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HomeMy WebLinkAbout2010/12/06 - ADMIN - Minutes - City Council - Regular OFFICIAL MINUTES CITY COUNCIL MEETING ST. LOUIS PARK, MINNESOTA DECEMBER 6, 2010 1. Call to Order Mayor Jacobs called the meeting to order at 7.35 p.m. Councilmembers present: Mayor Jeff Jacobs, Phil Finkelstein, Anne Mavity, Paul Omodt, Julia Ross, Susan Sanger, and Sue Santa Councilmembers absent: None. Staff present: City Manager(Mr Harmening), Deputy City Manager/Human Resources Director (Ms. Gohman), City Attorney (Mr. Scott), Community Development Director (Mr. Locke), City Assessor (Mr. Bultema), Planning/Zoning Supervisor (Ms. McMonigal), Director of Inspections (Mr. Hoffman), Planner (Mr. Fulton), Controller (Mr. Swanson), Finance Supervisor (Mr. Heintz), Housing Supervisor(Ms. Schnitker), and Recording Secretary (Ms. Hughes). Guests: Mark Ruff(Ehlers &Associates). la. Pledge of Allegiance lb. Roll Call 2. Presentations - None 3. Approval of Minutes 3a. Study Session Minutes of October 25, 2010 The minutes were approved as presented 3b. City Council Minutes of November 1, 2010 The minutes were approved as presented. 3c. Study Session Minutes of November 8, 2010 The minutes were approved as presented. 3d. Special Study Session Minutes of November 15, 2010 Councilmember Ross requested that an additional paragraph be added to page 2 that states "Councilmember Ross requested information regarding solar options as a form of energy for the fire stations." The minutes were approved as amended. 3e. City Council Minutes of November 15, 2020 City Council Meeting -2- December 6, 2010 Councilmember Ross requested that the third paragraph on page 4 be revised to add "Councilmember Sanger also asked if fiber optics were being considered for the development." Councilmember Ross also requested that a paragraph be added that states "Councilmember Ross asked if this is the first project of this size for Eldndge." The minutes were approved as amended. 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. 10-141 authorizing award of the 2011 St. Louis Park Arts and Culture Grants. 4b. Adopt Resolution No. 10-142 authorizing final payment in the amount of $24,015.13 for the 2009 MSA Street Improvement Project - Texas Avenue with Valley Paving, Inc., Project No. 2008-1101, City Contract No. 122-09. 4c. Adopt Resolution No. 10-143 authorizing final payment in the amount of $11,301.09 for the 2009 MSA Street Improvement Project — Alabama Avenue with Valley Paving, Inc., Project No.2009-1100, City Contract No. 72-09. 4d. Adopt Resolution No. 10-144 authorizing final payment in the amount of $13,146.99 for the 2010 City Sealcoat Project with Allied Blacktop Company - Project No. 2010-0001, City Contract No.110-10. 4e. Approve execution of a contract with Ostvig Tree, Inc. as the 2011 Boulevard Tree Pruning Contractor in an amount not to exceed $60,000. 4f. Adopt Resolution No. 10-145 establishing a special assessment for the installation of a fire suppression sprinkler system at 6500 West Lake Street, St. Louis Park, MN. 4g. Approve Amendment No.1 to Hennepin County Residential Recycling Grant Agreement, County Contract No. A081254, extending the current Agreement between Hennepin County and the City of St. Louis Park for one additional year. It was moved by Councilmember Mavity, seconded by Councilmember Sanger, to approve the Agenda and items listed on the Consent Calendar, and to waive reading of all resolutions and ordinances. The motion passed 7-0 5. Boards and Commissions - None 6. Public Hearings 6a. 2011 Proposed Budget, Tax Levy and Truth in Taxation Public Hearing City Council Meeting -3- December 6, 2010 Mayor Jacobs stated that the 2011 proposed budget and tax levy will be presented this evening, along with the truth in taxation hearing, and Council will defer formal action on the budget and tax levy until December 20`h Mr. Harmening presented the staff report and indicated that Council directed staff to present a budget that holds the line and maintains the current level of services that exist today. He stated that Council also believes that investment in the City's infrastructure is important; those systems are wearing out and Council has had a history of being proactive to make sure that those assets are well maintained and to make sure the City is reinvesting in infrastructure so that the City does not fall behind. He explained that the proposed levy increase is 4.88%, or approximately $1.1 million, with approximately $1 million going to the City's infrastructure and the remainder to cover inflationary increases in expenses. Mr Swanson explained that the Truth in Taxation public heanng is an effort to encourage more transparency between the City and its constituents. He presented information regarding the City's budget process undertaken in 2010 and noted that final levy certification will occur on