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11/22/2004 - 00026648CITY COUNCIL MEETING CITY OF FRIDLEY NOVEMBER 22, 2004 The regular meeting of the Fridley City Council was called to order by Mayor Lund at 7:35 p.m. PLEDGE OF ALLEGIANCE: Mayor Lund led the Council and audience in the Pledge of Allegiance to the flag. ROLL CALL: MEMBERS PRESENT: Mayor Lund Councilmember-at-Large Barnette Councilmember Billings Councilmember Wolfe Councilmember Bolkcom OTHERS PRESENT: William Burns, City Manager Fritz Knaak, City Attorney Scott Hickok, Community Development Director Rick Pribyl, Finance Director Jon Haukaas, Public Works Director PRESENTATIONS: • CenterPoint Energy Minnegasco Mr. Berg, Fire Chief, stated in 2003, 50 firefighters died nationwide from heart attacks. In the first phase of the plan to protect firefighters and members of the community, they presented to the City Council a cooperative plan with the Fire Department and Independent School District 14 to raise funds to purchase automatic defibrillation equipment for each fire truck and each school. With the presentation of a check this evening, they will have completed fundraising for the Fire Department vehicles. Mr. Swintek, CenterPoint Energy, explained that this is a community partnership grant that will be presented to the City. CenterPoint Energy Minnegasco has been in business since 1870 and has served the City of Fridley since 1952. As part of that partnership, one of the things they try to do is give back to the community by helping with community needs. When they received the application from the Fridley Fire Department, they reviewed it and determined it to be a good program. He then presented a check for $2,500 to help support this program. Ms. Long, Firefighter, stated they recently purchased five of the seven automatic defibrillators needed and with this donation tonight they will be able to purchase the remaining two with additional funds going to the schools. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 2 OF 18 APPROVAL OF PROPOSED CONSENT AGENDA: APPROVAL OF MINUTES: City Council meeting of November 8, 2004 APPROVED. NEW BUSINESS: 1. Receive the Minutes of the November 3, 2004, Planninq Commission Meetinq. RECEIVED. 2. Resolution No. 2004-68 Approvinq Recvclinq Service Fees. Dr. Burns, City Manager, stated this resolution raises recycling service fees by 1.7% as allowed by the City Charter for an increase from $6.06 to $6.16 per quarter. This increase will generate revenues that will be $5,000 to $15,000 short of covering projected annual costs. Staff recommends Council's approval. ADOPTED RESOLUTION NO. 2004-68. 3. Resolution No. 2004-69 Providinq for Sewer Rate Increases. Dr. Burns, City Manager, stated this resolution raises sewer rates by 1.7% as allowed by the City Charter, for an increase from $2.41 per thousand gallons of water usage to $2.45 per thousand gallons of water usage. This increase will leave the City $164,000 short of covering the 2005 operating costs. Staff recommends Council's approval. ADOPTED RESOLUTION NO. 2004-69. 4. Resolution No. 2004-70 Providinq for a Storm Water Drainaqe Rate Chanqe. Dr. Burns, City Manager, stated this resolution raises storm water drainage rates 1.7% as allowed by the City Charter, for an increase from $3.07 per quarter to $3.12 per quarter. This increase will leave the City $77,000 short of covering the 2005 operating costs for the maintenance of the City's storm water system. Staff recommends Council's approval. APPROVED RESOLUTION NO. 2004-70. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 3 OF 18 5. Resolution No. 2004-71 Providinq for Water Rate Chanqe. Dr. Burns, City Manager, stated this resolution raises water rates 1.7% as allowed by the City Charter, for an increase from $1.10 to $1.12 per thousand gallons for those who consume under 5 million gallons per quarter, and $1.15 to $1.17 per thousand gallons for those who consume more than 5 million gallons per quarter. This increase will leave the City $280,000 short of covering 2005 operating costs. These are the expenses staff was trying to cover with the amendment to the City Charter that was defeated in November. Staff recommends Council's approval. ADOPTED RESOLUTION NO. 2004-71. 6. Resolution No. 2004-72 Requestinq the Minnesota Department of Transportation to Conduct Reqular Maintenance of their Riqhts-of-Wav within City Limits. Dr. Burns, City Manager, explained that at Council's request, he contacted all Minnesota cities through the League of Minnesota Cities in an effort to measure concern about MnDOT's right-of-way maintenance within the cities. To date, eight city councils including Anoka, Falcon Heights, Rosedale, Robbinsdale, Brooklyn Center, White Bear Lake, Buffalo and Montevideo have passed similar resolutions. The resolution asks for immediate maintenance of all fences and guardrails of state and interstate highways that cross Minnesota cities. It also asks that MnDOT provide for weekly mowing of these rights-of-way or alternatively reimburse cities for labor, supplies and equipment necessary to maintain these rights-of-way. Staff recommends Council's approval. ADOPTED RESOLUTION 2004-72. 