ctfully submitted, Chris Vrchota CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA • ORDINANCE NO. AN ORDINANCE CREATING INTERIM PERFORMANCE STANDARDS FOR THE HUGHS /WESTVIEW INDUSTRIAL PARK AREA WHEREAS, interim performance standards for the Hughs/Westview industrial park area have been created, and; WHEREAS, the proposed changes have been reviewed and recommended for approval/denial by the Planning Commission. NOW THEREFORE BE IT RESOLVED, THE CITY COUNCIL OF THE CITY OF ANDOVER HEREBY ORDAINS (Underlining being newly added language and strike- outs indicating language to be removed): 12- 13 -23: INTERIM PERFORMANCE STANDARDS: A Pumose• Interim performance standards are intended to establish an alternative level of site improvements for properties located in the rural industrial area generally referred to as the Hughs/Westview industrial park area. The City . acknowledges that the lack of municipal utilities limits the development potential of these properties These performance standards are intended to allow continued use expansion and redevelopment with a level of site improvements that is commensurate with the development potential of the properties. B Applicability and Scope: This section shall aoply to any expansion of use requiring a conditional use permit or commercial site plan on all properties generally described as the Hughs/Westview industrial park area and legally described as the southwest quarter of the northwest quarter of Section 16, Township 32 Range 24 Anoka County Minnesota and the west half of the west half of the southeast quarter of the northwest quarter of section 16 Township 32, Range 24 Anoka County, Minnesota. C Procedure: Applications shall be processed under the Conditional Use Permit procedures described in City Code 12 -14 -6 except as follows: 1 Application• The property owner or designee shall submit a complete application to the Community Development Department. A complete application consists of the following: a A completed Conditional Use Permit form and fee as described in City Code 1 -7 -3. • 2 b. A site plan that describes all of the existing and proposed site • improvements including the dimensions of the property, buildings, parking landscaping and storage areas and distances from property lines. c A letter describing the existing use of the property, the proposed use of the property and all of the proposed site improvements. d Other information deemed necessary by staff to review the request. 2. Council Determination: The City Counci shall approve or deny the application based on the criteria established in this section. The City Council may attach such conditions as they determine necessary provide the appropriate level of site and building improvements to accomplish the purpose of this section. The level of required improvements shall be determined on a case -by, -case basis. D Review Criteria: Applications shall be reviewed based on the following criteria. 1. Existing_ appearance of the building and site; 2 Compatibility of the proposed site development plan with the other industrial properties in the area; 3 Effect of the proposed use and the proposed site development plan on the . adiacent residential neighborhood including_ traffic, noise, glare, buffers, and environmental impacts; 4. Parking and Impervious Surface Areas: a Screening landscaping visual appeal and lighting of parking lot areas b. Paving of parking areas for customers. c Dust control measures for unpaved parking and storage areas. 6 The amount type location and screening of exterior storage requested as a part of any Conditional Use Permit. 5 Screening of mechanical equipment and trash bins/dumpsters. 7 Other factors related to the new development proposal as the City Council may deem relevant. E Term of Approval: Interim performance standards approved under this section shall endure until City sewer and water are extended into the area affected by this section At that time any future expansion or redevelopment of the affected properties shall be required to fully conform to the regular performance standards • of City Code 12 -13. F Other Requirements: Proposed improvements or changes in use will be reviewed by the Building Official and Fire Chief. They, will make a determination of 3 whether or not the buildings) on the site need to be brought into compliance with applicable building and fire codes. Site improvements must also be made to meet the requirements of the National Pollutant Discharge Elimination System • (NPDES) No portion of this section shall be used to vary from these requirements. Adopted by the City Council of the City of Andover this day of 2007. CITY OF ANDOVER Attest: Michael R. Gamache — Mayor Victoria Volk — City Clerk • L� . Special Andover City Council Workshop Meeting Minutes — July 24, 2007 Page 6 Council decided unless a problem at 31 feet shows up, they would leave things as they are and address any issues on a case -by -case situation. Mayor Gamache suggested they notify the public about the parking safety concerns with streets less than 31 feet wide. TIFDISTRICT 1- 4INDUSTRL4L OPPORTUNITIES DISCUSSION Community Development Director Neumeister stated about a month ago, City Code Enforcement staff requested Rick Lindquist provide information relating to the current status of the site where Northern Cylinder Heads and LePage Rolloff Service are operating. The staff determined they need a Conditional Use Permit (CUP) to operate the rolloff service on the property. Mr. Lindquist and LePage have provided the information needed to process a CUP. Their CUP application is considered complete and the 60 -day review period (can be extended an additional 60 days if needed) is underway. Before staff begins processing the CUP, Council is requested to provide direction. Last month staff brought up two options for the Council to consider in dealing with the various property owners at Hughs Industrial Park. Option 1 is to create a new zoning district, say an I -2 zone to establish a different set of standards for the rural industrial park. Option 2 is to establish an interim use permit until sewer and water became available. The second option seems to be the best to pursue, because it is allowed by State Statute and will be easier to implement, and be more • flexible. The current City Code requires the entire site be brought up to the City's zoning standards including: parking lot pavement, curb and gutter, landscaping, lighting, etc. The issue that staffneeds direction on is how stringent the Council wants to be implementing the standard zoning requirements. The City cannot waive or modify Building/Fire Code and NPDES requirements. The City may have discretion over how much of the city zoning standards apply to these businesses if the City were to create an "Interim Use Permit" in the city code. The City Attorney advised staff that Minnesota Statue Statute 462.3597 allows the City to adopt "interim uses" into the City Code and set up the parameters under which an "interim use" may be granted. He asked if the Council wants to work with Rick Lindquist and LePage Rolloff Service to become a legitimate outdoor storage use on the property with a Conditional Use Permit (but have only limited zoning standards apply)? Does the Council want staff to prepare a Zoning Code Amendment to enable "Interim use Permits" to be granted in areas like the Hughs Industrial Park with interim zoning standards that require very basic interim improvements (limited cosmetic or screening improvements) but not all city standards? What level of zoning code requirements will be required of Mr. Lindquist? Councilmember Jacobson did not think they could change anything without changing the zoning. Community Development Director Neumeister responded that is correct. Councilmember Orttel stated he would like to see everything go through the Conditional Use Permit process. Councilmember Trude wants to see screening from residential and anything with retail customers. Special Andover City Council Workshop Meeting • Minutes — July 24, 2007 Page 7 Councilmember Jacobson stated he wants the screening to be kept up and maintained. City Engineer Berkowitz stated if they don't increase the impervious surface and it is functioning and operating as it is now, they should let it go, but if they do increase the impervious surface then they have to follow the rules that were set. Community Development Director Neumeister stated staff would prepare an interim use type ordinance with the City Attorney to allow this to happen and bring this through the Planning Commission. Councilmember Trude asked if there is a way to do a communal fire suppression system. Community Development Director Neumeister responded they had spoken to them about this. Fire Chief Winkel believes a fire system would be a lot more difficult to deal with than the water system. They need to look at the entire area and determine what type of fire system they need to protect all of the buildings. 2008 -2012 CIP REPORT �ity Administrator Dickinson updated the Council on the 2008 -2012 CIP. He reviewed the major At this point they would need to move out a significant amount based on the budget forecast. Her ated what those items would be. They did not have a recommendation at this time. 2008 REPORT City Administrator Di on updated the Council on the 2008 budget progress. He did not believe they would reach the co ent to maintain or reduce the City Tax Capacity Rate, utilizing recent market value growth this year. recommended they do not levy for the entire $200,000 amount for the open space referendum the firs ar. They would do what they could to maintain the 3 5 percent of planned 2008 General Fund expendr s for fund balance. He indicated 4, 5, 6 and 7 in his report would all be met. After Department He quests, the requested budget was $718,403 over available funding sources. Councilmember Jacobson requested statistics on the ested increase in the City Attorney's contract. City Administrator Dickinson asked if Council wants to accept the 2ftkheriffs contract. He noted if additional services are requested, it is likely that other City departmen ice levels will need to be reduced or eliminated. He noted personally he is supportive of it, but r ly it is difficult to provide for the cost. Councilmember Jacobson requested staff determine what it would cost for a implementation. • Regular Andover Planning and Zoning Commission Meeting Minutes –August 14, 2007 Page 6 Commissioner Falk asked if the driveway will be paved. The applicant ind' ed it would be. Commissioner Falk asked if it would have curb and gutter. applicant stated it would. Motion by Walton, seconded by Kirchoff, to close the pu ' earing at 7:55 p.m. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Commissioner Walton wondered if the indicated it would. would have lighting. Mr. Cross Commissioner Falk asked if would be in ground or would it be above ground sprinklers. Mr. Cr stated it would be in ground irrigation. Chairperson Dani r stated if this was denied, this would go back to the original plan. Mr. Cross in ' ted that was correct. r6 y Walton, seconded by Holthus, to recommend approval of the Conditional Use amendment as presented. Motion carried on a 7 -ayes, 0 -nays, 0- absent vote. Mr. Cross stated that this item would be before the Council at the August 21, 2007 City Council meeting. — * WORK SESSION A. Consider Interim Performance Standards for Hughs/Westview Industrial Parks Mr. Vrchota stated a couple of months ago City Code Enforcement staff received a complaint about a roll -off dumpster business being operating from a property in the Hughs Industrial Park. After an inspection was done and the owner of the property was contacted, it was determined that the roll -off business had been operating from the property for nearly 2 years. Staff determined that a Conditional Use Permit (CUP) was needed to operate the roll -off service on the property. The City Code requires that when a commercial site is expanded or the use is changed so that a CUP is required, the entire site be brought up to the City's zoning standards, including: parking lot pavement, curb and gutter, landscaping, lighting, etc. Based on the types of businesses located in the area, the age of the properties, and current land values, the property owners have indicated that it would not be financially feasible to make all of the required site improvements. In response to this issue, staff brought up two options for the Council to consider, as this may also affect other property owners at Hughs/Westview Industrial Park. Option 1 was • to create a new zoning district, for instance an 1-2" zone, to establish a different set of standards for the rural industrial park. Option 2 was to establish a set of interim 7 Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 7 performance standards that would be in place until city sewer and water become • available. After receiving input from the City Attorney, the Council decided that the second option was preferable. If the City were to create a set of interim performance standards in the City Code for use in the rural industrial park, it would create some flexibility over how strictly the City's zoning standards are applied to these businesses. This would allow the City to require essential improvements to the properties while also allowing the businesses to expand or be otherwise improved in a financially feasible way. Mr. Vrchota reviewed the types of requirements that the City could offer flexibility on and the return for the reduced zoning standards. Mr. Vrchota stated the interim performance standards would be crafted so that they only apply to the rural industrial park for the limited period of time. The intent is that the interim performance standards would remain in place until city sewer and water services are available to the industrial park. After these services are made available through the Rural Reserve, all properties in the Hughs/Westview Industrial Park would need to be brought into compliance with the performance standards that are in place at that time if any further expansion, site improvements, or change of use is made. Mr. Vrchota explained that the City cannot waive, modify, or vary from the Building Code, Fire Code, or National Pollutant Discharge Elimination System (NPDES). Any structural changes or expansion to the buildings or changes of use inside the buildings would trigger Fire and Building Code requirements, possibly including the installation of fire suppression systems. Expansion of impervious surface area would trigger storm water ponding/treatment requirements under the NPDES. While meeting this requirement could require a significant investment, they are not negotiable. Laws and statutes adopted at levels higher than the City mandate that they be met. Commissioner Holthus thought the interim performance standards that she read about in the rural area made sense because they do not have City sewer and water and considering the costs associated with putting in the curb and gutter and irrigation, she thought it made sense. As far as how flexible they should be, she thought they should always look at when they decide how much leniency they are going to give based on those previous standards. She thought they should first consider safety. Will their decision affect or create unsafe working or traffic conditions? They should consider the effect on the general public, the neighborhoods around that area. She thought they should consider if the general public is going to that location as customers and she thought they should also consider if it is reasonable and appropriate. She stated they should discuss what level of improvement they should expect so when a business expands or changes a user that requires a CUP, they might have staff review some of the items and determine whether or not they are appropriate and reasonable. 