December 20`h. He provided an overview of what items are included in the City's budget and reviewed the 2010 adopted budget and 2011 preliminary budget. He stated that total General Fund and Park and Rec revenues and expenditures are approximately $29 million, with a .55% increase for 2011. He advised that intergovernmental revenue showed a significant reduction due to the recent termination of dispatch services with a neighbonng community; however, the City's investment in public safety remains consistent. He discussed the tax levy process and tax levy allocation, and stated the proposed levy will allocate approximately $900,000 to the Park Improvement Fund; this fund requires additional funding for capital needs. He stated that the City ranks 19`h out of 46 for City residential property taxes in Hennepin County, and ranks 23rd out of 46 for overall residential property taxes in Hennepin County. Mayor Jacobs opened the public hearing. Ron Blitenthal, 2724 Kipling Ave., requested further information regarding how it is determined whether residential property taxes go up. He stated that his property value went down for the first time but his overall estimated taxes were going up 9.5-10% on a reduced assessment. Mr. Bultema stated that taxes are heavily related to what overall valuations are doing with respect to the rest of the community. He indicated that some of the housing stock was moving down in value while others have moved down at a greater pace. He noted that values of homes in the $200,000-$300,000 bracket have remained relatively stable. Mr. Harmening stated that properties that saw their taxes going down were primarily lower value properties within the City. He stated that for those properties with higher values and that have remained more stable in their values, their share of the property tax pie has grown larger. Mr. Blitenthal reiterated his concern that his property taxes went up almost 10% and encouraged Council to continue to try to keep tax increases relatively flat relative to inflation, particularly in this difficult economy. City Council Meeting -4- December 6, 2010 Councilmember Sanger noted that one reason many of the City's homeowners are paying more in taxes has to do with the fact that the City's housing stock has kept its value more compared to commercial properties, thus commercial properties are paying a smaller share of the City's overall tax bill. Illson Johnson, 1319 Texas Avenue, expressed concern that their property taxes went up $300. She stated that they are on a fixed income and questioned how the City expects them to pay this. Mayor Jacobs stated that the Council remains sensitive to people who are on fixed incomes or who are currently unemployed. He noted that Council will continue its discussion regarding the 2011 budget and tax levy before taking action later this month. Mayor Jacobs closed the public heanng. Councilmember Finkelstein stated that the Council has had many long and difficult discussions regarding the 2011 budget and tax levy. He stated that the proposed 4.88% levy was based on information available to Council at the time and represents Council's support for funding its capital needs, including the fire stations. He indicated that he felt the 4.88% levy was too high, in light of recent updated financial information and the City Manager indicated at a recent Council meeting that a 2.95% levy would take care of the City's capital needs, would allow money to be put into the Park Fund, and the City would be okay for 2012. He acknowledged the importance of maintaining a healthy fund balance, but given the difficult economy, he felt the Council should seriously consider lowering the levy amount. 6b. Public Hearing — Louisiana Court Bond Refunding — General Obligation Bonds—Series 2010C Mr. Swanson presented the staff report and advised that the overall refinancing plan will result in an approximate $1.5 million reduction in the debt paid by the City and carried by Louisiana Court. He stated that the refunding will serve to improve the overall sustainability of the project and reduce the City's financial exposure. Mayor Jacobs opened the public hearing. No speakers present Mayor Jacobs closed the public heanng. 