Loading...
02/28/2005 - 00026762CITY COUNCIL MEETING CITY OF FRIDLEY FEBRUARY 28, 2005 The City Council meeting for the City of Fridley was called to order by Mayor Lund at 7:30 p.m. PLEDGE OF ALLEGIANCE: Mayor Lund led Council and audience in the Pledge of Allegiance to the flag. ROLL CALL: MEMBERS PRESENT: Mayor Lund Councilmember-at-Large Barnette Councilmember Billings Councilmember Wolfe Councilmember Bolkcom OTHERS PRESENT: William Burns, City Manager Fritz Knaak, City Attorney Scott Hickok, Community Development Director Jon Haukaas, Public Works Director Don Abbott, Public Safety Director Rebecca Brazys, Recording Secretary CONSENT AGENDA: APPROVAL OF MINUTES: City Council Meeting of February 14, 2005. APPROVED. NEW BUSINESS: 1. Variance Extension Request, VAR #04-01, by Kevin and Paulette Holman, to Increase the Maximum Size of a First Accessory Structure from 1,000 Square Feet to 1,168 Square Feet and to Allow an Accessory Structure to Exceed 100% of the First Floor Area of a Dwelling Unit to Allow the Construction of a 1,168 Square Foot Detached Garage in the Rear Yard, Generally Located at 571 — 79t" Way N.E. (Ward 3). Dr. Burns, City Manager, explained that Mr. and Mrs. Holman were granted a variance on March 8, 2004, allowing the construction of an accessory use structure that is larger FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 2 than the footprint of their house (1,168 square feet vs. 1,000 square feet). Since they are still awaiting financing and have not yet selected a contractor, they are asking for a one-year extension of their variance. Staff recommends Council's approval. APPROVED. 2. Claims: 120557 — 120686 APPROVED. MOTION by Councilmember Barnette, seconded by Councilmember Wolfe, to adopt the consent agenda as presented. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. ADOPTION OF AGENDA MOTION by Councilmember Bolkcom, seconded by Councilmember Barnette, to adopt the agenda. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. OPEN FORUM (VISITORS): Consideration of items not on agenda — 15 minutes. Don Anderson, 7304 West Circle N.E., stated he rides his bike every day on Able and Osborne Road and many drivers run the stop sign at that intersection. Mr. Abbott, Public Safety Director, made note of Mr. Anderson's concern. PUBLIC HEARING: 3. NPDES Annual Update. MOTION by Councilmember Bolkcom, seconded by Councilmember Wolfe, to waive the reading of the public hearing notice and open the public hearing. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. Mr. Haukaas, Public Works Director, stated this was scheduled under the public hearing section of the agenda simply because it seemed to fit there. The State does not require that a public hearing be held. This is the second review of the NPDES storm water program. It includes what was done in 2004 and what may be done in 2005. NPDES stands for National Pollutant Discharge Elimination System. The authority comes from FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 3 the U.S. EPA which delegates to the Minnesota Pollution Control Agency the ability to set the rules for the program. Fridley has completed its second year and has met all the requirements. The only change is formalization and documentation of its actions. There are six minimum control measures for the program: public outreach/education, public involvement/participation, illicit discharge detection/elimination, construction site runoff control, post-construction storm water management, and pollution prevention and good housekeeping for municipal operations. Mr. Haukaas reviewed what was done on this program last year including filming a video called "Endangered Wetlands," preparing a county library display, sending watershed brochures by direct mail, conducting Springbrook Nature Center workshops, and developing a game called "How's the Water?" and an interactive computer kiosk called "Alex the Frog." This year the only change is the elimination of the library display. Public participation and involvement includes the Springbrook Yard & Garden Fair to be held April 24, 2005, inlet stenciling, and wetland curriculum with all third and eighth grade students in Fridley schools. Mr. Haukaas said with respect to illicit discharge detection and elimination, the entire City storm sewer system has been recorded, and the maps are updated on a regular basis. Staff also evaluates older storm sewer lines for leaking joints and structural deficiencies. A minimum of 20% of outfalls are inspected each year. In addition, a review of existing ordinances regarding illicit discharge was done in 2004 with an ordinance approved requiring dechlorination of swimming pool discharges to the street. The May/June, 2004, issue of the City newsletter included an article about how anything dumped in the streets or catch basins drained directly into creeks, rivers and lakes. Mr. Haukaas explained that construction