40 Regular Andover Planning and Zoning Commission Meeting Minutes — August 14, 2007 Page 8 • Commissioner Cleveland asked when in the foreseeable future they can see City water and sewer go that far north. Mr. Vrchota stated at this point it is difficult to pin a date on that. He stated it all depended on when the Rural Reserve area develops. Commissioner Cleveland stated he did not want to have an open ended interim time because that would give the businesses an excuse not to improve their site. Commissioner Kirchoff stated he liked what Commissioner Holthus said. He stated they are trying to work their way to improving the area but easing up on some things and getting towards what Commissioner Holthus stated. He liked the idea of having staff review plans. Commissioner Holthus thought they should be able to be flexible in this area because it is a rural type of area and it may not be reasonable to require all the lighting that a typical commercial area would be required to do. The applicant could go to staff to apply for a variance because they felt it was not reasonable or appropriate in the area. She did not know how much they want staff to accomplish or how much flexibility they would have. Chairperson Daninger agreed with wondering how much flexibility to give staff. He would rather have this set up as some sort of review standard. Commissioner Falk thought there should be some sort of check and balance sheet for . commercial areas. Mr. Bednarz stated what they have heard from the business owners out there is that they are concerned with approaching the City with a CUP application because they do not know what kind of requirements are going to come into play. He stated if they can put some type of standard in place and be consistent with at least what they can look at or consider would be helpful for them. He did not think a true case by case basis would help. Chairperson Daninger asked if their goal was to state there should be something and there should be a set standard or is staff looking for the Commission to tell them what the standard is. Mr. Bednarz thought they were looking for a yes or no answer whether this is worth pursuing and if the answer is yes, he suggested instead of taking a numerical or ratio approach, to take a look out there to see what is there now and think about if someone wanted to expand an operation out there what they should do to make it right. Commissioner Walton stated in the commentary it states "the property owners have indicated it would not be financial feasible to make all the required site improvements" and he believed they discussed thoroughly before with the used car dealership they were trying to establish. They imposed standards on him that they have in place today and he did not like it and came back twice but he did go by the standards they established and put in a nice looking business out there. He stated this was also his comment that it • would not be financially feasible out there. He found a way to do it and got it done. If the City made the used car business come up to their standards why should they develop 7 Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 9 interim standards just because they have one or two people making the same statements he made at the very beginning? If anything, he was the one they should have given variances and made exceptions for. He thought it would be wrong to change the standards now for a couple of other businesses. Commissioner Kirchoff explained he liked what was said but maybe it was a matter of looking at use changes instead of what is being done on the property. Mr. Bednarz stated the Council did allow a number of variances for the used car business site. He stated a very substantial investment was made by the owner but not to the full measure of the performance standards. Chairperson Daninger asked how their performance standards compared to other cities. He stated he was not in favor of changing the standards. Commissioner Walton wondered how the roll off . business came to be established in Andover. Mr. Vrchota stated they are renting some back lot area from the property owner who runs another business in the main building on the site and they are using part of the back storage area. Commissioner Walton asked if the business would have to leave Andover if the City did not grant them some variances for their operation to run. Mr. Vrchota indicated that was • correct or they could apply for the conditional use permit and meet all of their performance standards. He stated they would still need the CUP for the exterior storage. What they are looking at is what improvements would need to be made to the site as part of that approval. Chairperson Daninger asked the Commission how they felt about this issue. Commissioner Holthus thought it was a good idea to have the interim performance standards. Commissioner Casey indicated he was leaning towards keeping it the same as a precedence establishment. Chairperson Daninger indicated he also wanted to keep this the same. Commissioner Kirchoff stated they need to keep it the same but they are open to some of the variances that will go on with each individual property as they come along. Commissioner Falk stated he would like to leave it the same and likes the standards that the city has set. Commissioner Cleveland stated he was torn. He did not like the idea of having a two tiered system. It doesn't seem that this is an unreasonable request but he also did not think their standards are too high. Commissioner Walton stated he wanted to leave it the same. Consensus of most of the Commission was to leave this policy as is based on recent history. Commissioner Walton stated they have a variance process and there were some things . granted towards the end of the process to help the used car dealership come along and /d Regular Andover Planning and Zoning Commission Meeting Minutes —August 14, 2007 Page 10 • help get it completed but there was also a significant investment out there that was made to get the business going. Chairperson Daninger stated in reference to the used car dealership he had a lot of neighbors ask him what was going to be done to make it look nicer because they drive by it everyday and there is an expectation in Andover that they want their neighborhood to look good. Commissioner Holthus did not think the interim standards are to allow things to not look good. Chairperson Daninger stated that was correct but how long could they not improve their property. Commissioner Holthus did not think it was something that would create a lower standard or something that is not attractive. She thought it was something to ease the current standards and make it more reasonable for those businesses. Chairperson Daninger agreed and indicated he was still willing to work on it because they make it so difficult to not meet the standards that nothing gets done. Something that Commissioner Holthus is suggesting is not something he disagrees with and there is some merit there and if Council guides them to review that further they will. Commissioner Walton stated a suggestion was made when they reviewed the used car dealership about the applicant not know if the business will do good and that he did not want to spend a lot of money to improve the site if it was not going to survive. The applicant asked the City to allow him to try to get off the ground with the business and get it going before the improvements were imposed and the City would not allow it. They could have had that applicant do part of the improvements but that did not happen. He thought they will be looking at this again in the near future. B. Receive Copy of Land Use and Sewer Chapter of Comprehensive Plan for future discussion. Mr. Bednarz stated preparation of the decennial comprehensive plan update has reached a point where substantive review can be made by the Planning Commission and City Council. Mr. Bednarz reviewed the intent of the future discussion with the Commission. OTHER BUSINESS. Mr. Bednarz updated the Planning Commission on related items. Mr. Bednarz mentioned that on September 11, the St. Francis District is going to have a bond referendum, which means the Commission cannot start their meeting until 8:01 or they could move the date. The Commission decided to start the meeting at 8:01 p.m. on . September 11, 2007. )Z C I T Y O F NDDVE 41T 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW. CLAN DOVE R.MN.US TO: Planning and Zoning Commissioners FROM: Chris Vrchota, Associate Planner# SUBJECT: PUBLIC HEARING City Code Amendment to modify the requirements of City Code 5 -1 Animal Control. DATE: August 28, 2007 INTRODUCTION The Planning Commission discussed potential changes to the City's animal control code at the July 24 meeting. The City Council has provided some additional feedback, and the changes are now being brought back for a public hearing and formal consideration. Attached is a packet of information and questions an Andover resident provided to the City Council at the residents forum at the August 21, 2007 City Council meeting. The resident asks that the Planning Commission discuss whether or not underground fencing is properly addressed in the City Code. (See Exhibit A- pages 30 -36 of this packet.) • DISCUSSION The Planning Commission considered whether changes were needed to address issues related to nuisance dogs/barking, potentially dangerous dogs, restraint, and basic care. Examples of code from other cities were included to show how areas of concern could be addressed. Through discussion of the topics and with input from a resident, the Planning Commission agreed that changes were appropriate for nuisance dogsibarking, potentially dangerous dogs, and basic care. The Planning Commission did not feel that any changes were needed for the section dealing with restraint. The Planning Commission's feedback was provided to the Council. Based on that feedback and additional input from the resident, the Council directed staff to prepare three changes to the animal control code. While the entire Animal Control Code has been attached for reference, all proposed changes are within the definitions section and can be found between pages 4 -6 of this packet. A short description of each potential change follows: 1. Nuisance Dogs/Barking The definition for a "Nuisance" references habitual and frequent barking, but these terms are not currently defined. New language dealing with "habitual" and "frequent" barking has been added to section 5 -1A -1. (Seepage 4.) 2. Potentially Dangerous Dogs • Potentially dangerous dogs are also defined in 5 -1A -1. The word "unprovoked" is not defined, which could lead to it being interpreted differently by different readers. A definition of "unprovoked" has been added to this section. This definition can also be used to clarify "without provocation ", which is also used in the code. (See pages 4 and 6.) 3. Basic Care • There was some confusion caused by the title of section 5-IA-9: "Improper Care and Treatment Prohibited ". This section has been renamed "Required Basic Care and Prohibited Treatment" to fiurther clarify the requirements that are included in the section. (See page 10.) Restraint The question was also raised as to whether or not electronic fencing constitutes a suitable restraint for a dog when no other restraint is present. (i.e. leash, physical fence, etc...) The definition of "Restraint" is also in City Code 5-IA-1. Up to this point, staff and the Anoka County Sheriffs Department have interpreted this definition to include electronic fencing as a permissible method of restraint. That interpretation was called into question. (Note: "Invisible Fencing" is the name of a specific brand of electronic fence, not a generic term.) The Planning Commission discussed electronic fencing and determined that when it works it constitutes an acceptable restraint; when it does not, it is not an acceptable restraint. The Planning Commission did not recommend that any changes be made to this section and did not want to specifically address electronic fencing in the code. Because of this, and because the City Council did not provide specific direction on this subject, staff has not proposed any changes at this time. If the Planning Commission feels that changes are needed to address restraint/electronic fencing, they are asked to guide staff in the changes that should be made. Attachments • Ordinance: Revised City Code 5 -IA: Animal Control: Dogs and Cats 05.22.07 City Council Workshop Minutes 06.26.07 City Council Workshop Minutes 07.24.07 Planning Commission Meeting Minutes 08.08.07 City Council Meeting Minutes Exhibit A- Material From Resident ACTION REQUESTED The Planning Commission is asked to hold a public hearing, review the proposed changes to the Animal Control Code and recommend approval or denial to the City Council. Respe y Subd, Chris Vrchota • CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA ORDINANCE NO. AN ORDINANCE AMENDING THE CITY CODE 54A DEALING WITH THE CONTROL OF DOGS AND CATS IN THE CITY OF ANDOVER. WHEREAS, the requirements for the keeping of dogs and cats have been amended, and; WHEREAS, the proposed changes have been reviewed and recommended for approval/denial by the Planning Commission. NOW THEREFORE BE IT RESOLVED, THE CITY COUNCIL OF THE CITY OF ANDOVER HEREBY ORDAINS (Underlining being newly added language and strike- outs indicating language to be removed): CHAPTER1 ANIMAL CONTROL • ARTICLE A. DOGS AND CATS SECTION: 5 -1A -1: Definitions 5 -1A -2: Dog Licensing Requirements; Exemptions 5 -1A -3: Number Of Dogs And Cats Restricted 5 -1A -4: Violations 5 -1A -5: Control Of Animal; Excrement Removal Required 5 -1A -6: Obligation To Prevent Nuisances 5 -1A -7: Impoundment And Redemption Provisions 5 -1A -8: Permissible Return Of Unrestrained Dogs And Cats 5 -1A -9: Improper Care And Treatment Prohibited 5- 1A -10: Muzzling Proclamation 5- 1A -11: Dangerous And Potentially Dangerous Dogs And Cats 5- 1A -12: Summary Destruction Of Certain Dogs 5- 1A -13: Dog Kennels 5- 1A -14: Dog Enclosures 5- 1A -15: Enforcement Officials 5- 1A -16: Citations 5- 1A -17: Abatement Of Nuisance Conditions 5- 1A -18: Violation; Penalty U 3 5 -1A -1: DEFINITIONS: is ANIMAL SHELTER: Any premises designated by the City Council for the purpose of impounding and caring for the dogs and cats held under the authority of this article. BITING DOG: Any dog which, without being provoked, has bitten, scratched, or caused other injury or threatens such injury to a person or another domestic animal, under circumstances where, at the time of the threat of attack, the person or domestic animal was lawfully on the premises upon which the victim was legally entitled to be, or the victim was on the premises owned or controlled by the owner of the dog, at the express or implied invitation of the owner. DANGEROUS DOG /CAT: Any dog /cat that has: A. Without provocatio inflicted substantial bodily harm on a human being on public or private property; or omes BZWithout rovocation killed or inflicted substantial • bharm on a tic animal while off the owner's property; or C. Been found potentially dangerous, and after the owner has been notified that the dog /cat is potentially dangerous, the dog /cat aggressively bites, attacks, or endangers the safety of humans or domestic animals. DOG ENCLOSURE: An enclosure (of sufficient size) constructed for shutting in or enclosing dogs. The enclosure shall be surrounded and covered with fencing material of at least six feet (6') in height and of sufficient gauge to ensure the dog's confinement. A cement pad of four inches (4 ") in thickness shall be present that covers the inside and perimeter o f the enclosure. FREQUENT BARKING: Barking intermittently for 30 minutes or more. HABITUAL BARKING: Barking for repeated intervals of at least five minutes with less than one minute of interruption. 