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HomeMy WebLinkAbout2005 03-14 CCM Regular Session MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA REGULAR SESSION MARCH 14, 2005 CITY HALL — COUNCIL CHAMBERS 1. INFORMAL OPEN FORUM WITH CITY COUNCIL CALL TO ORDER INFORMAL OPEN FORUM There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to open the Informal Open Forum at 6:45 p.m. Motion passed unanimously. ROLL CALL Mayor Myrna Kragness and Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Mary O'Connor. Also present were City Manager Michael McCauley, Assistant City Manager/ Director of Operations Curt Boganey, Director of Public Works /City Engineer Todd Blomstrom, Community Development Director Brad Hoffman, Planning and Zoning Specialist Ron Warren, City Attorney Charlie LeFevere, and City Clerk Sharon Knutson. No one appeared before Informal Open Forum. There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to close the Informal Open Forum at 6:46 p.m. Motion passed unanimously. 2. INVOCATION Mayor Kragness offered the Invocation. 3. CALL TO ORDER REGULAR BUSINESS MEETING The Brooklyn Center City Council met in Regular Session and was called to order by Mayor Myrna Kragness at 7:01 p.m. 4. ROLL CALL Mayor Myrna Kragness and Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Mary O'Connor. Also present were City Manager Michael McCauley, Assistant City Manager/ Director of Operations Curt Boganey, Director of Public Works /City Engineer Todd Blomstrom, Community Development Director Brad Hoffman, Planning and Zoning Specialist Ron Warren, City Attorney Charlie LeFevere, and City Clerk Sharon Knutson. 03/14/05 -1- 5. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited. 6. COUNCIL REPORT Councilmember O'Connor reported she received the cable subscriber surveys from Rex Newman and would give them to the City Manager to copy for Council Members. Councilmember Lasman reported she attended the March 2, 2005, Opportunity Site Study Area Task Force meeting, and the first public meeting to receive input would be April 13, 2005. Councilmember Carmody reported she attended the Shingle Creek Watershed meeting on March 10, 2005. Mayor Kragness indicated with the significant number of people in the audience, she would like to add to the Council agenda Public Input/Comment with Item No. 9a2 regarding the CVS Pharmacy proposal. Councilmember O'Connor referred to a letter Mayor Kragness had sent to Senator Scheid and Representative Hilstrom regarding municipal liquor operations. She said she does not support municipal liquor operations and stated the letter seemed to be written on behalf of the entire Council. She said she would like a correction letter sent to Senator Scheid and Representative Hilstrom. Mayor Kragness responded that in the past the Council has supported municipal liquor operations, but she certainly can do a clarification letter that would indicate Councilmember O'Connor's opposition to municipal liquor operations. 7. APPROVAL OF AGENDA AND CONSENT AGENDA Councilmember Niesen stated she would like to add two items to the agenda; the first would be to remove Item No. I Ob regarding the fish sampling and replace with Expanded Scope of 2004 Audit, and the second would be to add Rezoning to Item No. 9a2 regarding the CVS Pharmacy. Councilmember Carmody raised the question of whether Item Nos. 9a2 and 9a3 should be switched around. City Manager Michael McCauley responded that it has been the general practice to do the Planning Commission application first and then the ordinance. Councilmember Niesen said that if the Council does not take a vote on the rezoning, it will be approved by inaction, as Mr. McCauley had suggested at the last Council meeting. Mr. McCauley responded there does not have to be a vote on the rezoning. He stated that what is before the Council is the Planning Commission application resolution and the first reading of the ordinance setting Public Hearing. Councilmember Niesen stated it does not make sense to vote on the Planning Commission application if there is not first a vote on the rezoning. Mr. McCauley referred to the City Attorney. 03/14/05 -2- City Attorney Charlie LeFevere reviewed the requirements for the 2/3 vote for rezoning land and explained that rezoning the land is the only act that requires a 2/3 vote. He said the first reading of the ordinance does not require a 2/3 vote and explained there was nothing on this agenda that requires a 2/3 vote. He stated by switching Item Nos. 9a2 and 90, it would not result in a vote on the rezoning and would not require a 2/3 vote. Councilmember Niesen said she agreed with the City Attorney; however, if action is not taken by March 21, 2005, this will go through with the loophole in the Law that was suggested by the City Manager at the last Council meeting. She asked the City Manager to suggest what the Council can do to rectify this problem. Mr. McCauley