7. Resolution No. 2004-73 Authorizinq an Increase in Compensation and Chanqes in Certain Benefits for the 2005 Calendar Year. Dr. Burns, City Manager, explained this resolution provides for a 3% increase in salary for full-time employees who are not a part of an employee bargaining group. The increase is for 2005 and includes a 3% increase in automobile allowances where applicable. Staff recommends Council's approval. ADOPTED RESOLUTION 2004-73. 8. First Readinq of an Ordinance Recodifvinq the Fridlev Citv Code bv Amendinq Appendix F to Provide for the Adiustment of Salaries for the Mavor and Councilmembers in Accordance with Section 2.07 of the Charter of the Citv of Fridlev. Dr. Burns, City Manager, stated effective January 1, 2005, the salaries of the Mayor and Councilmembers will be raised 3% as well. The increase will adjust the salaries to the FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 4 OF 18 following levels: Mayor -$9,926.07; Councilmember-at-large -$8,153.16; the three ward Councilmembers -$7,208.17. Staff recommends Council's approval. THIS ITEM WAS REMOVED FROM THE CONSENT AGENDA AND PLACED ON THE REGULAR AGENDA. 9. Claims: 119116-119398. APPROVED 10. Licenses. APPROVED AS SUBMITTED AND AS ON FILE. 11. Estimates. APPROVED THE FOLLOWING ESTIMATES: Ron Kassa Construction, Inc. 6005 — 250t" East Elko, MN 55020 2004 Miscellaneous Concrete Repair Project No. 355 Estimate No. 4 $21,520.16 Mr. Pete Eisenzimmer, 6535 Oakley Drive N.E., asked for additional discussion on Item No. 8. MOTION by Councilmember Barnette, seconded by Councilmember Wolfe, to approve the proposed consent agenda with the removal of Item 8. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. ADOPTION OF AGENDA: MOTION by Councilmember Bolkcom, seconded by Councilmember Billings, to adopt the agenda with the addition of Item 8. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 5 OF 18 OPEN FORUM (VISITORS): Consideration of items not on agenda — 15 minutes. Mr. John Flora, 573 Rice Creek Terrace, stated the Springbrook Nature Center referendum was for $275,000 and asked if that is the full amount of the administration, maintenance and programming costs. Mayor Lund stated that there were $56,000 collected in fees and that figure would be added to the $275,000 for the full cost. Dr. Burns, City Manager, stated the Nature Center budget is somewhere around $300,000 for 2005. The levy increase plus the program income will give them a little flexibility to put some money aside for capital improvements at the Nature Center. Mr. Flora asked if the Council will continue to require the annual foundation contributions and establish new Springbrook Nature Center fees. Mayor Lund responded that the Foundation's contribution was for one year. Council has discussed the possibility of non-resident entrance fees and raising some of the program fees, but that has been deferred to Parks and Recreation Commission for their recommendation. Dr. Burns added that staff's proposal was to gain some additional resources by charging a non-resident program fee. They also talked about a fee for entry to the Nature Center which has been passed on to the Parks and Recreation Commission. Mr. Flora asked if the Foundation will no longer be required to contribute any funds to the operation of the Springbrook Nature Center. Councilmember Billings said the answer to his question was yes. The answer to your question is yes. But, the way it's phrased is that they will no longer be required. They never have been required to contribute to funding anything at Springbrook. In 2003, they volunteered to come up with some money for 2004 because we didn't have a special election in 2003... they volunteered to come forward with some money for 2004. But historically they have not provided funding to our general budget for the operation of Springbrook. They have provided volunteers for many of the events that have helped generate the $50 some odd thousand dollars of fees that were generated... but they have contributed little if any over the last 20 years that I've been on the City Council... We never did require them to do that." Mr. Flora stated the discussion at the August 25t" Council meeting lead him to believe that the intent was to require the Foundation from now on to participate in the cost of the Nature Center. Mayor Lund commented that the Foundation is a volunteer organization outside of City government and not under the Council's control. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 6 OF 18 Councilmember Wolfe remarked that Mr. Flora may be referring to the arrangement the Council had with the Foundation regarding the one time $56,000 commitment the Foundation made in 2003. Councilmember Bolkcom commented that at a recent Council conference session, the members talked about how the Council should take a more active role in working with the Parks and Recreation in overseeing the Nature Center and that the Foundation will have a less active role on how the $275,000 will be spent. Also, the Council has advised that there be money set aside from the $275,000 for capital improvements that may be needed. Mr. Flora asked if there will be any other general funds expended at the Springbrook Nature Center, such as for labor, new construction, public works support or electricity. Mr. Pribyl stated he is in the process of setting up a special revenue fund to control