site runoff control efforts include meeting 3 to 4 times per month to review and revise development ordinances relating to controlling sediment during and after construction. Ordinance amendments will be brought to Council for approval as the details are worked out. Handouts have been developed which explain new requirements for contractors and developers, and building and construction inspectors have been educated on the requirements and enforcement of the rules. With respect to pollution prevention and good housekeeping for municipal operations, staff identified three things for the operation of the City's system: storm sewer treatment device cleaning, street sweeping, and the "Your Eco Home" cable television show. Mayor Lund asked about the timeline for public comment on this issue. Mr. Haukaas stated staff's report must be submitted by March 10, 2005. MOTION by Councilmember Barnette, seconded by Councilmember Wolfe, to close the public hearing. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 4 OLD BUSINESS: 4. Resolution of the City of Fridley, Minnesota Denying Renewal of Time Warner, Inc.'s Cable Television Franchise (Tabled February 14, 2005). MOTION by Councilmember Wolfe, seconded by Councilmember Bolkcom, to remove this matter from the table. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. Mr. Knaak, City Attorney, explained this was tabled at Council's last meeting at the request of the City's consultant, Mr. Grogan, so he could provide additional review and propose language changes. Mr. Grogan's input has been received and provided to Council. Prior to that time, staff was directed to state the reasons that might exist for denial of Time Warner's proposal. The franchise terminated on May 16, 2003. In a letter dated November 18, 2003, following nearly three years of informal renewal negotiations, Time Warner requested the parties proceed with renewal under what is called the formal process under the Federal Cable Act. The Federal Cable Act establishes a process that a cable operator holding a valid franchise may invoke for cable franchise renewal. This gives the cable operator the opportunity for a fair hearing. A formal reviewal process is a four-stage process; in the first phase the City must conduct a proceeding to determine future cable-related needs in the interest of the community. The City Council did so and engaged a consultant who did a thorough analysis of what the City's cable needs would be. Once completed, the City issued a request for formal renewal proposals. Within a certain period of time the cable operator submits a renewal proposal in response to the City's request, which Time Warner did. The City then has 4 months (in this case until the end of March) to evaluate the proposal and decide whether to grant or preliminarily deny the renewal. Mr. Knaak stated based on staff's analysis, it is the recommendation of staff that Council adopt this resolution preliminarily denying the renewal. Some of the reasons for that recommendation are listed in the resolution, but that list is not intended to be all- inclusive. Time Warner's proposed language related to gross revenues seeks to change the current status of defining "gross revenues" in a manner likely to reduce revenues to the City by modifying the manner in which bad debt can be written off. There are also changes in the performance bond and security fund of the franchise. Time Warner also fails to meet the requirement to supply the City with maps of its facilities within the City which the Public Works Department considers to be essential. Time Warner also inadequately addresses the stated need for public, educational and governmental access capacity and support within the City. Also their proposal is approximately a quarter of a million dollars below the determined need of the City. Time Warner's proposal would radically change the current local origination and public access practices by shifting the entire cost, staffing, and most of the equipment to the City. Also Time Warner proposes reducing the current four PEG access channels FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 5 provided to the City to three despite the fact that the City has determined the fourth channel is needed for use by public entities. In addition, Time Warner's proposal is for a ten-year franchise with a five-year automatic renewal if the system is "state-of-the-art." The transitional nature of the technology in this area makes anything beyond the City's ten year term inadequate and against the City's interest. Time Warner's proposal also completely ignores the right of the City to base renewal of Time Warner's franchise in ten years on the then-existing needs and interests of the City instead mandating an automatic renewal based solely on whether the cable system is "state-of-the-art." Time Warner also proposes to eliminate the current emergency system override that public safety