responded that what the Council requested was an evaluation of the Law as it relates to rezoning. He said what is before the Council is a statement of ways in which zoning is adopted and further stated it is the Council's choice with respect on how to proceed. Councilmember Niesen said it is unacceptable and if the Council does not vote it will be approved by inaction by not voting. She again asked the City Manager what the Council can do to rectify this problem. Mr. McCauley responded that the review of the Law is Item No. 9a1 on the agenda for Council to consider, and it was in response to Councilmember O'Connor's request for a review of the Law with regard to a rezoning request. Councilmember Niesen raised the question of how the Council can vote on the rezoning. She said if it is not on the agenda, then the Public Hearing would just be a formality. She said the option to extend the 60 -day period was not included. Mr. McCauley responded that in his memo, provided in the agenda packet, it is included that the Council has an option to extend the 60 -day period for a maximum of an additional 60 days upon written notice to the applicant of the reasons for the extension and the anticipated length of the extension. Councilmember O'Connor stated she does not believe that the Council has to have a public hearing because the Planning Commission already had a public hearing or that it has only until March 21, 2005, within which to approve the rezoning. She cited Minn. Stat. § 15.99 Subd. 2. Mr. LeFevere indicated that there was no requirement to this particular issue and there is no other Statute that he is aware of that this action cannot be complied within the 60 days; and there is no environmental impact statement required. Councilmember O'Connor said the rezoning must have a 2/3 vote to pass. Mr. LeFevere responded the Law requires that if the Council wants to adopt the ordinance, then it must have at least four votes to meet the 2/3 requirement. Councilmember Niesen said she spoke to Senator Scheid who referred her to Dan McGowan, Senate Council for the State and Local Government Committee, and he concurred with Mr. McCauley `s review of the statutory requirements. She asked how the Council can avoid the loophole. She said at the last Council meeting agenda Item No. 9b was the rezoning and it was tabled. 03/14/05 -3- Mr. McCauley said on this agenda Item No. 9a2 is a resolution to approve the Planning Commission application and Item No. 9a3 is the ordinance approving first reading to hold a Public Hearing to adopt an ordinance which would make effective the rezoning. Councilmember Niesen said Item No. 9a3 is a first reading of an ordinance, not the rezoning. Mr. McCauley responded that it is the ordinance that requires a first reading and Public Hearing to effect the rezoning. Mr. LeFevere stated that at the last Council meeting everything discussed related to the subdivision and platting, and the application for rezoning is a process that includes the Planning Commission application and the first reading of an ordinance, which follows with a second reading and Public Hearing. He said the rezoning does not occur until the ordinance is adopted, and he reviewed the process for approving ordinances and what constitutes the requirement for the 2/3 vote at the adoption of the ordinance. He further reviewed that the City Charter states that an ordinance cannot be adopted at the same time as it is introduced. Councilmember Niesen said if the Council does not vote on the rezoning and does not take action, then Minn. Stat. §462.357 will not matter. Mayor Kragness declared the Council is trying to approve an agenda, and the legal ramifications have already been explained by the City Attorney. Councilmember Carmody said there are a number of residents in the audience who are interested in this issue. She said she believes the Council has a responsibility to take an action; however, the assumption that three members would vote to table the issue is presumptuous. She said she is not planning to table the item, nor would she support a motion to table the item. Councilmember Niesen said the Council cannot vote on this rezoning because it has to follow the City Charter. She asked the City Manager what he would suggest the Council do to make sure that the developer does not get this approved by default. Mr. McCauley explained if the Council chooses to turn down the resolution, then it would have to provide reasons for denial in writing that must be legally valid for denying a rezoning application and legally defensible. He stated there is the ability to extend the 60 -day period within which the action is taking place. He further stated it is up to the Council to decide how it proceeds. There was a motion by Councilmember Lasman, seconded by Councilmember Niesen to approve the agenda and consent agenda with the amendment of moving Item No. 7e from the Consent Agenda to Council Consideration Item No.1 Of; removing Item No. I Ob and replacing with Expanded Scope of 2004 Audit; adding Public Input/Comment before Item No. 9a2; and amending the minutes as follows: February 14, 2005, Work Session Page 3, fifth paragraph to read, "Developers asked the EDA for their reaction to their design proposal, and the EDA would like to hear more on the design." 