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HomeMy WebLinkAbout2005/03/07 - ADMIN - Minutes - City Council - Regular ff-CTY OFFICIAL MINUTES ST.ILOLI°/FSCITY COUNCIL MEETING ARK ST. LOUIS PARK, MINNESOTA MARCH 7, 2005 1. Call to Order Mayor Jacobs called the meeting to order at 7.30 pm. Council members present. Mayor Jeff Jacobs, John Basil], Phil Finkelstein, Paul Omodt, Susan Sanger and Sue Santa Staff present: City Manager(Mr Harmening), City Attorney (Mr. Scott), Community Development Director (Mr. Locke), City Engineer(Ms Hagen), Engineering Project Manager (Mr Olson), Environmental Health Official (Mr Camilon), Housing Program Coordinator(Ms. Larsen)—Housing Supervisor-(Ms.-Schnitker),-Planning/Zoning-Supervisor(Ms.-McMonigal); Plannixig..Geordi:naer(Ms.-Erickson),-Utilities Department(Mr.-Ander:son),-and Recording - Secretary(Ms. Stegora-Peterson) 2. Presentations - None 3. Approval of Minutes 3a. City Council Minutes of February 22, 2005 The minutes were approved as presented. 4. Approval of Agenda and Items on Consent Calendar NOTE The Consent Calendar lists those items of business which are considered to be routine and/or which need no discussion. Consent items are acted upon by one motion If discussion is desired by either a Councilmember or a member of the audience,that item may be moved to an appropriate section of the regular agenda for discussion 4a. Adopt Resolution No.05-039 authonzing the installation of"No Parking" restrictions for 30 feet on both sides of the dnveways to 6830, 6850 and 6610 Oxford Street. Traffic Study No. 594 4b. Adopt Resolution No. 05-040 authonzing the execution of an Agency Agreement with the Minnesota Department of Transportation providing for the Commissioner of Transportation to act as the City's agent in accepting federal aid funds for transportation-related projects. 4c. Adopt Resolution No. 05-041 approving a Blanket Partnership Agreement with the Minnesota Department of Transportation to perform certain technical services when requested by the City. 4d. Accept Vendor Claims for filing (Supplement) It was moved by Councilmember Santa, seconded by Councilmember Sanger, to approve the Agenda and items listed on the Consent Calendar. The motion passed 6-0. 6. Public Hearings - None Council Meeting Minutes -2- March 7, 2005 7. Requests, Petitions, and Communications from the Public—None 8. Resolutions, Ordinances, Motions 8a. Request by Home Depot for approval of a Minor Amendment to an existing PUD for a garden center addition at 5800Cedar Lake Road. Case No 04-64-PUD Resolution No. 05-036 Ms. McGonigal presented the staff report. Steve Doms, Casco Architects and Engineers representing Home Depot, stated the only issue was the addition of the nght hand turn lane which could impact the completion of this project. Home Depot was in negotiations with Costco to split the cost of this. A large amount of the traffic_would_turn intoCostco's_parking lot __ Councilmember Sanger asked the deadline for the traffic improvements? Did both improvement needs to be done before the Home Depot expansion would be approved? Ms. McGonigal replied if they were unable to complete the traffic improvements right away, they could take a financial guarantee so that they could complete them in the near future Councilmember Sanger noted they have had a number of issues on this site, traffic congestion problems and problems for pedestrians because of the poor traffic layout. In the past there had been delays getting other traffic improvements done She hoped the traffic improvements would be done no later than the opening of the building expansion. Mr. Doms stated that they were willing to help improve traffic, but there were a variety of other owners in the development. Having to bear the entire burden of the turn lane was something that could outweigh the benefits of a 5,000 square foot expansion, compared to the benefits of putting in a turn lane Councilmember Sanger stated it was their call if they didn't want to do the expansion. It was not the City's role to get in the middle of negotiations between Home Depot and Costco. Her concern was that traffic improvements be done in a timely fashion. Councilmember Basill asked if Costco was not requesting the minor PUD, was it legal to require them to pay for part of this? Mr. Scott replied in this case they could because they all joined together into one PUD in the beginning, so because of that they did have the nght to do it. Councilmember Basill also felt this was something he didn't want City staff spending time negotiating. Home Depot was bringing forward the amendment to the PUD and should continue working with Costco on an agreement. Mr. Harmening clarified if Home Depot wanted to make the expansion, the traffic improvements had to occur. It was customary for the improvements to be done at the time that they opened their facility and if they were not, there would be a financial deposit such as a letter of credit to ensure that they were completed. It was moved by Councilmember Sanger, seconded by Councilmember Omodt, to approve Resolution No. 05-036 for a PUD Minor Amendment for a garden center addition to Home Depot with conditions. Council Meeting Minutes -3- March 7, 2005 The motion passed 6-0. 8e. Authorization to close Brunswick Avenue South at W. 33rd Street (Canadian Pacific Railroad) Resolution No. 05-038 Mr. Olson presented the staff report. The Police commented that patrol cars would be able to approach from 32"d Street The Fire Department indicated they would see little increase in response time. They identified full coverage of hydrants in the area with no worry of the crossing. Mike Olsen, 3216 Brunswick Av. S, stated he was opposed to the street closing which would limit accessibility to public safety vehicles, maintenance equipment, school buses and garbage trucks. Mayor Jacobs asked Mr. Olson about the responsibility of the street maintenance Mr. Olson replied.that maintenance within the track area-was done by=the railroad. If the City desired to perfo m work irithirdr`ea;they are require d get permission from the railroad and required to having a flagging operation set up by the railroad. They usually waited until they could coordinate a larger project with the railway. Councilmember Sanger asked if the City would maintain the same commitment for snow plowing. Mr Olson replied yes, it would be done in a different fashion. The City would plow initially with the large plow and then would cleanup with a smaller plow. Councilmember Sanger asked if Police would maintain the same level of surveillance of the park. Mr Olson