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CCM 11/10/2014 CITY COUNCIL MEETING CITY OF FRIDLEY NOVEMBER 10, 2014 The City Council meeting for the City of Fridley was called to order by Mayor Lund at 7:03 p.m. ROLL CALL: MEMBERS PRESENT: Mayor Lund Councilmember Barnette Councilmember Varichak Councilmember Saefke Councilmember Bolkcom OTHERS PRESENT: Wally Wysopal, City Manager Darcy Erickson, City Attorney Scott Hickok, Community Development Director Julie Jones, Planning Manager Debra Skogen, City Clerk James Kosluchar, Public Works Director James Kiewel, 1631 Rice Creek Road James Hardy BOARD OF CANVASS MEETING Receive and Certify the Statement of Canvass from the General Election of November 4, 2014. Debra Skogen , City Clerk, stated the general election was held on November 4. Councilmembers of Wards 1, 2, and 3 were up for re-election. In Ward 1, Jim Saefke, had an opponent, John Anderson. In Ward 2, Delores Varichak, had an opponent, Pam Reynolds. In Ward 3, Ann Bolkcom, had no opponent. Ms. Skogen stated Minnesota law and the City Charter both require Council to canvass the results of the election between the 3rd and 10th day after the election. The Statement of Canvass includes the total number of votes cast for the day, total number of individuals registered at 7 a.m., total votes cast for each candidate, a true copy of the ballot, and the names of the election judges. At 7 a.m. on Tuesday morning, there were 15,061 registered voters. There were 589 additional individuals who registered on election day, giving the City a total of 15,651 registered voters. Ms. Skogen stated the total number of ballots cast at all polling locations was 8,096. There were 698 ballots cast by absentee voting, for a total number of ballots cast of 8,794. As far as the voter turnout, Fridley had a citywide average of 56.2 percent which is 5 percent lower than an election similar to this election in a non-presidential year. Ms. Skogen stated the number of votes for Councilmember, Ward 1, Jim Saefke was 1,150; John FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 2 Anderson was 1,108; and there were 18 write-ins; for a total of 2,276. In Ward 2, Delores Varichak received 1,413; Pam Reynolds received 962; and there were 14 write-in votes; for a total of 2,389. In Ward 3, Ann Bolkcom received 1,819; and there were 47 write-ins; for a total of 1,866. Ms. Skogen stated there were 122 election judges who are named on the official Canvass Report. Staff recommends adoption of the Canvass Report. Mayor Lund stated he is always interested in who the write-ins are. Ms. Skogen replied they do not tally those anymore because they changed the City Charter two years ago. If there is a write-in, if a candidate is doing a write-in campaign, they have to request that their votes are counted seven days prior to the election just like for federal, state, county, or for judges. They did do the write-ins for the school district and the hospital district. Councilmember Bolkcom asked how the 692 absentee votes compared to the total in previous years. Ms. Skogen replied, in 2008 they started at about 5 percent. This year it was 7 percent. Councilmember Bolkcom asked if they count those votes here and then send them to the County. Ms. Skogen replied, when they do the absentee ballot voting here, they just do it for the people who come into City Hall. Anything that is done by mail is done at the County level. Once they receive enough envelopes, an absentee ballot board meets. They look at the application and compare the information on the application against the envelope and they accept or reject it based on that. On the Tuesday before the election, they bring all the absentees votes they have accepted up to that time, to the County. The County starts the counting process. It finally finishes on election day when they are done with agent delivery ballots. MOTION by Councilmember Barnette to receive and certify the Statement of Canvass from the General Election of November 4, 2014. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. PROCLAMATIONS: Student Foreign Exchange Week - This item was postponed because of the weather. APPROVAL OF PROPOSED CONSENT AGENDA: APPROVAL OF MINUTES: City Council Meeting of October 27, 2014 APPROVED. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 3 NEW BUSINESS: 1. Appointment - City Employee Wally Wysopal, City Manager, recommended the appointment of a new City employee, Adam Swinney, to the position of Public Services Worker in the Water/Sewer Utilities Division. This would be effective on November 24, 2014. This is a replacement position and is funded within the City's 2014 budget. APPROVED. 2. Claims (165965 - 166144) APPROVED. 3. Licenses. APPROVED THE LICENSES AS SUBMITTED AND AS ON FILE. 4. Estimates Astech Corporation, Inc. P.O. Box 1025 St. Cloud, MN 56302 2014 Street Rehabilitation Project No. ST2014-01 Estimate No. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $61,031.85 Penn Contracting, Inc. 13025 Central Avenue Suite 200 Blaine, MN 55434 2013 Watermain Project No. 427 and Sewer Forcemain Project No. 433 Estimate No. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 9,181.70 Blackstone Contractors, LLC 7775 Corcoran Trail East Corcoran, MN 55340 Oak Glen Creek Erosion Control Project No. 380 Estimate No. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,736.23 FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 4 APPROVAL OF CONSENT AGENDA: MOTION by Councilmember Barnette to approve the proposed consent agenda. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. OPEN FORUM: No one from the audience spoke. ADOPTION OF THE AGENDA: MOTION by Councilmember Bolkcom to approve the agenda. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING: 5.Consideration of an Ordinance Amending Fridley City Charter, Chapter 7, Taxation and Finances, Section 7.04 Preparation of Annual Budget; and Section 7.05 Passage of Budget. MOTION by Councilmember Barnette to open the public hearing. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS OPENED AT 7:13. Debra Skogen, City Clerk, stated to allow cities to receive the State budget information in a more timely manner, particularly, fiscal disparities information, the Minnesota Legislature extended the levy deadline to cities from September 15 to September 30. The fiscal disparities information is not available from the State until after September. This information is needed in determining possible revenues the City receives from the State. Section 7.04 requires the annual budget to be submitted to the City Council at its last regular meeting in August. Section 7.05 requires that the budget shall be a principal item of business at the last regular meeting in August. Ms. Skogen stated by submitting the annual budget to the City Council in August, the City must estimate or not include the amount of fiscal disparities the City would receive from the State. The City Council discussed the legislative change at this year's budget meetings and recommended the City’s Charter Commission review this section of the City Charter. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 5 Ms. Skogen stated the Charter Commission received the recommendation, and reviewed Chapter 7, Taxation and Finances, at their meetings on September 2 and October 6. On October 6, the Charter Commission recommended an amendment by ordinance and forwarded it to the City Council. Minnesota Statutes Section 410.12, Subd. 7, allows the Charter Commission to recommend an amendment by ordinance to the City Council for them to adopt by unanimous vote, provided a public hearing is held. State law requires a public hearing notice to be published at least two weeks, but no more than 30 days before the public hearing. Ms. Skogen stated the City Council scheduled a public hearing for November 10, and the public hearing notice was published in the Fridley Sun Focus on October 24 as required by State law. The amendments are non-controversial and were agreed upon within two meetings. Ms. Skogen stated the two changes are in Section 7.05. One is to change the language from the last meeting in August to read, "In accordance with Minnesota state law." The other was in Section 7.05, which was amended to remove language about August to read, "at a regular meeting in September prior to the passage of the final budget." Since the new deadline is set for September 30, the Charter Commission felt it would be better to allow the time for the City to assess the State's budget and present the budget based on the City Council calendar rather than a specific date in September. Ms. Skogen stated the amendment is non-controversial and was agreed upon by the Charter Commission. Staff recommends holding the public hearing and taking public comments. The first reading of the ordinance would be held at the next meeting, and the second reading at the following meeting. If adopted by unanimous vote of the Council, it would become effective 90 days after it is published. James Hardy asked Ms. Skogen why she was citing Minn. Stat. Sec. 410 which is for statutory cities. His impression was that Fridley was a Charter city. Mayor Lund replied, they are a Charter city but do follow State guidelines. Ms. Skogen replied, Charter cities are regulated under Chapter 410 of the State law. MOTION by Councilmember Saefke to close the public hearing. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS CLOSED AT 7:21 P.M. PUBLIC HEARING: 6.Consideration of the Detachment/Annexation of the Property Known as John Erickson Park. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 6 MOTION by Councilmember Barnette to open the public hearing. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE PUBLIC HEARING WAS OPENED AT 7:21. Scott Hickok, Community Development Director, stated this item has to do with the detachment/annexation with Spring Lake Park for a property they know as John Erickson Park. It is in the northwest corner of the northwest quarter, Section 12, of the City. The property consists of roughly 3.4 acres of land. It is almost entirely within the flood plain. The City accepted the land as park land in 1970. The donor of the land at that time stipulated that it must remain as John Erickson Park for no less than ten years, and the City obliged. Mr. Hickok stated in 1974, the City sought to eliminate the problem of glass on the bottom of the lake in this piece of property with two truckloads of sand to create a cushion between the glass and potential swimmers' feet. This failed. The City embarked on a glass sifting process but was instructed by the Department of Natural Resources to cease activities, as the sifting would upset the lake bed. Mr. Hickok stated the topic of detachment arose during the detachment discussion for Emmanuel Christian Center, a property at Osborne and University Avenue, on the 13th of October in a public hearing. Public Works Director James Kosluchar suggested the City consider the detachment of this property as well, and Parks and Recreation Director Jack Kirk agreed it would be good for the City to consider this. Mr. Kirk did take this to the Parks and Recreation Commission who considered this item at their November 3 meeting. They