03/14/05 -4- I February 28, 2005. Regular Session Page 7, relating to Item No. 8a, second to last paragraph, second sentence to read, "She discussed the water quality issue in the Shingle Creek Watershed and explained that she prefers no curbs and suggested that possibly in the future it could be looked at to do street improvements with no curbs." Page 9, relating to Item No. 8b, sixth paragraph to read, " Councilmember O'Connor commented that she wished the Federal government would reduce taxes and stop collecting taxes which are given back to Hennepin County to distribute to cities." February 28, 2005, Work Session Page 3, second to last paragraph, last sentence to read, "She stated the resident asked if the Community Center could purchase more tread mills or repair the broken one." Add the following sentence, "Mr. McCauley said he would talk to Mr. Glasoe to fix the broken one." Motion passed unanimously. 7a. APPROVAL OF MINUTES There was a motion by Councilmember Lasman, seconded by Councilmember Niesen to approve the February 14, 2005, Work Session minutes as amended; the February 28, 2005, Study Session minutes; and the February 28, 2005, Regular Session and Work Session minutes as amended. Motion passed unanimously. 7b. LICENSES There was a motion by Councilmember Lasman, seconded by Councilmember Niesen to approve the following list of licenses: MECHANICAL Midwest Heating & Air Conditioning 26355 Tucker Road, Rogers RENTAL Renewal: 3012 -18 51st Ave N (Two Family) Steven & Debra Elhardt 5322 72nd Ave N (Single Family) Lenita Elon 7200 -7224 Camden Ave N Sean Bannerman Evergreen Apartments (80 Units) 5637 Emerson Ave N (Single Family) Douglas Pederson 4708 Lakeview Ave N (Single Family) Gary Scherber 5030 Lilac Drive (Single Family) Adelaide Cassell 5900 Washburn Ave N (Single Family) John & Gail Lamberte) 03/14/05 -5- Initial: 3213 62nd Ave N (Single Family) Rishiram Khaimraj 5444 Camden Ave N (Single Family) Jon Helgason 6613 Camden Drive (Single Family) Mark Herstrom 6124 Emerson Ave (Single Family) Nicolas Lewis 2318 Ericon Drive (Single Family) Fong Yang 6301 Grimes Ave N (Single Family) Mai Her 6736 Quail Ave N (Single Family) Henry Yang TOBACCO RELATED PRODUCT Dollar Saver 6090 Shingle Creek Parkway Motion passed unanimously. 7c. RESOLUTION APPROVING PLANS AND SPECIFICATIONS AND AUTHORIZING ADVERTISEMENT FOR BIDS, IMPROVEMENT PROJECT NOS. 2005 -01, 02, 03, AND 04, LIONS PARK SOUTH AREA STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS RESOLUTION NO. 2005-42 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION APPROVING PLANS AND SPECIFICATIONS AND AUTHORIZING ADVERTISEMENT FOR BIDS, IMPROVEMENT PROJECT NOS. 2005 -01, 02, 03, AND 04, LIONS PARK SOUTH AREA STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. 7d. RESOLUTION DEFERRING SCHEDULED SOLICITATION OF REQUESTS FOR PROPOSALS ON PROSECUTION SERVICES RESOLUTION NO. 2005-43 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION DEFERRING SCHEDULED SOLICITATION OF REQUESTS FOR PROPOSALS ON PROSECUTION SERVICES The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. 03/14/05 -6- 7e. RESOLUTION RECEIVING AND ACCEPTING SUMMARY OF KEY OBSERVATIONS AND CONCLUSIONS AS PREPARED BY CARL H. NEU, JR. This item was moved from the Consent Agenda to Council Consideration Item No. l Of 8. PUBLIC HEARING ITEMS 8a. PROPOSED SPECIAL ASSESSMENTS FOR DISEASED TREE REMOVAL COSTS, DELINQUENT WEED REMOVAL COSTS, AND DELINQUENT PUBLIC UTILITY SERVICE ACCOUNTS 1. RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR DISEASED TREE REMOVAL COSTS TO THE HENNEPIN COUNTY TAX ROLLS 2. RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR WEED REMOVAL COSTS TO THE HENNEPIN COUNTY TAX ROLLS 3. RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR DELINQUENT PUBLIC UTILITY SERVICE ACCOUNTS TO THE HENNEPIN COUNTY TAX ROLLS Mr. McCauley referred to the staff report and said these are the Public Hearings to receive public comments on certifying special assessments for diseased tree removal costs, delinquent weed removal costs, and delinquent public utility service accounts. There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to open the Public Hearing. Motion passed unanimously. No one wished to address the Council. There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to close the Public Hearing. Motion passed unanimously. RESOLUTION NO. 2005-44 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR DISEASED TREE REMOVAL COSTS TO THE HENNEPIN COUNTY TAX ROLLS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 