replied the Police would continue to patrol the area with the same frequency Mr. Olsen indicated that the City mowed the boulevard next to the tracks and used summer help. They used a pick-up truck with a trailer to bnng in the mowers. He believed that would be an issue as well. Mayor Jacobs responded that he lives on a dead-end street, which had always been plowed by 7AM. He also had a lawn service that used trailers, they used a dnveway to back into the street and turn around. He asked staff if this would be an issue Mr. Olson indicated the resident who expressed concerns about her lawn service did not have a driveway on the street They would need to use a neighbor's dnveway to turn around. Councilmember Sanger asked if trucks backing up in the street was a problem. Mr. Olson replied Waste Management said they could back down the street or alley to pick up trash Dung Nguyen, 3240 Brunswick Av. S, was opposed to this project because it would save the City money, but the residents would pay in the long run because of making longer trips and the cost of gas. He was also concerned about the value of his house after the creation of a dead end street. Scott Bohlsen, 3226 Brunswick Av. S, stated he was against closing the street because it would be inconvenient to access Lake St. and Highway 100. This would cause them to drive by the high school in the morning, where there was more traffic. He was also concerned about resale value of the homes because of the access. Council Meeting Minutes -4- March 7, 2005 Jeff Karner, 3236 Brunswick Av. S, indicated he was also opposed to this because of the inconvenience. The people living on the North side of the crossing would be paying for the improvements at the Dakota crossing. He did not understand why they couldn't keep the road open and also improve the Dakota crossing. Mayor Jacobs thought they could, but it that it would be a cost issue. Mr. Olson replied the crossing upgrade at Dakota would be at the expense of the City if the closure at Brunswick did not occur. Mr. Kamer believed it was unfair that the people on the North had to go around for this The metal barriers at the closing were unattractive and he hoped something better looking would be put in Michael Cohn, 2226 Oregon Ct, asked if there were just homes affected or businesses as _well.-Mayor-Jacobs repliedjust homes.-- -- - -- - - - - - Aaron Carlson, 3222 Brunswick Av. S, stated for the reasons already stated, he did not want the street closed. He asked for clanfication if the only way CP Rail would do the upgrade was if they closed Brunswick. Mayor Jacobs replied that they would do the upgrade to the Dakota Avenue crossing and would pay for it, which was $50,000, with the condition that the Brunswick crossing be closed. Mr. Olson stated that it was typically done for safety reasons. This crossing is controlled by a stop sign. There had been complaints about traffic running the stop sign and concerns about pedestnan crossing. Closing the crossing would make it safer for the railway company. This was part of a program that the City worked out with the railway in 2003, where they would upgrade a crossing and close another. Mr. Carlson did not understand why the City couldn't tell the railroad that didn't make sense. Mayor Jacobs stated that they were not able to do much negotiating with the railroad because they fell under Federal law. Councilmember Sanger asked the residents if they felt the Dakota crossing needed the upgrade. Mike Olsen replied that he had been in the area 30-40 years and the Dakota crossing had always looked the same. He thought maybe there was another plan for upgrading the crossings such as light rail or freight trains Councilmember Sanger responded it couldn't be light rail because they used different tracks She wanted opinions on the physical status of the Dakota crossing; and if it appeared to be deteriorated. Mr. Olsen replied not more than usual, it had always been a bumpy road Councilmember Finkelstein spoke in favor of the closure because the railroad tracks at Dakota were in desperate need of repair. They all knew of stones about cars losing nms and hubcaps. A person became stuck on the crossing in their wheelchair. This was an opportunity to get this repaired while they were fixing Brunswick for very little cost. Staff noted this would lead to less noise, it would be safer They had reports from Police, Fire and the snowplow division that service would not be affected. They had an obligation to deal with limited resources and this was one way to utilize that Council Meeting Minutes -5- March 7, 2005 If they refused to close Brunswick, they didn't take advantage of this offer, they may be stuck with at least a $50,000 bill. The metal gates would not be attractive and he understood the inconvenience to residents and the concern about housing prices They could work with the neighborhood to make the gate more attractive. He suggested as part of number two of the resolution that they have a set date that CPR needed to have this done by because now all they had to do was upgrade the crossing in accordance with plans approved by the Director of Public Works, but there wasn't a date Knowing how the railroad worked, he hated to see them shut down the Brunswick road, get the plans in place for Dakota and not get the work done in a timely fashion Mayor Jacobs asked if they had the ability to control when they closed the Brunswick Ave. Mr. Olson replied the closing of Brunswick would follow the upgrade of Dakota. Councilmember Basill stated that he served on the railroad task force and the closings had nothing to_do with the freight flow. They made_the_offer citywide. He felt the railroad wasydoing it for safety concerns The-number:ofstreet railroad crossings they , had in St. Louis Park was far higher than any other area. Councilmember Omodt indicated he was becoming more conflicted. When he was on the railroad task force, people were in favor of the closing for safety and that they would like to live on a cul-de-sac. He also worked at Roxbury Park with the Police to weed out the kids that were doing things that they shouldn't be doing. Police thought less access would make it harder He was the Councilmember who saw the man stuck in a wheelchair on Dakota trying to cross the tracks and could not get over. For two or three years they tried to get the railroad to upgrade the sidewalk crossings and it was very hard to do, they operated under different Federal laws. They made this offer to the City for safety reasons, fewer crossings meant it was a safer passage. He was surprised that there was this