concurred with the detachment initiative. Mr. Hickok stated the Fridley Parks and Recreation Commission did say they wanted to make sure that the City of Spring Lake Park would be aware of the glass history. Staff did discuss that glass history with Spring Lake Park staff. Because of the clearly established beach area, the City Administrator did not seem overly concerned about the glass. This is not really a good swimming area. It has been taken back by Mother Nature, and it is difficult to get to. Staff also did point out that the "Danger--Glass" signs do still exist from some years ago when they were posted. Mr. Hickok stated staff recommends the City approve the resolution authorizing the detachment of the acreage known as John Erickson Park for attachment or annexation with the City of Spring Lake Park. If Council approves this, the attachment would be approved by Spring Lake Park Council. The item would be presented to the State Annexation Board, and the entire process would likely be completed by year-end. Councilmember Bolkcom asked when Spring Lake Park's action item would be. Mr. Hickok replied, they are taking it on once Council adopts the resolution, this so it will happen shortly after. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 7 Councilmember Bolkcom asked if they do not want to take on the property then what happens. Mr. Hickok replied they have had good discussions with staff at Spring Lake Park, and they have had some discussions with their Council as well. They think it is the right thing to do. They do not anticipate any problem with the Annexation Board. They, too, will see the merits of this. Typically where they will have an issue is when there is a tugging between cities. This situation is considered a "friendly" annexation. Councilmember Bolkcom said no residential area is involved. Mr. Hickok replied their purpose is to also keep it as park. Councilmember Bolkcom asked what would happen if the commercial property next to it becomes a parking lot, or does it matter. There is no reason not to do this. Mr. Hickok replied both of these things are going to be considered by the Annexation Board, but they will be heard separately. Darcy Erickson , City Attorney, stated they really touched upon the issue of the Charter and disposition of surplus property and there would be an ordinance that follows this since the Charter does require that. Mr. Hickok replied the City's Charter language does require it. Councilmember Barnette asked if there was a “Welcome to Fridley” sign on the property at John Erickson Park. Mr. Hickok replied, yes, it is. Councilmember Bolkcom asked if this does not go through does the ordinance happen before it is detached. Mr. Hickok replied that would be one plan at the State Annexation Board if it had to await Council's conclusion on whether they are okay with disposing of it by the Council's actions tonight in passing of this Resolution. It really does indicate Council is okay with doing that. That second action, belts and suspenders, is what this would be considered. It is a little bit of the same; however it is in the form that matches what the Charter has asked the City to dispose the property by. MOTION by Councilmember Varichak to close the public hearing. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS CLOSED AT 7:32. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 8 NEW BUSINESS: 7. Resolution Requesting Concurrent Detachment from Fridley and Annexation to Spring Lake Park of Certain Lands Pursuant to Minnesota Statute 414.061 (Ward 2). MOTION by Councilmember Varichak to adopt Resolution No. 2014-81. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 8. Resolution Receiving a Proposal for Organized Residential Refuse Collection by Districts, and Setting an Informational Meeting for November 20, 2014, and a Public Hearing for December 8, 2014, and Directing Publication of Hearing Notice. Walter Wysopal , City Manager,the five licensed residential refuse haulers and the City staff which comprised of himself, Julie Jones (Planning Manager) and Kay Qualley (Environmental Planner) met for 24 separate occasions to discuss and negotiate terms and conditions for an organized refuse hauling agreement for residential districts within the City of Fridley. This is based on action the City Council had taken in December, 2013, to explore negotiations based on the statutory language that is provided that allows cities to consider organized refuse hauling. Mr. Wysopal stated they have concluded those negotiations. They are required to meet at least for 60 days but, because of the amount of information and the number of haulers they had, it took much longer than that. The tone of the meetings was always positive, and they were able to come to a tentative agreement earlier this morning. The agreement will be made public now. It has been presented to the City Council. Again, this is a tentative agreement and is for consideration and a public hearing they are requesting be held on December 8 along with an informational meeting with the public on November 20. Mr. Wysopal stated this is merely an administrative matter tonight to receive the proposal and set the public hearing as required by State Statute. On December 8, the City Council can take official . public input. There will also be an additional informational meeting on November 20 Mr. Wysopal stated they intend to make the proposed Agreement available on the City's website as well as at City Hall. Julie Jones, Planning Manager, said they should not really go into details of the proposal until the public hearing. Ms. Wysopal asked to