0 f KENNEL; Any place where a person accepts dogs from the COMMERCIAL': general public and where such animals are kept for the purpose of selling, boarding, breeding, training, or grooming, except for a veterinary clinic. There shall be a fenced yard or dog enclosures present to prevent the running at large or escape of dogs confined therein Z . KENNEL; PRIVATE': A place where more than three (3) dogs over six (6) months of age are kept for private enjoyment and not for monetary gain, provided such animals are owned by the owner or the lessee of the premises on which they are kept. There shall be a fenced yard or dog enclosures present to prevent the running at large or escape of dogs confined therein NUISANCE: It shall be considered a nuisance for any animal: A. To bite, attack or endanger the safety of humans or domestic animals; B. To run at large; to habitually or frequently bark or cry; C. To frequent school grounds, parks, or public beaches while unrestrained; D. To chase vehicles; to molest or annoy any person if such person is not on the property of the owner or custodian of the animal; E. To molest, defile, destroy any property, public or private; or F. To leave excrement on any property, public or private. OFFICER: Any law enforcement officer of the city and persons designated by the city to assist in the enforcement of this article. OWNER: Any person, firm, partnership or corporation owning, harboring, or keeping dogs or cats. 1 See also section 12 -2 -2 of this code, definition of "dog kennel, commercial ". z See title 12, chapter 7 of this code for fence requirements and restrictions. a See also section 12 -2 -2 of this code, definition of "dog kennel, private" a See title 12, chapter 7 of this code for fence requirements and restrictions. S POTENTIALLY DANGEROUS DOG /CAT: Any dog /cat that: A. Whe unprovoked nflicts bites on a human or domestic anima on public or private property; B. Whe unprovoked chases or approaches a person, including a person on a bicycle, upon the streets, sidewalks, or any public or private property, other than the dog /cat owner's property, in an apparent attitude of attack; or C. Has a k n o ensity, tendency, or disposition to attac un rovoke causing injury or otherwise threatening t e safety of humans or domestic animals. RESTRAINT: A dog or cat shall be deemed to be under restraint if it is on the premises of its owner or if accompanied by an individual and under that individual's effective control. (Amended Ord. 233,11 -4 -1997; amd. 2003 Code) UNPROVOKED The condition in which an animal is not purposely excited, stimulated, agitated, or disturbed. 5 -1A -2: DOG LICENSING REQUIREMENTS; EXEMPTIONS: A. License Required: No person shall own, keep, harbor or have custody of any dog over six (6) months of age without first obtaining a license from the City Clerk. No license shall be issued to any person other than the owner except upon the written request of owner. B. Application For License: Applications for license shall be made on forms prescribed by the City Clerk, which form shall set forth the following: 1. The name, address and telephone number of the owner, 2. The name and address of the person making the application, if other than the owner; and 3. The breed, sex, and age of the dog for which a license is sought. C. Rabies Vaccination Required: Every application for a license shall be accompanied by a certificate from a qualified veterinarian showing that the • dog to be licensed has been given a vaccination against rabies to cover IN the licensing period. No license shall be granted for a dog that has not been vaccinated against rabies for a time sufficient to cover the licensing period. Vaccination shall be performed only by a doctor qualified to practice veterinary medicine in the state in which the dog is vaccinated. (Amended Ord. 233, 11-4 -1997) D. License Fee; Expiration Of License: The license fee shall be in such amount as set forth by ordinance' and shall expire in accordance with the date shown on the license receipt. (Amended Ord. 233, 11-4 -1997; amd. 2003 Code) E. Nonresidents Exempt: This section shall not apply to nonresidents of the city; provided, that dogs of such owners shall not be kept in the city longer than thirty (30) days without a license and shall be kept under restraint. (Amended Ord. 233, 11-4 -1997) 5 -1A -3: NUMBER OF DOGS AND CATS RESTRICTED: No person, firm or corporation shall harbor more than three (3) dogs over the age of six (6) months in any one - family residence unit or place of business except pursuant to Section 5 -1A -13 of this article, and no person, firm or corporation shall harbor more than three (3) cats over the age of six (6) months in any one family residence unit or place of business that is located on a parcel of land three (3) acres or less. (Amended Ord. 233, 11-4 -1997) 5 -1A-4: VIOLATIONS: A. Nuisance Dogs And Cats: No dog /cat shall be permitted to be a nuisance within the limits of the city. Any person who owns, keeps, harbors or is in physical control of a dog /cat that is a nuisance shall be in violation of this article. (Amended Ord. 233, 11-4 -1997) B. Revoked Licenses: Any person who owns, keeps or harbors or is in physical custody of any dog within the city, for any period of time, which dog has had its license revoked, shall be in violation of this article. (Amended Ord. 233, 11-4 -1997; amd. 2003 Code) 5 -1A -5: CONTROL OF ANIMAL; EXCREMENT REMOVAL REQUIRED: A. Control Required: 1. The restriction imposed by Section 5 -1A-4 of this article shall not prohibit the appearance of any dog or cat upon streets or public property when such dog or cat is on a leash and accompanied by an individual or i See subsection 1 -7 -3A of this code. Fi accompanied by and under the control and direction of an individual so as • to be as effectively restrained by command as by leash. 2. Dogs or cats that are on or directly adjacent to all athletic fields must be leashed. B. Removal Of Excrement: Owners are required to clean up and dispose of their pet's excrement. (Amended Ord. 233,11-4- 1997; amd. 2003 Code) 5 -1A-6: OBLIGATION TO PREVENT NUISANCES: It shall be the obligation and responsibility of the owner or custodian of any animal in the city, whether permanently or temporarily therein, to prevent such animal from committing any act which constitutes a nuisance. Failure on the part of the owner or custodian to prevent his or her animals from committing an act of nuisance shall be subject to the penalty herein provided. (Amended Ord. 233, 11-4 -1997) 5 -1A -7: IMPOUNDMENT AND REDEMPTION PROVISIONS: A. Impoundment Of Dogs And Cats: 1. Unrestrained Dogs And Cats: Unrestrained dogs and cats may be taken . by any "officer" as hereinbefore defined and impounded in an animal shelter and there confined in a humane manner. Impounded dogs and cats shall be kept for not less than five (5) regular business days unless reclaimed prior to that time by their owner as provided hereafter. 2. Dangerous Dogs And Cats: a. Whenever any owner of a dog /cat shall learn that such dog/cat has bitten, attacked, or threatened any other human being or domestic animal, such owner shall immediately impound said dog /cat in a place of confinement where it cannot escape or have access to any other human being or animal, and it shall also immediately notify any peace officer, dog/cat catcher, or other person authorized by the City Council. Whenever such authorized person, peace officer or dog /cat catcher shall learn that any human being has been bitten by any dog /cat within the city, he/she shall ascertain the identity of such dog /cat and the persons who might meet the definition of owner as found elsewhere in this article, and shall immediately direct such person to forthwith impound such dog /cat as required herein. If in the opinion of such peace officer, dog /cat catcher, or other authorized person, the owner of such a dog /cat cannot or will not so impound the dog /cat, such peace officer, dog /cat catcher, or other authorized person shall transport such dog/cat to the pound under contract to the city. Any dog /cat so impounded shall be kept continuously confined for a period of fourteen (14) days from the day the dog /cat bit a • human being. The cost of such impounding and confinement shall be i . borne by the owner of the dog /cat, if such owner can be found, which costs shall be as stated for impounding and confinement elsewhere in this article. b. Upon leaming that a dog /cat has bitten a human being, the peace officer, dog /cat catcher, or other authorized person shall immediately notify the City Health Officer and inform him /her of the place where the dog /cat is impounded. It shall be the duty of the City Health Officer to inspect said dog /cat from time to time during its period of fourteen (14) days' confinement, and to determine whether or not such dog /cat may be infected with rabies. For this purpose, he/she shall have access to the premises where such dog /cat is kept at all reasonable hours, and may take possession of the dog /cat and confine it at such place as he/she deems appropriate at the expense of the owner. c. If an owner has impounded a dog /cat pursuant to the request of a peace officer, dog /cat catcher, or other authorized person, the owner shall promptly transport said dog /cat to the pound under contract to the city for the purposes stated above. If the owner refuses to do so, and refuses to allow a peace officer, dog /cat catcher or other authorized person to transport the dog /cat to the contract pound, the owner shall be in violation of this article. 0 B. Notice Of Impoundment: 1. Posted Notice: Upon taking up and impounding any dog or cat, the animal control officer shall, within one day thereafter, have posted in the City Hall a notice of impounding in substantially the following form: NOTICE OF IMPOUNDING DOG/CAT' Date , 20 To whom it may concern: We have this day taken up and impounded in the pound of the city at a dog /cat answering the following description: sex color breed approximate age name of owner (if known) Notice is hereby given that unless said dog/cat is claimed and redeemed on or before o'clock_ . M., on the day of 20 the same will be sold or humanely destroyed as provided by ordinance. Signed. 0 Animal control officer /city official 2. Written Notice: If the owner of said dog or cat be known, written notice • of impounding, in lieu of posted notice, shall be give n to the owner thereof either by mail or personal service. 3. Effect Of Notices: The date of sale or humane destruction of the dog or cat shall be the sixth day after posting of the notice or giving notice unless the animal shelter at which the dog or cat is impounded is closed to the public, in which case, it shall be the following day. (Amended Ord. 233, 11-4 -1997) C. Redemption Of Impounded Dogs And Cats: Any dog or cat may be reclaimed from the animal shelter by its owner within the time specked in the notice by the payment to the City Clerk or his/her designate of the license fee (if not paid for the current period) with an impounding fee as set by contract with the city's animal control officer. Notwithstanding this subsection, the owner shall remain subject to all penalties contained in this article. (Amended Ord. 233, 11-4 -1997; amd. 2003 Code) D. Disposition Of Unclaimed Dogs And Cats: 1. Sale: Any dog or cat which is not claimed as provided in Subsection B of this section, within five (5) days, after posting of the impoundment notice, may be sold for not less than the expenses incurred for impoundment, if not requested by a licensed educational or scientific institution under Minnesota state law. All sums received from the sale of dogs or cats under this subsection shall be deposited into the general fund of the city. 2. Destruction: Any dog or cat which is not claimed by the owner or sold or transferred to a licensed educational or scientific institution shall be painlessly and humanely destroyed and buried by the animal control officer. (Amended Ord. 233,114-1997) 5 -1A -8: PERMISSIBLE RETURN OF UNRESTRAINED DOGS AND CATS: Notwithstanding the provisions of Subsection 5 -1A -7A of this article, if an animal is found unrestrained and its owner can be identified and located, such animal need not be impounded but may, instead, be taken to the owner. In such cases, however, proceedings may be taken against the owner for violation of this article. (Amended Ord. 233, 11-4- 1997) 5 -1A -9: 'IMPROPER CAR AND TIRCAT PROHIBIT REQUIRED BASIC CARE AND PROHIBITED TREATMENT: A. No owner shall fail to provide any animal with sufficient good and wholesome food and water, proper shelter and protection from the 10 weather, veterinary care when needed to prevent suffering, and with humane care and treatment. B. No person shall beat, treat cruelly, torment or otherwise abuse any animal, or cause or permit any dog or cat fight. No owner of a dog or cat shall abandon such animal. (Amended Ord. 233, 11-4 -1997) 5- 1A -10: MUZZLING PROCLAMATION: Whenever the prevalence of rabies renders such action necessary to protect the public health and safety, the Mayor shall issue a proclamation ordering every person owning or keeping a dog to muzzle it securely so that it cannot bite. No person shall violate such proclamation, and any un- muzzled dog unrestrained during the time fixed in the proclamation shall be subject to impoundment as heretofore provided, and the owner of such dog shall be subject to the penalty hereinafter provided. (Amended Ord. 233, 11 -4 -1997) 5- 1A -11: DANGEROUS AND POTENTIALLY DANGEROUS DOGS AND CATS: A. Dangerous Dogs And Cats: In the event that a complaint is received which, in the judgment of the City Clerk, occurred under circumstances which would justify the classification of the dog /cat as a dangerous dog /cat • under this article, the City Clerk shall place the issue on the next available agenda of the City Council and shall notify the owner of the dog /cat, in writing, of the time and place of the Council meeting at which the matter shall be heard. The notice shall inform the owner that a request has been made to classify the dog /cat as a dangerous dog /cat and the City Council shall hear such facts as any interested parties may wish to present, and shall, by resolution, determine whether or not to classify the dog /cat as a dangerous dog /cat. Such a determination shall be made upon the basis of whether or not the criteria as found in Section 5 -1A -1 of this article, definition of the term "dangerous dog /cat ", have been met. No variances shall be permitted from the strict terms of said definition. In the event a dog /cat is classified as a dangerous dog /cat, the following shall apply: 1. The owner of the dog /cat shall be notified in writing and by certified mail or personal service, that the dog /cat has been classified as a dangerous dog /cat and shall be furnished with a copy of the resolution. 