much opposition. They might need to look at this more before making a decision. Councilmember Sanger agreed with Councilmember Omodt. A couple of years ago there were several people in favor of this and some opposed. This was the first time she had heard so many people opposed, but she could not dismiss the fact that the crossing at Dakota needed to be upgraded and the City could not afford to turn up their nose at someone else doing $50,000 of work. She felt torn about what was the right thing to do, although she was unsure what they would gain if they delayed this. Councilmember Santa stated the crossing at Dakota was a matter of great concern to many people. The crossing was degraded and dangerous. Used by teenage drivers daily and trains, the combination was frightening. She was weighing things equally and kept coming back to a very degraded crossing that was more and more dangerous to pedestrians, traffic and to trains. She asked if the railroad had given them a deadline. Mr Olsen replied that they didn't have a deadline From previous experience working with the railroad, it was difficult to get on their schedule,'which was why they were pursuing it. Ms. Hagen added that if they closed Brunswick, they would be looking at doing the closure as part of the pavement management project, which would start in May or June. Mayor Jacobs stated that he wouldn't want to close Brunswick until the Dakota crossing was completed Council Meeting Minutes -6- March 7, 2005 Ms. Hagen indicated they would hold back 25-30 feet from the edge of the crossing to make sure before they went ahead with the street project. Councilmember Omodt asked if the railroad suggested any other tradeoffs on this route. Ms. Hagen replied they looked at the ones on 40 East of Brookside, but the neighborhood desired to keep that one open as well. There were also the 28th and 29th Street crossings. They paired them up on their proximity. They weren't considenng closing any others at this point. Councilmember Sanger asked if they did not approve this street closure, what could they expect in terms of the railroad improving the Dakota Avenue crossing on their own. Ms Hagen replied it would be at their discretion and on their timeline As long as they were able to run the train through, there would be little or no maintenance done. Councilmember Omodt su,Tggested'the_Council might consider_taking another look'_at_this. _ Councilmember Finkelstein stated they had discussed this at the last study session and pnor. There needed to be a decision and he didn't know what pushing it back to another study session would do for the neighborhood, for getting this work started in Apnl or about the possibility that if they delayed this further, they may be responsible for picking up the cost. The most responsible thing would be to take a vote. Mayor Jacobs indicated he was not sure what they would gain by having a study session. He could allay some of the fears that he had heard because he lived on a dead-end street and they had never had trouble getting emergency vehicles up and down the street. He also had a lawn service and they were able to get in and out, as well as the garbage and snow plowing Councilmember Finkelstein stated this looked like the least miserable alternative in terms of what they knew was to be the problem with Dakota Avenue. Mayor Jacobs noted that the Dakota Avenue crossing was a problem and he had heard that from a number of residents and it really needed upgrading. It was moved by Councilmember Finkelstein, seconded by Councilmember Santa, to adopt Resolution No. 05-038 authorizing the closure of Brunswick Avenue South at W. 33rd Street (Canadian Pacific Railroad) conditioned on certain CPRR concessions; and, to add in item #2 that the closing will be done after the completion of the Dakota Crossing by CPRR in 2005. Councilmember Sanger stated as a policy maker, they had to make tough decisions and that inconvenience was just barely outweighed by the need to upgrade the Dakota Avenue crossing and the significant safety concerns associated with it. She asked that they improve the aesthetics of the closing. A number of people had raised concerns regarding truck traffic and impact on city services, she didn't believe there would be a significant impact, however it was possible she was wrong. At that point they needed to be informed if there was a problem with snow plowing or Police access, etc. Council Meeting Minutes -7- March 7, 2005 Councilmember Omodt stated he came to the meeting thinking this was something the neighborhood wanted and was surpnsed at the number of people in attendance. He would be voting against the motion because he thought this was something they,could look at again and maybe the railroad could pick something else to close. The motion passed 5-1 with Councilmember Omodt opposed. 8b. Housing Summit Goals Presented to Council for Approval Ms. Schnitker presented the staff report Ms. Larsen reviewed the Housing Goals Mayor Jacobs thanked the staff for their work on the Housing Summit process, as well as the many people involved in the Summit. It was moved by Councilmember Sanger, seconded by Councilmember Santa, to approve Housing Goals as_developed through the.St. Louis_Park Housing Summit and proceed with_next steps forimplementation. __'_________-r_„ ____ __ ____ ___ __ _ Councilmember Basill thanked staff along with Councilmember Santa and for Councilmember Sanger's addition of the language emphasizing the need for single- family move-up housing. It was something he heard all over the community and Councilmember Sanger championed that. The motion passed 5-0. (Councilmember Omodt had stepped out of the chambers) 8c. Request of Emad Abed for a text amendment to Section 36-292 (0 of St. Louis Park Ordinance Code (Zoning) relating to the floodplain overlay district to delete the requirement that compensating storage (required when there is fill in a floodplain) be provided outside of fhe floodplain boundary. Case Nos. 05-04-ZA Ms. Erickson presented the staff report. Councilmember Santa referred to page three; the area where the compensating storage is proposed shall be an area outside the 100-year flood zone before development as compensating store When she read this, it did not comply with what they had been trying to do for many years They had spent an enormous amount of time, energy and money dealing with flooding throughout the City and getting as many properties as possible to a level where they had protection to a 125-year rain event. When she read the 100-year flood zone, it seemed they were setting up a situation