CCM 12/22/2014
CITY COUNCIL MEETING
CITY OF FRIDLEY
DECEMBER 22, 2014
The City Council meeting for the City of Fridley was called to order by Mayor Lund at 7:00 p.m.
ROLL CALL:
MEMBERS PRESENT:
Mayor Lund
Councilmember Barnette
Councilmember Saefke
Councilmember Varichak
Councilmember Bolkcom
OTHERS PRESENT:
Wally Wysopal, City Manager
Darcy Erickson, City Attorney
Scott Hickok, Community Development Director
Darin Nelson, Finance Director
Jim Kosluchar, Public Works Director
Deb Skogen, City Clerk
Kay Qualley, Environmental Planner
Pam Reynolds, 1241 Norton Avenue
Nancy LaRue, 201 Longfellow St NE
MaryJane Flaten, 176 Ely Street NE
Ken and Carol Hughes, 6424 Ashton Ave NE
Diana Bradway, 186 Ely Street NE
Clifton Parks, 7820 University Avenue NE
Ron Haas, 737 Arthur Street NE
Joan Olson, 6320 Van Buren NE
Mike Flynn, 1220 Mississippi Street
Jim Kiewel, 1627-31 Rice Creek Road
APPROVAL OF PROPOSED CONSENT AGENDA:
APPROVAL OF MINUTES:
City Council Meeting of December 8, 2014.
Councilmember Varichak
said there was a correction on page 21. Mr. Michnowski should be
Ms. Michnowski.
Pam Reynolds
, 1241 Norton Avenue, submitted changes to the minutes.
THE MINUTES OF THE CITY COUNCIL MEETING OF DECEMBER 8, 2014, WERE
CONTINUED UNTIL JANUARY 5, 2015.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 2
NEW BUSINESS:
1.Receive the Minutes of the Planning Commission Meeting of November 19, 2014.
RECEIVED.
2.Resolution Approving the 2014 Gifts, Donations and Sponsorships to the City of
Fridley.
ADOPTED RESOLUTION NO. 2014-95.
3.Resolution Receiving report and Calling Hearing on Improvement for Street
Rehabilitation Project No. ST 2014-01.
ADOPTED RESOLUTION NO. 2014-96.
4.Approve Change Order No. 2 for 2014 Street. Rehabilitation Project No. St 2014-01.
APPROVED.
5.Approve 2015 Consulting Services Agreement between the city of Fridley and Flat Rock
Geographics.
APPROVED.
6.Approve 2015 Animal Control Contract between the City of Fridley and Brighton
Veterinary Hospital.
APPROVED.
7.Appointment – City Employee.
APPOINTED.
8.Claims – (ACH PCard 1412; 166453-166680).
APPROVED.
9.Licenses.
APPROVED THE LICENSES AS SUBMITTED AND AS ON FILE.
APPROVAL OF CONSENT AGENDA:
MOTION
by Councilmember Barnette to approve the Consent Agenda as presented with the
removal of the minutes. Seconded by Councilmember Varichak.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 3
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY
MOTION
by Councilmember Barnette to continue the Minutes of the City Council meeting of
December 8, 2014 to January 5, 2015. Seconded by Councilmember Bolkcom.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
OPEN FORUM:
No one from the audience spoke.
ADOPTION OF AGENDA:
MOTION
by Councilmember Bolkcom to adopt the agenda. Seconded by Councilmember
Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
PUBLIC HEARINGS:
10.Consider a Rezoning Request, ZOA #13-02, by the City of Fridley, to Consider
Rezoning Property, Legally Described as Auditor’s Subdivision 39, from C-2, General
Business, to M-2, Heavy Industrial, Generally Located at 3720 East River Road N.E.
(Ward 2) (Continued October 27, 2014).
MOTION
by Councilmember Bolkcom to waive the reading of the notice and open the public
hearing. Seconded by Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY AND THE PUBLIC HEARING OPENED AT
7:08 P.M.
Scott Hickok,
Community Development Director, said this project is moving along and the plan
is to have everything together mid-January. Staff was hoping the sale would be complete and are
still optimistic about moving toward new development on this site. Staff is asking Council to
continue this request to February 9, 2015, to allow time to get the work in order.
Councilmember Bolkcom
asked if that was enough time.
Mr. Hickok
replied yes; Council could vote to stop the rezoning action now but staff is asking
Council to wait. Once the closing has taken place, things will start to move. The developer is
already working with architects for this development.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 4
MOTION
by Councilmember Bolkcom to continue consideration of Rezoning Request, ZOA
#13-02, by the City of Fridley to February 9, 2015. Seconded by Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY AND THE PUBLIC HEARING CLOSED AT
7:10 P.M.
11.Consider Issuing an On-Sale Intoxicating Liquor License to Clifton Thomas Parks, II,
to Operate Nelsenparks Hospitality, Inc., d/b/a GB Leighton’s Pickle Park, Located at
7820 University Avenue N.E.
MOTION
by Councilmember Bolkcom to waive the reading of the notice and open the public
hearing. Seconded by Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY AND THE PUBLIC HEARING OPENED AT
7:12 P.M.
Debra Skogen
, City Clerk, stated this public hearing is for an On-Sale Intoxicating Liquor
License to Clifton T Parks, II, applicant on behalf of Nelsenparks Hospitality, Inc., dba GB
Leighton’s Pickle Park, located at 7820 University Ave NE (formerly held by Thomas Tomaro).
Mr. Parks, has applied for an on-sale intoxicating liquor license to operate Nelsenparks
Hospitality, Inc., dba GB Leighton’s Pickle Park. Section 603.07 of the City Code requires a
public hearing be held to consider the on-sale intoxicating liquor license. Notice of this public
hearing was published in Fridley SunFocus on December 5, 2014, meeting the ten-day advance
notice requirement.
Ms. Skogen
stated Mr. Parks and his partner Colleen O’Connor-Nelsen are the owners of the
Venue 13 in Burnsville. The Venue has a similar business model as Pickle Park. Mr. Parks has
been in the entertainment business for 28 years. Mr. Parks and Ms. O’Connor-Nelson have
experience in restaurant management. Mr. Parks is aware of the 40% minimum food sales and
understands the importance of the food to liquor sales. The business will continue to operate as
GB Leighton’s Pickle Park with the same business model, management and staff. The partners
may re-evaluate the business model and make changes within the first year of operation.
Ms. Skogen
said the Police Department completed their background investigation and found no
issues with the business or the two partners. Section 603.07.1.D. allows the City Council to
approve the liquor license on the same night as the public hearing. Staff recommends Council
hold the public hearing for an on-sale intoxicating liquor license for Nelsenparks Hospitality Inc.
and make a motion to approve an on-sale intoxicating liquor license and other related business
licenses to Clifton Thomas Parks, II, Applicant for Nelsenparks Hospitality, Inc., located at 7820
University Ave NE.
Councilmember Bolkcom
asked for clarification regarding the business owner owning this
business since March, 2014.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 5
Ms. Skogen
said Mr. Parks has owned The Venue in Burnsville since March of 2014, and is now
applying for the on-sale intoxicating liquor license in Fridley.
Councilmember Bolkcom
asked if Mr. Parks understood the alcohol to food ratio and the
ramifications and requirements.
Clifton Parks, II,
Owner, replied yes and has many ideas to increase the food sales. One idea
would be to offer a late night menu. Burger King changed their open times to 24 hours because
nothing else is available late night besides Perkins. The only menu offered now are frozen
pizzas. The Venue increased food sales by 200% by making changes with pricing and different
food options. He does not intend to make too many changes as it is working well. He has the
ability to bring in new entertainment with some national groups and offer VIP packages,
including meals which will help revenues.
MOTION
by Councilmember Bolkcom to close the public hearing. Seconded by
Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY, AND THE PUBLIC HEARING CLOSED AT
7:22 P.M.
Motion to Approve an On-Sale Intoxicating Liquor License and Other Required Business
Licenses for GB Leighton’s Pickle Park Under its New Ownership and Management (Ward
3)
MOTION
by Councilmember Bolkcom to approve an On-Sale Intoxicating Liquor License and
other required business licenses for GB Leighton’s Pickle Park under its new ownership and
management. Seconded by Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY
.
12.Consideration of Organized Residential Solid Waste Collection by Districts
(Continued December 8, 2014).
MOTION
by Councilmember Bolkcom to reopen the public hearing. Seconded by
Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY AND THE PUBLIC HEARING WAS
REOPENED AT 7:23 P.M.