03/14/05 -7- RESOLUTION NO. 2005-45 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR DELINQUENT WEED REMOVAL COSTS TO THE HENNEPIN COUNTY TAX ROLLS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. RESOLUTION NO. 2005-46 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR DELINQUENT PUBLIC UTILITY SERVICE ACCOUNTS TO THE HENNEPIN COUNTY TAX ROLLS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 8b. IMPROVEMENT PROJECT NO. 2004-14, CONTRACT 2004 -H, SHINGLE CREEK PARKWAY AND SUMMIT DRIVE STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS 1. RESOLUTION ORDERING IMPROVEMENTS AND AUTHORIZING DEVELOPMENT OF PLANS AND SPECIFICATIONS FOR IMPROVEMENT PROJECT NO. 2004 -14, CONTRACT 2004 -H, SHINGLE CREEK PARKWAY AND SUMMIT DRIVE STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS Mr. McCauley said there are two Public Hearings for the improvement project and introduced Director of Public Works /City Engineer Todd Blomstrom to provide a presentation on the scope of the project and the proposed special assessments. Mr. Blomstrom said the first Public Hearing is to take public input and order the improvements and authorize development of plans and specifications for Improvement Project No. 2004 -14, Shingle Creek Parkway and Summit Drive street, storm drainage, and utility improvements, and the second Public Hearing is to take public input and consider certification of proposed special assessments for the project. Mr. Blomstrom displayed a PowerPoint presentation on the proposed project, which includes roadway, storm drainage, and utility improvements for the Shingle Creek Parkway and Summit Drive area, 69th Avenue North, and the Palmer Lake pedestrian trail. He said this project was included in the 2005 Capital Improvement Program (CIP). He reviewed the improvement needs that were identified in the feasibility report as follows: 03/14/05 -8- • Street Improvements — replacement of segments of deteriorated curb, sidewalk, pavement, center median, traffic signal loop detectors, and pavement marks and construction of a right turn lane at the intersection of 69th Avenue North and Shingle Creek Parkway; • Storm Drainage Improvements — replacement of segments of storm sewer along Summit Drive, reconstruction of a storm sewer vault near City Hall, and replacement of structure castings; • Water Main Improvements — replacement of various hydrants and rehabilitation of 16 -inch diameter water valves; • Sanitary Sewer Main Improvements — replacement of segments of sanitary sewer pipes and access structures along Summit Drive; • Trail Improvements replacement of segments of the Palmer Lake bituminous P p g pedestrian trail, eliminating the parallel trails and expanding the trail to 10 -feet wide. Mr. Blomstrom reviewed the project budget and the various funds that would pay for the cost of this project. He said Summit Drive and Shingle Creek Parkway are State Aid roads. He explained that the bid will include an option with or without the Earle Brown Heritage Center parking lot. He reviewed the special assessment payment options as follows: 1. Pay in full — no interest between March 15 and September 30, 2005. 2. Pay in full from October 1 to November 29, 2005, with interest calculated at 5.5 percent. 3. Pay in installments with property taxes over a ten -year period starting in 2006 with interest calculated at 5.5 percent. Mr. Blomstrom discussed the preliminary project schedule which anticipates the project being bid May 3, 2005, with substantial completion by September 15, 2005. He explained there will be a preconstruction meeting that all property owners in the area will be notified and encouraged to attend. He stated other forms of communication with property owners will be a newsletter, the construction hotline, the City's Website, and the City Construction Coordinator. Councilmember Niesen inquired about the addition of the turn lane on 69th Avenue North and if the Holiday Commissary contributed to that traffic. Mr. Blomstrom responded affirmatively that they contributed to the traffic, but only marginally to the total traffic counts. He further stated as part of the development agreement, Holiday Commissary contributed approximately 50 percent of the costs of the improvement. Councilmember Niesen inquired why the Earle Brown Heritage Center parking lot would be a separate bid. Mr. Blomstrom responded that with a City improvement project, large companies bid on long sections of streets and trails and it may not be the lowest bid for the parking lot. Councilmember O'Connor inquired if bonds would be sold to cover the cost of this project. Mr. Blomstrom responded that bonds were necessary for the special assessments which are approximately $272,000. 