where a development had a 125-year event, that other properties had been protected from, did not meet that standard and she was uncomfortable with that. Ms. Erickson replied that the Zoning Code protected to the 100-year flood, which is the State and FEMA requirement. They only regulated to the 100-year event This did not decrease in any manner the amount of storage they had This says that they could dig a deeper hole to compensate for the storage that they were taking by filling Councilmember Sanger shared Councilmember Santa's concerns. They had spent millions of dollars trying to flood proof and do corrections in this community. They were asking the Legislature for money to help do even more flood mitigation. They were talking about 100- year floods, which there were probably three of within the last few years and they would be Council Meeting Minutes -8- March 7, 2005 having more issues. Why would they want anybody to be building in a flood plain? Maybe they ought to be looking at the regulations from that perspective. Mr. Harmening clarified that they might be combining the 100-year flood plain boundaries with the 125-year storm event protection that they were trying to create in their ponding basins. The 100-year flood plain boundaries related primarily to Minnehaha Creek and the elevation of the water that had been calculated based upon a 100-year flooding event (ex. a spring melting). What they had been talking about in terms of flood mitigation in some neighborhoods was 125-year storm events meaning a single storm with a heavy rainfall. They were trying to create storm water holding systems that could protect against a 125-year storm event. They couldn't necessarily group those into the same category. They were different. Councilmember Basil' stated he had concerns as well. It was coming forward because of a specific parcel. Was there another alternative instead of making a citywide change? Ms. Erickson-replied that-the applicant's parcel•was-almost.entirely all below-the,100- yearflood elevation. In or3er�or aanything to be tiuiYt on thisland, it had to Be filled and there needed to be compensating storage for whatever was filled. Because there was no other place that could be filled above the 100-year flood elevation, this property could not be developed if this ordinance amendment were not approved. Councilmember Finkelstein asked if this was something that they needed to get more information on at another meeting with the City's Consulting Engineer? He had some concerns about this and wanted to get a better understanding. Mr. Locke commented that the ordinance change did not mean they would be able to reduce the capacity to handle floodwaters. It would provide more flexibility for how they did it. If they wanted to fill in some of the flood area, the only way to do it would be to go laterally, which in some situations meant they would expand the area that was going to be wet closer to other buildings. The change allowed them to make it possible to go deeper and handle more water in a smaller area. Councilmember Finkelstein stated his concern was if they passed something like this that they might be engaging in some liability by approving plans and in the future there being a problem with the building. Mr. Locke stated that was why they talked about accepted engineering practices and why they spent time talking with the Storm Water consultant. They would be relying on the technical expertise as they dealt with the individual specifics of each project in each storm water management situation, and deal with it from a technical standpoint. Councilmember Santa stated she was struggling with the difference between a flood plain and a wetland. If it was already a wetland and had its own ecology and they dug a big hole, they would change the whole ecology and she was concerned about that. Ms. Erickson clarified they would only be allowed to dig a bigger hole in a place that was not already wet They could not dig a bigger hole within the wetland. If they fill in a wetland, they had to replace that wetland two for one, outside of the wetland. The floodplain was different. Most wetland is in a floodplain, but not necessarily the other way around. Councilmember Sanger indicated that the ordinance didn't say that they couldn't dig in a wetland. Secondly, it may be dry now, but they were concerned about when it rained a lot and would not be dry You may dig a deeper hole, but it would still overflow and there Council Meeting Minutes -9- March 7, 2005 would be potential issues with wet basements or foundation issues. The person who bought this property presumably bought it knowing the characteristics of the floodplain and legal requirements She was concerned about changing it to make it developable on this land and then they could have other unknown applications in the rest of the community Mayor Jacobs stated his concern was that deeper holes in flood plains and wetlands tend to fill in and how would they check it to make sure the hole stayed as deep as they had dug it? That would impose a lot of requirements for maintenance Ms. Enckson replied that maintenance anyplace they were trying to retain water was an issue because there was always siltation Whether they dug a deeper hole or stayed the status quo, they would have the same issue and over time the fill was going to decrease the storage capacity. Mayor Jacobs sensed hesitancy to go forward and thought they may benefit from additional discussion. Ms. Enckson clarified that the-City was not-the.regulatory-agency for wetlands. The Minnehaha Creek-Wa ershedDisfrict was theregulatofyi ency: _ Mr. Locke reiterated that the Zoning ordinance was not the pnmary tool for regulating these issues. If the Council was uncomfortable and would like to know more about this, there was not problem having WSB explain it further. Councilmember Omodt stated he could not see having this explained to him by WSB changing his mind He thought this was a bad idea and would prefer to vote it down Mr. Harmening indicated Councilmember Basill raised a question about other options that the applicant might have. Was a variance possible? Ms. Enckson replied no, the zoning code specifically stated that no variances are allowed to the floodplain districts. Councilmember Basill stated that he was torn on this and if he had to vote without all of the information, to be cautious he would say no. He wanted to have more information and bnng it back to a study session. It was moved by Councilmember Basill, seconded by Councilmember Santa, to defer this item to a study session for further review. Mayor