Wally Wysopal
, City Manager, reviewed the revised Draft Contract of December 22, 2014, with
the City of Fridley in cooperation with the following Licensed Residential Class I Solid Waste
Haulers:
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 6
•
Ace Solid Waste, Inc.
•
Waste Management of Minnesota
•
LePage & Sons
•
Republic Services
•
Walters Recycling and Refuse
•
Mr. Wysopal
said there were five key points to the contract:
Fridley’s asphalt pavements are significantly impacted by additional refuse trucks
operating in the current system.
Based on the best information currently available, excess refuse trucks in the current open
refuse collection system consume 17.9% of pavement life on Fridley’s asphalt streets.
Modeling estimates an excess cost due to excess heavy vehicle loading under the current
open collection system is $208,000 annually.
Moving to an organized refuse collection system would have a positive impact by
extending a pavement’s life.
Organized refuse collection would result in reduced frequency of major maintenance and
special assessments and local costs funded by gas taxes and other sources.
Mr. Wysopal
stated in determining whether someone has garbage service is time consuming.
There are 10 to 25% who do not have waste service and the related problems cost taxpayers, in
terms of wasted staff time, sending letters, conducting abatements, and going to court for these
code enforcement cases that involve outside storage and solid waste issues. The revisions to the
contract from December 8 to December 22 are reducing the contract length from seven years to
five years. It will now end within months of the recycling contract. At the conclusion, the
agreement automatically renews for 2 years, unless either party provides notice, 180 days prior to
the end of the 5-year contract. This amendment is the haulers’ last best offer to the City. Based
on MN Statute 115A.94, Council can accept this proposal by resolution or not approve it and per
Statute, start a process with a new committee following the procedures in the statute.
MOTION
by Councilmember Barnette to accept the letter from the five haulers into record.
Seconded by Councilmember Varichak.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
Jim Kosluchar
, Public Works Director, said with respect to the questions at the December 8
City Council meeting regarding the refuse trucks on the pavement and the impact, the model
used a refuse truck at ½ full volume. Trucks run at 0 to 100% and the half full projection
estimates the impact on roads at about 20%.
Mr. Kosluchar
said the model projecting $1,000 damage per trip may seem high, but that is an
accurate calculation. The $1,000 is spread through the entire system of 80 miles plus about
$12.00 per mile traveled.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 7
Mr. Kosluchar
said there was a comment about replacing City streets 30 to 40 years between
major constructions. He said the vehicle tool is 20 years, but it is proportional due to the life of
the streets.
Mr. Kosluchar
said the comment about the alternative analysis in the letter impacts are
$160,535 over 20 years is not correct. Alternative analysis is projecting what costs are for
overbuilding the system to meet the current system in the cost of construction. The City’s
system is built to accommodate heavier vehicle traffic. If the $160,000 were added, the cost
would be substandard. Over time, that can increase the strength of the streets or have a longer
life cycle.
Mr. Kosluchar
said there was a comment made that there is no method in place to perform
measureable results with City streets. Measurable results would have to be tested over decades.
Models are built over current pavement signs. The City does have designated testing areas
where trucks go through a bypass lane to evaluate impact on pavements.
Mr. Kosluchar
said there was a comment made that some homeowners’ street have not been
sealcoated or only done once. He said he found records of dates for at least three seal coatings,
and some streets are scheduled to be done again this year.
MOTION
by Councilmember Bolkcom to enter into record the following:
Letter from Carol and Ken Hughes dated December 16, 2014.
Letter from Duane Davis
Email from Jack and Sue Anne Kirkham dated December 22, 2014.
Seconded by Councilmember Saefke.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
Mayor Lund
said with respect to the letter from Carol and Ken Hughes, there will still be the
same amount of haulers going to that house, but only one truck will be going down that street
instead of up to five. With respect to the fees presented, some homeowners will see a savings,
and others may pay more.
Councilmember Barnette
asked how the averages were determined.
Mr. Wysopal
replied the haulers produced rates to staff and presented the rates as part of the
negotiation as the average market rate. The five haulers have their own rates for Fridley and
presented one rate that represented an average of all of their rates. Staff negotiated that by
asking how the haulers came up with that number, and compared it against other numbers the
EPA and the MPCA produces. The final number represents the rate haulers charge a customer.
Staff also verified the rates by getting the actual bills from people who live in Fridley. There
was a variety of different charges, but staff tried to validate rates and even did some cold calling.
The market rate was calculated based on tonnages and collection costs that could be verified.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 8
Councilmember Bolkcom
asked why staff chose these five haulers.
Darcy Erickson
, City Attorney, replied that state statute requires the City to deal with licensed
haulers in the jurisdiction. Parameters were set using residential licensed haulers in the City who
had a market share.
Councilmember Bolkcom
asked Mr. Kosluchar to compare a garbage truck to a Federal
Express or other delivery truck as far as weight.
Mr. Kosluchar
replied a delivery truck can vary in weight. A van configuration would have the
impact of 1% of a refuse vehicle. A Schwan’s truck fully loaded would be 25% of a refuse truck
that is ½ empty which is what was modeled.
Councilmember Bolkcom
noted that some people commented they would rather save money on
their garbage pickup and pay to replace their street at some point. She asked Mr. Kosluchar to
explain how funds come in from State aid to pay for street projects and if that funding is
guaranteed funding.
Mr. Kosluchar
replied that a good percentage of residential streets are assessed, and 50/50 or
60/40 of the funds come from MSA funds which are from gas taxes allocated through the local
government. Gas revenues are down because of the price of oil and the economy of vehicles.
Lower prices and people using less fuel does shrink the gas tax revenues.
Councilmember Bolkcom
asked if the street improvements were limited by levy limits and the
Charter amendment.
Mr. Wysopal
replied the levy limit for sealcoating often times is increased to the maximum
allowed by the Charter which basically reflects inflation. Material prices have increased more
than inflation.
Councilmember Bolkcom
noted that commercial properties pay a much larger assessment on
any road improvements. She wanted to be careful so they are not impacted more. She agreed
that the original contract with the haulers of seven years was a long time. She asked how they
arrived at a five-year contract.
Mr. Wysopal
replied he contacted haulers by email, letting them know their concern about the
seven-year term and asked for a reduced term. Their response was consistent with St. Anthony’s
recent agreement and their term was five years. The five-year term also coincides with the
recycling contract that is in the second year, so the contracts would term at nearly the same time.
His reaction from the haulers was that three years just gives them enough time to get into the
contract and five years allows time to correct or adjust things as needed. Having the contract end
at the same time as the recycling contract can be beneficial.
Councilmember Bolkcom
asked when the negotiations were finished with the haulers.
Mr. Wysopal
said around November 20.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 9
Councilmember Bolkcom
said she understood this is when the negotiations were finished. Due
to the holidays, it was coming before Council now. It did not have anything to do with the
election or anything else.
Councilmember Barnette
said this agreement relates only to single family houses up to a three-
plex. Larger facilities can contract with whoever they wish.
Mr. Wysopal
replied yes, larger facilities than a three-plex become more complicated. Those
facilities usually have a coordinated hauler.
Councilmember Varichak
asked about school busses and motor homes and how that weight
compares to a refuse hauler truck.
Mr. Kosluchar
replied a motor home is about 1% and a school bus is 60% of the modeled refuse
vehicle. He noted that school busses do not go on every street because they have bus stops and
specified routes.
Councilmember Barnette
asked if more damage is caused by climate or by garbage haulers.
Mr. Kosluchar
replied that the subgrade soils in Fridley are generally very good. Our
maintenance crews do good job of minimizing water intrusion by filling pot holes and crack
sealing which helps keep water intrusion to a minimum. There are other communities that have
clay soils susceptible to frost and water under the pavement. That is not the case in Fridley. The
southeast area has poorer soils, but a lot of the streets in that area are concrete.
Councilmember Varichak
said she received an email regarding the water main breaks and what
happens to the street when they are patched. She asked if it became weak.
Mr. Kosluchar
replied results can vary. Crews do a good job of sealing up patches and making
good patches. He does not recall having major street rehabilitation because of these types of
patches. The water main breaks are increasing, probably around 35 breaks per year. Some
streets experience more frequent problems, as the pipe may be corroded or strained by water
pressure from the distribution. As the infrastructure ages, there may be more problems. A lining
project was done in 2011, but the cost of this process is not low enough to be competitive with
other options. In the future, a decade or two, we may be able to use that as preventative
maintenance.
Joan Olson,
6320 Van Buren, asked what the rates were going to be and if the rates were
standard for every household.
Mayor Lund
replied the rates were established for a small, medium or large garbage container
and are the same for every household.