revenues and expenses in conjunction with the Springbrook Nature Center, which is coming out of the general fund. The $275,000 levy is designed to fully supplant what that fund needs to continue to operate. Dr. Burns stated the Public Works Department will continue to provide maintenance of the Nature Center as they do with other City parks. Mr. Flora asked if that expense will be a line item in the general fund so it can be identified as a Nature Center expense. Dr. Burns stated it will be a part of the maintenance budget for parks maintenance. Councilmember Billings commented that there are two sides to the budget every year. What was just approved by the voters is a guaranteed revenue, a part of the real estate taxes that will be paid by all property owners in town but that portion of it will be specifically designated for Springbrook. Therefore a new revenue fund and expenditure fund are being created by the Finance Department to track that so that those funds are not used anywhere else. That does not mean that any of the other monies of the general fund can be used unless they have come from a designated revenue source. They can be used anywhere that the City Council and City Manager see fit to use them. If there is some activity at Springbrook in a future year that requires a budget for Springbrook of $400,000 and the City Council decides that's an activity they want to do at Springrook, it can still be done. The $275,000 is a revenue source which is guaranteed to be set aside for Springbrook. That does not mean additional funds cannot be used at Springbrook if the City Council chooses to do that. For the last 7 or 8 years the City has been budgeting about $330,000 for the Nature Center, $275,000 from the general fund and approximately $55,000 from Nature Center program fees. Mr. Flora asked what will be done with the $275,000 that will now be "freed up" in the general fund with the new revenue generated by the Springbrook referendum. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 7 OF 18 Councilmember Billings stated $275,000 less will be taken out of reserve to try and do the things we have been doing for the last several years. For several years we have been minimizing the amount of money we spend on replacement of dump trucks, we are forcing our Fire Department to use fire trucks longer, and our police officers are using squad cars longer. All of these things eventually have to be replaced. That was why the City Manager proposed not funding Springbrook in 2004. He determined that the City could no longer afford to be taking $275,000 out of the general working budget to pay for programming at Springbrook. Dr. Burns stated they were still pulling in about $1,250,000 in transfers to balance the general fund even with the $275,000 from the Springbrook referendum. They are also transferring money from the closed bond fund to cover street improvements and other capital improvements. Mr. Pete Eisenzimmer, 6535 Oakley Drive, said the language on the ballot for the Charter amendment was too difficult to understand. PUBLIC HEARINGS: 12. Consideration of an Ordinance to Amend the Citv Code of the Citv of Fridlev, Minnesota, bv Makinq a Chanqe in Zoninq Districts (Rezoninq Request, ZOA #04-02, bv Creekside Properties and Glen Harstad to Rezone Properties Located at 7101 and 7151 Hiqhwav 65 from M-1, Liqht Industrial to C-2, General Business (Ward 2). MOTION by Councilmember Wolfe, seconded by Councilmember Barnette, to open the public hearing. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. Mr. Hickok, Community Development Director, stated that this rezoning will allow the current use to conform to the zoning requirements. In order to avoid spot zoning and to accomplish a successful rezoning, both the properties at 7101 and 7151 Highway 65 would need to be rezoned. Staff and Creekside Properties consulted with Glen Harstad, owner of 7151 Highway 65, to see if he was interested in being included in the rezoning. Mr. Harstad determined that was the right decision for his property. The property at 7101 Highway 65 is zoned M-1 and has been that way since the 1950s. The property was developed in 1960 with an office warehouse building. In 1972 an office addition was constructed, and in 1974 a warehouse was constructed. Since 1974 there have been three building permits issued to remodel storage space into office space. Over the years, the use of this building has been changed to accommodate office and retail uses, such as a contractor's office, tax services, realty services, attorney's office, barber shops, and more recently Esquire Hair and Tanning Salon and It Figures Salon. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 8 OF 18 Mr. Hickok stated 7151 Highway 65 has been zoned M-1 since the 1950s as well. In 1969, a building permit was issued for a trailer sales lot and a special use permit was issued to operate a trailer sales lot for a period of three years. In 1971, the property owner sought a rezoning to commercial which was denied because it was felt that although this area should have been a commercial zone, they wanted to wait for a more permanent use to locate on the site. In 1974, a new special use permit was granted to operate the trailer sales lot for five years. In 1980, an additional special use permit was granted with no time limit or review unless there was a change in use. The property has remained a trailer sales lot since 1980 and is currently Comfort Homes. In 1989, the City Council approved the rezoning for 7191 Highway 65 from M-1, Light Industrial, to R-3, General Multiple Units and C-2, General Business. Currently this is where Chopper City Sports is located. In 1990, staff met with the remaining property owners between the railroad tracks and 72nd Avenue in an attempt to have them file a joint rezoning for the entire block. The reason for that was that all the uses within that corridor were generally office and retail. At that time there were concerns regarding the contractor's office and associated yards as to whether they would continue to be permitted uses under the C-2 General Business regulations. City staff determined that they would continue to be permitted uses under C-2 zoning, but the owners at that time preferred to let the existing zoning stand. In 1992 the City Council approved a rezoning request by Ed Stanke for his property located at 7091 Highway 65. He had requested a rezoning to better match the uses in his building which were an insurance and marketing office and diet center. Mr. Hickok stated that as a result of the rezoning at 7091 and 7191 Highway 65, the subject properties were left as an industrial island between two commercial properties. The existing land use is not consistent with the existing zoning designation. Rezoning these properties would be a continuation of the existing C-2 both north and south. Mr. Hickok stated the City's zoning ordinance and official zoning map are the mechanisms that help the City achieve the vision laid out in the Comprehensive Plan. The law gives the City the authority to rezone property from one designated use to another so long as the use is in conformance with the Comprehensive Plan. The Comprehensive Plan showed this area as a redevelopment district. While these properties are not being redeveloped, they are eliminating incompatible land use by applying the proper zoning regulations. Comfort Homes has a special use permit to allow the trailer sales lot which is required in the M-1 district as well as the C-2 district. Staff also recommends that if this rezoning is approved that carry-over of the special use permit would be included. The Planning Commission recommended approval. The first reading of the ordinance would occur at the December 6, 2004, City Council meeting. Councilmember Barnette asked if staff is aware of any objections to this proposal. Mr. Hickok explained there were some inquiries made but no objections. Councilmember Billings asked if the ordinance requires a first and second reading. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 9 OF 18 Mr. Hickok said it did. Councilmember Billings asked if the transfer of the special use permit should be addressed in the ordinance. Mr. Hickok stated the inclusion of the transfer of the special use permit in the Council's motion would be sufficient. Councilmember Billings asked if Council could approve the first reading at tonight's meeting and also pass a motion to transfer the special use permit and hold the second reading at the next Council meeting. Mr. Hickok said that was possible. Mayor Lund and Councilmember Bolkcom agreed that if there is no controversy, the first reading could be held tonight. MOTION by Councilmember Wolfe, seconded by Councilmember Barnette, to close the public hearing. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 13. Consideration of the Proposed Assessment for the 2004 Nuisance Abatement (Continued October 25, 2004). MOTION by Councilmember Wolfe, seconded by Councilmember Barnette, to remove the 2004 Nuisance Abatement from the table. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. Mr. Pribyl, Finance Director, said this public hearing is being continued from the City Council meeting of October 25. This is the annual assessment for those properties for which the City has expended resources for compliance of properties in accordance with the City Code. The first abatement is regarding property located at 7699 Highway 65 and is in regard to a water pump line installed to remove water from the building to the storm water line in order to eliminate a violation. The cost of this abatement was $9,830.16. The second abatement is in regards to the property at 7601 Arthur Street for nuisance weeds at a cost of $113.16. Each of these properties will be assessed the cost of the remediation over a period of one year at a rate of 6.5%. Councilmember Billings asked Mr. Haukaas to explain again the reason the City installed this pipe. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 10 OF 18 Mr. Haukaas, Public Works Director, stated in 1985, the City of Fridley and Dr. Dahl, the property owner at 7699 Highway 65, agreed to a land swap in order to create a looped frontage road south of Osborne Road. Prior to this, sump pump water from Dr. Dahl's building was draining to the east where the road was to be constructed. During construction it was determined that discharge from the sump pump was making the ground too wet and as a solution a one inch copper sump pump discharge line was connected from his building to the storm sewer. The property owner has stated that this line plugged with silt and mineral deposits shortly after it was installed. There was a disagreement between Rusty Silseth, the sewer foreman at the time, and John Flora, the City Engineer at the time, regarding the size of this discharge line. After the discharge line became plugged, the sump pumps were directed into the streets during summer months and the sanitary sewer during colder months. In 1985, discharge of sump pumps into the sanitary sewer was allowed. In 1995, the City Council passed an ordinance that made discharge of storm water into the sanitary sewer a violation because of the rising costs of treatment of that sanitary sewer discharge. That sump pump ordinance was widely distributed and promoted throughout the entire City. Councilmember Billings stated it was his understanding that the one -inch pipe was put in for the benefit of the City. Mr. Haukaas explained during construction of the looped frontage road, Dr. Dahl's sump pump continued to drain as it had in the past. There was high ground water in the area but it was making the area where the road was to be constructed too wet. That connection was made directly to the storm sewer to allow that ground to dry up and allow the road to be built. Councilmember Billings stated again that the purpose of the pipe was for the benefit of the City, not for the benefit of the property owner. Mr. Haukaas stated that is correct. That information came from past employees and the records that were available. Councilmember Billings stated as long as Mr. Flora, former Public Works Director, is in the room perhaps he would like to comment on this matter. Mr. Flora stated Dr. Dahl bought the property when the City was putting in the loop back and the sump pump from the building had been draining to the east. As a result, we asked him to change it. Dr. Dahl did not want to do that, so they basically extended the pipe they had into the storm sewer they were putting in. Mayor Lund asked why a one-inch pipe was put in instead of a four-inch pipe. Mr. Flora said that was what Dr. Dahl had and the City just extended what he had. Dr. Dahl stated the statement that this pipe was put in as a temporary measure is a new claim that just occurred at the last meeting and has never been heard before. The pipe FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 11 OF 18 was put in at a depth below frost line, 7 feet, and above that the City put multiple layers of light Styrofoam to protect the pipe from freezing. Furthermore, the reason for the copper pipe was to be able to thaw the pipe if it froze. All of the engineering was designed for a long-term permanent pipe. He asked why the City would go to that much trouble for a temporary pipe. He clarified a statement by Mr. Flora that he had purchased the property in 1985. He has owned the property since 1980. The solution the City provided was inappropriate and did not function. The City ignored the problem for many years then finally fixed it. It was time the City owned up to their responsibilities and took care of the problem. The documentation is so clear that no other reasonable conclusion can be made other than this is the City's responsibility. He referred to independent counsel's findings of fact which stated that the pipe the City installed was inadequate to handle the sump water. Also, the assessment the City charged him for draining the water into the sanitary sewer at a rate of $300 per quarter assessed last year disappeared and never was assessed. Dr. Dahl said he received a letter from the City dated November 5, 2002, which stated he was in violation of the City Code, yet an inspection report dated the day before indicated he was in compliance. Councilmember Barnette stated the ordinance changed in 1995, and did not allow the connection to the sanitary sewer. He asked what Dr. Dahl did at that time to bring his property into compliance. Dr. Dahl stated the City was well aware of the condition and there was nothing he could do. He continued to do what the City had told him to do and that was to drain the water into the street during the summer months and drain it into the sanitary sewer in the winter months. Councilmember Barnette asked Mr. Haukaas what the City instructed Dr. Dahl to do in 1995 when the ordinance changed. Mr. Haukaas stated he was not on staff in 1995 and there is no documentation. He is not aware that the City continued to have any contact with Dr. Dahl saying he was allowed to do this. The City made it clear to everybody that it was no longer allowed. Dr. Dahl stated that it was up to the City to correct the problem that they had created. Since the City did not correct the problem, he continued to do what the City had told him to do. Mr. Haukaas stated in regard to the issue of the surcharge fee Dr. Dahl referred to, that is written into the ordinance as a penalty that does not need to go through the nuisance abatement process. After this problem had been taken care of within that year, he discussed the matter with the Finance Director and they did not see any reason to add that on. What they wanted to do was eliminate the discharge into the sanitary sewer and that was accomplished, so they saw no reason to continue the surcharge fee. Mayor Lund asked if Dr. Dahl had any documentation stating that the City had committed to correcting the problem once the pipe became plugged. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 12 OF 18 Dr. Dahl stated Mr. Silseth's letter states clearly that he thought it should have been a larger pipe. And the hearing officer found that the pipe was inadequate. Councilmember Billings questioned where Dr. Dahl's sump pump was draining before the City put in the pipe. Dr. Dahl stated it was draining onto the property until the City took a portion of his property for the road construction. Mr. Haukaas explained the nuisance abatement process allows for three options. Dr. Dahl could correct the problem, the City could correct the problem, or the issue could go before a hearing officer. Dr. Dahl chose to go through the hearing officer. The hearing officer ruled that Dr. Dahl was in violation of the ordinance. At that point the City sent Dr. Dahl a letter stating he had two options; to fix the problem himself or the City would fix it and bill him. The City received a letter from Dr. Dahl's attorney stating the City should fix the problem and bill Dr. Dahl which is how the city proceeded. Dr. Burns asked Mr. Haukaas if there is any documentation on file regarding an arrangement whereby the City provided this conduit for Dr. Dahl's sump pump. Mr. Haukaas stated there is no documentation that he is aware of regarding any such agreement. Dr. Dahl stated in 2001, he requested that the City do something to fix the problem. Dr. Burns stated they had a survey of sump pump users after 1995 and about 400 people come forward and changed their sump pump connections. Mr. Haukaas stated the primary focus of a lot of those inspections was residential. The information went out to everybody and the inspections were done in known areas. He did not know if Dr. Dahl's was inspected at that time. Dr. Dahl referred to his letter of September 24, 2002, addressed to Mr. Haukaas stating that per the City's instructions, he had been pumping his sump pump into the street sewer system during the spring, summer and fall months, and for traffic safety restrictions per the City's instructions, into the sanitary sewer after freeze up. The letter further stated that it had been 17 years since the City put in a faulty basement drain water line and that he had been told that this would be corrected over and over again. The letter also stated that it would be in the best interests of the City to correct this problem before further costs are incurred this winter. Dr. Burns asked who told Dr. Dahl that the City would correct the problem. Dr. Dahl stated those were the directions of Mr. Silseth at that time and he had gotten it from his supervisors. There was one occasion when the City had to block the drainage FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 13 OF 18 pipe when the storm sewer that it went into was plugged. So this issue has been well known and understood but has never been addressed. Councilmember Bolkcom asked Dr. Dahl if he has anything in writing instructing him to drain his sump pump in this manner. It seems that this whole matter is all hearsay. Dr. Dahl stated he does not believe it is his obligation to document the common sense actions that the City should take to correct the problems the City created. There is no question that the City put this pipe in 7 feet down with foam over it and that it was intended to be a long-term fix. Councilmember Bolkcom stated if the City had never built Viron Road, Dr. Dahl would still have to deal with his sump pump water. Dr. Dahl stated that before the City took the land for Viron Road, he had plenty of room to drain his sump pump. Councilmember Wolfe commented that if Viron Road had not gone in, Dr. Dahl could have continued to drain his sump pump onto his property and the ordinance change in 1995 would not have affected him. Councilmember Barnette stated that the main issue is that in 1995, the ordinance changed. He asked what Dr. Dahl could have done at that time to correct the problem. Mr. Haukaas stated Dr. Dahl could have put in a pressurized pipe to put the drainage water out to the Highway 65 ditch or, as the City eventually did, connect the sump pump line to the storm sewer. Councilmember Bolkcom stated she is confused about what happened after the findings of the hearing officer and why Dr. Dahl allowed the matter to get this far. Dr. Dahl stated the conclusion of the hearing officer was that he was guilty of dumping the water but did not say that he was responsible for the solution. That is why he instructed the City to fix the pipe, the way it should have been done originally, and then he would deal with the issue. Councilmember Bolkcom said she believes Dr. Dahl should have resolved the issue of responsibility before instructing the City to fix the problem. Councilmember Wolfe stated he has a problem with this matter. He believes the City created a situation where Dr. Dahl could not continue to drain the sump pump on his property. Mayor Lund asked if it would have been possible for the City to de-water the area for road construction rather than installing the pipe. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 14 OF 18 Mr. Haukaas replied that would have been extremely expensive to keep the area free of water for the length of time necessary to complete the construction of Viron Road. Mayor Lund commented that it is unusual for the City to make a permanent fix for an individual's property. He also stated the problem really does not originate when the road was installed because there was an option up until 1995 to dump it into the sanitary sewer. Sump pump drainage is ultimately the property owner's responsibility. He also stated that he does not like Dr. Dahl's suggestion that by fixing the situation initially the City bought the problem and questioned if he would hold the City liable to perpetually fix the problem. He also asked at what point it is Dr. Dahl's problem to ensure he no longer has a wet basement. Dr. Burns asked Mr. Haukaas if it is correct that the hearing officer in this matter made no determination of responsibility. Mr. Haukaas stated the hearing officer only ruled on the facts of the case that Dr. Dahl was in violation of the 1995 ordinance. That was the entire purpose of the hearing. Subsequent to the hearing the City received a letter from Dr. Dahl's attorney instructing the City to fix the problem and send him the bill. Dr. Burns also asked about the inspection report Dr. Dahl referred to. Mr. Hickok explained that inspection report was related to the systematic code enforcement for outdoor storage on commercial and industrial sites. Councilmember Bolkcom asked if Dr. Dahl would be willing to share half the cost. Dr. Dahl stated he would not be willing to share half the cost but would accept responsibility for maintenance of the pipe from this point forward. Councilmember Bolkcom asked the City Attorney what Dr. Dahl's recourse would be should the Council approve the abatement assessment. Mr. Knaak replied that he is not interested in giving Dr. Dahl legal advice, but ordinarily there is an appeal process. This is a little unusual in that the hearing occurred some time ago, but the way we treated his attorney's correspondence was as an objection to the assessment so we would be going forward on the basis that it had been properly objected to. MOTION by Councilmember Wolfe, seconded by Councilmember Barnette, to close the public hearing. UPON A VOICE VOTE, MAYOR LUND, COUNCILMEMBER-AT-LARGE BARNETTE, COUNCILMEMBER BILLINGS AND COUNCILMEMBER BOLKCOM VOTING AYE AND COUNCILIMEMBER WOLFE VOTING NAY, MAYOR LUND DECLARED THE MOTION CARRIED ON A FOUR TO ONE VOTE. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 15 OF 18 NEW BUSINESS: MOTION by Councilmember Billings, seconded by Councilmember Bolkcom, to amend the agenda by adding the first reading of an ordinance to amend the City Code as Item 13a. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 13a. First Readinq of an Ordinance to Amend the Citv Code of the Citv of Fridlev, Minnesota, bv Makinq a Chanqe in Zoninq districts (Rezoninq Request ZOA #04-02, bv Creekside Properties and Glen Harstad, to Rezone Properties Located at 7101 and 7151 Hiqhwav 65 from M-1, Liqht Industrial, to C-2, General Business) (Ward 2). MOTION by Councilmember Billings, seconded by Councilmember Bolkcom, to waive the reading and approve the ordinance on first reading. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. OLD BUSINESS: 14. Resolution No. 2004-49 Adoptinq the Assessment for the 2004 Nuisance Abatement (Tabled October 25, 2004). MOTION by Councilmember Wolfe, seconded by Councilmember Barnette, to approve Resolution 2004-49 adopting the assessment for the 2004 Nuisance Abatement. Councilmember Billings stated he believes an explanation of the vote on this matter is in order. This is a difficult issue. We were in a fact-finding mode during the public hearing and it is up to the Council to reach a decision. The facts seem to be that in 1985 a one- inch pipe was put in. The property owner indicates the pipe was buried 7 feet deep with Styrofoam. If that was just a temporary fix, it should not have been hooked up to the sanitary sewer. Those two facts would indicate that there is a distinct possibility that the City was attempting to make a more permanent fix than just to drain water off the work area so they could put in the road. That may have been the primary purpose for it and the thinking may have been to do it so the property owner can utilize it in the future. It is unclear what the thinking was 19 years ago when this was done. There is no documentation in the City's files. The property owner does not have any real documentation. The property owner has a letter from a retired City employee 17 years after the fact. The former Public Works Director does not recall the exact details. On the one hand we have quite a bit of evidence that would indicate that possibly the City intended some kind of a permanent fix. At the same time the property owner is saying that he was promised by the City on multiple occasions to fix the problem, yet there is no letter from the property owner to the City asking the City to resolve the problem. We FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 16 OF 18 have a letter from the property owner's attorney telling the City to fix the problem and bill the property owner. There was a hearing process after which there was an opportunity for the property owner to come to Council and appeal the decision