read into the record the letter signed by the haulers with the exception of one as they were on vacation. The letter was signed by Ace Solid Waste, Incorporated; Waste Management of Minnesota; Republic Services and Walters Recycling and accepted by LePage and Sons. The letter says: FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 9 Dear Mayor Lund and Honorable Councilmembers: We, the undersigned, representing the licensed residential waste haulers in Fridley are prepared to execute the attached tentative agreement concerning consortium waste hauling without further amendment, qualification or delay. The lengthy negotiations that led to this tentative agreement were conducted in good faith with a view towards a fair and equitable result that serves the interest of both the waste haulers and the citizens of Fridley. We believe that this tentative agreement represents that desired outcome. Sincerely, Mr. Wysopal stated he wanted to make sure Council and the public knew that this was a proposed agreement that is ready to be reviewed by the public and Council to take testimony on. It is not intended to be sent back to negotiate some major issues within it. It is a proposal that can stand on its own. MOTION by Councilmember Bolkcom to receive a letter dated November 10, 2014, addressed to the Mayor and Councilmembers as read by Mr. Wysopal and including acceptance of the attached proposed Agreement. Seconded by Councilmember Barnette. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. Councilmember Bolkcom asked City Attorney Erickson, because the resolution and the actual proposed agreement were not seen by the Mayor and Councilmembers until tonight, and they have not had an opportunity to read this, is it within their means as a City Council to go through this tentative agreement and make comments and questions and then would that be handled at the public hearing, Attorney Erickson replied the purpose now is just to receive the proposal. The merits, questions, and its terms may be discussed at the public hearing on December 8. Councilmember Bolkcom said the letter stated the undersigned were prepared to execute the tentative agreement. It says it is tentative, so that means there could be some changes and that letter would go back to the owners? Attorney Erickson replied it is tentative in the sense they are ready to sign, but the City has to go through the due diligence portion and have the public hearing and the process under 115A.94 which provides for the public hearing. Councilmember Bolkcom stated she just wanted to point out that just because they have agreed to this does not mean there will not be changes and there still needs to be public input from the public. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 10 Attorney Erickson replied it is not anticipated that prices or the core issues of the contract would be subject to continued negotiations but there are some minor matters to be clarified. The intent is not to continue ongoing negotiations post receipt of the contract from the haulers. Councilmember Bolkcom stated she does not want to limit the opportunity for Council to go over this and read it. Attorney Erickson stated certainly the intent is not to foreclose any kind of discussion about the content of the contract. However, the intent of the staff that were present and the haulers were to hammer out what represents the core essentials and content of the agreement. Mayor Lund stated after the public hearing and after they have had a chance to review it and before they put their stamp and signatures on it, they may have to table it and negotiate if someone should come up with some substantial changes to it. They would have to agree to any changes made further on. Given the length of the discussions and 24 meetings, he would hope they thought of everything on both sides. Councilmember Bolkcom stated she just wanted the public to know they will still have an opportunity to give their input. Mayor Lund stated it is not a done deal until they sign it. Councilmember Bolkcom asked Mr. Wysopal what he meant when he said the agreement would be made public. Attorney Erickson replied it is a public document. If anyone is interested, they can obtain a copy from the City. Mr. Wysopal stated it distinguishes that these negotiations were treated as private discussions the Council was not involved in them. It was just the City Manager, City Attorney, Planning Manager and the Environmental Planner who were working with the haulers. They agreed not to disseminate any information as required by statutes. This is the result of the negotiations, and they want to make it public to everybody. They will put it on the website and get it out as much as they can so the public gets a chance to look at it. The statute was crafted that way to truly provide some protections to the haulers so they can have negotiations involving trade secret information about how they do their business. MOTION by Councilmember Bolkcom to receive the City of Fridley Residential License Hauling Company Mixed Municipal Solid Waste Collection Tentative Agreement dated November 10, 2014. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 11 MOTION by Councilmember Bolkcom to adopt Resolution No. 2014-82. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. MOTION by Councilmember Bolkcom to amend the Resolution by removing the words, "text of the amendment" in the seventh paragraph. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 9. Resolution Approving, Authorizing Execution and Recording of the Development Contract, Two Storm Water Maintenance Agreements and an Environmental Indemnification Agreement Relating to the Improvement of Real Property Located at 4880 East River Road in Fridley, Minnesota (Ward 3). James Kosluchar , Public Works Director, stated earlier this year negotiations began with Northern Stacks, the developer for the property that used to be known as BAE or FMC. City staff worked with the developer to have certain public improvements constructed by them and turned over to the City of Fridley. Fridley will commit to maintaining these specific improvements as they serve multiple properties in the new development. Mr. Kosluchar stated these improvements include asphalt roadway, curb and gutters, signage and striping, storm sewer and water main, and sanitary sewer main. He showed a picture of the City's newest street in Fridley, Northern Stacks Court, which is south of 51st on the east side of East River Road. Mr. Kosluchar stated in 2014, the City Council approved the final plat for the property, and the plat recording is contingent upon the approval of the development agreement, and signature and execution by the City of Fridley and developer. Mr. Kosluchar stated the development contract presented to them includes provisions for the following items: development agreements that remain private; public improvements to be provided by the developer; construction, administration, construction, documentation, and warranties for those public improvements; escrow requirements of the developer and other requirements of the development including environmental indemnification in favor of the City of Fridley and storm water maintenance agreements for Parcels 1 and 2. Mr. Kosluchar stated a large portion of the construction has been substantially completed. On the developer's accelerated timetable, the construction has conformed with the terms of the development agreement. They had the base terms set and provided to the developer some months ago and, in conformance with those terms, they basically acted in accordance with the agreement. It was done voluntarily by them to keep the project moving. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 12 Mr. Kosluchar stated at this time it is not anticipated that future phases of Northern Stacks development will require similar public improvements, and therefore, they do not project that an additional agreement will be required, but that could change. Mr. Kosluchar stated staff recommends Council approve the attached resolution. Councilmember Bolkcom asked whether all of the improvements will be done by the time of the next go around. Mr. Kosluchar replied basically, the early development plans for the next phase do not include the requirement for any public improvements. This development agreement is to ensure the public improvements are constructed to their satisfaction. If they have private streets or utilities, they are on their own long-term maintenance; therefore, the City would not require an agreement. Councilmember Bolkcom referred to Page 72. She asked if the standard for indemnification is normally three years. Attorney Erickson replied, some contracts expire and they are released upon the completion and expiration of any warranties. Here they have put in an additional three years. Councilmember Bolkcom stated it is an added protection. Attorney Erickson replied, correct. MOTION by Councilmember Bolkcom to adopt Resolution No. 2014-83. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. APPEAL HEARING 10. Consideration of Appeal Request from James Kiewel, 1627-31 Rice Creek Road (Ward 2). (All witnesses were sworn in by Attorney Erickson.) James Hardy stated if he is going to swear on oath, he is here by special appearance. Ms. Jones stated in addition to the materials they already received, she has some more materials to hand out to them and Mr. Kiewel, including the draft resolution Attorney Erickson has prepared for Council. Some of what she is handing out are exhibits Mr. Kiewel submitted himself at the Appeals Commission hearing. Some are additional things the City submitted in addition to the packet they already had prepared for them. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 13 Ms. Jones stated this zoning code enforcement appeal is related to property located at 1627 and 1631 Rice Creek Road. The owner of the property is James Kiewel. These are two adjacent single-family homes, and they are located on the eastern border of the City with New Brighton. The homes face Rice Creek Road and they are bordered on all sides by other single-family homes including across the road on Rice Creek Road. Ms. Jones presented an aerial view of the two properties. She said she is not completely sure where exactly the retaining wall goes, but it goes along the rear yard of both of those properties and along most of the side yard of 1631. They are not talking about just a very brief section of retaining wall. This is a very long section on both sides of the property. Ms. Jones stated the violation which is the subject of this appeal has been going on for a number of years. The appeal is related to Code Enforcement letters she sent to Mr. Kiewel on both of the properties at 1627 and 1631 Rice Creek Road, identical letters referencing a violation of building a retaining wall without a proper permit. The letter gave Mr. Kiewel two options. He could remove and rebuild the wall with proper permits; or he could obtain proper engineering certification on the existing wall. Because of the complicated issue and staff being concerned about how they were going to resolve this problem, they asked in the letter for Mr. Kiewel to meet