7. Requests, Petitions, and Communications from the Public—None 8. Resolutions, Ordinances, Motions and Discussion Items 8a. Authorize and Award Sale of Bonds for the General Obligation Bonds for Louisiana Court—Series 2010C and the Fire Stations—Series 2010D Resolution No. 10-146 and 10-147 Mr. Swanson presented the staff report and introduced Mark Ruff from Ehlers & Associates. Louisiana Court Senes 2010C Mr. Ruff advised that the bond issue for Louisiana Court will refund the existing bonds and will significantly reduce Louisiana Court's debt obligation. He stated that the interest City Council Meeting -5- December 6, 2010 rate on the old bonds was 5.75%; a competitive bond sale was held today and the winning bid was 5.2% submitted by Northland Secunties. He explained that the dollar amount was revised to $1,770,000 to account for the larger debt service reserve. He added that the City's AAA bond rating was also confirmed by Standard & Poor's. Councilmember Finkelstein pointed out that only ten cities in the State have a "AAA" rating and this reflects the City's fiscal strength. It was moved by Councilmember Ross, seconded by Councilmember Santa, to adopt Resolution No. 10-146 Awarding the Sale of General Obligation Refunding Bonds (Louisiana Court Project), Series 2010C, Proposed to be Issued in an Aggregate Principal Amount of$1,770,000, Fixing their Form and Specifications; Directing their Execution and Delivery and Providing for their Payment; Approving Related Agreements and Certificates. Councilmember Omodt expressed disappointment that there were no representatives present from Project for Pride in Living (PPL). He stated that PPL has disappointed the City in the past with its management practices and the City has agreed to a significant investment in this property. Councilmember Mavity acknowledged that this project has had trouble over the past ten years and was hopeful that PPL can provide safe, affordable housing for St. Louis Park residents. She stated that she was supportive of the bond refinancing and felt it would help keep this project stable into the future. Councilmember Sanger stated she would support this primarily because it will benefit both Louisiana Court and the City by lowenng the interest rate and provide additional capital to make needed repairs to the property, and because this refunding will not cost the City anything and does not represent taxpayer money. She expressed concern that this is the third time that Louisiana Court has asked for City assistance whereas other apartment complexes in the City with rents in the same general range have not needed help and have much lower vacancy rates. Councilmember Finkelstein stated that this is a difficult situation but the overall refinancing plan is the fiscally prudent thing to do. Councilmember Ross agreed and stated that significant improvements are needed to this property and the property cannot be allowed to deteriorate further. The motion passed 7-0 Fire Stations— Series 2010D Mr. Ruff presented the sale report for the $13,025,000 taxable General Obligation Bonds and reported that six bids were received; the low bidder was Baird at 4.68% He explained that these are taxable bonds which can only be used for new construction, and include a 35% rebate provided by the federal government. It was moved by Councilmember Ross, seconded by Councilmember Finkelstein, to adopt Resolution No. 10-147 Awarding the Sale of$13,025,00 Taxable General Obligation Bonds, Series 2010D (Build America Bonds — Direct Pay) Fixing their Form and Specifications; Directing their Execution and Delivery, and Providing for their Payment City Council Meeting -6- December 6, 2010 Councilmember Ross stated that this is a wise use of taxpayer dollars and the fire stations are needed to ensure the continued safety of residents as well as the continued safety of the firefighters. The motion passed 7-0. 8b. Project for Pride in Living Louisiana Court Project (LC) Deferred Loan Resolution No. 10-148 Ms. Schmtker presented the staff report and stated that this deferred loan is part of the overall refinancing plan for the Louisiana Court project and will assist in funding a reduction in the debt and undertaking capital improvements at LC. She advised that the $500,000 loan will reduce the City's overall financial risk and that by contributing $500,000, the City has been able to leverage an additional 1.55 million in funding from MHFA, Hennepin County and the Family Housing Fund. She indicated that the source of the funding for the City loan is the Park Center TIF District. The loan will have a fixed interest rate of 2% and payments will be deferred until the loan is due in 30 years or until the property is sold or refinancing occurs. She discussed the conditions of the deferred loan, including a requirement that PPL must participate in and endorse rehab improvements in the project. She noted that a joint housing agency committee will oversee and monitor the operation and management of the property and PPL must also commit to having a community space and on-site programming for residents. She added that the closing is scheduled for December 29tH It was moved by Councilmember Ross, seconded by Councilmember Santa, to adopt Resolution No. 10-148 Approving a Loan Agreement Between the City of St. Louis Park and PPL Louisiana Court Limited Partnership and Related Documents. Councilmember Sanger stated that she would not support this deferred loan and felt that the bond refinancing should be sufficient for PPL to make the needed capital improvements