2. If the dog /cat was impounded and photographs or other identifying characteristics obtained, such photographs or other identifying materials shall be placed in a permanent file indexed under the owner's name. If the dog /cat is not impounded, the owner shall be notified that the dog /cat license shall be revoked unless, within ten (10) days after receipt of the notice, the owner furnishes to the city suitable photographs or other identifying materials of the dog /cat, or makes the dog /cat available for the taking of photographs by city staff for insertion in the permanent files. 3. The City Clerk shall maintain a permanent file of all dogs /cats classified as dangerous dogs /cats indexed under the owner's name. 4. No person may own a dangerous dog /cat in the city unless the owner complies with this section. Compliance with the registration requirement of Minnesota Statutes Section 347.51 shall constitute compliance with this article. The owner of the dangerous dog /cat must present sufficient evidence that: a. A proper enclosure exists for the dangerous dog /cat and a posting on the premises with a clearly visible warning sign, including a warning symbol to inform children that there is a dangerous dog /cat on the property; and b. A surety bond issued by a surety company authorized to conduct business in the State of Minnesota in a form acceptable by the city in the sum of at least fifty thousand dollars ($50,000.00) payable to any person injured by the dangerous dog /cat, or a policy of liability insurance issued by an insurance company authorized to conduct business in the State of Minnesota in the amount of at least fifty thousand dollars ($50,000.00), insuring the owner of any personal injuries inflicted by the dangerous dog/cat. The requirements for the • warning sign or warning symbol shall be those as set forth in Minnesota Statutes Section 347.51. (Amended Ord. 233,11-4- 1997) c. The owner of a dangerous dog /cat shall keep the dangerous dog /cat, while on the owner's property, in a proper enclosure. If the dog /cat is outside the proper enclosure, the dog /cat must be muzzled and restrained by a substantial chain or leash and under the physical restraint of an individual. The muzzle must be made in a manner that will prevent the dog /cat from biting any person or animal but that will not cause injury to the dog /cat or interfere with its vision or respiration. d. The animal control authority for the city shall immediately seize any dangerous dog /cat if: 1) after fourteen (14) days after the owner has been notified that the dog/cat has been declared a dangerous dog /cat, the dog /cat is not validly registered as set forth herein; 2) after fourteen (14) days after the owner has been notified that the dog /cat has been declared a dangerous dog /cat, the owner does not secure the proper liability insurance or surety coverage as applied by this article; 3) the dog /cat is not maintained in the proper enclosure; or 4) the dog /cat is outside the proper enclosure and not • under physical restraint of an individual. (Amended Ord. 233, 11-4- 1997; amd. 2003 Code) IZ 0 5. The following are exceptions to the dangerous dog /cat classification: a. The provisions of this section do not apply to dangerous dogs /cats used by law enforcement officials for official work. b. Dogs /cats may not be declared dangerous if the threat, injury, or damage was sustained by a person: 1) who was committing a willful trespass or other tort upon the premises occupied by the owner of the dog /cat; 2) who was provoking, tormenting, abusing or assaulting the dog /cat or who can be shown to have repeatedly, in the past, provoked, tormented, abused, or assaulted the dog /cat; or 3) who was committing or attempting to commit a crime. 6. Nothing in this chapter, nor the enactment of any other procedures herein enumerated, shall be deemed to limit, alter, or impair the right of the city or any person to seek enforcement through criminal prosecution of any violation of this article, and the fact the city may be pursuing classification of a dog /cat under this article shall prevent or prohibit the prosecution at the same time of an owner of a dog /cat for violation of this chapter under facts arising from the same occurrence as that which generated classification procedures. The classification procedures shall be • in addition to, and not in place of, criminal prosecution under other portions of this chapter or other ordinances. (Amended Ord. 233, 11-4 - 1997) B. Potentially Dangerous Dogs And Cats: In the event that a complaint is received which, in the judgment of the City Clerk, Sheriffs Deputy, animal control officer, or other duly authorized person, occurred under circumstances which would justify the classification of the dog /cat as potentially dangerous under this article, the City Clerk shall notify the owner of the dog /cat, in writing, that the dog /cat has been classified as potentially dangerous under this article. Said notice shall further inform the owner that should the dog /cat again aggressively bite, attack, or otherwise endanger the safety of humans or domestic animals, the city may declare the dog /cat to be a dangerous dog /cat and be subject to the restrictions thereon, including abatement. Said authorization shall forward a copy of the notice of potentially dangerous dog /cat to the City Clerk. (Amended Ord. 233, 11-4 -1997; amd. 2003 Code) 5- 1A -12: SUMMARY DESTRUCTION OF CERTAIN DOGS: Whenever an officer has reasonable cause to believe that a particular dog presents a clear and immediate danger to residents of the city because it is infected with rabies (hydrophobia) or because of a clearly demonstrated vicious nature, the officer, • after making reasonable attempts to impound such dog, may summarily destroy said dog. (Amended Ord. 233,11-4-1997) 15 5- 1A -13: DOG KENNELS: A. Licensing Requirements: 1. Licenses Required: No person, firm or corporation shall operate or maintain a commercial or private kennel without first securing a kennel license therefore from the City Council and meeting the criteria as set forth in this article and /or the zoning ordinance '. 2. Applications For Licenses; Fees: a. Application for a kennel license shall be made on forms provided by the city. Such application shall contain the following information: (1) Location, on premises, of the kennel. (2) Location of structures for housing the dogs. If the dogs are to be kept primarily within the home or other building of the residence of the applicant or of any other person, the application shall so state. (3) The maximum number of dogs to be kept on the premises. (4) The location, size, and height of dog enclosures, if present. 0 (5) The location and type of fencing (if present); fencing to be of such quality, design and height so that it will contain the dogs 2 . (6) Method to be used in keeping the premises in a sanitary condition. (7) Method to be used in keeping dogs quiet. (8) An agreement by the applicant that the premises may be inspected by the city at all reasonable times. b. The City Council may impose additional requirements to be stated in the application or more restrictive requirements than those listed in Subsection A2a of this section to protect the health, safety, general welfare and morals of the general public. (Amended Ord.233, 11-4 -1997) c. Application for such license shall be made to the City Clerk and shall be accompanied by a specified license fee that shall be as set in Subsection 1 -7 -3A of this code. 3. Approval Or Denial Of Licenses: The City Clerk shall refer private kennel license applications to the City Council and commercial kennel . license applications to the Planning and Zoning Commission as set forth in 1 See section 12 -15 -6 of this code. 2 See title 12, chapter 7 of this code for fence regulations and restrictions. iy . the zoning ordinance. In both cases, the City Council may grant or deny the license. 4. Renewal Of Licenses: All kennel licenses shall be renewed annually. Application for such license renewal shall. be made to the City Clerk and shall be accompanied by a specified license fee, which annual license fee shall be in such amount as set forth by ordinance. The City Council shall review and approve all license renewal applications, provided no revocation of the license is made as specified in Subsection A6 of this section. 5. Requirements For Private /Commercial Kennel Licenses: A minimum of two and one -half (2.5) acres in a residentially zoned district is required for a private /commercial dog kennel license (provided that the adjacent lot sizes are predominately similar in size). A private /commercial dog kennel license shall not be issued unless a Conditional Use Permit has been granted by the City Council in accordance with the zoning ordinance. Amended Ord. 233,11-4-1997; amd. 2003 Code) 6. Revocation Of Licenses: Any kennel license may be revoked by the City Council by reason of any violation of this article or by reason of any other health or nuisance ordinance, order, law or regulation. a. Private Kennel License: Before revoking a private kennel license, the licensee shall be given notice of the meeting at which such revocation is to be considered. Notice of the meeting shall be given in writing five (5) days prior to said meeting. The licensee, if present at said meeting, shall be given the opportunity to be heard. b. Commercial Kennel License: A commercial kennel license may be revoked by the City Council by the procedure established and defined in the zoning ordinance. B. Kennel Regulations: Kennels shall be kept in a clean and healthful condition at all times, and shall be open to inspection by any health officer, sanitarian, animal control officer, or the person charged with the enforcement of this article, or any health or sanitary regulation of the city, at all reasonable times. (Amended Ord. 233, 11 -4 -1997) 5- 1A -14: DOG ENCLOSURES: A. Purpose: It is the purpose of this section to abate existing nuisances and to prevent nuisances created by site, odor, noise and sanitation due to construction and placement of dog enclosures on private property. • 1 See subsection 1 -7 -3A of this code. (s B. Screening: Dog enclosures must be screened from view of adjacent • property. C. Location: A dog enclosure shall not be placed closer than forty feet (40) from an adjacent residential dwelling or principal structure and at least ten feet (10') from side and rear lot lines. No dog enclosure shall be placed in the front yard in all residential districts; and in the R-4 single - family urban district, no dog enclosure shall be placed in the side yard. D. Sanitation Requirements: No person shall permit feces, urine, or food scraps to remain in an enclosure for a period that is longer than reasonable and consistent with health and sanitation and the prevention of odor. E. Applicability And Effect Of Provisions: This section shall be applicable to all dog enclosures constructed after July 18, 1995. Any preexisting dog enclosure for which the city receives a complaint that it is not kept in a clean and sanitary condition or is a nuisance to an adjacent property owner shall be required to comply with this section by a notice of compliance being given by the City Administrator or his /her duly authorized agent. Failure to comply with such notice within thirty (30) days of issuance shall be a violation of this article. (Amended Ord. 233, 11-4- 1997) • 5- 1A -15: ENFORCEMENT OFFICIALS: The City Council may from time to time appoint such persons as may be necessary to assist the police officers of the city in the enforcement of this article. Such persons shall have police powers insofar as is necessary to enforce this article, and no person shall interfere with, hinder, or molest them in the exercise of such powers. (Amended Ord. 233, 11-4- 1997) 5- 1A -16: CITATIONS: The animal control officer, or his/her designee, shall be authorized to issue citations for violations of this article. (Amended Ord. 233, 11-4 -1997) 5- 1A -17: ABATEMENT OF NUISANCE CONDITIONS: A. Nuisances Subject To Abatement: The following are declared nuisances subject to immediate abatement by resolution of the City Council: 1. Any dog /cat that has, without provocation, inflicted "substantial bodily harm" as defined by Minnesota Statutes Section 609.02, Subdivision 7a, on any person; or • 16 S 2. Any dog /cat that has engaged in conduct resulting in three (3) or more established violations of this article for nuisance. An "established violation" is any violation for nuisance declared as "established" by the City Council, or which results in a conviction in a court of competent jurisdiction; or 3. Any established violation of this article for nuisance preceded b y a declaration by the City Council, based upon a prior incident, that the dog /cat is a "dangerous dog /cat' as defined by this article. B. Placement On Council Agenda; Notice Requirements: Upon determination by the City Clerk of the existence of a nuisance subject to abatement as set forth above, the City Clerk shall place the matter on the agenda for the next regular meeting of the City Council for public hearing and abatement consideration. Notice of the hearing and a copy of this article shall be provided to the owners of the dogs /cats by regular mail not later than seven (7) days prior to the hearing. The City Clerk may also notify other concerned or interested parties. C. Hearing For Abatement: Upon application and notice set forth above, a public hearing shall be held before the City Council. The owners shall have the opportunity to be heard and present relevant witnesses and evidence. The City Council may also accept relevant testimony or evidence from other interested persons. D. Decisions By City Council: The City Council may, in its discretion, approve or disapprove the application for abatement. If approved, the City Council may order any of the following: 1. The dog /cat be forthwith confiscated and destroyed in a proper and humane manner, and the costs incurred in confiscating, confining and destroying the animal paid by the owner. Any costs unpaid after thirty -(30) days of the order shall be assessed against the owner's property. (Amended Ord. 233,11-4-1997) 2. The dog /cat shall be removed permanently from the city limits within forty-eight (48) hours of notice of the order. The dog license shall be permanently revoked. 