Ms. Olson
asked if that covered yard waste.
Mayor Lund
replied it did not. A yard waste pickup is $80 for the season.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 10
Ms. Olson
asked if the rates were fixed for 5 years.
Mayor Lund
replied that the haulers’ portion is fixed, but there are stipulations to allow changes
to a portion of the bill depending on the tonnage rates and dumping charges. It is stable but a
few things could increase.
Ms. Olson
asked how many complaints were needed for a hauler to lose their license.
Mayor Lund
replied there are increasing penalties for complaints.
Attorney Erickson
added there is a definition of default in the contract and it depends on how
many incidents of liquid damages happen. There is some flexibility and there is not a hard and
fast rule to terminate the contract.
Ms. Olson
asked how complaints were compiled.
Attorney Erickson
said the complaints are made to City staff. That is the first point of contact.
The City will follow up on the complaint and have a log sheet to verify incidents.
Ms. Olson
asked how much staff time it would take to deal with all the complaints.
Councilmember Bolkcom
said the chances of a household being missed are not likely, as they
will pick up all the garbage in the neighborhood. Discussion will be held with the haulers on a
regular basis and annual meetings will be held.
Mr. Wysopal
noted the contract requires haulers to have regular meetings to address individual
complaints. Residents call the City right now with complaints about their private haulers, so
staff already receives complaints. He does not anticipate an increase in staff time for this.
Councilmember Bolkcom
added there are penalties to the hauler in the agreement if a collection
is missed.
Ron Haas
, 7637 Arthur Street, said he is in favor of this item and thanked the leadership of the
City for bringing this issue forward. He has lived in multiple communities, and this has been a
nonissue in other communities that use a single contracted hauler. Residents have no choice for
gas, electric or water, so why is a choice needed for a garbage hauler. He has lived in Fridley for
the last eight years, and has used three different haulers and saved a few bucks a month. Last
year he got hit with a $2,600 street assessment. Organized garbage hauling will save on the wear
and tear on the street. This is trivial to the cost of street replacement.
Mary Jane Flaton,
176 Ely Street, said some people cannot afford to pay for their garbage to be
hauled away so they share with their neighbors. People who pile up garbage in yards should pay,
not the responsible residents. People who create problems should be accountable. Her
neighborhood has 5 to 10 trucks a day and over 50 cars pass through; there is no safety, plenty of
noise and no privacy. When Fridley allowed businesses heavy on retail into residential areas
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 11
traffic went to East River Road. Traffic goes on seven days a week. She wants freedom of
choice. Fridley is worried about the noise but it is okay to have 3,000 vehicles into residential
area due to local businesses. She shared pictures with Mayor Lund and Council.
Pam Reynolds
, 1241 Norton Avenue, said she is 100% opposed to this item and the biggest
reason is because of the free market--it is her choice. She asked Mayor Lund how he would feel
if the government dictated how much he set rental rates at and could not offer any deals or
discounts. That is what this proposal is doing to garbage haulers. It is saying this is your zone;
stay there. They cannot increase business in Fridley unless someone gets complained out.
Changing the seven-year contract to a five-year contract with an automatic two-year add on is
the same thing.
Norm Relish,
Linde Road, stated that he has been a resident since 1961 and is in agreement with
letter read by Mayor Lund. In all the years he has lived in Fridley he has had one special
assessment for curb and other work done under the street. North Park School has many busses
and there are trucks going up and down his street. One hauler leaves no room for negotiation.
He asked if you were gone on vacation or for the winter, for example, would you still have to
pay.
Mayor Lund
replied that residents have an option to stop service if they are out of town. There
would be five licensed haulers in the City. Five districts would be created and each hauler would
service a district.
Mr. Relish
thought the price would be higher and no discounts would be offered for seniors, for
example.
Mayor Lund
asked what Mr. Relish paid for garbage pickup.
Mr. Relish
replied $15 a month total.
Ken Hughes,
6424 Ashton Avenue NE, is also against this item. He has used the same hauler
for many years and is offered pretty decent rates. He asked what the price would be per month
on 90 gallon container.
Mayor Lund
replied $19.13 plus sales tax.
Councilmember Barnette
said he likes the idea of free enterprise. He currently has Republic
and if he calls and tells them someone else has a better deal, he gets the same deal. He likes that
he is able to negotiate. He attended two neighborhood meetings, and the bulk of the people
seemed to be negative for this. A number of people did not care either way, and a few said it
was a good idea. He asked if residents could opt-out if they wanted to share a garbage can with a
neighbor. The rule is that everyone has to have a garbage pickup. He asked what happened if
people shared.
Mr. Hughes
asked how much it costs a home owner per year in street damage due to garbage
trucks.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 12
Mr. Kosluchar
replied that street repair is budgeted at $208,000 for annual maintenance.
Residents only pay when their street is reconstructed.
Mr. Hughes
said that a street should last 40 years. He asked what the cost was per year.
Mr. Kosluchar
replied on average, the cost is $3,200 for a street reconstruction project. If you
take 1/8 of that, it would be about $400 over the term.
Mr. Hughes
noted that the new garbage hauling proposal would cost more money than to pay to
improve the streets.
Mr. Kosluchar
replied that the savings would be on the MSA side, not only on City’s.
Ms. Jones
stated that using 7,000 households, street reconstruction is about $20 to $30 a year per
household.
Mr. Wysopal
said everyone’s garbage bill cannot be represented, as some people have fuel
service charges, environmental charges, taxes, etc., that the hauler builds into the bill. The prices
submitted in the presentation tax would be added on but no other charges would be added like
environmental or fuel service charges.
Chuck Jones,
7430 Van Buren Street,stated that he is an American citizen and over the past six
years has seen people’s rights go out the window. He believes that residents should be able to
wheel and deal their own garbage hauling rates. He believes if you can get better deal from
hauler “A” than “B”, sooner or later hauler “B” will be competitive with hauler “A”. They may
all look good on a piece of paper, but in 3 to 5 years the prices will go up. The street he lives on
has so many patches. He said he has not seen it redone in the 27 years he has lived there. The
streets have been oiled and pebble stones have been put down but that is it. He said he sees all
kinds of traffic every day.
Barb Severny,
7145 Riverwood Drive, said she wrote an email to Council. She said receives
calls from haulers to get her business--that is free enterprise. Haulers want her business and are
willing to lower their prices. As she mentioned in the emai,l the garbage haulers are getting the
best deal of the entire thing; they are the winners. She said the biggest damage to the roads are
from snow plows.
Mr. Kosluchar
replied that the large plow trucks are close to the weight of a refuse truck model.
Some streets are plowed with smaller trucks that weigh less.
Ms. Severny
stated that this is a long contract even lowering it to five years. The haulers are
guaranteed clientele for five years.
Councilmember Bolkcom
noted that the recycle contract is seven years and state statute
requires a 3 to 7 year contract. It cannot be less than 3 years.
Mike Flynn,
1220 Mississippi Street, asked if haulers would be able to lower their rates.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 13
Mr. Wysopal
answered no.
Mr. Flynn
said last year Ace offered yard waste at half price. This is very common and every
two years he calls and gets a better deal plus a new garbage can. He does not live on the best
street in town and likes to see commercial trucks in the area. He feels it is a deterrent for crime.
Councilmember Barnette
asked if yard waste was a part of this contract.
Councilmember Bolkcom
answered yes. It is opt in or out.
Diana Bradway,
186 Ely Street NE, said she currently pays $17.18 for two months for a
medium size cart. She asked if Robbinsdale, Roseville, Champlin, Columbia Heights and Blaine
all have organized garbage collection.
Mr. Wysopal
replied yes.
Ms. Bradway
asked why staff picked these particular haulers.
Mr. Wysopal
said staff had to negotiate with existing licensed haulers. Council has three
options at this point: agree to a contract, dismiss or dismiss and form committee to advise staff
on a different form which would be a single hauler for the entire city. Blaine and Columbia
Heights have a single hauler for the entire city rather than a consortium.
Ms. Bradway
asked how the haulers would decide who goes where.
Mayor Lund
replied the haulers will decide and determine the districts.
Attorney Erickson
explained the haulers will divide the City into districts based on their
existing market share. If hauler “A” has 20% residential units in the City then that district would
get 20% preservation built into the system as required in the statute. The City could reject the
proposal and information that will be determined and districts would be determined if the City
proceeds with the contract.
Councilmember Bolkcom
added that if one of the 5 companies had 200 customers they would
retain the same amount of customers.