to the property. Councilmember Santa acknowledged Councilmember Sanger's concerns and stated that the funding for the loan is from a TIF Distnct designed for affordable housing and represents an allowable use of TIF Distnct money. She added that this represents an appropriate use of TIF funds that is not diverting from other uses, e.g., general funds. Mr. Locke stated that this is correct and noted that no tax increment dollars can be used for general purposes and can only be used for affordable housing purposes. Councilmember Mavity stated that it has been Council's desire to address this project and to make it successful by investing the amount of resources that it needs. She expressed her support for the refinancing plan and felt it would reduce the annual operating costs for the project. Councilmember Omodt stated that he would support the deferred loan but reiterated his disappointment that PPL representatives were not in attendance this evening. He indicated that the funds for this loan come from a TIF Distnct designated for affordable housing and the City has chosen this property over all other properties and uses. City Council Meeting -7- December 6, 2010 Mr. Locke acknowledged that PPL representatives asked staff whether they should attend the City Council meeting and were informed by staff that their attendance at the meeting was not necessary The motion passed 6-1 (Councilmember Sanger opposed). 8c. Dairy Queen—Conditional Use Permit for In-Vehicle Service Mr. Fulton presented the staff report and stated the restaurant use is permitted in the C-2 Zoning District and a Conditional Use Permit (CUP) is required for drive-through service. He discussed the neighborhood meetings and public process to date. He summarized the traffic study and circulation analysis completed by SRF Consulting Group and stated the revised site plan includes the addition of a dnve-through "hut." He stated that the proposed use includes a vehicle stacking area within 100' of a residential property, failing to meet a condition for a dnve-through CUP. He added that the stacking area could potentially be moved to accommodate the 100' residential setback requirement. He discussed traffic and pedestnan movement and stated that the proposed use does not qualify under the provisions governing shared parking in the zoning ordinance, adding it is not reasonable to conclude that the uses that would share parking have substantially different times of highest peak parking demand. He advised that the proposed in-vehicle sales/service is also inconsistent with the recently adopted Comprehensive Plan update, including provisions from the Minikanda Vista neighborhood plan. Councilmember Omodt questioned whether there were enough parking spaces available at the site. Mr. Fulton stated that the restaurant is 4,300 square feet with a requirement of one space per 60 square feet of restaurant. He added that the restaurant has 106 seats available in the restaurant itself and the shared parking agreement needs to follow the requirements found in the Ordinance. Mr. David Anderson, Frauenshuh Companies, appeared before the City Council and stated the property is one among four at Miracle Mile. He indicated that from a functional standpoint, there are 523 parking spaces in this development and based on overall utilization and capacity, you will find it functions at a 70% rate of use. Mr. Nick Spierdes, Spierdes Reiners Architects, appeared before the City Council and stated that the revisions to the site plan came from working through the concept process first and responding to comments and suggestions from staff, the Planning Commission, as well as the neighborhood. He indicated that the entire operation was able to be put on the site by allowing cars to stack on this property, splitting the two parking areas, and adding the drive-through hut. He stated that they believe the interface between the vehicles and the pedestnans currently exist on the site and improves the site to work in the safest manner possible. He added that consistent with the City's plan, the sidewalk was added to the current sidewalk running along Excelsior Boulevard and the exit is right-out only, marked clearly with signage. Councilmember Ross expressed a safety concern with potential conflicts created by cars backing out of the parking spaces. City Council Meeting -8- December 6, 2010 Mr. Jim Benshoof, Benshoof and Associates, appeared before the City Council and stated that the traffic issues have been well addressed and they agree with the conclusions produced by the City's traffic consultant. He stated the site produced satisfactory traffic operations subject to certain improvements and the plan includes the recommended improvements. He indicated that not only will the drive-through operation not cause a parking problem, but asserted that the parking situation will be better. He presented