3. Should the owner fail to comply with the order to abate, the city, in addition to any other legal remedy, shall have the civil remedy of injunctive relief and may apply to a court of competent jurisdiction for an order compelling compliance with the abatement order. (Amended Ord. 233, 11- 4 -1997; amd. 2003 Code) • 5- 1A -18: VIOLATION; PENALTY: Any person who shall violate any provision of this article shall be guilty of a misdemeanor and, upon conviction IN thereof, shall be punished as defined by state law. (Amended Ord. 233, 11 -4- • 1997) Adopted by the City Council of the City of Andover this day of 2007. CITY OF ANDOVER Attest: Michael R. Gamache — Mayor Victoria Volk— City Clerk E I% Meeting Page 5 City that they are going to dredge the creek but the City cannot l€ tejhhem meet requirements but the Federal Government can require that. Mr. Heiling wondered if he will get charged anything for doing maintenance on the eas ton his property. Mayor Gamache indicated he would not. Mr. Berkowitz indicated they have a two -year warranty on all of their projects. \ -a4W AATMAL CONTROL ORDINANCE DISCUSSION Councilmember Jacobson suggested they send this to the Planning Commission and have them look at "invisible fencing" and see if there are any other changes they can think of and have staff contact the individual who has been contacting the Councilmembers of the Planning Commission date. Councilmember Orttel stated the resident's issue is not the fencing, it is the dog barking incessantly. Councilmember Knight wondered if an invisible fence is considered an adequate barrier. Councilmember Trude thought they should send a few different issues to the Planning Commission. 1) What constitutes a restraint and how does an invisible fence fit in. Should dogs be kept in the front yard with an invisible fence. 2) What constitutes a nuisance; 3) What type of dogs should the City list as dangerous and should they list any. Mayor Gamache stated the only thing they have in the ordinance is regarding restraint. He would like to find out what that means. He thought the invisible fence would be covered in that section. Councilmember Jacobson thought they should have the Planning Commission look at that for the invisible fencing. Councilmember Trude asked what specifically they want the Planning Commission to look at. Councilmember Jacobson thought the Planning Commission should look at technology such as the invisible fence. Mr. Neumeister stated the Planning Commission is going to want more information in order to discuss this. Mayor Gamache stated he would like more of a definition for restraint. Councilmember Trude thought they need to look at the nuisance area in the ordinance to define it and make it more enforceable. Mayor Gamache thought Section 5A -1A -1 in the ordinance covers the problem and stated he does not want to get into any more restrictions. Councilmember Jacobson wondered if a report should be written even if the CSO officer does not see the dog barking. He thought maybe they should have it in the ordinance that after so many reports, it should be considered a nuisance. Mr. Neumeister thought the ordinance should 11 Regular Andover City Council Minutes — May 22, 2007 Regular Andover City Council Workshop Meeting • Minutes — May 22, 2007 Page 6 be changed to define it a little better. Council consensus was to seek law enforcement input and bring it back to Council. Councilmember Jacobson stated he was suggesting there be a trigger mechanism in the ordinance for the Sheriff's Department to go by. DISCUSS TIME LIMIT ON BUILDING PERMITS Mr. Neumeister showed photos of two homes on 133 indicating these homes were built 18 months ago and are in foreclosure and wondered what they can do because the City does not have any way to get the work done. ncilmember Jacobson wondered if the City should get a deposit when someone applies for a buil permit to assure the homes will get finished in a timely manner. Mr. Berko indicated the homes shown have also defaulted on the escrow payment to the City and the City k is dealing with this. Mr. Neumeister explained when a house goes into default or foreclosure there ' really nothing we can do until the bank gets the house. Councilmember Kn\need n default or foreclosure they wait it out until it goes to the bank and then go a Councilmember Ja found out what bank holds the lien they should send them a letter indicating fixed up or they will have an abatement process put on t hem. DISCUSS IRRIGA TION AGREEMENT 0 HASSOClATIONS Mr. Berkowitz reviewed the irrigation agreement the Council. Councilmember Trude thought the agreement looks goo a way it was written by staff. Mr. Berkowitz thought the agreement would get the City to co icate better with the associations. Councilmember Jacobson stated his concern is with the smaller unit ciations. Mr. Berkowitz thought it maybe a minimum of a $100 fine and go from there. He won ed if the Council wants to see something addressed in the fee schedule to address this. The cil thought that would be a good idea. Mr. Berkowitz wondered if the City Attorney indicates they cannot charge per unit, Nick ey should do. The Council thought he should check on what would be allowed and bri with the fee schedule changes. • ZO i Special Andover City Council Workshop Meeting Minutes —June 26, 2007 Page 9 Councilmember Trude recommended on 1.07 Specific Powe-,5kAd Responsibilities, that the second sentence should state: " A4ept Recommend policies th lfill the goals..." Councilmember Trude suggested under 1.08 eparation of Program and Budget that the City Finance Director should work as the City ' ison to handle the budget. Mr. Dickinson offered to reword this section taking into accou ptlhe finance department overseeing it. Councilmember Trude questialred the handling of land acquisitions by the Open Space Commission. Councilmember K ' t asked if a party wants to donate land would the area be named for that person. Coun ' ember Trude stated the land donation and name should have a policy because this will beco an issue. She suggested there should be a policy of how to handle gifts of land and be a plan nform the public. Councilmember Knight stated these are called legacy gifts. Councilmember Trude commented that new Commission members should have a public procurement rev of policies becau they will be dealing with public funds. -- ANIMAL CONTROL ORDINANCE DISCUSSION (CONTINUED) - PLANNING Mr. Neumeister stated at the May 22 workshop, requests were made to review restraint and nuisance and to hold a discussion of dangerous dogs. He reported that the law enforcement Staff of the Sheriff's office feels the Ordinance is better than most. Councilmember Orttel stated that having invisible fence restraint has been an issue. Councilmember Knight stated a child or anything else can enter the yard and dogs can leave the yard with the invisible fence. Councilmember Jacobson stated the issue is about barking. He questioned page 23 of the Lakeville policy where restraint is explained. Mr. Neumeister stated the policies need to be identified. Councilmember Trude stated that law enforcement has additional rules that are not part of the Code. Mayor Gamache stated that the policy relies on neighbors accurately reporting what they see. Councilmember Knight stated there should be a policy about threatening dogs. He mentioned that page 26 of the Lakeville Ordinance has a more extensive definition of dangerous dogs than the City's Ordinance on page 12. Mayor Gamache stated people have to go to court to keep their dogs when three complaints are made. . Mr. Neumeister reviewed conditions that should go to the Planning Commission; 1) barking, 2) nuisance and 3) potentially dangerous dogs and 4) restraint. Councilmember Knight questioned if an electronic fence is considered a restraint. He suggested that a policy be considered where a dog is rA E Special Andover City Council Workshop Meeting Minutes —June 26, 2007 Page 10 not allowed outside without being under the control of a person. Councilmember Trude commented that dogs are not required to be fenced. She commented that humane treatment of an animal should be included which is on page 35 under basic care. Mr. Neumeister stated on page 33 a dangerous animal is defined and steps to be taken are outlined. SUBDIVISION CODE UPDATE DISCUSSION — PLANNING Mr. Neumeister stated that changes have been made after reviewing the Code with Bill Hawkins. He commented there are policy questions on page 33. When land is used for a designated purpose they can use it for a park, playground or open space. Mr. Dickinson stated that a developer creating ark is using his park dedication allowance. He is challenging the terminology and offered to pro 'de other Ordinances to support his position. This will be reviewed by the attorney. Councilm her Jacobson stated on page 34 the question of park dedication applies. Mr. Neumeister stated this c d affect how much land is dedicated. Councilmember O l suggesting contacting a third party such as the League to help with the policy. Mr. Dickinson stated uch of the Park information and open space use is taken from a recent fact sheet with the most rece mdings from the League. Councilmember Jacobson que 'cned credit for private space. If park land is obtained and given over for private use, policy should reviewed. Discussion was made to delete section E on page 38 from the policy. This was agree on by the Council. Councilmember Trude questioned D where i ' stricken through and suggested that it continue to be included and not be included twice. Mr. Neume er stated he would check the PUD ordinance to be sure this is covered. Councilmember Orttel questioned the outcome on discus ' n of G. Mr. Neumeister stated that this is a change and it can be done. Councilmember Trude stated the cul -de -sac length is in the cod . She proposed increasing the length to 750 feet from 500. Mr. Neumeister stated that the fire dep ent hose length is 650 feet and they do not like to have cul -de -sacs extend beyond this. Mr. Neumeister stated he will make all the policy changes and send out co 'es with changes highlighted in red. They will be given time to respond before it goes forward the Planning Commission workshop. He stated that Mr. Hawkins suggested using a checklist by r rence. He suggested numbering on the bullet points and that fees are per City fee Codes by year. Ite in gray have been in use but are not in the Ordinance. is 2008 -2012 CIP PROGRESS REPORT - ADMINISTRATION az • Regular Andover Planning and Zoning Commission Meeting Minutes —July 24, 2007 Page 5 Mr. Vrchota explained based on input from a resident, the City Council has directed the Planning Commission to consider whether or not changes are needed to the City's Animal Control Code. Mr. Vrchota discussed the staff report with the Commission. Nuisance Dogs/Barking Mr. Vrchota stated this is covered in the City Code under Section 5 -1 -A1. One thing that is not in there is a definition of what constitutes habitual barking. Looking at the City of Plainview's Code, they do have a definition of habitual barking as "Repeated intervals of at least five minutes with less than one minute of interruption ". If they were looking to add something a little more objective to this, this definition is a little more concrete and not so loose. He stated this is something they may want to consider adding to their code to make it a little more specific. Chairperson Daninger stated one of the things they need to change is they need to come to a decision about what is habitual. He stated he liked the five minute rule but he did not know if five minutes would be too little. He thought if it were a nuisance, the dog would continually bark -and not stop after five minutes. Commissioner Casey stated he agreed with the five minute interval. He thought this would give the Deputies some control because it would define the nuisance and give them some direction. He indicated he was under the interpretation until he read the report that it followed the noise ordinance of 8:00 p.m. to 8:00 a.m. Chairperson Daninger indicated a Deputy has discretion in their authority to verbally warn or issue a citation so there are many avenues of flexibility but if it is not in their ordinance then it is just a judgment call. Chairperson Daninger wondered if any of the Commissioners thought the time limit should be longer. Commissioner Falk felt five minutes was the right amount: If they go ten minutes or longer, there is a point where enough is enough. Commissioner Cleveland thought having the five minutes allowed the Sheriff's Deputy to not have to exercise judgment and know that it is a violation and issue a citation. Commission concurrence was to add the five minute definition to the City Code. A resident asked what would happen if a dog would bark on and off throughout the day and night but not within five minute intervals. M.T. Vrchota stated that would be a difficult situation without a deputy witnessing this. He thought this type of nuisance would be difficult to enforce. Chairperson Daninger concurred and indicated they are looking at just one area of the code but he wondered if they currently have anything in • their ordinance for this. Commissioner Cleveland thought they did if someone was ;?3 Regular Andover Planning and Zoning Commission Meeting Minutes — July 24, 2007 • Page 6 willing to define what it was to be annoyed. He stated Plainview has defined habitually but they did not define annoyed. He thought if someone was annoyed, it would be something where a person could make a call to the Sheriff s Department to have them come out. A resident thought certain breeds of dogs barked more than others and were annoying more than others. Commissioner Cleveland stated in the Plainview regulation, it indicates the barking has to be heard off the owner's property in the same paragraph where it defines habitual. He wondered if that was something they would also incorporate. Chairperson Daninger thought it only had to affect anyone who could hear it, which could be one neighbor. He thought if it affected a neighbor or neighbors that would be an issue. Commissioner Falk wondered how they would define a neighbor that always calls on a certain dog barking which does not affect other neighbors, is that habitual or annoying. Commissioner Cleveland stated when he looked at Paragraph D in the report; to him it is sort of like the dog in a fenced yard that charges or barks specifically at the neighbor. This would fit annoy but it does not suggest the barking is annoying. Chairperson Daninger thought they could add to Paragraph D, barking over time. He . thought the problem may be coming with the enforcement side of it. Commissioner Walton wondered if it could do with the number of complaints filed with the Sheriff's over a certain amount of time. Chairperson Daninger thought if they included this a neighbor will call just