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HomeMy WebLinkAbout2012/11/19 - ADMIN - Minutes - City Council - Regular f�fSt. Louis Park OFFICIAL MINUTES MINNESOTA CITY COUNCIL MEETING ST. LOUIS PARK, MINNESOTA NOVEMBER 19, 2012 1. Call to Order Mayor Jacobs called the meeting to order at 7:30 p.m. Councilmembers present: Mayor Jeff Jacobs, Steve Hallfin, Anne Mavity, Julia Ross, Susan Sanger, Sue Santa, and Jake Spano. Councilmembers absent: None. Staff present: City Manager (Mr. Harmening), City Attorney (Mr. Scott), Planning/Zoning Supervisor (Ms. McMonigal), Assistant Zoning Administrator (Mr. Morrison), Communications Coordinator (Mr. Zwilling), Administrative Services Intern (Mr. French), and Recording Secretary(Ms. Hughes). la. Pledge of Allegiance lb. Roll Call 2. Presentations -None 3. Approval of Minutes 3a. City Council Meeting Minutes September 24, 2012 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. 12-165 authorizing Worker's Compensation insurance renewal for December 1, 2012—November 30, 2013. 4b. Approve Second Reading and adopt Ordinance No. 2425-12 amending Xcel's franchise ordinance#2086-97 and authorize publication in full. 4c. Authorize execution of a contract with Ostvig Tree, Inc. as the 2013 Boulevard Tree Pruning contractor in an amount not to exceed $60,000. 4d. Adopt Resolution No. 12-166 approving acceptance of a monetary donation from Leslie Marcus in the amount of$100 for Westwood Hills Nature Center. 4e. Adopt Resolution No. 12-167 approving acceptance of a grant from the St. Louis Park Youth Development Fund of the St. Louis Park Community Foundation/Minnesota Community Foundation in the amount of$2,500 for use by the Parks and Recreation Department for the summer playground program. 4f. Approve for filing Planning Commission Minutes of September 19, 2012. 4g. Approve for filing Fire Civil Service Commission Minutes of September 25, 2012. City Council Meeting -2- November 19, 2012 4h. Approve for filing Housing Authonty Minutes of October 10, 2012. 4i. Approve for Filing Vendor Claims. It was moved by Councilmember Spano, seconded by Councilmember Mavity, 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. Brewer Taproom License—Steel Toe Brewing, LLC Mr. French presented the staff report and explained the City received an application from Mr. Jason Schoneman for a taproom license for his microbrewery at 4848 West 35th Street. He indicated the premises will consist of 688 square feet and include seating for 30. He stated taprooms licensed in Minnesota are allowed to sell their malt liquor produced for consumption on the premises with the approval of the municipality. Mayor Jacobs opened the public heanng. No speakers were present. Mayor Jacobs closed the public hearing. It was moved by Councilmember Mavity, seconded by Councilmember Sanger, to approve application from Steel Toe Brewing, LLC for a brewer taproom license to be located at 4848 West 35`h Street, with the license term through March 1, 2013. The motion passed 7-0. 6b. Public Hearing—2013 Liquor License Fees. Resolution No. 12-168 Mr. French presented the staff report and explained that City ordinance permits the City to set liquor fees by resolution and where there is no State restriction a city can set the fee at an amount to reflect the cost of issuing the license and other costs directly related to enforcement. He noted the proposed 2013 fees reflect no increase from 2012 and the fee amounts continue to reflect administrative costs and public safety enforcement and are comparable to other similarly sized cities. Mayor Jacobs opened the public hearing. No speakers were present. Mayor Jacobs closed the public hearing. Councilmember Spano requested clarification regarding the statement that the proposed fees reflect "... increased costs of providing administration and enforcement," noting that the 2013 fees do not reflect any increase. Mr. French clarified that there are no increased costs for providing administration and enforcement and the word "increased" is a typographical error. City Council Meeting -3- November 19, 2012 Councilmember Spano asked if Steel Toe Brewery will be charged $200 or $600 for its brewer taproom license and asked if the City charges any license fees on a pro rata basis. Mr. French stated the City does charge liquor license fees on a pro rata basis for new licensees, and the taproom license fee for Steel Toe Brewery will be $200 if the taproom begins operation in November. It was moved by Councilmember Mavity, seconded by Councilmember Spano, to adopt Resolution No. 12-168 Adopting 2013 Liquor License Fees for the License Term March 1, 2013—March 1, 2014 The motion passed 7-0. 