Jacobs recalled discussions about the Lamplighter Park and one of the issues was how the City allowed houses to be built in the floodplain. He wanted to be sure they didn't set themselves up for failure by building something in an area that would end up with wet basements. Was this a time sensitive issue? Ms. Erickson replied that they also had a request from the property owner for a Comprehensive Plan and Zoning change. That would be going to the Planning Commission on March 16th Councilmember Sanger asked why they were doing it in that order? It seemed that they ought to look first at the Comp Plan and Zoning issues because if they chose not to make those changes, the issue about floodplains was a moot point. Ms. Erickson replied if this property could not be developed, they would have wasted the applicant's money with those applications. If they didn't bnng the other forward, application fees could be returned. Council Meeting Minutes -10- March 7, 2005 Councilmember Santa requested at the study session they look at other areas of the City where this may be an issue. If this was only going to affect one property, it was very different from something that could have a citywide effect. Councilmember Finkelstein requested they be provided with definitions of floodplain, wetland, 100-year flood event and 125-year storm event. Councilmember Basil! asked if they had any neighborhood meetings regarding this proposal Ms. Enckson replied they had been waiting to see if this ordinance would be approved Councilmember Basil! was concerned about the time frame, and if they were bnnging something forward to the Planning Commission on March 16th, four neighborhoods would be affected by the development and they hadn't met with the neighbors, that was concerning. Councilmember Sanger stated when she asked the question about why they were dealing with this_first she understood what they meant about_not_wanting to_waste_the applicants money, but`if it were already:going'to the Planning-Comrriission, it seemed'that:they had already started that process and the money was spent She reiterated her question about why they didn't do this afterward? Mayor Jacobs shared the concerns about not having neighborhood meetings yet, given the fact that there was a potential Comp Plan amendment. Ms. Enckson stated they had already asked for one extension and that was why the time had become an essential issue. They were probably at about 45 days now Mr. Harmening noted they could extend it another 60-days. The motion passed 5-1, with Councilmember Omodt opposed. 8d. Request of City of St. Louis Park for an amendment to the Comprehensive Plan 2000-2020, Chapter K Water Supply Plan to modify the water contingency plan to conform to Federal Homeland Security legislation and to provide stricter water conservation measures. Case No. 05-05-CP Resolution No. 05-037 Ms. Enckson presented the staff report Councilmember Sanger asked staff to clarify for residents that they didn't have a choice about approving this and secondly, this meant that in the summer residents would be limited to watenng their lawns no more than once every other day? Ms Enckson replied that was correct. Councilmember Sanger assumed other communities would have similar regulations? Ms Erickson replied that was correct Mr. Anderson stated that this gave them an opportunity to manage water better. Most water was wasted between noon and 6 PM and when the commercial and industrial areas were using more of the water. Most of the water evaporated off the lawn, at that time. Mayor Jacobs recalled a seminar where they mentioned that many times. Council Meeting Minutes -11- March 7, 2005 Mr. Harmening clanfied for viewers that the Council talked about the concept of more restrictive watering requirements last summer and implemented them during the latter part of the summer. This formalized their water conservation measures in St. Louis Park to be more restrictive in terms of watering gardens and lawns. Mr. Anderson emphasized one of the reasons to do this was in this past they had put it on and taken it off, etc. and this way it would be on all the time and would be easier to communicate and enforce. Councilmember Omodt noted when to communicate to residents that this was part of Homeland security and there was greater thought to this. Councilmember Finkelstein stated this would maintain an adequate water supply. Mayor Jacobs viewed_it_as_environmentally responsible. _ Mr. Anderson added that they had to add a lot of reactionary steps in the contingency plan for Homeland Security. This was directly related to conservation of water, not Homeland Secunty. It was moved by Councilmember Sanger, seconded by Councilmember Santa, to approve Resolution No. 05-037 amending the Comprehensive Plan 2000—2020, Chapter K. Water Supply Plan to provide changes to water emergency planning in conformance with Federal Homeland Security legislation and to incorporate stricter water conservation measures subject to Metropolitan Council review; approve summary resolution and authorize publication. Manlyn Hoeft, 7020 W 24th St, stated in the discussion of sprinkling restrictions businesses were not mentioned She found it annoying last summer when those in the neighborhood were paying attention to the restrictions, but found that businesses were not Mayor Jacobs replied they needed to do a better job of enforcement. Sprinkler systems were available with a rain gauge switch, was that required? Mr. Anderson replied yes. One of the difficulties they had was working with some businesses This year they had made and effort and put it in the Business Line newsletter and communicate with them directly. They would be paying closer attention to the enforcement. They will also put it in the Sun Sailor and Park Perspective and were doing a mailing in all billing Councilmember Basil] commented in the communication that it should be mentioned that this didn't mean people couldn't keep their lawns up and green, they would just be good stewards when they did it by watering dunng the designated time so they needed less water. Mr. Anderson noted that Jim Vaughn had another lawn care seminar coming up and people could check the website for that information. The motion passed 6-0. 