to rack up the number of calls. He thought if a dog barked all night it would annoy the person. Mr. Vrchota thought the word "annoy" will be hard to define in the City Code because it is such a subjective term. He thought what they may want to look at is defining frequently and setting some kind of standard for that. Chairperson Daninger thought it may be a good start to put in the five minutes and then somehow define frequency. Commissioner Walton thought the missing piece is the corroboration part. He thought they needed to have more than one person indicating it is happening such as another neighbor, police officer or multiple complaints. Chairperson Daninger thought they were all in concurrence with adding the five minutes to the ordinance. He wondered how they could define the intermittent dog barking throughout the day or night and how they could enforce that. Commissioner Walton wondered what the policy was for a nuisance dog. Mr. Vrchota referred to pages 16 and 17 which laid out the process. ay Regular Andover Planning and Zoning Commission Meeting Minutes — July 24, 2007 Page 7 Commissioner Walton indicated in the Plainview Ordinance if a dog is viewed as a nuisance, their police officers can go in and take the dog to stop the nuisance and he wondered how their Deputies could enforce it. Mr. Vrchota stated there is a process laid out in the Code on how nuisance conditions are handled and it does go to the City Council before any action can be taken. The Commission discussed with staff the current regulations regarding how the City handles nuisance dogs. Commissioner Walton thought they should look at a quicker resolution to a nuisance problem. Potentially Dangerous Dogs Mr. Vrchota stated the City currently defines a dangerous dog in section 5 -1 -A1 of the code. There is one word that is not defined which is "unprovoked ". He stated the City of Plainview does define it which may be further clarification they can look at for their code. Chairperson Daninger indicated he did not have a problem adding this because it is a • potential word that needs to be added. Commissioner Falk agreed with the addition of the wording. A resident asked if the threats are directed towards humans or other pets. Chairperson Daninger thought in Item C, it included everything except wild animals. Commissioner Walton indicated dogs are hunters and will go after wild animals so he did not think they wanted to go that far. Commissioner Walton stated in Section 5. La- 11, page 11, paragraph A talks about resolution which will take two to three weeks. He thought there was something missing because they should be able to make a resolution faster about a potentially dangerous dog. Mr. Vrchota indicated the Sheriff s Department has other policies they do use and if they feel an animal is a threat they can take the animal. Chairperson Daninger indicated if a dog were to attack a child it would be immediately contained. • Restraint Mr. Vrchota indicated this section deals with "invisible fencing ". He stated their City Code has a definition for restraint. He stated both staff and the Sheriff's Department had interpreted that definition to mean that invisible fencing is a permitted type of restraint for a dog. The interpretation has been challenged. He stated the City of Lakeville Code o S Regular Andover Planning and Zoning Commission Meeting Minutes — July 24, 2007 Page 8 has a more in -depth definition for "restraint ". He asked the Commission whether or not invisible fencing would be permitted as the only restraint for fencing in the front yard. Chairperson Daninger stated restraint is to keep the dog in and is not to keep people out. He thought initially invisible fencing counted as a restraint because it has to work. It is not a restraint if it does not work. It is considered a restraint but if the dog is not trained, it is not a form of restraint. He stated this not stop a child from going into the yard. There are a lot of different issues that can be brought up. Commissioner Falk wondered how a person would be able to tell if a yard had invisible fencing or not. What if someone was walking along and a dog came running up to the edge of the yard, how would a person know if the dog would stop or continue on. Commissioner Walton stated they do not control invisible fence installation but do they need to define the installation to keep them six feet away from a sidewalk or driveway and do they need to tell people where they can install them to avoid those types of situations. Commissioner Cleveland wondered if signage should be required as an indication that an invisible fence is there. • Chairperson Daninger asked if the Commission thought invisible fencing was considered a restraint. Commissioner Walton did not think it was. Chairperson Daninger thought this would be a debate both ways because residents who have invisible fencing would consider it a restraint. He wondered if invisible fencing should only be used as a restraint in the back yard or both front and back yards. Commissioner Casey felt invisible fencing was a restraint for dogs. Commissioner Walton did not think it was a solid restraint and people do not see it so how would they know a fence would hold a dog in. Chairperson Daninger wondered why a dog would need to be restrained in the front yard. Commissioner Cleveland did not think invisible fencing was much of a restraint. Commissioner Falk did not think it was a restraint. The majority of the Commission did not feel that invisible fencing was a restraint. Mr. Vrchota stated the definition of restraint in the Code says "The dog or cat shall be deemed under restraint if it is on the premises of its owner." This does not specify that it needs to be fenced or tethered only on the premises and under control. He stated for clarification that if the invisible fencing stops a dog from leaving the yard is that considered a restraint. Chairperson Daninger thought it was because if it works, it is doing its job and controlling the dog. He did not think they could stop someone from installing an invisible fence in their yard to restraint their dog. Commissioner Cleveland stated there is a limit to the predictability of the animals behavior and the ordinance does say that it is deemed to be under restraint if it is on the premises so there is an assumption to be made that if the dog is where it is supposed to • A Regular Andover Planning and Zoning Commission Meeting Minutes —July 24, 2007 Page 9 be, it is restrained, whether it is actually restrained or not is what happens next but the ordinance does not speak to what happens when someone walks by that dog. Commissioner Walton stated if someone walks by the property and the dog walks off the property and annoys or is dangerous, then it is deemed to have not been under restraint. If it is on the property and someone goes onto the property it is still deemed to be restrained because it stayed on the property where it was supposed to whether it was by invisible fence or training. It is only when the dog ventures off private property, then it is not restrained. Chairperson Daninger did not think the Commission could come out and say invisible fencing is not a restraint but they will also not say that invisible fencing is a restraint. He stated they did not want it in their ordinance to say invisible fencing counts. Chairperson Daninger thought any type of restraint could not leave the property. Basic Care Mr. Vrchota stated in the Council workshop the section on Basic Care in the Plainview Code was indicated to be adopted. He indicated their Code section has the same information as the Plainview Code but he thought this section needed to be labeled a little more clearly. The Commission felt comfortable with what they have in their ordinance but thought the title could be changed to make it more descriptive. WORK SESSION: SUBDIVISION ORDINANCE Mr. Cross stated for the last six months, City staff has been revising the Subdivision ance, the section of City Code that determines the requirements and review criteria for ne bdivisions. Like the Zoning Code, much of the language dates back to the original I rdinance. Staff has attempted to simplify the Subdivision Ordinance, remove outdate terial, and update it to conform to policies and regulations that are currently being use . e Council has reviewed and commented on the changes at two workshops. Mr. Cross reviewed the proposed ch% indicated this will come back to a worl Commission to review the changes for to the Ordinance with the Commission and n on August 28, 2007. He asked the ther ussion at another meeting. OTHER BUSINESS. 0 Mr. Bednarz updated the Planning Commission on related items. P Regular Andover City Council Meeting • Minutes —August 8, 2007 Page 9 Councilmember Trude stated what she unde d from this process is this permit regulates the time and period but she wondered if it also ' uded the volume. Mr. Neumeister stated in the report there is a drawing on page eight ws the pond and how it will be built out. This is not based on volume but on a propos ading plan. He did not think anyone has calculated the volumes yet. Mr. Ne er showed the map indicating where the pond is located and where the pond is pro to go out to. Motion carried 4 ayes, 1 nay ( Trude). (RES. R113 -07) DISCUSS ANIMAL CONTROL CODE Community Development Director Neumeister stated the City Council recently directed the Planning Commission to consider whether or not changes are needed to the City's Animal Control Code. At their July 24 meeting, the Planning Commission considered whether changes or clarifications were needed to address the issues of Nuisance Dogs/Barking; Potentially Dangerous Dogs; Restraint; and Basic Care. 0 Councilmember Jacobson agreed with everything discussed at the Planning Commission and suggested they let them go to a public hearing. Councilmember Trude stated she spent some time reviewing this and also agreed the comments from the Planning Commission should be accepted but she had some issues that came to her while reviewing this. One of them was they talked about restraint and nowhere in their Code do they require animals to be restrained and it is not a violation unless they are a dangerous dog and then they have to have a proper enclosure so the definition only applies indirectly in a way that if a dog is runnin at large that is a violation but if a dog is on the property it is not and they do not have any requirements about it. They also have another section of code on page 17, dog enclosures, it talks about the purpose, location, screening but they never require people to comply with it. There is no consequence to it Councilmember Trude also noted they do not have any rules about the invisible fence and where that can be located. Councilmember Jacobson stated the invisible fence is generally around the perimeter of the property. Right now the dog can be in the front yard as long as it is verbally under the control of the owner or if off the property, it has to be on a leash. Councilmember Knight stated if the owner is not outside with the dog, there is no verbal control and he has a problem with the invisible fence because it can be run right down the sidewalk. • Councilmember Orttel thought there was something in the proposed changes to move the fence back from the sidewalk. Councilmember Trude wondered if they should have some requirement that a dog has to be as Regular Andover City Council Meeting Minutes —August 8, 2007 Page 10 restrained on the property or should they say a dog cannot run at large. Mr. Neumeister thought the answer was on page 8 in the report. Councilmember Trade stated this section pertains to dogs being off the property. Mr. Neumeister stated that is the control section of the code so if they want to they could change it slightly to more effectively indicate this. Council consensus was to have the Planning Commission hold a public hearing for this item. Ms. Sylvia Munson stated "Invisible Fence" is a brand and should not be used. She stated they are not safe because different things affect them. She would like the City to have some ordinance regarding electronic fencing. She requested a building permit be required when installing an electric fence and require them to have a sign so people know there is an electronic fence there. Ms. Munson also requested the City to define what is endangering a person when they have the electronic fences. She would also like nuisance and frequent barking defined and have some regulations about electric fence. CONSIDER PARTICIPATING IN ANOKA COUNTY HOUSING & REDEVELOPMENT AUTHORITY ECONOMIC DEVELOPMENT ACTIVITIES dministrator Dickinson stated recently the Anoka County Board, pursuant to Minnesota State State 9.1082, granted to the Anoka County Housing and Redevelopment Authority (ACHRA) all of the po of an economic development authority under Minnesota State Statute sections 469.090 — 469.1082. the granting of this authority to the ACHRA, the statute is clear that cities and townships have th tion to participate in the economic development program. Motion by Jacobson, Seco d by Orttel, to respectfully decline participating in the Anoka County Housing and Redevelo nt Authority (ACHRA) program. Motion carried unanimously. DISCUSS SCHEDULE FOR COMPREHE PLAN UPDATE Community Development Director Neumeister stated has prepared a draft schedule for the Comprehensive Plan Update and asks the Council for chan r comments. Councilmember Trade understood the League of Women Voters is ' g on putting together cable tv interviews of City planning officials asking some questions rela to what they are going to focus on in the Comp. Plan Update and then they are going to ask h the City wants to protect vulnerable natural resources. Another question is how will the City invo ther communities or get their feedback and she knew it may be hard for them to address e questions because they are still so early in their plan. She can see they are going to deal all of those at some point but it is just a matter of taking a lot of time to go through all of this. a? 1 �� 11 August 21, 2007 1. Thank you for evaluating the effectiveness and efficiency of underground fencing. 2. Questions: a. What is the time frame to complete analysis and recommended action? b. Would a video regarding the behavior of the dog that is of concern be an effective visual aide in your evaluation? c. How can I protect the neighborhood, my pets and myself while the process is being addressed? To date I have taken the following action: Attended the work shop 7/24/07 and was able to participate in the discussion. Provided the counsel with information regarding underground fencing delivered 8/8/07. Discussed the situation and concerns with animal control — Marlene (763.444.4247 H) & (763.229.4616 C) Discussed with Anoka country sheriff's office (763.427.1212) Obtained information regarding "Dog Behavior & The Law," published by Animal Behavior Counseling Services, Inc. of Los Angels, CA 3. What is an immediate effective way to change the quality of everyday life and occurrences whereas I can reside safely at my residence and not have to feel endangered when I. Walk to and from my vehicle. Pick up the daily mail delivery and newspaper. Walk my dogs, walk alone, ride my bicycle, have guests not fearful of attack without provocation. Install a dog run for my pets and feel safe they are protected. Avoid disturbing my neighbors as my daily routine invokes barking and menacing threatening behavior. 