6c. Zoning Determination Appeal — Mr. Peter Hagen, 4221 Cedarwood Road. Resolution No. 12-179 Mr. Mornson presented the staff report and provided historical background of the Board of Zoning Appeals (BOZA) decision to uphold staffs determination (1) that the windows in the tree house facing the neighboring property are not located on the second story, (2) that the tree house is not taller than the house, (3) that the deck on the tree house conforms to setback requirements, and (4) that the tree house is not built in a utility easement. He stated that the appeal of staff determination numbers (1) and (2) were not timely and explained that on June 21, 2012, staff notified Mr. Hagen by email of its determination that the tree house complies with the height requirements and on June 22, 2012, staff notified Mr. Hagen by email of its determination that the windows comply with zoning; on August 14, 2012, Mr. Hagen appealed staffs determination and at the BOZA hearing, Mr. Hagen submitted an email that he wrote on June 26, 2012, but this email does not constitute an appeal. He stated that written notice of an appeal triggers the appeal process and comments such as those contained in Mr. Hagen's June 26 email cannot be used to extend the 20-day deadline for appeal. He explained that staff found the deck to be a component of the accessory building and is subject to accessory building setbacks and not to principal building setbacks and the section of the Code cited by Mr. Hagen is incorrect. He indicated that BOZA agreed with staff and denied Mr. Hagen's appeal on this item. He stated that staffs determination that the tree house is not built in a utility easement is supported by the plat of the property showing no easements recorded with the plat. He stated there are no drainage easements on this property and if any easement exists, it is a private utility easement not dedicated to the City and the City does not enforce private easements. He noted that the City pursued this further with Xcel Energy and their determination was that it is their easement but did not find a violation and Xcel Energy was not willing to pursue it further; as a result, staff concluded this was not a zoning matter and not subject to the appeal process; BOZA agreed. Mayor Jacobs opened the public hearing. Mr. Peter Hagen, 4221 Cedarwood Road, appeared before the City Council and introduced his attorney, Mr. Rich Gabriel. He presented several photographs of the tree house and stated the tree house is an eyesore and violates four City ordinances. He indicated he agreed with the zoning determination regarding the deck but this structure was built without a pen-nit, was built in a perpetual utility easement, and violates height restrictions and window location. He stated that Ordinance Section 36-163(7) indicates City Council Meeting -4- November 19, 2012 all accessory buildings 120 square feet or less shall obtain a zoning or building permit prior to installation and this structure was built on Apnl 12 by an unlicensed contractor with no permit. He stated the permit was eventually submitted by the homeowner on September 20, 2012, and presented a copy of the permit application which lists "Jeremy Joseph," whose real name is Jeremy Joseph Koebe as the homeowner on the property. He questioned how the City could approve a structure that has not pulled a permit. He stated the tree house is built in an easement and Section 36-162(d)(1)(e) states that no accessory building shall be located in a drainage or utility easement without first obtaining approval of an encroachment agreement; no such agreement exists. He stated because this is Torrens property, the easement was put in the title in 1947. He presented the City's definition of easement in the Zoning Ordinance and presented a copy of the certificate of title furnished by Xcel Energy for 4215 Cedarwood Road, which states the property is subject to an easement of the last 5' for utility installation and maintenance and noted the certificate of title states it is a perpetual easement. He stated he called the Public Utilities Commission and was told that because there are multiple utilities it is the City's responsibility to enforce the easements. He recited Section 36-162 regarding height restrictions for accessory buildings which says all structures shall be lower than the highest roof line of the principal building noting this structure is 4-5' higher than the highest roof line of the home; City staff measured 19' 8" but he measured it to be 22' 9.5". He stated the window located on the back that faces Basswood Road is a violation of City Code. He questioned why the City has ordinances and why those ordinances were not enforced. He also questioned why someone from City Hall did not inform him of his appeal rights, adding he emailed Mr. Morrison, Ms. McMonigal, Mr. Harmening, Mayor Jacobs and Councilmember Sanger stating his objection to the height and windows, which he felt was done in a timely manner and within four days of when he received the City's letter. He recited City Code Section 36-31(d) regarding his right to appeal but he did not know about this 20-day rule. He noted that this rule also says "from the date of permit" which would be September 20`h; he objected by email on June 26, 2012. He stated nobody talked about his July 17th letter to Mr. Harmening with a copy to Councilmember Sanger, which was his formal appeal letter. He questioned when the 20 days starts and whether it counts calendar days or work days. He presented a letter from a realtor and a letter from an appraiser stating this structure devalues his