officials in the City have stated is a necessary public safety tool. Time Warner's proposal would require the City to abandon its current role as the protector of consumers within the City. Mr. Knaak stated City staff is recommending Council's adoption of this resolution which would preliminarily deny Time Warner's proposal. The effect of a preliminary denial on the request of the cable operator would be the commencement of an administrative proceeding. Four issues would be considered: whether the cable operator substantially complied with the material terms of the existing franchise; the quality of the operator's service; whether the operator has a financial, legal and technical ability to provide the services; and whether the operator's proposal is reasonable to meet future community needs and interests of the City. Councilmember Billings stated Mr. Knaak indicated that negotiations have been going on since the spring of 2001. He asked if the City had made proposals to Time Warner as to what they would like to see in terms of contract language. Mr. Knaak said they did. Councilmember Billings asked how many proposals Time Warner has presented. Mr. Knaak responded that it is the City's position that Time Warner did not make any positive proposals and no constructive negotiations have occurred. He stated it is his assessment that what occurred is the City repeatedly agreed to come forward and offer concessions on key points and Time Warner did not. Councilmember Billings asked if Time Warner requested the start of the formal process. Mr. Knaak stated Time Warner did. Councilmember Billings commented that he finds the Time Warner proposal to be completely inadequate and he is shocked and dismayed to find that this is the first proposal that Time Warner has taken the time to put together. He was under the impression that negotiations were actually going on between the City and Time Warner but it appears that instead of being a give and take it was a situation of the City giving and Time Warner taking. FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 6 Mr. Knaak stated that is the way he would characterize it. Councilmember Bolkcom stated it is her understanding that if Council were to pass this resolution, there could still be negotiations between City staff and Time Warner. Mr. Knaak responded negotiations could continue. It is possible that Council may determine that Time Warner made a good and fair proposal. Councilmember Bolkcom stated she had been contacted by Time Warner requesting that this matter be tabled so they could meet with Council. She questioned if this meeting could still take place if this resolution is approved. Mr. Knaak stated it would still be an option but not one he would recommend. He also stated he would be curious to know what Mr. Grogan would think of such a meeting. It is much easier to negotiate and more difficult to concede if you have one person doing the negotiating as opposed to multiple people. It tends to weaken the position of the negotiating party if there are multiple negotiators. Dr. Burns, City Manager, commented that keeping Council out of the negotiating process makes it possible for Council to judge the decision from a distance as opposed to making a decision at the table. He stated the more appropriate role for Council in the negotiating process is to work with staff in the establishment of guidelines. He believes Council would be at a disadvantage if they pursue the negotiating process themselves. Ms. Kim Roden, Vice President of Public Affairs for Time Warner Cable, requested that Council table the resolution and schedule a work session with Time Warner so they can explain their proposal in more detail. She would invite the company president to attend the meeting. The work session would not be an attempt to negotiate with Council but would be to help Council understand what they are proposing. She claimed to have repeatedly asked for such a session but has not been granted that opportunity. She believes before Council can vote no, even preliminarily, Time Warner should have the opportunity to be heard. In order to demonstrate their commitment, Time Warner is prepared to provide an additional 30 days beyond the March 30 deadline if the City schedules a work session with them. This would allow adequate time for the company and Council to exchange information and the City would not feel backed into a corner by the March 30 deadline. Based on comments by staff, it appears that Time Warner has given the impression they are unwilling to negotiate but that is not accurate. Ms. Roden stated that Fridley residents have the ability to choose from many companies for cable and internet services. Time Warner's competitors do not pay a franchise fee, provide public education or governmental access programming, and they do not have the same burdens and requirements that Time Warner has. Staff's report states