of the hearing officer. Over this 19-year period, if in fact it was intended to be a permanent fix by the City, the City fell down on their duty to make that fix. At the same time the property owner failed in his duty to contact the City and demand that the fix be made. There is a certain amount of evidence that leads him to believe there may be some culpability on the part of the City from the standpoint that the City created a situation since prior to the installation of the road there was a land mass large enough to handle the water. The City made a fix that did not work. Even at that point when the pipe did get plugged up there should have been a letter from the Public Works Department to the property owner stating this was not a permanent fix and he needed to address the drainage issue. He said if he votes to uphold the assessment, the property owner's attorney has already notified the City that it is going to court. He said he believes the best course of action would be to split the cost with the property owner because the possibility exists that either side could have resolved this long ago. He asked Dr. Dahl if that is a possible solution. Dr. Dahl restated that he is not willing to pay even half the assessment. Dr. Burns stated he believes a judge would push this towards mediation after both parties have already incurred a great deal of cost. Mr. Knaak agreed that the legal system does try to resolve such issues through mediation. Councilmember Bolkcom stated there is a due process and it seems that somewhere along the line Dr. Dahl should have contacted the City regarding this issue. She believes some type of compromise would be best. Mayor Lund stated the best he would go along with is to meet Dr. Dahl half way, but he has indicated that is not an option. Dr. Dahl asked if the City would accept responsibility for maintenance. Mayor Lund stated absolutely not. Infrastructure of any sort does not last forever. If that pipe was a problem over the past 20 years, Dr. Dahl should have contacted the city. Also Dr. Dahl had the right to appeal the findings of the hearing judge, but that appeal process expired over a year and a half ago. He is opposed to fixing such a problem perpetually for one property owner. UPON A VOICE VOTE, MAYOR LUND, COUNCILMEMBER-AT-LARGE BARNETTE, COUNCILMEMBER BILLINGS AND COUNCILMEMBER BOLKCOM VOTING AYE AND COUNCILMEMBER WOLFE VOTING NAY, MAYOR LUND DECLARED THE MOTION CARRIED ON A FOUR TO ONE VOTE. FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 17 OF 18 NEW BUSINESS: 8. First Readinq of an Ordinance Recodifvinq the Fridlev Citv Code bv Amendinq Appendix F to Provide for the Adiustment of Salaries for the Mavor and Councilmembers in Accordance with Section 2.07 of the Charter of the Citv of Fridlev. Councilmember Billings stated according to section 2.07 of the Fridley City Charter salaries for the forthcoming year must be approved prior to November 1. Mr. Knaak stated the Council could make a motion to table this matter or to approve it but the salary increases would not go into effect until 2006. Councilmember Billings asked when the City Council last received a raise in pay. Mr. Pribyl stated it was at least two years ago. Mayor Lund stated the Council elected last year not to request an increase. MOTION by Councilmember Bolkcom, seconded by Councilmember Barnette, to waive the reading and approve the ordinance on first reading. UPON A VOICE VOTE, ALL VOTING NAY, MAYOR LUND DECLARED THE MOTION FAILED TO CARRY ON A UNANIMOUS VOTE. 15. Informal Status Reports Councilmember Wolfe stated Council received an email from the Fridley Chief of Police regarding a Level 3 sex offender in Fridley. There will be an informational meeting at Fridley High School on Tuesday, November 23, 2004, at 7:00 p.m. Councilmember Bolkcom added that this meeting will be videotaped and will be aired several times for those who cannot attend the meeting. Councilmember Bolkcom thanked all those who attended the final housing forum and asked Mr. Hickok how the information from the housing forums will be shared. Mr. Hickok stated there was a lot of data gathered from the four housing forums. That data is now being compiled and a final report will be available in January. There are hard copies of the questions from the first three sessions available in the Community Development office. The questions from the first two sessions are also available on the City's website. The fourth session is now being produced and should be airing soon. Dr. Burns stated the December edition of the City newsletter will be coming out shortly. Councilmember Barnette commented that several observations have been made that Council did not do a good job getting the information out regarding the two referendums FRIDLEY CITY COUNCIL MEETING, NOVEMBER 22, 2004 PAGE 18 OF 18 on the November ballot. He said it is the responsibility of the citizens to get informed about these issues. The information is available and if anyone has questions, they can call Council or City staff. ADJOURN: MOTION by Councilmember Barnette, seconded by Councilmember Wolfe, to adjourn. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MEETING ADJOURNED AT 10:57 PM. Respectfully submitted by, Rebecca Brazys Recording Secretary ������ Scott J. Lund Mayor