a chart with a summary of expected changes in parking availability which demonstrates that restaurants with drive-through operations have less parking demand; the summary shows a reduction in total parking demand using Institute of Traffic Engineer (ITE) projections is 11 and they determined that seven spaces will be lost if the dnve-through is allowed. He added that they intend to also relocate employee parked vehicles, which results in a net increase in parking spaces available for businesses in the area without a drive-through is 10 and a 22 space reduction in parking demand. Mr. Bill Griffith, Larkin Hoffman, appeared before the City Council and presented a petition from customers and business owners in support of the proposed drive-through. He also presented a letter of support from Kimberley Young and requested that the petition and letter be placed into the official record. He stated it is important for the Council to keep in mind that if reasonable conditions can be attached to this project, it should be approved. He stated that if a reasonable declaration of easements can be arrived at, that is a reasonable condition to impose on the project He expressed his appreciation to Council for allowing continuances of time that allowed them to make improvements to the proposed plan and address the concerns of the neighborhood. He stated that an additional meeting with the neighborhood was held last week during which the neighborhood was shown the refinements to the plan, including the restriction of hours of operation from 10:00 a.m. to 10:00 p.m.; it is proposed that this restriction be made a covenant that goes with the land and is associated with the Dairy Queen use. He indicated that the drive-through operation is important to the viability of this business and Dairy Queen believes that with reasonable conditions it can move forward. He discussed the issues with the site and noted that they are providing for eight cars in the stacking areas; six are required. He stated that the stacking area must be at least 100' from a neighboring property line and with minimal adjustment, that condition can be attached. He stated that the City's traffic consultant has indicated that the drive-through operation will have no impact on the level of service, and this was confirmed by Mr. Benshoof. He stated that they enhanced the site plan as recommended by SRF so as not to impede traffic in the area and to identify pedestrian crossings. He noted that by moving up the menu boards, traffic will be stopped to provide pedestrian movement in an appropnate location. He stated that the east driveway will be one way; in addition, as noted by both SRF and Mr. Benshoof, U-turns can safely be made at the locations indicated. He stated that access on the collector roadway has been addressed. He stated that with respect to the Comprehensive Plan, this is not a major redevelopment, this is a walkable use, and with the addition of the sidewalk into the use, it improves its walkability and pedestrian improvements will be added. He noted that with regard to the CUP requirements, all uses have been relocated onto the Dairy Queen parcel, the access to the dnve-through window is provided by the shared parking arrangement, parking will comply with the Zoning Ordinance, and the proposed use will comply with the Ordinance when taking into account the site improvements. He added that it is their conclusion that this project can meet the City's conditions and in order to ultimately make this a viable business in this location, it needs to have a drive-through City Council Meeting -9- December 6, 2010 Ms. Rose Doherty, 4968 West 40`h Street, appeared before the City Council and stated that in order to go west on Excelsior Boulevard, cars exiting the Dairy Queen will have to scramble to get into that left hand turn lane. She expressed concern that because of the limitation of space and ability to make that turn, cars will turn right on Quentin and use 40th to Wooddale in order to go west on Excelsior Boulevard. She questioned where the delivery trucks would park. She expressed concern about pedestnan safety and stated that the City has worked hard to promote a walkable community and this proposal does not promote a walkable community. She also expressed concern about the noise levels from the drive-through and the potential for increased litter in the area. She questioned whether the granting of a CUP for Dairy Queen would set a precedent and urged the Council to vote against this request. Ms. Lyn Wik, 3965 Quentin Avenue South, appeared before the City Council and stated she has no faith in anything offered by Dairy Queen in the way of private agreements or guarantees. She stated that there is nothing to say that Dairy Queen's next business model won't require extended hours or breakfast, for example. She asked how a pnvate agreement would impact the City. She