that even if Council votes to preliminarily deny Time Warner's proposal, it would not stop further negotiations between the City and Time Warner. However, once Council takes such a vote, it would be Time Warner's view that they would be moving into a quasi-judicial proceeding and all their energies and focus would need to be FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 7 centered there. Once the City votes to deny, Time Warner would no longer have the ability to spend time in informal negotiations. They believe it would benefit everyone to take the time to further explain their proposal. After such a work session, if Council still finds their proposal inadequate, there would still be time to vote to deny. Mr. Knaak stated the appropriate motion and resolution is before Council. Discussions with Time Warner can occur at any time even after the resolution has been approved. The only deadline right now is for the City to take action before March 30 or this franchise renewal will automatically be renewed. Mayor Lund stated there have been informal discussions on this matter since 2001. If Time Warner wanted to hold such a work session, they should have indicated that before they requested the City begin the formal process. Also, he believes Council has some obligation to take the advice of their attorney as well as the consultant hired by the City. He also stated that he and the other Council members are not well versed in all aspects of franchise cable law which is why they rely upon the consultant's expertise. Ms. Roden agreed that Mr. Grogan is an expert in cable television law, but the problem in this situation is that Time Warner has never been able to communicate directly with Council. The work session she is requesting now is not to negotiate with Council but to make their presentation and leave. She stated that she does not believe City staff fully understands Time Warner's proposal. Mayor Lund asked for clarification as to why negotiations could not continue if Council passes the resolution at tonight's meeting. Ms. Roden responded that Time Warner's attorneys believe that once the resolution is approved, the next step would be for them to begin preparing for what they consider to be quasi-litigation. Mayor Lund asked the City Attorney what the timeframe would be for such a hearing after Council's approval of the resolution. Mr. Knaak responded there is a reasonable period of time. He added that in his opinion, this is just Time Warner taking the position that if Council passes the resolution, they will not talk. He stated this is simply a bargaining position. Councilmember Barnette stated his understanding of the matter is that if Council approves the resolution, a definite statement has been made that this proposal as presented is not acceptable. He stated he does not find that to be a problem because his obligation is to the citizens of Fridley, not to Time Warner. Dr. Burns stated his understanding is that there never was much of an effort by Time Warner to help the City understand what their proposal is and what their position is. When the City negotiators put something forward, they got nothing back from Time Warner. There really was no effort by Time Warner to educate the City as to the FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 8 position of the company. He believes that City staff understands Time Warner's proposal. What Time Warner is asking the City to understand is why they are giving the City nothing. He did not understand why Time Warner could not have done that with City staff and why it takes a discussion with Council to make it different. Ms. Roden stated she believes Time Warner has put a very generous proposal on the table. Dr. Burns has not been present at any of the negotiations but relied upon staff to speak on the City's behalf. She stated she has done a lot of cable franchising over the years and there has been a lot of give and take by Time Warner. She objected strenuously to the suggestion that Time Warner has not negotiated. Some of the terms requested by the City were things that Federal law will not allow Time Warner to do. She questioned Dr. Burns' statement that he understands Time Warner's proposal. Councilmember Billings asked what the next step in the process was. Mr. Knaak stated the next step in the formal process would be for Time Warner to request a hearing. A hearing officer would then be selected by the City and the hearing would be conducted. Councilmember Billings questioned the timing of that hearing. Mr. Knaak responded that he believes it is a reasonable period of time. The City would not have the same guidelines they had for responding to Time Warner's proposal. They have to set the hearing in a reasonable period of time. Councilmember Billings stated that no matter when Council acts on the resolution, it would not shorten the period of time that Time Warner has to prepare because