Ms. Bradway
asked if the haulers determine the market share if they coordinate with each other.
Councilmember Bolkcom
answered yes.
Mr. Wysopal
added that each hauler would present to the City an itemized list of every
customer in the City they currently service. Staff has the list of homes in the City and would
identify each home covered and look at what may be reasonable to divide up the districts based
on their market share and take into consideration the recycling day. That is how districts would
be identified.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 14
Ms. Bradway
asked who had final approval.
Mr. Wysopal
replied it would be an agreement between the haulers and the City.
Ms. Bradway
asked if there would be an opt-out form sent to those who would like to opt-out.
Mr. Wysopal
replied that process is proposed. A form would need to be completed so the
hauler knows the homeowner is exempt from collection. On the form, homeowners would need
to say where the garbage is going, as the City does not want anyone doing illegal dumping. With
this form filled out, the hauler would know the home is verified by the City and would not
collect the garbage.
Ms. Bradway
asked if sharing with a neighbor was an opt-out option.
Mr. Wysopal
replied that would have to be worked out through the form. It could be an option
and it is possible it could happen.
Nancy LaRue,
201 Longfellow Street, asked how garbage pickup became a noise factor.
Mayor Lund
replied that complaints come to the City from people who are home during the
day.
Ms. LaRue
said she did not think this would make a change in her area because of businesses in
the area that travel back and forth all day long. She was wondering how this would improve the
streets by having one carrier and asked when she would see street repair.
Mayor Lund
said that having one garbage truck per street will lessen the impact.
Ms. LaRue
asked if this went through would they have better streets or see repair.
Mayor Lund
replied there will be less impact on the streets, which makes the streets less
expensive to maintain and the streets will last longer.
Ms. LaRue
said she has lived in the City for 10 years and has seen no improvements done and
has not heard that anything was done. She asked if residents would be able to vote on this and
when the decision would be made. She asked if a decision would be made this evening.
Mayor Lund
replied that Council has had several weeks to look at the contract and a decision
could be made tonight.
Councilmember Barnette
asked why the City would be involved in collecting money from
those who do not pay their garbage bill and put unpaid bills on their taxes. He thought the
company should go after payment, not the City.
Mr. Wysopal
replies that this assures the garbage will be collected at that location. If someone
does not pay their water bill, it is a health issue. This could become a health issue if the garbage
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 15
is not picked up. The City wants the garbage to be picked up. Guaranteeing payment will
guarantee pickup. The City will be able to assess property taxes for those who do not pay their
garbage bill.
Councilmember Barnette
did not agree with assessing property taxes for those who do not pay
their bill.
Councilmember Bolkcom
said if people do not pay their bill, the hauler will not pick up the
garbage. Code enforcement will get involved if the garbage is overflowing. This way, service
will continue, garbage will get picked up, and the property will be assessed for the bill.
Councilmember Barnette
asked why the City would put this bill toward County taxes for a
private business.
Mr. Wysopal
replied the Charter allows for that to happen. The Charter provides for the City to
charge for unpaid bills. It is also reflected in State statutes.
Councilmember Bolkcom
stated there would also be administrative fees assessed, not just the
garbage bill. The City is bearing the cost for a while but will eventually get the money back.
Mayor Lund
said if the City gets involved with collection and the bill has to go to property
taxes, it is one way to get garbage collected. Code enforcement will not have to go out and
mediate garbage issues. Garbage is a common issue with code enforcement.
James Kiewel
stated that we do not as individuals need the government to make decisions for
us. If the City is concerned about asphalt deteriorating due to the weight of the trucks, they
should put down concrete. The government should not be involved in people’s trash.
James Hardy
said if an unpaid garbage bill is put on taxes as a special assessment, the residents
could waive their right to the special assessment.
Mayor Lund
replied the garbage bill would be an abatement.
Mr. Hardy
yes, but the property could challenge the abatement.
Councilmember Bolkcom
said there is a public hearing every year regarding abatements.
Mr. Hardy
asked if the homeowner would be presented a form or statement and had the ability
to waive the right to challenge.
Councilmember Bolkcom
replied the homeowner would get a note and could speak about the
assessment.
Mr. Hardy
said he was suggesting to do that. Sign a waiver to challenge it and present it to
them. Not everyone understands the process.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 16
Councilmember Bolkcom
replied homeowners get a notice in the mail and there are
instructions on how to do it.
Councilmember Bolkcom
stated that she received a phone call from someone regarding a
petition but she was unable to call them back because they left no name or phone number.
MOTION
by Councilmember Varichak to close the public hearing. Seconded by
Councilmember Barnette.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED AND THE PUBLIC HEARING CLOSED AT 9:08 P.M.
Mayor Lund
said there were some questions and a lot of comments. This is on the agenda to
make a decision tonight but it could be delayed if Council so desires.
Councilmember Bolkcom
asked what the options were for tonight.
Attorney Erickson
replied Council has three options--pass the resolution and accept the
proposal from the haulers, reject the proposal or Council could pursue creating an organized
garbage collection committee that could involve soliciting bids and awarding a contract to one
hauler or pursue other options.
Councilmember Bolkcom
asked if there were any stipulations to form the organized committee.
Attorney Erickson
replied that the statute is pretty thin on guidance in this process. There is a
broad array of people who could be involved in the committee.
Councilmember Saefke
said in beginning, he was for this but after hearing the comments
during the public hearing he has been influenced by the rates of all the different haulers. He
understands people’s right to choose but to him garbage collection is a utility. As a utility, you
can compare it to back when Fridley did not have natural gas and had propane tanks.
Homeowners could choose who could deliver the propane. People were excited when
Minnegasco came in, as they could not run out of gas in the middle of winter. The right to the
person was taken away as to who would provide the gas for them. He was not aware there was a
senior discount or other deals out there. The proposal would cost him about the same as he is
paying now or maybe a little less. The City Manager has spent a considerable amount of time in
negotiations, the EQEC spent a good portion learning things from various haulers, and people
commented this is a monopoly. A monopoly is when there is only one and the statute has
allowed existing haulers to create a consortium.
Attorney Erickson
said that it is a preservation system in the statute that allows businesses to
preserve their market share.
Councilmember Saefke
thought it was an advantage to the haulers and he will probably deny
this request.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 17
Mayor Lund
agreed that a lot of research has been done on this with the City Manager, haulers
and the EQEC committee. The decision will not make or break the City. He is in favor, even
though some are against it. If we decide not to do this, it is not the end of the discussion. We
could go to one hauler and get an even better deal. This is a better system, go to organized
hauling and have districts. Haulers are guaranteed their market share. The deals people are
getting only last for a period of time and can go up and down. For someone who is getting a
good deal, someone else in the City is paying for that. If we do not do this tonight or very soon,
that will not be the end of it. We could look at a single hauler and would get a better deal or we
could raise license fees significantly to offset some of the damage that they do.
Mayor Lund
said he sees many more positives than negatives. Some people are already
breaking the law by not having weekly garbage service. Staff spends a lot of staff time dealing
with garbage and other issues. If residents do not have garbage picked up, the cost will go on
their property taxes. If the City raises license fees for haulers, that cost would be passed on to
the consumer. It is unfortunate haulers were not willing to come down, but the average rate of
all haulers was reduced 17-18%.
Mayor Lund
said at the last meeting, it was mentioned that the value of the streets is about
$67.0 million, and we need to protect that asset. We would be remiss as a Council to not look at
that issue. He said he has taken some heat and negative comments that this should have never
been looked at. We need to be proactive and look at what is good for this community. It is a
positive measure to eliminate or reduce the wear and tear on our streets. Yes, weather is factor
and fortunately in this community soils are better for drainage and we do a good job at
maintaining the streets. Many other vehicles travel on our streets and it is tough to quantify, but
research shows calculations that give us a fair idea of what those costs will be.
Mayor Lund
said the positives outweigh the negatives. Most people spoke of the freedom of
choice and some people get sweet deals. He has never heard of anyone complaining about the
recycling program and that is a monopoly--one hauler. There is no difference between garbage
pickup and recycling. He said for him it is the best thing for the community.
Councilmember Varichak
said she did not have much more to add other than she appreciated
the Mayor’s comments and agreed with some of the comments but she also agrees with
Councilmember Saefke. This opened her eyes to have so many people come out. She received
about 30 phone calls, most in opposition because of freedom of choice, senior discount and
sweet deals. The City relies on us to make the best decision. She said she would not vote for
this.