presented four photographs showing the parking area and menu boards from a Dairy Queen and McDonald's, and stated that she objects to the idea that Dairy Queen will send its employees to park on the far southeastern corner of the lot. She stated that this proposal will open the door to additional traffic into the night causing light and noise pollution. She questioned the accuracy of the traffic study and the logic in the statement that a 33% increase in business from the drive-through operation will result in less parking space demand. She stated that there is nothing to protect the neighborhood from having another fast food business coming into the area if this CUP is granted She stated that she recalled the Council making a statement in the past that there would be no fast food or drive-throughs on the south side of Excelsior Boulevard and encouraged Council to maintain the integrity of Excelsior Boulevard and keep its promises to the Minikanda Vista neighborhood. Howard Polski, 3920 Colorado Avenue South, appeared before the City Council and expressed his support for the dnve-through. He stated that he felt denying the dnve- through was discnminatory and the reduction in traffic makes sense. He stated that there is a McDonalds across the street and the drive-throughs do about 40% of the business for these types of restaurants. He indicated that the proposed drive-through hours seemed fair and he encouraged Council to do all it can to help businesses succeed, particularly in this difficult economy. He added that Frauenshuh has been a good corporate citizen in the community. Margaret Tiffany, 4972 West 40`h Street, appeared before the City Council and stated that she has noticed an increase in traffic in the area, and this represents her biggest concern with this proposal. She indicated there are no sidewalks on 40th Street and there are a lot of people walking in this area. She stated she has seen vehicles making illegal left turn lanes to get into Miracle Mile and did not feel that a sign would deter vehicles from making illegal left turns. She added that it is not easy to get across Excelsior Boulevard to make the turn or a U-turn, and felt that people would turn onto Quentin or go through the Baja site. She stated that the earlier proposal by Wendy's as well as the Dairy Queen proposal do not meet the City's Comprehensive Plan requirements. She encouraged the Council to not allow this proposal. City Council Meeting -10- December 6, 2010 Councilmember Mavity stated that there seemed to be a disconnect with the statement that Dairy Queen needs the additional traffic in order to be profitable, while at the same time the traffic study indicates that this drive-through will not generate so much traffic as to create a problem in the Miracle Mile center or along Excelsior Boulevard. Mr. Benshoof responded by stating that it is anticipated that traffic entering the Dairy Queen site will be approximately 20-22 cars during peak business, which equates to one vehicle every three minutes. He stated the volume increase is small relative to the existing traffic on Excelsior Boulevard and will not cause a major impact. Councilmember Mavity stated that Dairy Queen has been a great community partner and the Frauenshuh family has done great things in the community. She stated that she appreciated Dairy Queen's willingness and good faith efforts to address the concerns of the neighborhood, but there appear to be enough technical challenges that remain as well as issues with the overall vision laid out in the Comprehensive Plan with respect to walkability and envisioning for the future along Excelsior Boulevard that require her to vote against this as presented. Councilmember Sanger stated that the Wendy's proposal was voted against because it was not well thought out and would not enhance the area, and that the current proposal is not an improvement. She expressed her concerns about the proposal's non-conformance with parking and landscaping requirements and intensifying of the land use, which are contrary to the way in which the City's operates She stated that the traffic issues are also a concern for her. She stated that from a logic perspective, she could not understand how adding the drive-through will increase profits for the business but simultaneously how the proposed model will not add more traffic to the site. She expressed concern that pedestnans will have to cross into the exit lane to get into the restaurant She stated that the noise issue is also a concern and that noise is a difficult problem to enforce and she did not feel it was appropriate to have a drive-through so close to the neighborhood. She indicated that the City has put a lot of passion and energy into Excelsior Boulevard to make it a more walkable and desirable environment for residents and having a drive- through operation does not enhance the City's vision. She