property; Mr. Austen Cargill also wrote a letter opposing the structure. He stated his privacy is gone and presented several pictures of the structure taken from his bathroom and bedroom windows. He requested that the City Council find that he appealed in a timely manner and to enforce its ordinances to bring this structure into code compliance and to give him back his privacy and restore the value of his home. Mr. Richard Gabriel, attorney for Mr. Hagen, appeared before the City Council and stated that in his opinion the easement exists and should be enforced according to the City Code. He urged the City to bring the tree house into compliance on the height issue so that the tree house will not be an eyesore and to bring the tree house into compliance with setback limitations. He felt that City staff made a mistake in approving this and now finds itself in an awkward position because City staff should not have given approval. Mr. David Gottlieb, attorney for Mr. Ken Fink, appeared before the City Council and stated he did not think the City made a mistake. He stated the tree house did not go up in a day but took several weeks and Mr. Hagen watched the tree house go up from the comfort of his home and never said a word to the City or to the contractor or Mr. Fink. He felt the reason Mr. Hagen objected was because someone notified the City that there City Council Meeting -5- November 19, 2012 was a shed on Mr. Hagen's property that was not in compliance and should be moved and that upset Mr. Hagen who called the City in retaliation. He indicated there is bad history between Mr. Hagen and the Finks but that does not mean the City should involve itself. He stated Mr. Hagen has sued the Finks in civil court and lost, Mr. Hagen has repeatedly called the police, and Mr. Hagen has tried to enlist the utility company in his efforts but they have declined. He stated this is a private dispute between neighbors who do not like each other and for the City to become involved does not make sense, particularly when the law supports the BOZA determination. He stated the claim was not timely filed and pointed out that Mr. Hagen became aware of the City's decision on June 26 but took 53 days to appeal the City's decision. He felt the appeal was time barred and noted that Mr. Hagen does not cite a single legal authority. He stated it is undisputed that the house is 23', the tree house is 19' 8", and it is undisputed that the house is higher than the tree house. He stated the City's ordinance does not speak in terms of elevation of structures but speaks in terms of the height of a structure and there is no violation. He stated the utility company is saying this is a private dispute and will not get involved. He noted that Mr. Fink has been working with the City since April to make sure the tree house is in compliance and to ask him to take it down is unfair and embroils the City in a neighborhood dispute that further empowers Mr. Hagen to bully the neighborhood, including his most recent efforts to have a dozen sheds moved after his shed was required to be moved. He also presented three letters from neighbors who indicate that Mr. Hagen's statement that the tree house has devalued his house is not true. Mr. Hagen stated that he did not watch the tree house go up because he was gone from April 24 to May 2 and when he saw the structure he called City Hall. He indicated no one is looking at his July 17th appeal letter, which was within 20 days, and BOZA only found he was not timely on the height issue. Ms. Sharon Feinstein Rosenblum, 4200 Basswood, appeared before the City Council and stated her husband wrote a letter to the City indicating the tree house was not an issue when they were considering whether to buy their house. Mayor Jacobs closed the public heanng. Councilmember Sanger requested advice regarding the comment made that it was undisputed the permit for the tree house was not pulled until several months after it was constructed and asked what the remedy is for failure to pull a permit on time. Mr. Scott explained that this project required a zoning permit and no building permit was required because the tree house is less than 120 square feet. He stated the zoning permit is intended to confirm that the structure is in compliance with the zoning ordinance and the issue here is staffs interpretation about whether the structure complies with the City's zoning. He indicated the issue of whether a zoning permit was issued prior to or after the structure begs the question of whether it complies with the zoning ordinance and as a practical matter there is no remedy for not having the permit issued in a timely manner. Councilmember Sanger indicated that Mr. Hagen referenced the ordinance requiring appeals to be filed within 20 days of certain events, one of which is the permit. She asked Mr. Scott's interpretation of when the 20 days starts to run and whether a person has 20 days from a given event, such as a staff determination. City Council Meeting -6- November 19, 2012 Mr. Scott advised that in this case the City's interpretation was that the 20 days started to run from June 21 on the issue of height, which