Councilmember Bolkcom
stated people get hung up on the cost which is important and
everyone is on a fixed income. She had the opportunity to be home during the day this fall, and
really noticed the noise that comes from these trucks. There are 17 homes in her block so there
were seven trucks counting recycling. It was very loud, creating noise pollution and air
pollution. People seemed hung up on the assessment of the streets. What if the City does not
have to fix the streets? People want more lights on their street and the City could use the money
for that rather than fix streets from the abuse from these trucks. Most people in her
neighborhood were for it. The City needs to be frugal with money and preserve the streets and
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 18
make them last as long as they can. The starting and stopping of these trucks is huge. The
EQEC has spent an incredible amount of time researching this. This is the smart and important
thing to do.
Councilmember Barnette
stated that when this issue first came up he was opposed. Initially
they were talking about the City doing the billing. The biggest thing is that people have an
option to opt-out. The streets last 40 years and with the traffic from the garbage trucks, they only
last 35 years. This is not a major issue. He does like the idea that people have the right to select
their own hauler. The vast majority of people who contacted him were opposed or did not care
either way. This City is well run and he asked why don’t put this out for a vote. He said he will
be voting against this.
Councilmember Bolkcom
said she did not think the people who participated in the telephone
survey had all the information, and it was difficult to answer a question without knowing all the
information. There are several options tonight to vote on so Council should look at all the
options. There were some options in the agreement and maybe requests to share a garbage can
or opt-out when on vacation could be added to the agreement. She agreed the haulers are making
money, but this is a business so why shouldn’t they make money. Some communities have one
hauler and that would take away the freedom of choice. She has more freedoms to be concerned
about besides her trash.
Councilmember Barnette
said he talked to Columbia Heights who has a single hauler that
works out fine and the City does the billing. St. Anthony went to this type of garbage hauling
last month. He asked how their Council voted on it.
Mr. Wysopal
responded that St. Anthony’s decision was to enact the organized hauling and
Council approved it on a 4 to 1 vote. The person who voted against it felt the rates were not low
enough and preferred a single bid option. There was only one person at the public hearing. Mr.
Wysopal appreciated the debate that has taken place and the effort staff has put into this from an
objective stand point. The City treats the roads like they are our own. They are compassionate
and want to protect them for the benefit of the entire community. Staff was leaning toward
organized hauling because they are facing the issue on how to affordably take care of the streets.
Attorney Erickson
stated the comments reveal the feelings of each Council member and there
are no requirements for Council to do anything. Council can accept the proposal but Council
seems to be in the negative on this. Council could pass no resolution and then it would be
rejected. The other option is to form a committee, and if Council were to pursue that there would
need to be a resolution to reject the proposal and Council would need to vote to form an
organized committee. The committee would be formed by Council. The committee would study
options and make recommendations to the Council. New reports and information would be
provided and another public hearing would be held as the results could be different.
Mayor Lund
felt that a committee has already been done by the EQEC committee.
Councilmember Bolkcom
thought the only way a committee would be helpful would be if they
chose to use one hauler.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 19
Attorney Erickson
said Council is under no obligation to pursue a committee, it is just an
option. The EQEC committee has performed the function of a committee but the EQEC is not in
the same sequence of events outlined in the statute.
Councilmember Barnette
recalled in 1972 when a committee was formed for the Springbrook
Nature Center—five were in favor of a golf course and 5 were in favor of a nature center. It
went nowhere. It ended up going to referendum and went to a vote. Maybe we need to go to a
vote with this item. If nothing is done right now, he would be comfortable with that choice.
Resolution Approving a Mixed Municipal Solid Waste Collection Service Agreement for
Residential Dwelling Units One (1) through Three (3).
MOTION
by Councilmember Bolkcom to adopt the Resolution Approving a Mixed Municipal
Solid Waste Collection Service Agreement for Residential Dwelling Units One (1) through
Three (3). Seconded by Mayor Lund.
UPON A VOICE VOTE, MAYOR LUND AND COUNCILMEMBER BOLKCOM
VOTING AYE, AND COUNCILMEMBER VARICHAK, COUNCILMEMBER SAEFKE
AND COUNCILMEMBER BARNETTE VOTING NAY, MAYOR LUND DECLARED
THE MOTION FAILED ON A TWO TO THREE VOTE.
13.Resolution Certifying Final Tax Levy Requirement for 2015 to the County of
Anoka.
Darin Nelson
, Finance Director, presented the proposed final levy and said it was $11,734,607
or 1.94% more than the 2014 levy. This proposed final levy complies with the City Charter
requirements regarding inflationary increases and public disclosure, and is the same amount that
was presented at the public budget meeting held during the December 8 Council meeting. Staff
recommends approval of the attached resolution levying taxes in the amount of $11,734,607 for
the 2015 budget year.
Councilmember Varichak
said at the last meeting, there was a question by a resident about
raises for Council. She asked if that adjustment had been made.
Mr. Nelson
replied that since Council elected not to have a salary increase in 2015, the existing
City ordinance last amended in September 2013, regarding Council salaries, would remain in
effect. There is no need to bring forth an amendment. The amendment would be submitted if
there was a pay increase.
Mayor Lund
added there was a comment from Ms. Reynolds that Council did not vote on it. He
asked for clarification about whether a formal vote is needed if Council does not take an
increase.
Mr. Nelson
replied the ordinance specifies the dollar amount of the salaries, so everything is in
place until the salaries are adjusted.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 20
MOTION
by Councilmember Barnette to adopt Resolution 2014-97. Seconded by
Councilmember Varichak.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
14.Resolution Adopting a Budget for the Year 2015 and a Revised Budget for Year 2014.
Darin Nelson
, Finance Director, stated the City held its required public meeting at the City
Council meeting on December 8. During this meeting, staff presented the proposed budget for
2015 along with a revised budget for 2014. At the conclusion of the budget presentation, the
Mayor opened the meeting for public comment.
Mr. Nelson
said there were no suggested modifications to the budget at that time, but there have
been three minor modifications to the revised budget for 2014 since that meeting. An additional
$24,000 is needed for the Building Inspections Division for contracted services related to
additional building inspection services. This additional cost is already considered in the 2015
budget, but was underestimated in the preliminary 2014 revised budget.
Mr. Nelson
stated an additional $32,000 in personnel costs was added for the Planning Division.
This additional expenditure is needed to reflect 50% of the Environmental Planner’s time being
charged to this division. The 2014 original budget had 100% of this position’s time allocated to
the Solid Waste Abatement Fund. The 2015 budget accounts for the labor distribution to the
correct funds and divisions.
Mr. Nelson
said the final change increases the expenditures with the Recreation Division’s
budget by $16,800 for supplies and other services & charges. These additional expenditures are
offset by donations received in 2014, along with donations carried forward from 2013. With
these changes, the General Fund is still anticipating approximately $300,000 in surplus revenues
over expenditures.
Mr. Nelson
said there was one question raised by the public regarding Councils’ salaries for the
upcoming year. Council salaries are adopted by ordinance, and since there was no adjustment to
salaries for 2015, the current ordinance remains in effect and no action is required.
Mr. Nelson
said the certification of the “Final Budget” must be to the County Auditor by
December 29. The City has complied with appropriate sections of the City Charter that require
certain formats and information be contained within the budget document. This resolution
adopting the 2015 Budget and a revised 2014 Budget will finalize the budget process.
Mr. Nelson
noted the final 2015 Budget document can be obtained at the following locations
once final budget documents are prepared:
Anoka County Library
City Hall (Finance Department)
City’s Website
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 21
Mr. Nelson
said if anyone has any additional questions that relate to the 2015 budget, please
contact him at 763-572-3520. Being there are no further open issues to resolve as a result of the
public meeting, Staff is presenting the 2015 Budget Resolution for your approval.
MOTION
by Councilmember Saefke to adopt Resolution No. 2014-98. Seconded by
Councilmember Bolkcom.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
APPEAL HEARING:
15.Consider Appeal Request from James Kiewel, 1627-31 Rice Creek Road (Continued
from November 24, 2014)
MOTION
by Councilmember Varichak to open the hearing on the consideration of an Appeal
Request from James Kiewel, 1627-31 Rice Creek Road. Seconded by Councilmember Bolkcom.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY AND THE ITEM WAS OPENED AT 10:12 P.M.
Julie Jones
, Planning Manager, stated that James Kiewel is the owner of the subject property of
adjacent single-family homes located on the border of New Brighton. The homes face Rice
Creek Road and Mr. Kiewel’s homes are bordered on all sides by other single-family homes.