4 A Jtt1ajate1V is- ubderci"roLiijd fenciriq a darider_ to. public safety? Do we wait until a serious incident occurs to evaluate the effectiveness . or take action prior to creating a news headline like the Minneapolis dog attacks? 30 DOG BEHAVIOR &THE LAW Published by ANIMAL BEHAVIOR COUNSELING SERVICES, Inc. Los Angeles, CA. Richard H. Polsky, Ph.D. Canine Behavioral Expert and Consultant Vol. 1. No. 1. Spring 1997 Phone: 310- 474 -3776 Fax: 310 - 475 -2676 e-mail: abcs @westworld.com Internet: http: / /www.dogexpert.com A Behavioral Perspective on California's Dog -Bite Statute Twenty -nine States, including California, have stat- utes imposing strict liability for dog - related injuries. These statutes make an owner liable, without having to prove fault or negligence, if the actions of their dog cause injury to a person. In California, the injury has to be the result of a bite (Civil Code Section 3342). The "dog -bite" statute further stipulates that an owner must take reasonable steps to protect the public from their dog because of the dog's propensity for biting. Due to the way the law is written, one could easily form the impression that provocation and assumption of risk are not viable defenses to liability under this law. This is a faulty assumption. For example, in Gomes v. Byrne (1959) 51 Cal 2d 418, 333 P2d 754 the court stated: "In adopting section 3342 of the Civil Code, the legislature did not intend to render inapplicable such defenses as assumptions of risk or willfully invited injury. Therefore those defenses are available in all propercases. " In Smythe v. Schacht (1949) 93 Cal App 2d 315, 209 P2d 114 the court ruled: "In adopting the statute the legislature did not intend to make the liability of the owner absolute and render inoperative certain principles of law such as assumption of risk or willfully inviting injury." If a lawsuit invokes the dog -bite statute, then consid- eration always has to be given as to whether provocation was the impetus behind the attack. Likewise, the attorney also needs to know if the plaintiff assumed the risk of being bitten. From a behavioral perspective, contributory negligence of the plaintiff - either due to assuming the risk of being bitten or because of invited injury through a provocative act - is one of the strongest defenses to counter liability under the dog -bite . statute. In California, if provocation or assumption of risk are established then a plaintiffs recovery may be reduced in proportion to their contributory fault. For the purpose of the discussion which follows, provo- cation refers to the antecedent behavioral actions of the (continued on page 4) From the Desk of Richard H. Polsky, Ph.D. Attorneys handling dog - related injury cases may not fully understand all the behavioral issues involved in these kinds of lawsuits. It is partially for this reason I created my newsletter. I x send it to you with my compliments. Hopefully, from it, you'll gain a better understanding of how an expert's knowledge of dog behavior can be effectively used to support or counter 'such legal arguments as assumption of risk, negligence, provocation and a person's previous knowledge about a dangerous propensities in a dog. Please do not hestiate to call my office if you have any questions or if you feel the need to discuss a case with me in greater detail. Richard H. Polsky, Ph.D. Certified Applied Animal Behaviorist Meet Dr. Richard Polsky, Ph.D. Richard Polsky, Ph.D. received his academic training at The Ohio State Univ. (B.Sc. 1970) and then at Leicester University (England) where he earned the doctor- ate in animal behavior in 1976. Afierfmishing his doctoral studies, he served for two years as a Research Associate in animal behavior at the University of Birmingham, (En- gland). From 1976 to 1981, he was a post- doctoral fellow at the Neuropsychiatric Institute, University of California, Los Angeles. During his five years at UCLA, Dr. Polsky devoted himseiftofurther studies and research inthefieldof animal behavior. Dr. Polsky is a member of the American Psychological Association, Division of Comparative Pyschology. He is certified as an appliedanimal behaviorist through the Animal Behavior Society. Since 1981, Dr. Polslcy's practice hasfocused on the diagnosis and treatment of canine and feline behavioral disorders. Currently he is in private practice in West LosAngeles andhe also holds apart - time staffposition at the Los Feliz Small Animal Hospital in Los Angeles. Dr. Polsky has published over 50 papers in the veterinary and animal behavior literature. He is the author of the recently published text, "User's Guide to the Scientific and Clinical Literature in Dog and Cat Behavior." Dr. Polsky has served attorneys as an expert witness on over 125 occasions, equally split between plaintiff and defense. 21 Results of Recent Harrison v. Dieterman, Norwalk Superior Court. Case No. VCO16943. Judgement. $89,250 on 10/11/95 Jury Verdict: 12-0 liability and damages; 10 -2 contributory negligence. Trial Counsel: Plaintiff, Gregory Vanni (Thon, Beck, Vanni Phillippi & Nutt, Pasadena); Defense, Michele Ahrens (Tredway, Lumsdaine & Doyle, Downey). The plaintiff, an 8 y.o boy, sued under the dog bite statute as a result of an attack by the defendant's pit bull. Injuries sustained to facial area were serious. The defendant claimed $18,000 in current medicals and an anticipated $20,000 in future medicals. The plaintiff also claimed post- accident emotional dis- tress. The defendants did not accept total liability for the incident: they argued that the attack may have been the result of contribu- tory negligence of the child. Specifically, the defendants believed that the child caused the dog to attack by poking it with a dart. Prior to the attack the plaintiff was playing darts with the owner's son and the dog was in their proximity. The plaintiff denied poking the dog with the dart. Instead, he claims that he approached the dog to pet the dog and the dog attacked. No warning signs were given by the dog. The defendants claimed that the dog was well - tempered and had never previously displayed any aggression to any human or dog. On previous occasions, the plaintiff had been to the house and had never experienced any problems with the dog. From all accounts, including expert opinion rendered by a behavioral expert on behalf of the defendants, the dog, despite being of pit bull breed, was even - tempered and non - aggressive by nature. The defendants argued that the only feasible explanation for the attack was the contributory negligence of the plaintiff (e.g. poking the dog with a dart). Personal communication to this author from the attorney representing the plaintiff indicated that this is what the some of thejurors believed. During trial, plaintiffs counsel was unsuccessful in his attempt to exclude entry of the darts as evidence. The amount of damages awarded the plaintiff was considerably less than what plaintiffs counsel expected. Prior to trial the demand was $200,000. The defense offered $100,000. Dog -Bite Litigation • made to the housing authority about the presence of the dogs. The defense posture was that the housing authority acted reasonably in handling the inherently difficult problem of drug dealers and their dogs. They further argued that government regulations made it difficult to enforce its lease provisions and pet policy. Mahn v. Snell, San Diego Superior Court, Case 656248 Judgement: $87,800 on 6/29/94; Plaintiff found 85% con- tributory negligent reducing award to $13,170. Directed verdict against defendant on issue of liability. Motion for new trail and additur granted. Additur: $137,801. Settled for $120,000. Plaintiffs Counsel: Joaeph Ruff (Harrigan, Ruff, Ryder & Sbardellati, San Diego); Defense: Kenneth Kleeger (Prestholt, Putak, Kleeger, Fidone & Villasenor, Los Angeles). A 42 y.o. dental assistant owned 4 dogs, one of which was an adult male Rottweiler. She allowed her daughter to take onto her premises a fifth dog, a Chow, on a temporary basis. The Chow, owned by the defendants, could not stay in the defendant's home because of the dog's recent attack on a neighbor. The defendant's son (boyfriend to the plaintiffs daughter) instructed the plaintiffs daughter to keep the dog in a 8 x12 ft. pen in her rear yard. The girlfriend's mother (e.g. the plaintiff) began caring for the Chow (e.g. feeding). After approximately 10 days, she let the Chow out of the pen, supposedly at the suggestion of the defendant. The defendant denies this. A fight broke out between the Rottweiler and the Chow. The plaintiff shouted at the dogs to stop and the Chow turned and attacked the plaintiff causing numerous injuries. Plaintiff attorneys argued that the defendant was strictly liable under Civil Code sections 3342 and 3342.5. The defense argued that the plaintiff wa� comparatively negligent because she knew of the Chow's aggressiv tendencies and because she was told not to interact with the dog and not to let the dog out of the pen. Riles v. San Francisco Housing Authority, San Fran- cisco Superior Court, Case No. 945838; Judgement: $197,128 on 6/20/95, Jury Verdict: 12 -0 negligence. Plaintiffs counsel: John Hughs (Law Offices of Mansfield Davis, San Francisco); Defense: Jacob Burland (Cullom & Burland, San Francisco). The plaintiff, a 18 y.o. student, was attacked by two pit bulls in the common area of a housing project located in San Francisco. This project, Hunters View, was owned and managed by the city of San Francisco. At the time of the incident, the dogs involved in the incident were apparently under the control of two young men who were illegal residents of the project. At trial, evidence was introduced suggesting that the two men had placed the dogs in an attack mode. However, instead of going after the intended target, the dogs spotted the plaintiff as she was walking nearby and attacked her. Damages to the plaintiff consisted of bites and scarring on both legs and sensory damage to the right leg. There was no functional disability. The plaintiff brought a com- plaint against the City for negligence and maintaining a dangerous condition on public property. Plaintiffs attorney argued that housing authority officials knew about the presence of pit bulls in the project, and these dogs were regularly trained to fight in the common area in the presence of the people who lived there and that they were being used for guard dog purposes by drug dealers. This policy was contrary to the housing authority's policy forbidding the keeping of animals. Prior to the incident complaints had been -32- Valdez v. Humpton, Orange Superior Court, Case No. Confidential. Settlement $300,00 on 9/9/96. Trial Coun- sel: Plaintiff, John Barton (Law Offices of John Barton, Newport Beach); Defense, Delos Brown (Brown & Peterson, Agoura Hills). The plaintiff, a 36 y.o. construction worker, was the guest in the defendant's home when he was attacked by the defendant's Chow chow. The dog had a history of previous aggressive episodes, both towards people and other dogs. The incident happened shortly after the dog was brought into the house. The plaintiff was seated in the living room. Moments earlier, the dog had been in a fight with another dog in the front yard of the defendant's residence. The plaintiff claimed that the dog was aroused as a result of the fight and should have been placed in another part of the house before being allowed in the proximity of guests. The defense argued that the plaintiff provoked the dog by gesturing in the direction of the dog and that the plaintiff may have been intoxicated with alcohol at the time of the incident. The dog bit off seventy percent of the plaintiffs right ear. Substantial reconstructive surgery had been done or was planned. The plaintiff s treating physician testified that reconstruc- tion of an amputated ear is a complicated procedure involving four to five surgeries over a period of a few years. The plaintiff argued that the defendants were strictly liable for the damages under the dog bite statute. Trial started but was suspended in order to complete the deposition of the plaintiffs treating physician. The case settled for $300,000 (policy limits) after the deposition. Breed Profile: The Wolf- Hybrid Estimates indicate that between 300,000 and 1.5 million wolf- hybrids are currently being kept as pets in the United States. Relative to other breeds of dog, the Humane Society of the United.States reports a dispropor- tional increase in the number of serious attacks on humans by wolf- hybrids in the last several years. As one might expect,a significant number of these attacks have resulted in lawsuits. This trend is likely to continue. Thus, knowledge about the character of this animal should be of interest to the attorney handling a personal injury case involving a wolf- hybrid. A hybrid is defined as any dog that is part wolf. Usually, hybrids range between 50% - 95% wolf, although often this is, at best, an approximation. They're usually crossed with working breeds that look similar to wolves, such as malamutes and huskies. Certain physical traits set the hybrid apart from pure -bred dogs. Their inner ears are usually hairier, they shed heavily on their legs and feet in the summer, they have tuffs of hairs on their cheeks, and they have longer bones and a narrower chest. Behav- iorally, they differ from dogs because they tend to be howlers, they carry their head lower, they ambulate with a slinking gait, they're extremely apt at escaping from enclosures, they are difficult to housebreak, they tend to facilitate each other's behavior quite readily while together in a group, they're prone to react with aggression when challenged in a dominant manner by an owner, and they seem to be more inquisitive and exploratory. Some de- scribe the hybrid as more "intelligent" than dogs. Like the differences that exist between wolves and dogs, the behav- ioral differences present between hybrids and dogs are probably one of degree. That is, both hybrids and dogs have the potential to display similar kinds of behavior. Both can become aggressive, both will bury food items, both will explore and hunt, both will problem - solve, etc. What is the nature of the hybrid? To understand this, we must first appreciate that the hybrid, by defini- tion, is part domestic dog, Because of their breeding, offspring resulting from the cross between a wolf and dog are likely to inherit temperamental features common to both. Breeding a dog with a wolf is likely to produce an animal with both dog -like and wolf -like behavioral fea- tures. Like the dog, hybrids inherit the capacity to become socialized onto and bond with humans. The temperament of the hybrid is usually much different from the typical wary temperament of the pure -bred wolf, however. Despite its inherent tendency for affiliation with humans, the hybrid still retains its naturally strong proclivity for predatory behavior. This inborn tendency is usually much stronger than that found in the typical domestic dog. Further, this tendency is unlikely to be eradicated within a few generations of breeding with domestic dogs. In short, the strong proclivity for preda- tion stays fixed in the hybrid. The combination of traits of friendliness to hu- mans with strong predatory inclinations have led some to conclude that hybrids are "biological time bombs. "t Should the hybrid be regarded as a dangerous animal? Certainly individual differences exist, but overall this conclusion seems justified in light of recent epidemiological statis- tics. Relative to other breeds of dog, data show an increase in fatal attacks on humans by wolf - hybrids in the last five years.. However, attacks by Rottweilers and Chow -chows have also increased in recent years. Would it also be fair to conclude that Rottweilers and Chow - chows are dangerous animals? Like the tremendous danger an untrained, inad- equately socialized or poorly bred Rottweiler or Chow - chow presents, the wolf hybrid also presents a substantial danger to public safety because of its innate tendency to display predatory behavior. Anyone with common sense should realize that extreme caution is needed when considering the hybrid as a pet. The fact that there has never been a documented attack by a wolf on a human in the wild should not be taken to mean that the hybrid is void of aggressive behavioral tendencies. On the contrary, place the hybrid in an urban environment, where the appropriate stimulation to elicit a predatory reaction is commonly found (such as joggers or children moving on skateboards or bicycles), and it is likely that predatory behavior will be displayed. Owners of hybrids should not be lulled into a false sense of security because of their friendly demeanor to family members. Owners should not be led to believe that training and early socialization will be enough to lessen the hybrid's proclivities for predation. Strong predatory tendencies are part of the hybrid's nature thereby making it a potentially dangerous animal to keep as a pet in an urban environment. References 1 Gloyd, J. Wolf Hybrids - a biological time bomb? JAVMA, 201:381 -382: 1992. 