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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