with them. However, he chose to appeal and that is why they are here tonight. The length of the retaining wall is probably about 130 feet, so they are talking about an extensive structure here. Ms. Jones stated the owner appealed to the Appeals Commission first who heard his appeal on October 1. At this point, Mr. Kiewel has now appealed his case to the City Council. The minutes from that appeal hearing were in the Council's reading file. Related to that was the resolution that the Appeals Commission passed, which includes their findings of fact, which was in Council's meeting packet. In that document, the Appeals Commission affirms staff's action and the process they were following in relation to this violation. Again, staff has given Mr. Kiewel two options to solve this problem. He could rebuild the wall with a proper land alteration permit or obtain certification from an engineer that the retaining wall built is of sound design. Ms. Jones presented a couple of photos of the retaining wall. This is not an easy location to get pictures of because the neighboring properties have built solid wood fences to shield the view of this retaining wall. They do not have good angles to take photographs of it, but it is basically comprised of two layers of plastic barrels that are three feet in height and in some locations have railroad tie structures on top of it and fencing on top of the railroad ties. Ms. Jones stated the focus of this hearing is whether Mr. Kiewel needed a permit to build the structure. The other question was if he had a permit at the time he built this structure. Staff has argued that he did not. He had obtained a land alteration permit but that permit had lapsed during the time he was still doing work on the structure. Also, nowhere in his application for the land use alteration permit did he indicate he was building a retaining wall, let alone a retaining wall of the height that it was. Building Code requires a retaining wall over four feet in height to have a building permit. The City's policy is that when a property owner has a land alteration permit and they are also doing a retaining wall, staff treats that as part of the land alteration permit unless there is a building permit tied to a construction of a building to tie with the retaining wall. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 14 Ms. Jones stated the question at hand is whether the neighbors and staff are reasonable in their concerns about the safety of this structure and whether staff was following the process of the Zoning Code correctly in this case. Ms. Jones stated Mr. Kiewel argued at the Appeals Commission meeting that this should be addressed by the Building Code Board of Appeals. However, the City is not addressing this as a Building Code issue. The Building Code requires him to have a permit to build a retaining wall of this height, but the City's Zoning Code requires a land alteration permit for this. From the beginning, the City has been treating this as a Zoning Code violation, not a Building Code violation. Fridley City Code does designate the Appeals Commission as its local Board of Appeals for Building Code matters, but the City has not been treating this as a Building Code matter. The debate here is not about whether the structure is sound. The debate is about whether Mr. Kiewel needed a permit to build it and if he had a permit to build it. Ms. Jones stated Chapter 205 holds the owner of a property responsible to comply with the Code. Mr. Kiewel argued at the Appeals Commission meeting different points about whether this Code should be applied to him. Staff argued that he is the owner of both properties. The code does require him to obtain the permits. Ms. Jones stated an important point to make in Section 205 is that each and every day that such violation exists, it continues to be a separate violation. He argued that the time lapse had been such that the State Statutes would not enable the City to continue to proceed saying this is a violation which started in 2005. However, the City Code treats violations like this as each day the violation continues, it is an active violation. Ms. Jones stated the Building Code requires retaining walls over four feet in height to have a permit. However, the City treats that as part of a land alteration permit in this case because there is no building structure being built besides the retaining wall. That is the common process the City follows. Each day this wall exists without a permit is a violation of the City's zoning code. Ms. Jones stated Mr. Kiewel obtained a land alteration permit in 2005, but in that permit, he did not indicate he was building a retaining wall over four feet in height. In addition, Mr. Kiewel has done construction on his property on this wall after the permit expired. In fact, he did not buy the property at 1627 until long after this permit expired. He was working on the 1627 property but had not even owned it yet, and using a bobcat on it. Ms. Jones stated the review process the City followed is such that Mr. Kiewel has argued that this matter is a Building Code matter and should go before the State Building Code Board of Review. The City says, no, this is a Zoning Code matter that is addressed as a Zoning Code violation. That is where the language is in Fridley's City Code that the City is using in this case which says, when you are using heavy equipment, you have to have a land alteration permit. The City would not require a land alteration permit for people who are putting in landscaping and just using a shovel and a wheelbarrow. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 15 Ms. Jones stated Mr. Kiewel has argued that the Appeals Commission is not qualified to review this. Again, this is not a Building Code matter. This is a Zoning Code matter and that is what they are charged with in the City Code to review. Ms. Jones presented another picture of the wall. The City's Zoning Code is designed to try and protect health and safety of its residents. Ms. Jones stated the Assistant City Engineer who was at the Appeals Commission meeting was concerned seeing this view of the wall because of the neighboring fences. Obviously the neighbors do not want to look at this wall and built solid fences, creating an area where if this wall collapses, a person could be trapped in between the fence and the retaining wall. Ms. Jones stated the debate is not about the structural integrity of this wall. It is whether Mr. Kiewel had the proper permit to build it. Councilmember Bolkcom asked what she would have to provide if she came to the City for a land alteration permit and indicated she was going to put in a retaining wall. She would have to tell staff why and what she is doing, how much she is going to move, and if she is going to change the grade. However, if she wanted to put in a retaining wall, what other information would she need to provide. Ms. Jones replied, that is a very good question. There was nothing in Mr. Kiewel's application that indicated he was building a retaining wall. The value of the work he was proposing was $1,500. However, if you are putting in a retaining wall over four feet, the City requires engineering which means you have to submit additional material with your application that is showing and demonstrating that the material you are using is designed properly to withstand the height and the pressures that are being put on it. Staff would not have approved his land alteration permit as he applied for it knowing he was building a retaining wall this high. Particularly since he was using an alternative product staff has never seen before, he would have had to submit additional data on that. Councilmember Bolkcom stated even if she was building a four-foot high wall, she would have to tell the City what materials she is using. Would she have to show them where it is going and from what point to what point and then what materials she would be using? Ms. Jones replied, right, there would be a drawing with that as well. Councilmember Bolkcom stated, and above four feet, that would be State Statute. It is not just a city code. On things like this the City goes with State Statute, correct? Ms. Jones replied with the State Building Code. Councilmember Bolkcom stated they are not really imposing anything different than they would for anyone else who would want to build a retaining wall above four feet. Ms. Jones replied correct. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 16 James Kiewel stated he is a private Minnesota state citizen, and he is here by special appearance. He owns the property, 1627 and 1631 Rice Creek Road. Ms. Jones stated the debate is not whether the wall is structurally sound. He asked where the compelling government interest was. Mayor Lund asked Mr. Kiewel to address the Council and they will refer to staff for some information. He understood the first part of his question where he said it was stated in the presentation this is not really a question about a building permit, it is about a land alteration. Mayor Lund asked Mr. Kiewel what the second part of the question meant. Mr. Kiewel replied, Ms. Jones said the debate is not about whether the wall is structurally sound. It was about the permit or something like that. Mayor Lund replied it was about the land alteration permit. It is under Zoning instead of Building Code. Mr. Kiewel stated he was just wondering where is the compelling government interest if there is not a problem with the way the wall is? It is structurally sound. Mayor Lund replied he did not take that presentation being that it was not strictly about a land alteration permit. That is where the permit came into play as he has read through this. However, there are some Building Code issues. Mr. Kiewel stated Ms. Jones took the photo down. That was a nice photo, and he liked it. Nice and straight wall. Mayor Lund stated, yes, Mr. Kiewel has it actually leaning back a little bit for the counteraction of the pressure. Mr. Kiewel said Mayor Lund was there. He asked if he saw any indication at all that the thing was collapsing. Mayor Lund stated Mr. Kiewel also says it is beautiful. The neighbor must not have thought so because they put up a privacy fence to hide it. Mr. Kiewel replied, no, that is his fence. Mayor Lund asked, the one on the very far right? Mr. Kiewel replied, on this side, yes. And actually there are fences all around so no one can really see anything. Aesthetically it is not an issue. He does not have any complaints on the aesthetics. He does not have any complaints about the wall falling down in fact. Mayor Lund stated he remembers years ago he was at Mr. Kiewel's property and, because he was doing some land altering or doing soil work in his backyard, it washed out and went in the neighbor's yard. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 17 Mr. Kiewel replied that might have been earlier before this wall came into play. Mayor Lund stated the compelling government interest as he sees it is that it is a health and safety issue. Mr. Kiewel replied that is Mayor Lund's opinion of course. Mayor Lund asked if it was fair to require permits to do a lot of things to make sure they are done correctly. Mr. Kiewel replied, he understands, and he did get one in 2005. Councilmember Bolkcom asked what he got in 2005? Mr. Kiewel replied a land alteration permit. Mr. Kiewel said he wanted to thank Mr. Hickok for letting him know there is a meeting tonight. He did not receive notice that there was a meeting this evening. Mayor Lund asked Mr. Kiewel if he had made the application for the appeal. Mr. Kiewel replied he did, but they did not notify him when the meeting was being held. He said he is not really prepared at this point to address all of the issues that are involved in this case; but he will address a few. Mayor Lund stated they are going to probably ask Mr. Kiewel to discuss them all. Mr. Kiewel stated he wanted to clarify he did not receive notice that this meeting was going to be held. Mayor Lund stated he assumed a letter was sent. Ms. Jones stated actually a letter was not sent out to Mr. Kiewel because in the appeals process it automatically goes onto the following Council agenda. They had discussed that at the Appeals Commission meeting so they thought Mr. Kiewel understood that is when it would be put on. Mayor Lund stated he did read the minutes which did reflect that there was discussion about it. He thought he read in the minutes that Mr. Kiewel wanted to take another appeals process rather than going through the City. Mr. Hickok stated at the end of the Appeals hearing, Ms. Jones was asked what the process was from here. She described that an application or appeals petition could be made if he wanted to have the item heard before the City Council. At that time, the next public Council meeting would be the meeting where it would be heard. There was a 20-day time period within which Mr. Kiewel would have to get his appeal in and then it would go onto the next Council's agenda. They did follow that process precisely. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 18 Mayor Lund stated so notification really was at the Appeals Commission meeting. Mr. Kiewel replied, all he knows is he did not receive notice. Mayor Lund stated not "written" notice. Mr. Kiewel stated typically all their correspondence has been by mail, and they normally notify him if there is an appeals meeting. He said that he does not understand why. He said he does not really see a compelling government interest to come in and regulate the property because apparently the structural thing is not an issue. Councilmember Bolkcom stated because Mr. Kiewel is raising that he did not have time to prepare, do they need to continue this hearing until the next Council meeting so he has an opportunity? Would it make sense for them to continue this until the next meeting so that Mr. Kiewel has an opportunity to prepare? Mr. Kiewel stated there are a few issues he could mention here, but he would appreciate the additional time. He said it would be helpful for him because there is a lot more information. Attorney Erickson stated they could notice this and give him notice of the next City Council meeting which would be November 24. They do not have any public hearing component that they need to worry about keeping it open. In order to accommodate Mr. Kiewel's concerns, they should re-notice it and have the hearing, allow staff to present its case and Mr. Kiewel to present his case in an organized fashion. Mayor Lund stated he is not opposed to that. They want to give Mr. Kiewel every opportunity to state his case as succinctly and clearly as possible. Councilmember Bolkcom asked Mr. Kiewel if it would give him ample time if the hearing was on November 24. Mr. Kiewel replied sure, he could do that. Councilmember Bolkcom stated the next meeting is November 24. Councilmember Varichak asked Mr. Kiewel if he could be prepared by November 24. Mr. Kiewel replied, yes. Mayor Lund stated staff will send Mr. Kiewel a letter to remind him. Ms. Jones stated just to clarify for the record, the materials handed out to Council tonight are not new materials. They are materials from the Appeals Commission hearing except for the resolution that was drafted for City Council's approval, of which Mr. Kiewel received a copy. Mr. Kiewel stated he should probably state that, again, he is here by special appearance. FRIDLEY CITY COUNCIL MEETING OF NOVEMBER 10, 2014 PAGE 19 MOTION by Councilmember Bolkcom to schedule an Appeals Request Hearing for James Kiewel at 1627-31 Rice Creek Road for November 24. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 11. Informal Status Reports Councilmember Bolkcom thanked the residents who attended the TOD meeting last Wednesday. She heard very positive things, and people were excited about some of the things they saw. She asked where does that information would go. Ms. Jones stated people can see it on the City’s website. Councilmember Bolkcom asked what is the next process? Ms. Jones replied, the next meeting is at the Planning Commission on the 19th and then the HRA will review it. They are meeting in December and then it comes back to Council on December 8. Councilmember Varichak stated they had the group meet who were worried about the runoff with the construction at the Springbrook Nature Center. Not a lot of people there but there was some good input. Councilmember Bolkcom stated and they want to remind them if they want to do anything they should get a permit or at least check with the City before they do it. ADJOURN: MOTION by Councilmember Barnette, seconded by Councilmember Varichak, to adjourn. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE MEETING ADJOURNED AT 8:38 P.M. Respectfully submitted by, Denise M. Johnson Scott J. Lund Recording Secretary Mayor