stated that for these reasons, she will not be supporting the request. Councilmember Finkelstein stated he conducted an independent review of the site and noted that the proposal does not meet the City's general CUP requirements because of the following: (1) It violates Section 1 of the CUP requirements as being inconsistent and non supportive of the City's principal goals, objectives, and land use designations; (2) It violates Section 2 of the CUP requirements (detrimental to health, safety and general welfare) due to pedestrian issues on the east driveway between Dairy Queen and Baja Sol, and due to congestion issues which comes down to the basic issue of livability; (3) It violates Section 4 of the CUP requirements having an adverse impact on governmental facilities in that it will affect Excelsior Boulevard with backup traffic, U-turn issues, and traffic criss-crossing in the back with pedestrian activity; and (4) It violates Section 5 of the CUP requirements having an adverse impact on the use and enjoyment of properties in close proximity. He stated that during his independent review, he could hear noise at the fence, noting that it is not the intercom box where you order food, but rather blasting car stereos and leaving garbage. City Council Meeting -11- December 6, 2010 Councilmember Omodt requested guidance from the City Attorney regarding the pnvate agreements and parking easements. Mr. Scott stated that the first priority is to have parking on the site and the City does allow in certain circumstances to have a shared parking agreement in order to meet the City's parking requirements, as proposed here. He added that before considering shared parking, you first have to establish that the uses that want to share parking have different peak times and that is not the case here because they both have substantially the same peak times. He advised that shared parking would be allowed if it met the criteria contained in the Ordinance. He stated that a private agreement has been alluded to in the context that the condition only applies to the Dairy Queen and not to any other use. He explained that general law is that the CUP follows the land so there could be another use that came in and utilized the drive-through and that use would have to meet the same conditions. He indicated that the applicant is proposing that they would impose a private covenant with the City as the beneficiary that would restrict this covenant just to Dairy Queen and not follow the land, but there is no way the City can absolutely guarantee that if the CUP is approved for the Dairy Queen drive-through that three years from now you could not have some other entity wanting a CUP to utilize that drive-through. He stated that if that happened, the City would have no basis to turn down the new owner, even if a pnvate covenant were in existence. Mr. Griffith clarified that the CUP application has not been revised and the documents contained in the Council agenda reflect the current proposal. He stated that the declaration of easements and covenants was presented in August and the applicant has indicated a willingness to further restnct and include the covenant as a condition of approval. He added that the site plan presented to Council this evening is the site plan dated October 5, 2010, which shows a 100' setback. He noted that there is nothing in the Code requiring the setback to go to the curb line, but the consultant drew the 100' setback. He advised that the only change suggested this evening is the addition of a pedestrian walkway over the dnve aisle. Mr. Scott stated that it may be appropriate to make some minor changes to the resolution and suggested that the motion direct the City Attorney to revise the current resolution in light of the discussion tonight and to bring the resolution back to Council for final adoption at its next meeting. It was moved by Councilmember Mavity, seconded by Councilmember Sanger, to direct staff and the City Attorney to revise the current resolution denying a Conditional Use Permit application for in-vehicle sales and service for property located at 5001 Excelsior Boulevard, and to bring the revised resolution to the Council for final adoption at its next meeting The motion passed 7-0. 9. Communications Mayor Jacobs expressed the Council's thanks to the Community Foundation Board, to Phil Weber for donating his establishment, and to everyone involved in the event held last Saturday. City Council Meeting -12- December 6, 2010 Councilmember Santa encouraged residents to attend the public information meeting scheduled for Thursday, December 9th, from 5:30 p.m.-7:30 p.m regarding Mn/DOT's proposals for Highway 100 between Highway 7 and County Road 5. She stated the meeting will be held in the cafeteria of the high school. 10. Adjournment The meeting adjourned at 10:34 p.m. L Nancy Stroth, ity Clerk Jeff J.c. . .yor