8f. Consider enforcement options provided in Hennepin County Ordinance#24 establishing smoke-free restaurants within the County. Council Meeting Minutes -12- March 7, 2005 Mr. Camilon presented the staff report. Mayor Jacobs noted that a few pages of the report were missing and asked if multi-use facilities were covered? Mr. Camilon replied in the ordinance it addressed multi-use facilities and it had a number of examples and requirements that would cover them. It was moved by Councilmember Sanger, seconded by Councilmember Finkelstein, to authorize the City Manager to inform Hennepin County by letter that the City will accept enforcement responsibility of County Ordinance#24 establishing smoke-free food and beverage establishments. Councilmember Sanger added that she hoped that restaurant and bar owners would be responsible and not get into an enforcement situation. Councilmember Omotlt statedXhe'read'tliro gh'the re ort and"noted`a`few gages of the _ Counties agreement were missing. They said they would partner with the County, but there was no guarantee if there was a test case that they were not going to "leave us holding the bag". Had they budgeted anything for enforcement and lawsuits? Mr. Camilon replied nothing was budgeted. The work they anticipated would be minimal and would be done in combination with regular daily inspections of food facilities. They would handout packets of information from the State to educate people. In the event that they would be challenged or have to go to court, they could not enforce Hennepin County's laws and they would have to give authonty to the County. Mr. Scott indicated if there were a "test case" they would have the option of dismissing and not pursuing it if Hennepin County didn't want to work together. He had spoken with Mr Hoffman regarding the ability to enforce the ordinance and didn't know if they had come to a conclusion. The County had determined that they had the ability to enforce it and their process was to have the City Administrator send back a letter that they had provided that they would enforce the Ordinance. They were complying with the County's request. Councilmember Basill asked if they said they would enforce this, and issued a citation, but decided not to go forward with it because of fear of being a test case, could the County come back to them for not enforcing it? Mr. Scott replied it was his understanding that they were treating this as if it were one of their own ordinances. They would enforce it. They first suggested that they be the investigative arm and if there was a situation that was a violation, they would send it to the County who would then send it to the County Attorney's office. That had been rejected. They would be enforcing this ordinance as if it were one of their own ordinances. Councilmember Basill asked if there was a legal problem enforcing a County ordinance? Mr. Scott replied the County made a determination that they could delegate this authority to the City by having the City Administrator, as other Cities had done, indicate that they were willing to enforce the ordinance. There was a commonality of authonty to do it or they could do a joint powers agreement with the County. The County requested they do it in this fashion, as opposed to going to a more formalized joint powers agreement. That could potentially raise an issue if they issued a citation and someone raised that issue Council Meeting Minutes -13- March 7, 2005 Mr. Camilon added in their discussions, they felt they could deal with their establishments and try, short of taking them to court, to convince them They had done this in other applications and had good success In the event that they would have to take court action, he agreed that they could issue the citation or formal complaints. If it got to be a big issue, they would consult with Hennepin County and try to get them involved. Councilmember Omodt stated he was uncomfortable saying that this may or may not work and maybe they should have a joint powers agreement They couldn't enforce a County ordinance and it seemed there were more problems than solutions. The staff report showed that they would have a partnership with the County, but he would rather see something in writing saying or a joint powers The City Attorney said that it wasn't a clear-cut case and they ought not push this onto their taxpayers for what should be County business There was an unacceptable nsk. He would like to know why Hopkins and_Brooklyn Park took a different_route._The Council_didn't have enough information _ because the report was_Missingrpages,__They were makingFdecisions on;tlungs that_the_ __ ___ _ City Attorney admitted was not clear. Councilmember Sanger indicated that they had talked about this at a study session in the past and the County had delegated authority to enforce this. Theoretically someone might challenge this, but that was no different than other legal claims that were challenged. In a worst case scenario if they went to enforcement and Mr. Camilon was unable to use the methods he talked about to resolve it and they had a challenge, her expectation at that point the County had to step in because it was their ordinance. They were using legal hair splitting and fears to get around or to avoid the real issue, which was that second hand smoke kills people. They shouldn't let fears over potential issues get in the way of trying to protect people's health. Councilmember Finkelstein agreed with Councilmember Sanger. In regard to the enforcement options, if they didn't do this, smokers would know that the City of St. Louis Park was not enforcing it Seven out of nine cities that had this delegated authority for their food establishments, had accepted the responsibility and he thought they could do no less. If there was a problem and Hennepin County didn't back them, they could go back to the County and get anoint powers or, as the City Attorney suggested, if it was not going to work with them enforcing the County ordinance, then they could go back and pass a city ordinance. There was a deadline of March 31S`, they should do this. Councilmember Omodt stated that he didn't think this was legal hair splitting. They had three weeks to get his done legally the way they thought it should be done. There was enough question as to the legality of this and who would pick up the tab for enforcement He didn't know how they could make a decision without all of the information. The City Attorney told them that this was not a clear-cut issue. Secondly, no one doubted that second hand smoke was dangerous, that was not the issue. If the City was taking on unacceptable risk, their liability needed to be thought through. They had three weeks to fix this They could do a better job Mayor Jacobs asked Councilmember Omodt what he suggested they do, have the City Attorney meet with the County Attorney and draft an agreement? Councilmember Omodt suggested that the Council get the full ordinance. Second, they