was the date of the email to Mr. Hagen with staffs final determination regarding compliance with the height ordinance. He indicated the next day, June 22, is not disputed by Mr. Hagen and was the date of the email from Mr. Morrison regarding the City's interpretation of the window issue. He stated the 20 days started to run on those two staff interpretations on those two particular days. He indicated there was a later request for a staff determination on the deck issue, which has been withdrawn, and the other determination had to do with the utility easement. He stated there can be many different questions requiring a staff interpretation on a project, and until someone makes a formal appeal to BOZA, the 60-day time period under state law to process the appeal is not triggered. He stated in this case, June 21 is when the final determination was made by staff on the height issue and June 22 is when the final determination was made by staff on the window issue and those are the dates that triggered the 20 days. He explained that as a general rule if a time period is less than seven days then business days are counted but if the time period is longer, calendar days are typically counted. He stated the 20 day time limit in this case would be counted using calendar days; the BOZA appeal was August 14, well beyond the 20 days whether business days or calendar days were counted. He stated that the final determination by Mr. Morrison on June 21 and 22 did not state that Mr. Hagen had 20 days to appeal to BOZA and he was not aware of any legal requirement to do so. Councilmember Sanger asked if an easement exists that is subject to City enforcement. Mr. Scott advised it is undisputed that if an easement exists on the property it is not a public utility easement and the City does not control the easement because it is a private easement. He noted that Xcel Energy is apparently not objecting and not taking any action and the findings state that the City does not attempt to enforce private easements; in addition, the City does not want to get into the business of trying to interpret covenants and easements when it is not a City easement. He stated he views this as an enforcement issue and advised the City should not enforce potential encroachments on private easements because it is not a City easement and is not an issue to be determined by BOZA or the City Council. Councilmember Mavity requested further information regarding the June 21 time frame and its relationship to the issuance of the zoning permit. Mr. Scott advised there is no question that the zoning permit should have been issued before the structure was built and the role of the zoning permit is to make sure the structure complies with the zoning ordinance and to determine whether a building permit is needed. He stated that did not happen in this case but the real issue is whether the structure complies with the zoning ordinance. Councilmember Sanger felt that Council was constrained and required to follow the law that transcends and supersedes personal issues. She agreed that the appeal on the issue of height and window placement was not timely and she also agreed there is no utility easement enforceable by the City requiring action It was moved by Councilmember Sanger, seconded by Councilmember Hallfin, to adopt Resolution No. 12-179 Denying the Appeal of Peter Hagen of the Board of Zoning Appeals'Decision. City Council Meeting -7- November 19, 2012 The motion passed 7-0. 7. Requests, Petitions, and Communications from the Public—None 8. Resolutions, Ordinances, Motions and Discussion Items 8a. Zoning Ordinance Amendment Pertaining to Food Trucks and Catering — Second Reading. Ordinance No. 2426-12 Mr. Morrison presented the staff report and proposed Zoning Ordinance amendment for second reading. It was moved by Councilmember Hallfin, seconded by Councilmember Santa, to approve Second Reading and Adopt Ordinance No. 2426-12 Amending the St. Louis Park Ordinance Code Relating to Zoning by Amending Sections 36-4, 36-82, 36-163, 36-164, and 36-165—Mobile Food Vehicles and Catering The motion passed 6-1 (Councilmember Ross opposed). Councilmember Ross stated she does not have a problem with mobile food trucks but was not in favor of allowing non-profit entities to rent out their kitchens to for-profit businesses. 9. Communications Mayor Jacobs thanked the County Board of Commissioners for sponsoring the light rail public hearing last week. He stated it was a well-attended meeting that was for the most part civil and respectful but was dismayed by some of the antics of residents and apologized to Commissioners Callison, Dorfinan, and McLaughlin for the acts of a few residents. He stated he was also dismayed by some of the comments made when some residents stood up and voiced their opinions and indicated no one should be made to feel intimated to give their opinion Councilmember Mavity congratulated the City for having the second highest voter turnout in the State and stated some precincts had over 90% turnout. 10. Adjournment The meeting adjourned at 8:53 p.m. C l (412 `z orA • Jeff J. oba or - r oLu rr )J�Citi rt/ C i( c le v K