03/14/05 -9- Councilmember O'Connor noted there were several parcels owned by the City and inquired how the City would pay its assessments. Mr. McCauley responded that it comes out of the Street Construction Fund which is from property taxes. Councilmember O'Connor raised the question of street closure. Mr. Blomstrom responded that along Shingle Creek Parkway there would be one lane of traffic kept open and the entire road would not be closed. Councilmember Carmody inquired about the sinking portion of the trail. Mr. Blomstrom responded there is a portion of the trail that is on a peat bog which is not included in this project, and he suggested using out the life of the bituminous and replacing with a woodchip trail in the future. There was a motion by Councilmember Lasman, seconded by Councilmember Niesen to open the Public Hearing. Motion passed unanimously. No one wished to address the Council. There was a motion by Councilmember Lasman, seconded by Councilmember Niesen to close the Public Hearing. Motion passed unanimously. RESOLUTION NO. 2005-47 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION ORDERING IMPROVEMENTS AND AUTHORIZING DEVELOPMENT OF PLANS AND SPECIFICATIONS FOR IMPROVEMENT PROJECT NO. 2004-14, CONTRACT 2004 -H, SHINGLE CREEK PARKWAY AND SUMMIT DRIVE STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. 2. RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR IMPROVEMENT PROJECT NO. 2004 -14, CONTRACT 2004 -H, SHINGLE CREEK PARKWAY AND SUMMIT DRIVE STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS TO THE HENNEPIN COUNTY TAX ROLLS Mayor Kragness introduced Resolution Certifying Special Assessments for Improvement Project No. 2004 -14, Contract 2004 -H, Shingle Creek Parkway and Summit Drive Street, Storm Drainage, and Utility Improvements. There was a motion by Councilmember Lasman, seconded by Councilmember O'Connor to open the Public Hearing. Motion passed unanimously. 03/14/05 -10- No one wished to address the Council. There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to close the Public Hearing. Motion passed unanimously. RESOLUTION NO. 2005-48 Councilmember Niesen introduced the following resolution and moved its adoption: RESOLUTION CERTIFYING SPECIAL ASSESSMENTS FOR IMPROVEMENT PROJECT NO. 2004 -14, CONTRACT 2004 -H, SHINGLE CREEK PARKWAY AND SUMMIT DRIVE STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENTS TO THE HENNEPIN COUNTY TAX ROLLS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 8c. AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING THE ZONING CLASSIFICATION OF CERTAIN LAND (SOUTHWEST CORNER OF 71ST AVENUE NORTH AND BROOKLYN BOULEVARD) Mr. McCauley said this ordinance is the final step relating to the Osseo School District's replatting and rezoning for its adult education facility. Planning and Zoning Specialist Ron Warren said the ordinance amendment would re- describe the properties that were part of the rezoning in the southwest quadrant of Brooklyn Boulevard and 71 st Avenue North. He said the Planning Commission and Council reviewed the proposal and request to rezone and the site and building plan application. He said the Council approved the preliminary plat which established the new legal description which is used in this ordinance amendment. The matter had been tabled by the Council at a number of meetings because the final details on the final plat had not been before the Council. He said the final plat had been filed. Councilmember O'Connor raised the question whether approval of this ordinance requires a 2/3 vote. Mr. McCauley responded affirmatively. Councilmember O'Connor said she reviewed the Comprehensive Plan and it did not suggest changing this quadrant to commercial. She said she does not believe the Osseo School District has money to spend on this type of building when there are children to teach, and the money could be used for a new K -12 school. She also stated it is a public building and the City would be receiving no taxes. She said she is against this ordinance change. Mr. Warren requested to comment and explained that the Planning Commission and the Council did review the application with respect to the consistency and the proposed rezoning with the 03/14/05 -11- Comprehensive Plan. He said the provisions in the Comprehensive Plan and the Brooklyn Boulevard Streetscape Amenities Study are somewhat mixed; however after review, Public Hearing, and recommendation, it was found that the proposal was consistent with the City's Comprehensive Plan which would allow for an expansion of a commercial /service office infill type of rezoning in that area. Councilmember Niesen inquired about the 60 -day rule with regard to this application. Mr. Warren responded that the 60 -day rule applies to all Planning Commission applications that are submitted by applicants requesting a zoning determination. He said when an application is received, the date is stamped on the application and it is noted when the 60 -day period expires. He further stated the applicant needs an answer within that 60 -day timeframe to be compliant with State