should get a joint powers agreement. Council Meeting Minutes -14- March 7, 2005 Councilmember Sanger thought Councilmember Omodt heard something differently from the City Attorney than she had She was under the impression that what he had said was based on the County's delegation, they did in fact have the right to enforce this. He was also saying that they might have some kind of liability and she was unsure what that liability might be. Mr. Scott stated that Hennepin County made a determination that they could delegate it in this fashion There may be some issues about that. In his discussions with Mr. Hoffman, he was very optimistic that they would not have any enforcement situations where they would have to go to court and that they could be worked out. When he raised the issue about how "ironclad" this procedure was, Mr. Hoffman thought there might be some issues, but the likelihood that they would have enforcement was minimal. The County made a determination that they felt it could be handled in this way. In the worst-case scenario if there was an enforcement and if someone raised the issue, then it would have to be addressed at that time. He was unsure they could get more accomplished by March 31, because they were_dependent on the County_being willing to_look_at_mt_a different __way, whether it be a jomntpowers-ora differentrtformarhow'they would'do t�ie� _.� _ enforcement. One option would be to go ahead and then direct staff to talk further to the County about the issue of making this clearer. Councilmember Finkelstein was concerned if they didn't pass this, it could create a rippling effect and they would encourage citizens to say that they weren't going to enforce this. Mayor Jacobs stated he was sensitive to the concerns raised by Councilmember Omodt about the fact that they didn't have a firm understanding with the County as to how much they would back this up. He agreed with staff that he didn't think there would be a big issue, but that was an unknown. Councilmember Santa commented that the residents of St. Louis Park were aware that Hennepin County passed an ordinance. They were aware that it went into effect at the end of March The expectation of those who smoked and those who did not smoke was that the ordinance would be enforced Whoever does it was unclear, but to a resident, they had the expectation that St Louis Park would do it and ensure that all ordinances were going to be enforced. Whether they agreed with it or disagreed with it or thought it needed more clarification, April 1st, there were going to be residents and business owners looking at staff asking what they were supposed to do. Mr. Camilon was going to answer their questions. They were getting lost arguing about what the County wanted them to do and what they didn't want to do and how that was going to happen She cared that the citizens of St. Louis Park could depend on them to do the things that they were elected to do. Councilmember Basill added he was very concerned that there was an expectation within the community that they be fiscally responsible and he was very concerned as he listened to how this was enforced and the legalities what they could be on the hook for The County had passed this, which he thought was good for secondhand smoke, and they weren't going to fund it. It was up to the City to enforce what they had passed The County was not guaranteeing they would become involved. There should be a hold harmless agreement for the legal costs because St. Louis Park would be enforcing this on behalf of Hennepin County. A person with a medical condition could go to a location that was allowing smoking and something medically happened, the City had a resolution saying they would enforce this and they could come after the City because they did not Council Meeting Minutes -15- March 7, 2005 enforce it He was concerned about taking this over for the County and doing it at the risk of taxpayers. He was happy they passed it and that it would help limit secondhand smoke Mayor Jacobs asked if Mr. Scott would be comfortable if they passed the motion and then had the Council direct staff to go back and talk with the County to get the guarantees they had talked about? Mr. Scott replied his suggestion was to go ahead with the motion and if they wanted to direct staff to have further discussions with the County to clarify the relationship they could do that Mayor Jacobs stated he was OK with the motion, but would like to have more clarity with the County. He was also sensitive to Councilmember Santa's comments about what the residents were going to expect, because they would expect that the City would enforce this Mr. Camilon added regardless of who was going to be enforcing this, on April 1 the ordinance would-be-in effect_and the_disclosure program_would no longer_be in existence. -He was unsure if it-did become challengeable, what kind offinancialsosts_,would'they_ibe incurring. _ _ ___ _ __ _ _ _. Councilmember Basill stated if they passed this and went back to the County to talk about anoint powers or hold harmless agreement, what were they going to try to change? Mr Scott replied they could direct staff to better clarify the legal aspect of the delegation of the authority to make how it would work clear. He was unsure if the County would do anything further There was an opinion from the County Attorney's office that they did not have the authonty to prosecute misdemeanors. He believed they could delegate that, it may just be a letter from the Administrator agreeing to the delegation The County believed that was sufficient. The County Attorney's office was saying that they didn't enforce County ordinances that were misdemeanors They could adopt the resolution tonight and direct staff-to talk further with the County and they could report back. Councilmember Sanger stated it would be reasonable to assume at a minimum they would be able to provide written documentation of their legal basis for concluding that they had the right to delegate the power to the City Councilmember Santa asked what would happen if they didn't pass this resolution and no letter went to the County by March 31St? Mr. Harmening replied that the presumption by the County would be that they were not going to enforce the ordinance. Councilmember Santa had a bias that the City staff did it better and while she had some concerns about putting the City staff financially in limbo, or taking on responsibilities beyond what they should be doing, she believed the City staff did it better and should be doing it. The expectation was that they would do it. Councilmember