There is a Retaining Wall Location Violation. On July 9, 2014, Mr. Kiewel was sent identical
letters on both 1627 and 1631 Rice Creek Road. The violation was building a retaining wall
without a permit. The case actually began with Engineering in 2005. The letter asked for a
meeting with Mr. Kiewel and the owner appealed.
Ms. Jones
stated the Appeals Commission heard Mr. Kiewel’s appeal on October 1, 2014, and
Mr. Kiewel’s appeal was brought to the City Council on November 10, but continued per the
owner’s request. The minutes of the Appeals Commission hearing have been provided to
Council and the Resolution with Findings of Fact summarizes the case. The Appeals
Commission affirmed staff’s actions. As a result, Mr. Kiewel has two options:
1.Remove and rebuild the wall with a proper permit; or
2.Obtain certification from an engineer that the retailing wall built is of sound material &
design.
Ms. Jones
stated that the focus of this hearing is to determine if Mr. Kiewel needed a permit to
build this structure, did Mr. Kiewel have a permit to build this structure, was the retaining wall
built from an unconventional, untested material and is staff following the process of the Zoning
Code correctly in this case.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 22
Ms. Jones
reviewed the Applicable Codes:
Ch. 205.04.4.I states: No land shall be altered ….
(1) A grading and drainage plan shall be submitted in conjunction with a building or
land alteration permit …
(3) A grading and drainage plan is not required for the following development activities:
(a) minor land disturbance activities, such as home gardens and individual
residential landscaping, …
Ch. 205 states: The owner of a building or premises in or upon which a violation of any
provisions of this Chapter has been committed, or shall exist; … shall be guilty of a
misdemeanor, and subject to all penalties provided for such violations under the provision of
Chapter 901 of this Code each and every day that such violation continues shall be a separate
violation.
Ms. Jones
stated the City’s Building Code requires retaining walls over 4’ in height to have a
permit. Staff covers retaining walls in land alteration permits when it is not related to a permit
for a building. The Assistant Public Works Engineer notified Mr. Kiewel in December 2005 that
he violated his permit and needed to provide certification about the wall construction. The
Community Development Director sent additional letters in 2007. Mr. Kiewel argued the Statute
of Limitations had lapsed, but each day the wall exists without a permit is a violation.
Ms. Jones
stated Mr. Kiewel obtained a land alteration permit in 2005, but the permit application
indicated a retaining wall less than 4’ high. In addition, Mr. Kiewel appears to have done this
wall construction after the permit expired. Mr. Kiewel did not even own 1627 Rice Creek Road
when he started working on that property with a bobcat. This wall requires a permit.
Councilmember Barnette
noted a correction on page 227. The address should read Rice Creek
Road, not Drive.
James Kiewel,
private property and home owner of 1627 and 1631 Rice Creek Road, said he
appears as a private citizen of Minnesota, and by special appearance, makes objections to the
previous proceedings and procedures. He received notice in September of 2014 to appear before
a board indicated as the Appeals Commission scheduled for October 1, 2014, in these chambers.
He was led to believe he was appearing before the Local Building Code of Appeals Board as
mandated in Minnesota Administrative Rules 1300.0230. He also believed he was to be heard
before the Local Building Code of Appeals Board regarding public health, safety or welfare.
Mr. Kiewel
said that on October 1, 2014, he proceeded by special appearance with false belief
that the subject matter discussed required a Local Building Code of Appeals Board, and were
matters to this petitioner to be matters of rational basis or strict scrutiny upon which the City
could only impose the least restrictive means of regulation. After the October 1 meeting, he
realized he did not appear before the Local Building Code of Appeals Board. He received a
letter from Julie Jones on October 8 stating that on October 1 he was heard before the Planning
and Zoning Board and that Board served for both functions of the Planning and Zoning and the
Building Code of Appeals Board. This would function as a due process hearing.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 23
Mr. Kiewel
said the Planning and Zoning Appeals Board derives their authority under City
Charter, Section 8.01, as follows: zoning and comprehensive plans for future plans of the City
and plans may be altered from time to time, and to alter a zoning plan, the City Council may hold
a public hearing with notices sent 14 days in advance to affected property owners. It shall
include provisions for zoning and for Ordinance 1310. He had no reason to believe he was
appearing before the Planning and Zoning Appeals Board because the zoning commission only
has authority over matters as expressed by the Fridley City Charter. The City never gave him
notice that his private property was considered the subject of plans for public purposes as
expressed in City Charter, Section 8.01. At the previous meeting, Council stated that the subject
matter for that meeting was never about public health, safety or welfare. The only reason for the
meeting was if the petitioner needed a permit when using heavy equipment. He noted that he did
get an engineer to look at the wall and presented letters to Council.
Mayor Lund
said it is apparent that Mr. Kiewel does not approve of the methodology the City
uses for public hearings. The Planning and Zoning and Appeals Commissions are two different
bodies, and the Appeals Commission heard his case previously.
Mr. Kiewel
replied he was under the impression he was appearing before the Local Building
Code of Appeals.
Mayor Lund
said Mr. Kiewel did not need to participate in that meeting or the one tonight.
There are also other alternatives.
Mr. Kiewel
said he did not know who the meeting with was with until Darcy Erickson said it
was a zoning commission issue.
MOTION
by Councilmember Varichak to move into record the letter dated October 8, 2014,
from Julie Jones from the City of Fridley, and a letter dated December 20, 2014, from Estephan
Engineering in New Brighton, Minnesota. Seconded by Councilmember Bolkcom.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
Mr. Kiewel
said he has tried to resolve this to the best of his abilities and if the Board rules
against his request, he would like something in writing saying he has exhausted all of his
administrative remedies and to request that the Office of Administrative Appeals be notified that
he has contested his case.
Mayor Lund
said Mr. Kiewel will receive a letter from Council on the ruling and the next step
would be district court.
James Hardy,
acting assistance of counsel according to Minnesota Administrative Rule
1400.5800, said there are several issues with regard to due process. Mr. Kiewel believed he was
appearing before the Local Building Code of Appeals Board but he appeared before the Planning
and Zoning Board of Appeals. It is the duty of the Building Code Board of Appeals or Planning
and Zoning Board of Appeals to give him an opinion that is ripe for an appeal and then it is the
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 24
duty for Council to bring this before the office administration court of appeals under Code 14.57.
If he goes to district court, all those other matters must be resolved first. He cannot argue this in
district court if it has not been argued at the city level first. All other options have to be
exhausted. For example, he had challenged the definition of the word “person” and Attorney
Erickson disagreed. She should be writing an opinion on why she disagrees. It is your sworn
duty to provide him with an opinion so he is protected under the Constitution. This process is
not consistent with the rules, and if you operate under limited jurisdiction of areas of laws like
zoning, he has not been told of any City plan for his private property. He has not received
compensation for his property or a proper meeting notice. The issue is of due process. He has
not been before a proper Building Code of Appeals Board to decide if there are issues of public
health, safety or welfare. There is not any evidence that he used heavy equipment and there is no
law about using power equipment. He did take a permit out at one point and it did not have the
proper Tennyson warning on it. When the City presents people with permits, you are not giving
them proper due process. He did get the certification from the engineer and made the effort.
Mayor Lund
stated he is referring to zoning issues that relate to the Charter, and this is not a
zoning issue. It is very clear that both Mr. Hardy and Mr. Kiewel are trying to create some sort
of cloud about whether the appropriate methodology was used by the City. The issue is if
proper process was used to build a wall of that height. You are talking about statutes that are not
in front of Council and that are not important to this issue at all. The issue is Mr. Kiewel knew
he needed a land altering permit because he originally had one. Mr. Kiewel knew that a permit
was needed so that cannot be used as a defense, because he allowed it to expire in hopes to get
away with other methods. The building code is very clear and Mr. Kiewel could have used other
methods like a tiered retaining wall. The wall was constructed in a unique way using plastic
barrels that are bolted together. The bolts cannot be seen and there are railroad ties in there too.
This process has been dragged out and Mr. Kiewel has been given many options to remedy this
situation.
Mr. Hardy
stated it is Council who is dragging this out and Mayor Lund has stated things
people can and cannot do. He asked if Mayor Lund had the primary authority in matters of the
State Building Code and the Planning and Zoning Board.
Mayor Lund
replied he has the authority to ask people to speak and ask them to sit down. He is
not going to debate those issues. He asked Mr. Hardy to make his comments.
Mr. Hardy
said the hearing is so Mr. Kiewel can have an opinion from whatever board he is
before that he has been notified of the nature of the hearing and how the board is comprised. Mr.