the date could be set at some point in the future. Mr. Knaak stated any action Council takes this evening would not in any way restrict Time Warner's ability to respond. He added that he sees no legal reason why Time Warner would feel it necessary to immediately begin preparing for such a hearing. Based on the City's consultant's advice, there will be nothing compelling them to do so. Councilmember Billings stated he was shocked to hear from Mr. Knaak that this was the very first real proposal Time Warner has put forward. He is even more shocked that Ms. Roden is telling Council if they do approve the resolution that Time Warner's legal position would be that they will not have time to negotiate in an informal manner. He said he represents the citizens of Fridley, and he does not need a 30-day extension to act on the proposal Time Warner has presented. Time Warner is not offering anything to the City. He stated he is willing to table this matter and invite Time Warner to a work session at the March 14 Council meeting to explain their position. Mayor Lund stated he is not interested in a 30-day extension. FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 9 Dr. Burns commented that Time Warner has not made a good faith effort to negotiate with the City's negotiating team. Ms. Roden claimed that she has hundreds of pages of documents that she has suggested to the City with alternative language and that has not been before Council. Councilmember Wolfe stated he will be traveling on March 14 but wants very much to be present for the discussion on this matter. MOTION by Councilmember Bolkcom, seconded by Councilmember Billings, to table this resolution until the March 28 City Council meeting. Councilmember Bolkcom asked that the meeting with Time Warner be based on a set agenda without an adversarial environment. Mr. Knaak commented that the work session Ms. Roden has requested would be a point of presentation and would in effect be what would occur at the hearing; this could be described as a"hearing lite". The bottom line is that staff recommends against such a"hearing lite" because they see no value to Council in doing so. He did recommend that such a hearing occur at a public hearing. He further stated that the presentation by Time Warner would not be testimony. If they discuss such things as surveys, examination of the scientific basis of the survey, those kinds of things that you would get out of the formal hearing process Council would not have the benefit of (in the manner proposed.) Right now, by doing the denial up front, from here on if it's in public, it's going to be a matter of public record, and it's going to have the information Time Warner provides verifiable. A"hearing lite" may satisfy some needs that Council feels but it would not be in the best interest of the City. By continuing this matter to March 28, Council will have only one or two days to make a decision before the deadline. Dr. Burns suggested that this be done at the March 14 meeting to give Council more time to consider the matter and take action at their meeting on March 28. Councilmember Bolkcom restated her request that this hearing be based on a set agenda, but she wants the agenda to be established by City staff, not by Time Warner. Councilmember Billings commented that he is in support of tabling this matter, but not because he is at all hesitant to vote against the Time Warner proposal. If Council can better understand Time Warner's position after their proposal and that causes a better proposal, it is in everyone's best interest. After some discussion, Council determined it would be best to table this matter until the March 14 meeting. Councilmember Bolkcom agreed to the change in her motion. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 10 5. Second Reading of an Ordinance Amending Chapters 602, 603 and 606 of the Fridley City Code Pertaining to Licensed Establishments Serving Beer or Intoxicating Liquors, Prohibiting Certain Conduct Therein. Mr. Abbott, Public Safety Director, explained that this proposal would eliminate combative sports in establishments that hold beer or liquor licenses as listed in Chapters 602, 603 and 606 of the City Code. This ordinance will not ban combative sports, but will separate these events from the serving and consumption of alcohol. This ordinance will also apply to any temporary license issued under Chapters 602, 603 and 606 of the City Code. Councilmember Wolfe expressed concern that this ordinance amendment is a reaction to a couple of incidents. He believed the City is over-stepping its bounds. He thought it was more a matter of Council members not liking the sport itself. He has not seen proof that alcohol makes people go out and fight. Mayor Lund stated Council has considered this matter since early last year. This proposal does not regulate the sport itself, but is simply regulating the use of alcohol which is