Basill hoped they would be held harmless of any risk that would come after the City and their taxpayers for something that the County had passed. The ultimate policy statement was their budget and if they passed something and didn't fund it, what were they [Hennepin County] passing? He was concerned that the County wouldn't back them up and there was no language saying that they were a partner. If they passed this, they had to realize it was very unlikely that the County would jump in and help them fund this Council Meeting Minutes -16- March 7, 2005 Councilmember Sanger didn't agree because and wasn't sure that they wouldn't back them up or at least split it. She didn't know why they should assume that the County would just back out after all of the effort they went through to pass this in the first place. Mayor Jacobs thought rather than debating what the County may or may not do, if the City Attorney was comfortable having the addition to the motion directing him to go back and seek additional clanfication, that should be part of the motion. Mayor Jacobs asked Councilmember Sanger if she would accept a friendly amendment that the City Attorney and City staff are directed to go back to Hennepin County and request a formalization of the relationship of enforcement of the ordinance. The County is asked to provide verification as to the legal basis by which the County was asking the City to enforce this ordinance. Councilmember Sanger accepted the friendly amendment Councilmember Basill asked if they didn't have time to ask that question_before this was _ ; passed? Mayor Jacolistonded"that they could,balttiough hits would be:going into effect in three weeks. Councilmember Sanger asked if that would change his mind? Councilmember Basill replied yes, if he knew that the County was backing them. He was having no trouble supporting this because he did want the enforcement. He was having trouble with the financial nsk they were putting their residents at for a County ordinance. Councilmember Sanger stated that she didn't know that they were putting anybody at financial nsk. They didn't know now how many DWI's they were going to have to prosecute or any other kind of enforcement There were unknowns. They did know that their staff and City Attorney had conversations with the County Attorney's office. It was clear that they weren't dust going to give them everything they wanted or they wouldn't be having this discussion. If they passed this, they did have to live with a little ambiguity She didn't know why that was any different than any other kind of potential legal issue. Councilmember Finkelstein agreed, does it serve the public good? Does it serve the public health? If they didn't do this, he thought it was leaving them open into an amorphous, obfuscated situation. Mr. Harmening stated whether they send a letter to the County or not, they would still get calls from residents asking why smoking was being allowed in certain restaurants. They had two options, they could follow up on that or they could tell them to call the County. His guess was that they would follow up. Practically, given their relationships with the bars and restaurants, they were going to be in an enforcement situation anyway. He initially had some concerns about the financial liability they might have or exposure relative to prosecution of the violation. He didn't think that was a big issue. They didn't have to charge somebody for a violation of an ordinance, if they didn't feel the County was there with them to back them up or help them out They had discretion taking on financial exposure and putting their residents at risk because of that. Councilmember Basill agreed that it should be enforced, and City staff would be there. It wasn't that much to ask to get this in writing for the County to help if an incident occurred. It was good business practice that the County supports them Council Meeting Minutes -17- March 7, 2005 Mr. Harmening stated his understanding was if this motion were passed, they were asking them to go back to the County and ask for a formalization of the relationship and also verification as to the legal basis by which the County was asking them to do the. enforcement. All they weie doing was sending a letter at this point, they were not signing a contract. There was nothing stopping them in two months from sending another letter to the County saying that they were not going to enforce this. In terms of the concern about liability, he didn't know if they had any more exposure than if someone ran a stop sign and someone were killed and they would sue for not enforcing stop signs or speeding ordinances. He didn't think the liability were any different. Councilmember Omodt asked for clarification of the motion. Mr. Harmening stated the motion would read. to authorize the City Manager to inform Hennepin County by letter that the City will accept enforcement responsibility of County Ordinance#24 establishing smoke-free food and beverage establishments and that the __`City•Attorney and City staff are'di rected'to.'gotack to Hennepin County andrequest-a _ .V __ _ formalization of the relationship of enforcement of the ordinance. The County is asked to provide verification as to the legal basis by which the County was asking the City to enforce this ordinance. Councilmember Basill made a friendly amendment to insert, "to inquire about a hold harmless agreement and sharing risks with the City". Councilmember Sanger accepted the friendly amendment. The motion passed 6-0. 9. Communications Mayor Jacobs reminded people that study sessions are open to the public He thanked the Torah Academy kids for meeting with the Police Department and expressing their condolences for the loss of Officer Day. St. Louis Park is in the process of St. Louis Park Reads a Book, where the community will select a book to be read. It is an opportunity to have people read more and to increase reading for pleasure in children. A book had not been selected yet. There is a meeting in City Hall, March 9th at 3:00. The Friends of the Arts Committee is meeting March 10`h at 7PM at City Hall to talk about the State of the Arts in St. Louis Park. March 15th at 7 PM there will be a meeting in City Hall to talk about the fate of Highway 100 Members of the Legislative team and MnDot staff members will be present. Councilmember Basill added that the Council unanimously approved a resolution asking that the date be moved up. Council Meeting Minutes -18- March 7, 2005 10. Adjournment The meeting adjourned at 10:14 p.m. • /1-0-4--4-,-,------g— ---- d4 y---('' CI Clerk Ma)/ /