Kiewel has the right for appeal before the Office of Administrative Hearing. Mr. Kiewel did not
get a proper notice of this hearing. He has not had a hearing, and now he is before the City
Council. It is up to a properly comprised Board to make decisions, not this Council. That is a
matter of due process. It is Council’s duty to bring it before the Office of Administrative
Hearings.
Mayor Lund
stated this matter is getting way off subject.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 25
Mr. Hardy
acknowledged Council was to make decisions about this, but suggested they give
Mr. Kiewel a proper hearing.
Mayor Lund
asked to bring the meeting back to the issue of the retaining wall.
Councilmember Bolkcom
asked Julie Jones to give Council information as to when Mr. Kiewel
was notified of the meeting with the Appeals Commission.
Ms. Jones
replied Mr. Kiewel received a letter in July of 2014 describing what the appeal was
about.
Councilmember Bolkcom
keeps hearing Mr. Kiewel say that he was not notified of the
meeting. She asked if Mr. Kiewel received notification that this was on the agenda tonight.
Ms. Jones
replied yes, he has been properly notified both times.
Councilmember Bolkcom
said the public hearing scheduled for November was continued
because Mr. Kiewel did not realize it would be in front of the City Council so it was continued so
he had more time to prepare.
Ms. Jones
replied that is correct.
Mr. Hardy
said Mr. Kiewel had requested a hearing before the Building Code of Appeals
Board.
Ms. Jones
stated the letter in July with this case indicated the zoning code violation. This is not a
building permit matter, this is zoning code matter. This addresses the land altering issue. This is
a zoning code matter that is heard by the Appeals Commission. His case was heard by the right
body.
Councilmember Bolkcom
asked if a different process was used for any other cases.
Ms. Jones
replied no.
Councilmember Bolkcom
asked if other cases were treated different in front of the Appeals
Commission.
Ms. Jones
replied no, but other cases do not have as much time as Mr. Kiewel has received to
resolve this matter.
Mr. Hardy
said no one here is familiar with the Local Building Code of Appeals Board. He
asked if there had ever been a Local Building Code of Appeals Board meeting set up.
Mayor Lund
replied no.
Mr. Hardy
asked why not because it is required by rule for building code matters.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 26
Scott Hickok
, Community Development Director, said this is not a building code matter. It is a
land alteration issue. There was an application made and indication made by the petitioner of a 4
foot grade difference that would be dealt with a retaining wall on the property. Not only did Mr.
Kiewel build a 6 to 8 foot wall on the property, but he also built a wall on the adjacent property
without a permit. Nowhere did the permit he applied for say that a 6 to 8 foot retaining wall
would be built. This is a zoning code violation that is referred to the Planning and Zoning
Commission and heard by the Appeals Commission. If this does end up in district court, let Mr.
Kiewel make a plea and he may want an actual attorney. A letter from an engineer was
submitted, but the letter does not properly certify the wall. Mr. Kiewel has two choices—he can
take the wall down or get the wall properly certified by an engineer.
Mr. Hickok
suggested giving Mr. Kiewel until May 15 to get the wall down. If in that time he
can finish what the engineer started, submit a permit application and hire an engineer to submit a
plan stating the wall is certifiable and credible and clean up debris and if the engineer says it is
certified, it will be accepted. We can argue all night long about issues that do not relate to the
wall but we have to follow the appeal process we have always followed. If Mr. Kiewel has an
issue with the appeals process, he will need to take those issues somewhere else. That is his
recommendation tonight.
Mayor Lund
said he was reluctant to give Mr. Kiewel more time. Rather than deal with the
problem at hand he chooses to be argumentative of the due process. He did not come down to
the real issue of having the wall engineered or removing it. He said he was afraid that by giving
Mr. Kiewel another six months, he will still be argumentative in the future and not take care of
the wall. Mr. Kiewel has not been agreeable to getting to a finale of this issue but rather argues
the process. Had Mr. Kiewel taken ownership and made corrective repairs with a permit, he
might think differently.
Councilmember Bolkcom
asked if Council should take a recess to see if changes or deletions
could be made to the resolution to come to an agreement tonight.
Darcy Erickson
, City Attorney, said that Council could take a recess and bring back
recommendations for a public discussion.
Councilmember Bolkcom
was willing to take a recess to take a look at the resolution.
Walter Wysopal
, City Manager, said he was not sure what staff was working on to provide a
resolution. It might be more helpful to get more feedback so that could be taken into
consideration.
Councilmember Bolkcom
said she thought all the information was not covered with the
engineer’s letter that was submitted. A permit needs to be applied for to start the process, and
the engineer needs to know what is needed in the report to certify the wall.
Mr. Kiewel
said there is nothing wrong with his wall. He has heard no complaints from his
neighbors. Ms. Jones said the neighbors put up the fence because of his wall.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 27
Mayor Lund
asked if he paid the engineer for his time to write the letter that was submitted.
Mr. Kiewel
said the engineer would be billing him in the future. He did not know how much the
charge would be.
Mr. Hardy
thought this should be heard before another court or another Board.
Mr. Hickok
said it is important they exhaust all administrative remedies and say everything they
need to say. Each party gets a chance for rebuttal for a fair hearing.
Mayor Lund
said he feels Mr. Kiewel has had time to digress and his comments are repetitive in
nature. His points are duly noted and if Mr. Kiewel has any new points to discuss, Council
would be happy to hear them.
Mr. Kiewel
asked when Mayor Lund came out to visit his home if he saw the wall collapsing.
Mayor Lund
replied no, but there were some small infractions that Mr. Kiewel repaired. He
said he did not walk the entire length of the wall, and he is not an engineer or part of the building
code review board. He said he made a comment that Mr. Kiewel used a creative method to build
the wall, but Mr. Kiewel should have had the wall engineered.
Councilmember Bolkcom
asked when Mayor Lund visited the home.
Mayor Lund
replied early fall--October.
Mr. Hardy
said that Mr. Kiewel was here by special appearance and has challenged the
jurisdiction board and the board did not answer the challenge. There are still many unanswered
questions.
Attorney Erickson
said to be clear, we are now in front of the City Council after having gone
through the Appeals Commission hearing because there was a notice of violation of a zoning
ordinance requirement. That is why the City elected this process, because that is the process for
those types of decisions and orders. Mr. Kiewel is a person as defined under the zoning
ordinance under the City Code. He is a natural human being and an individual. That is the
natural and common accepted meaning of a person under our zoning ordinance. Mr. Kiewel is
an owner of the property and represented himself as such. This is a zoning ordinance that has
requirements of owners under the zoning ordinance.
Mayor Lund
stated that if Mr. Kiewel needed written documentation of anything discussed
tonight he can access the recorded minutes from tonight’s meeting.
Mr. Hardy
said that natural persons can be many definitions.
Attorney Erickson
replied the law of the City in this ordinance is set forth in the ordinance with
the extent that if there are any questions regarding the definitions in the ordinance they can
reference the common definitions in Section 6.45.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 28
Mr. Hardy
stated that they contested the case.
Attorney Erickson
replied there is no requirement in the procedure to make a ruling. The City
Council has rendered that opinion. The City responded to the request that was made and
provided the correct information under state statute.
Mayor Lund
requested to get back on track and not to argue about whether Council answered
all the questions. Council has heard the testimony from a few weeks ago and will come up with
a decision.
Mr. Hardy
asked who would write the opinion.
Mayor Lund
replied Council collectively makes the opinion. The process Mr. Hardy is
suggesting is not the City’s process. The minutes will suffice as the written opinion. The Chair
is not required to write or render a decision.
Mr. Kiewel
said the subject of the jurisdiction has not been answered and is not subject to a
waiver by the government. The opinion should be rendered by Council.
Attorney Erickson
said Mr. Kiewel owns property located in the City of Fridley promulgated
by zoning ordinance that requires a land alteration permit to change the grade of the property.
Fridley property owners are governed by the Fridley city ordinances which is why there is
jurisdiction.
Mr. Kiewel
asked if this has to do with the city plan.
Attorney Erickson
said this has nothing to do with the city plan. You are citing to something
with the City Charter that has something to deal with something set forth in Section 205. The
comprehensive plan is governed by the 462 planning act which has local control and there is one
uniform process. That is not a process we are applying to your case in this matter. We have
promulgated an ordinance that requires you to have a permit. You had one, and it expired. You
performed the work and did work on another property without the proper permit. We are not
dealing with the zoning or guiding of your property. The City has zoning ordinances that
requires what is described. Minnesota Planning Act provides for a process that deals with the
zoning of the property. We are not talking about zoning but are talking about something that is
contained in the zoning ordinance. We are enforcing the zoning ordinance that requires a proper
permit.