clearly within Council's rights to do. He does not understand the position that without alcohol, this sport cannot survive in Fridley. Alcohol is not served at other sports events in the City except for an occasional softball tournament. Councilmember Wolfe stated it has not been proven that this ordinance is going to stop problems. He believes it is hypocritical for a City that runs liquor stores to prohibit liquor sales under certain circumstances. He was concerned that the City would soon be banning alcohol sales where problems occur because of a band performance. Councilmember Bolkcom stated the City Council can regulate the liquor license. The City has stated they do not want bars, but instead allows restaurants to serve intoxicating beverages. Whether or not there are a lot of problems at combative sports events, the City has the ability to regulate the establishments that serve liquor. The City has its own liquor stores in an effort to regulate the sale of liquor. She also has received some comments from residents who have attended these events and have seen things get out of control. Councilmember Wolfe stated this ordinance is, in a sense, regulating the combative sports activity. Councilmember Bolkcom commented that Council does not have an obligation to combative sports. Councilmember Barnette commented that the City is restrictive with their liquor license by including a 60/40 food restriction. As co-chairman of the Values First Commission in Fridley, he must support that commission's non-violence stance. He questioned if it is legal for liquor to be served outside the restaurant area. FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 11 Mr. Abbott stated when an establishment submits a liquor license application; they submit a site plan indicating where the alcohol sales will occur. That is then approved based on that site. If they later exceed the boundaries of where they were approved to serve alcohol, they must come back to the City for a new license. Councilmember Barnette asked if it is appropriate for vendors to be selling liquor on the court area of Spikers where the ultimate fighting events have occurred. Mr. Abbott stated under the current license they did not identify the court area for alcohol sales. Councilmember Wolfe commented if they are selling that much liquor, they may be at risk of violating the 60/40 restriction. Councilmember Billings stated he views this as an ordinance that controls the on-sale liquor establishments, in the same manner that we have established the food to liquor ratio and in the same manner that we control how pull tabs are done or whether or not strippers are allowed in liquor establishments. The City Council has chosen to restrict certain types of activities at their on-sale liquor establishments. If someone wants to do ultimate fighting elsewhere in the City where alcohol is not served, they are more than welcome to do so. A number of surrounding communities are looking at passing a similar ordinance. MOTION by Councilmember Bolkcom, seconded by Councilmember Barnette, to waive the reading of the ordinance and adopt the ordinance on second reading. Kyle Sheely, ultimate fighting supporter, stated he agrees with Councilmember Wolfe that it seems Council is against the activity. Only 11 states regulate mixed martial arts. People attending these events will not stop drinking. They will simply bring in their own alcohol which will cause bigger problems long term. He suggested Council allow the restaurants to do their jobs in monitoring liquor consumption at such events. UPON A VOICE VOTE, MAYOR LUND, COUNCILMEMBER BARNETTE, COUNCILMEMBER BILLINGS AND COUNCILMEMBER BOLKCOM VOTING AYE AND COUNCILMEMBER WOLFE VOTING NAY, MAYOR LUND DECLARED THE MOTION CARRIED ON A FOUR TO ONE VOTE. NEW BUSINESS: 6. Informal Status Reports. Councilmember Bolkcom stated the SACA Empty Bowls event is scheduled for March 3 at the Fridley Community Center starting at 4:30 p.m. The annual Home and Garden Fair is scheduled for March 5 from 9:00 a.m. to 2:00 p.m. at the Schwan Center in Blaine. FRIDLEY CITY COUNCIL MEETING OF FEBRUARY 28, 2005 PAGE 12 Councilmember Barnette, Mayor Lund and Dr. Burns met with Lieutenant Governor Carol Molnau to discuss the issue of highway maintenance, particularly along University Avenue. She did agree to meet with staff again. Mayor Lund thanked Dr. Burns for taking the initiative on this matter and obtaining 16 resolutions from other communities who share Fridley's concern regarding highway maintenance. Dr. Burns commented that the League of Minnesota Cities did join in this discussion and presented a resolution passed by their board. ADJOURN MOTION by Councilmember Barnette, seconded by Councilmember Wolfe, to adjourn. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MEETING ADJOURNED AT 9:35 PM. Respectfully submitted by, Rebecca Brazys Recording Secretary ������ Scott J. Lund Mayor