2 Lockwood, R. Dangerous dogs revisited. Humane Society United States News, Fall, 20- 22:1992. 3S NW 2d 593. A Michigan court ruled that hugging a dog Dog - Site Statute, Cont. by a 2 year old was sufficient provocation to cause the A- to bite The court ruled that although the plaintiff plaintiff which have the immediate effect of eliciting an aggressive response from the dog. Examples often found in lawsuits include such actions as straddling, bending over, petting, stroking, handling, pulling or pushing, hugging, kicking or striking the dog. As- sumption of risk is not directly concerned with the plaintiffs behavior but rather with the plaintiffs knowledge about the behavioral propensities in the dog. Used in this way, assumption of risk is secondary rather than expressed (e. g. liability waiver) or primary (e.g. inherent occupational risk, such as a veterinar- ian). I distinguish between these two forms of con- tributory negligence, provocation and assumption of risk, because there is a behavioral basis for their separation. In published case law, the terms have often been used interchangeably (1993) 11 ALR5th 127. In this article I will focus on the issue of provocation. In my next newsletter, I will discuss the issue of assumption of risk as it relates to the dog -bite statute. Court rulings on provocation Verdicts rendered in Superior Court through- out California clearly demonstrate the use of provoca- tion as a successful defense to counter liability under the dog -bite statute (Roeser v. Collole, San Fernando County Case No. NV 08512; Clark v. Damien, San Mateo County Case No. 269411; Quan v. Reicken, Sacramento County, Case No. 282252; Anderson v. Fuglestad, Ventura County, Case No.102176; McQueen v. Butler, San Joaquin County, Case No. 159230). On the other hand, the few published Califor- nia appellate cases where the issue of provocation was reviewed, rulings have been for the plaintiff (crouch- ing over and petting a dog, Symthe v. Schacht, supra; (1949) 93 Cal App 2d 315, 209 P2d 114; reaching down to pet a dog, Ellsworth v. Elite Dry Cleaners (1954) 127 Cal App 2d 479; feeding a dog, Burden v. Globerson (1967) 252 Cal App 2d 468, 60 Cal Rptr 632). These rulings should not be interpreted as a dictum against the provocation as a defense under the dog -bite statute. Instead, they indicate that the circumstances of the particular case under review did not warrant a judgment that provocation occurred. In contrast, rulings from appellate courts in other States have sided with the defense. A few examples follow: (a) PaIloni v. Smith, (1988) 431 Mich 871, 429 g did not intend to provoke the dog, the act nevertheless was sufficiently provocative. (b) Nelson v. Lewis, (1976) 35 Ill App 3d 130, 344 NE 2d 268. An Illinois court ruled that the stepping on the tail of a normally non - aggressive dog by a 2 y.o. girl was provocative despite the fact that the girls actions were unintentional. (c) James v. Cox (1981)130 AZ 152, 634 P2d 964; Toney v. Bouthillier (1981) 129 Ariz 402, 631 P2d 557. The court in each of these decisions ruled that unintentional provocation is a defense under the Arizona dog -bite statue. The courts viewed provoca- tion as dependent on whether the actions caused the animal to react rather than the intent of the actor. (d) Reed v. Bowen (1986) Fla. App. D2 503 So 2d 1265, 11 Fla. 2254. In Florida, the dog -bite statute requires that provocation must be committed "mis- chievously" or "carelessly ". Based on this, the court ruled in favor of the defense in a case involving the intentional pulling on a dog's chain by a 4. y.o boy. Shortly before the incident happened, the boy had been instructed not to bother the dog. The boy also• testified that he was "bugging" the dog. The liability of children In Reed v. Bowen the court ruled that the boy's age was not a bar to his contributory negligence. Likewise, in Illinois (Nelson v. Lewis, supra (1976) 35 Ill App 3d 130, 344 NE 2d 268, Michigan (Palloni v. Smith, supra (1988) 431 Mich 871, 429 NW 2d 593, and Arizona (Toney v. Bouthillier, , supra (1981) 129 Ariz 402, 631 P2d 557) courts have ruled that a child can be found contributory negligent. However, in California, if the victim is 7 years of age or younger, then a defense based on provocation may be inad- equate (Green v. Watts (1962) 210 Cal App. 3d 36, 266 Cal Rptr 734). Questions about provocation Ruling that the plaintiffs behavior was pro- vocative appears to depend on whether the act could foreseeably elicit an aggressive response from the dog. In the cases cited above, foreseeability appears to be the key element influencing a court's decision. The question of foreseeability is essentially a question • about animal behavior. It is here where the interests of the applied animal behaviorist overlap with that of (Continued on page 5) 3* Dog -Bite Statute con't. the attorney. The animal behaviorist is knowledgeable about the kinds of behavior from people that could foreseeably elicit aggression in a dog. The attorney needs this knowledge to either support or refute the notion of provocation. Certain questions need answering before con- cluding that the dog's aggression was a foreseeable event to the plaintiffs behavior, and hence provoca- tive. They are discussed below. The relative weight assigned to each in determining if provocation oc- curred will vary from case -to -case. (a) What Did the Plaintiff Do to the Dog? What were the exact actions of the plaintiff towards the dog the moment the incident occurred? The behavior of the plaintiff hours or minutes prior to the incident also needs to be assessed. Was the reaction of the dog something one would have expected given the temperament or breed of the dog? Did the dog overreact in response to the plaintiffs actions? These questions require expert opinion from an animal . behaviorist to be satisfactorily answered. The answer to these questions also becomes extremely important if one becomes suspect of the plaintiffs testimony. Frequently, however, such testimony cannot be di- rectly refuted because the plaintiff is the only witness. In a situation like this, behavioral reconstruction can be undertaken to determine if the dog was capable of behaving in the manner consistent with what the plaintiff says happened. A common example consists of the fence jumping dog. In several lawsuits I have worked on, the plaintiff claimed that he was bitten as a result of the dog jumping over the fence or because the dog jumped high enough to clear the top of the fence with its snout. In order to substantiate this, and hence confirm the plaintiffs version, one has to as- sume that the dog in question has the ability to clear the height of the fence and the desire to act protectively aggressive. Further, in order for this to happen, the dog must be large enough to extend its body far enough over the wall to reach the plaintiff. In those cases which I have reviewed which this supposedly happened, I concluded that the dog was not physically or motivationally capable of doing wht the plaintiff claims it did. Certain acts, whether they are intentional or not, have the potential of provoking a dog into a display of aggression (Polsky, Veterinary Practice Staff, 1990,Vol. 2. No. 2. pp. 37 -39). Often the motivational basis of a dog's aggression is one of dominance, fear, predation, or protection. In other cases, pain may be involved. Animal behaviorists know that pain can immediately trigger aggressive responding in a dog. Moreover, this type of reaction can readily be condi- tioned to previously neutral features in the dog's environment, such as a person, thereby causing the dog to respond with aggression to the person for no apparent reason. This is what happened in the case of Pentz v. Zimenthal (1994, Alameda County Case No. H- 170261 -9) . The plaintiff was awarded $ 290,000 at MSC for a bite that ripped off the right side of her nose. The dog did not know the plaintiff that well. She was a guest to the owner's home on Christmas day. Earlier that day, the dog had experienced a painful event caused by the defendant's foot acciden- tally hitting the dog when in very close proximity to the plaintiff (the plaintiff was talking to the owner who was seated in a chair next to the dog). The attack, which occurred several hours later, hap- pened as the plaintiff started to bend down to pet the dog. The attack appeared unprovoked. However, it was probably the result of the earlier negative asso- ciation the dog had formed towards the plaintiff. Other common actions that could easily elicit an aggressive reaction from a dog include quickly invading the dog's personal space, kicking or bump- ing into the dog, intentionally thwarting an ongoing activity in which the dog is engaged, and even an apparently innocuous act like hugging a dog. Not all dogs react in a similar fashion. Each dog is an individual. The merits of arguing provocation in any case have to be decided on a case -by -case basis. (b) What was the Temperament of the Dog Like ? Next, one needs to assess the temperament of the dog. Differences exist among dogs in terms of the likelihood of reacting with aggression in response to interaction from a human. Some dogs have a hair - trigger response while others do not. Such indi- vidual differences might be due to genetic differences between breeds, internal changes caused by medical problems or the use of medications, or differing past experience. Whether an act can be construed as provocation therefore depends, in part, on the his- tory of the dog and its hereditary make -up. As stated, each case has to be evaluated individually. Generally, the argument for provocation is stronger if the dog in question has a history of behaving non- aggressively and belongs to a breed not known for their aggressive tendencies (e.g. poodles, Golden retrievers, Labrador retrievers). (rontlnued on page 6) 36 Dog -Bite Statute, con Y. (c) In What Context Did the Incident Occur? Last, the context in which the incident happened also needs to be carefully assessed. For example, many dogs are more likely to respond with aggression when they are in their own terri- tory. Certain kinds of aggression in a dog may be enhanced if the dog is habitually chained, if it is in the presence of other dogs (e.g. mutual facilitation of aggression), if it is in the presence of the owner (e.g. protection of the owner), or if it is forced into a situation which it doesn't like (e.g. placed in an examining room of a veterinary hospital). In sum, from a behavioral perspective, cer- tain criteria need to be considered before stating with certainty that the plaintiffs actions were pro- o» DOG BEHAVIOR & THE LAW A newsletter for attorneys involved in dog -bite litigation © 1997 Richard H. Polsky, Ph.D., Publisher ANIMAL BEHAVIOR COUNSELING SERVICES, Inc. 2288 Manning Avenue Los Angeles, CA. 90064 -2002 Address Correcdun Requested (310) 474 -3776 Fax (310) 475 -2676 e -mail: abcs @westworld.com vocative. The following factors have to be taken into account: (a) The nature of the act by the plaintiff, the nature of the dog, and (c) the socio- environmenta context in which the incident happened. In general, the dog's aggression has to be an immediate response to the plaintiffs actions. There should be no evidence of similar kinds aggression displayed by the dog in the past. Generally, the plaintiff s actions have to be of the kind that would inherently cause a dog to experience pain, become threatened, irritated or frightened. The above mentioned factors interact with each other and must be assessed on a case -by -case basis in order to determine if the dog's reaction to the plaintiff actions was foreseeable or predictable. In my next newsletter, I will discuss behavioral aspects of the assumption of risk argument as it pertains to the dog bite statute. • 0 36 A NDOVE T Y OF 1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304 MAIN (763) 755 -5100 FAX (763) 755 -8923 • WWW.CLANDOVER.MN.US TO: Planning and Zoning Commissioners FROM: Andy Cross, Associate Planner A- CC: Courtney Bednarz, City Plann SUBJECT: Work Session: Subdivision Ordinance Discussion DATE: August 28, 2007 DISCUSSION At the July 24 meeting the Planning Commission was given copies of the proposed changes to the Subdivision Ordinance. Please remember to bring your copies to the August 28 meeting. The workshop will provide an opportunity to discuss the changes. If the Commission would like to go over any hot - button issues, we can discuss them at this workshop. The checklist you received with the Code in July provides a summary of the key changes in the Subdivision Ordinance and can assist with this. If there are no major items that the Commission would like changed, then the revised Subdivision Ordinance will go forward to a public hearing at the next available meeting. ACTION REQUESTED The Planning Commission is asked to discuss the revisions to the Subdivision Code. Respectfully submitted, rte' Zd §CSS LJ