Mr. Hardy
said she did not say anything about the definition of person.
Mr. Hickok
replied that Mr. Kiewel’s property record reads: James Kiewel, as a single person,
which is proof of being a person. No more definition is needed.
Mr. Hardy
stated there are many connotations for the word person. The City Attorney did not
answer the question nor did the Board. He asked where the evidence is that he is a defined
person.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 29
Attorney Erickson
replied Mr. Kiewel should make another appeal with a different body if he is
unsatisfied with the determination made by this body.
Mr. Hardy
said they need a statement that says they have exhausted all their resources. That
statement is needed to go before the district law judge.
Attorney Erickson
replied Mr. Kiewel has exhausted the remedy before the city bodies and if he
is dissatisfied he can choose to seek relief in district court.
Mr. Hardy
said that is the first time that statement has been made.
Attorney Erickson
replied that is incorrect. She stated that at the Appeals Commission.
Mayor Lund
stated that if Council has no more questions a motion is in order.
Attorney Erickson
stated the City Council has received the exhibits from the Appeals
Commission and has had a considerable amount of time to review them. A lot of materials have
been provided to Council that are referenced and documented in the Appeals Commission
information.
Councilmember Bolkcom
asked if there was any further information Council has not heard.
Mr. Kiewel
replied if this Council does vote against him, he would request each member in
writing state that he has exhausted his administrative remedies. He would consider the office of
administrative appeals for his contested case that was presented to the City.
Councilmember Bolkcom
said that Council was willing to work out a resolution for Mr.
Kiewel.
Mr. Kiewel
said he cannot take down something that is perfectly good and try to rebuild it again.
He did what he could and had someone look at it, which is why he submitted his findings to
Council. He disagrees with the process and how people are treated sometimes.
Mr. Hickok
stated that a “whereas” could be added in the resolution to say that the
administrative remedies have been exhausted.
Resolution Affirming the Decision of City Code Enforcement Officer Related to 1627 and
1631 Rice Creek Road N.E. (Ward 2)
Councilmember Bolkcom
asked if after the resolution is passed if Mr. Kiewel would need to
remove the wall.
Attorney Erickson
replied yes, if the City passes the resolution, the City is affirming the zoning
ordinance. Mr. Kiewel would be directed to remove the wall or provide engineering
certification.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 30
Councilmember Bolkcom
asked if additional information was available for Mr. Kiewel as to
what would be required in the engineering certification.
Mayor Lund
asked what the processing time line is once the resolution is approved for Mr.
Kiewel to operate under as far as engineering certification, removal or appeal.
Attorney Erickson
said with respect to his appeal rights, in Statute 6.01, there is a process that
contains a deadline to appeal a decision into district court. There is a statutorily-provided
deadline that would be the deadline Council would uphold. With respect to the engineering
report, there is no deadline contained in the resolution. He could talk with City staff for
clarification as to what needs to be in that certification.
Councilmember Bolkcom
asked how much time Mr. Kiewel would have to provide the
requested information.
Attorney Erickson
replied the City Council can affirm, deny or modify this request. Affirming
the resolution means the City would pursue remedies. This issue is still an ongoing code
violation and enforcement action could be taken. The City could issue a criminal complaint and
do an abatement.
Councilmember Bolkcom
recalled in previous issues like this, dates were set and if corrective
action did not take place in a certain amount of time, the City took action.
Attorney Erickson
replied Council could place deadlines in the resolution.
Mayor Lund
said those would be the next steps staff will take once the resolution is passed by
Council.
Councilmember Bolkcom
said the expectation is that the wall will be taken down. The
alternative is to have Mr. Kiewel’s engineer talk to the City Engineer to review what is required
to make certain the wall passes certification. Any type of appeal is up to Mr. Kiewel. It is
Council’s expectation Mr. Kiewel will set course when they leave here to get the wall down or
have the wall certified through engineering.
Attorney Erickson
asked Mr. Kosluchar to comment on the engineering letter that was
provided.
Jim Kosluchar
, Public Works Director, replied the resolution of the Appeals Commission
requires a structural engineering certificate considering the construction and integrity of the wall.
The letter only addresses one property and the analysis of how the engineer came about, His
findings need to be explained in detail.
Attorney Erickson
stated engineering certifications need more than a letter. They need an
affirmative statement, measurements, tested soils, etc., to determine whether something has
structural integrity or not.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 31
Mr. Kosluchar
said there is a wide range of possibilities with certification but staff wants to
know the details and basis upon which the engineer’s decision was made, and an elaboration on
how he came to that determination.
Attorney Erickson
asked if the letter permits the Public Works Director knowledge that the
person writing this letter has considered all of the important information and data concerning the
wall to know that this is in fact a certification of structural integrity of this wall.
Mr. Kosluchar
wanted to give the engineer the professional courtesy to affirm that case and
check if the decision was based on sufficient information. Also the letter only addresses one
property.
Attorney Erickson
asked if Mr. Kosluchar thought the letter lacked information to certify the
wall.
Mr. Kosluchar
replied yes
Councilmember Bolkcom
asked if this situation was treated any different than any other report
for a wall that was built.
Mr. Kosluchar
replied the Appeals Commission decision renders what is required here. The
land permit requests information of material specifications in the barrels and that information
was not received by the city. Now staff is working with a requirement set forth by the Appeals
Commission.
Attorney Erickson
stated based on the information to the extent City Council passes the
resolution she recommends inclusion of Exhibit 3 from Mr. Kiewel and that it is insufficient
standing alone to satisfy the status integrity of the walls built on both properties.
Councilmember Bolkcom
asked what timing should be placed on the resolution for him to
remove the wall; what if six months passes and the wall is still there and nothing further has been
done.
Mr. Hickok
replied staff would seek further legal remedy at that point. Mr. Kiewel can start at
any point to remedy this problem.
Mr. Wysopal
, City Manager, agreed that deadlines do help on the resolution for issues
supporting what Councilmember Bolkcom is saying, particularly for the engineering work. This
could take months and never get to a resolution. It may be helpful to have some parameters for
the resolution especially as it relates to the engineering.
Mr. Kosluchar
said the removal of wall is an option but prior to removal a permit is required to
be obtained from the City, similar to the construction of the wall.
Mr. Kiewel
asked what criteria is needed from the engineer.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 32
Councilmember Varichak
suggested Mr. Kiewel’s engineer and the City Engineer meet to
discuss what is needed.
Mr. Hickok
said the deficiencies in the letter point out where the engineering needs more
information.
Attorney Erickson
said several items have been discussed to add to the resolution. She
suggested Councilmember Varichak make the motion and she would add to the resolution and
Mayor Lund can call for a vote.
MOTION
by Councilmember Varichak to approve the Resolution Affirming the Decision of
City Code Enforcement Officer Related to 1627 and 1631 Rice Creek Road N.E. (Ward 2) with
the additions of the following:
Attorney Erickson added:
Page 241 after the last Whereas clause, insert an addition “Whereas the City received a
letter dated 12/20/14 from Harry Estephan, P.E. from the owner at the December 22,
2014 City Council meeting, but the letter failed to address the retaining wall on both 1627
and 1631 Rick Creek Road NE and the City Engineer stated it is not sufficient on its face
to satisfy the city structural certification requirements with respect to the retaining wall.”
Identical language above inserted in Finding of Fact #24, striking the Whereas from it.
After the above Whereas insertion, on page 241 insert “Whereas the owner has now
appeared before the City of Fridley Appeals Commission and City Council of the City of
Fridley and has thereby exhausted his administrative remedies of the City of Fridley.”
Identical language above inserted in findings of fact #26
Modification to Be it further resolved clause on page 244, third line, where it states 1627
and 1631 property “pursuant to a valid land alteration permit and if reconstructed,
reconstructed to a valid land permit or building permit.”
Insert after next to the last line on the final resolved clause on page 244 starting integrity
of retaining wall on the 1627 and 1631 property add “by February 23, 2015 as required
by Fridley City Code.”
Seconded by Councilmember Bolkcom.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY.
16.Informal Status Reports.
None.
FRIDLEY CITY COUNCIL MEETING OF DECEMBER 22, 2014 PAGE 33
ADJOURN:
MOTION
by Councilmember Barnette to adjourn. Seconded by Councilmember Varichak.
UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE
MOTION CARRIED UNANIMOUSLY AND THE MEETING ADJOURNED AT 12:07
A.M.
Respectfully Submitted,
Krista Peterson Scott J. Lund
Recording Secretary Mayor