Law. He explained an answer was given to the school district with regard to the preliminary plat, rezoning, and site and building plan approval. Mayor Kragness said that according to the materials provided in the agenda packet the application was approved by the Council on November 8, 2004. Mr. Warren explained that in the Zoning Ordinance all of the property is listed by zoning type and in order to rezone and move the designation from one section of the ordinance to another, the ordinance has to be amended. He said the ordinance amendment is required to go through the process of a first reading and second reading and Public Hearing according to the City Charter. He further stated with regard to a rezoning from residential to commercial, the 2/3 vote is required on adoption of the ordinance. There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to re -open the Public Hearing. Motion passed unanimously. No one wished to address the Council. There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to close the Public Hearing. Motion passed unanimously. Councilmember Carmody responded to Councilmember O' Connor's earlier comments regarding the use of the school district funds. She said this was a bond issue that was approved by the voters in the Osseo School District, and she did not believe it was appropriate for the Council to tell the Osseo School Board how to spend its money, as well as it would not be appropriate for the Osseo School Board to tell the Council how it should spend its money. Councilmember Niesen asked what the implication would be if this ordinance was not adopted. Mr. LeFevere responded he would like to first caution the Council that the question of whether the school district needs this money or how they spend this money is not a proper consideration for rezoning. He said the basis for the decision must be on the land use zoning. He said he believes it would not be legally defensible to turn this down, as it is not a legally sufficient basis to turn it down. 03/14/05 -12- ORDINANCE NO. 2005-01 Councilmember Carmody introduced the following ordinance and moved its adoption: AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING THE ZONING CLASSIFICATION OF CERTAIN LAND (SOUTHWEST CORNER OF 71 ST AVENUE NORTH AND BROOKLYN BOULEVARD) The motion for the adoption of the foregoing ordinance was duly seconded by Councilmember Lasman. Voting in favor: Mayor Kragness, Councilmember Carmody, Councilmember Lasman, and Councilmember Niesen. Voting against: Councilmember O'Connor. Motion passed. 8d. AN ORDINANCE VACATING CERTAIN DRAINAGE AND UTILITY EASEMENTS WITHIN LANG ADDITION, REPLAT OF BLOCK 2 LANG ADDITION AND CENTER BROOK ADDITION Mr. McCauley said this is another one of the components of the property located at the southwest corner of 71st Avenue North and Brooklyn Boulevard for Independent School District No. 279 which vacates utility easements that were determined by the Public Works Department to be unnecessary for purposes of utilities. There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to re -open the Public Hearing. Motion passed unanimously. No one wished to address the Council. There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to close the Public Hearing. Motion passed unanimously. Councilmember O'Connor raised the question of whether the vacating of this easement would cut utilities to homes. Mr. Blomstrom responded that the utility companies are not currently using this easement. ORDINANCE NO. 2005-02 Councilmember Lasman introduced the following ordinance and moved its adoption: AN ORDINANCE VACATING CERTAIN DRAINAGE AND UTILITY EASEMENTS WITHIN LANG ADDITION, REPLAT OF BLOCK 2 LAND ADDITION AND CENTER BROOK ADDITION The motion for the adoption of the foregoing ordinance was duly seconded by Councilmember Carmody. Voting in favor: Mayor Kragness, Councilmember Carmody, Councilmember Lasman, and Councilmember Niesen. Councilmember O'Connor abstained. Motion passed. 03/14/05 -13- 9. PLANNING COMMISSION ITEM 9a. PLANNING COMMISSION APPLICATION NO. 2005-003 SUBMITTED BY BEAR CREEK CAPITAL, LLC. REQUEST FOR REZONING FROM R -1 AND C -1 TO PUD /C -2 AND DEVELOPMENT PLAN APPROVAL THROUGH THE PLANNED UNIT DEVELOPMENT (PUD) PROCESS FOR A 13,000 SQ. FT. CVS PHARMACY ON A PROPOSED 1.53 ACRE SITE LOCATED AT THE NORTHWEST CORNER OF COUNTY ROAD 10 AND BROOKLYN BOULEVARD. THE PLANNING COMMISSION RECOMMENDED APPROVAL OF THIS APPLICATION AT ITS FEBRUARY 17, 2005, MEETING. THIS ITEM WAS TABLED FROM THE FEBRUARY 28, 2005, CITY COUNCIL MEETING. 1. PRESENTATION ON ZONING CHANGE ADOPTION RULES Mr. LeFevere said he would start by clarifying the 60 -day rule and explained that the Legislature requires that public bodies act within 60 days from the date of application on a rezoning, as well as a whole host of other land issues. He said if the Council were to deny the application, it must adopt findings that are legally valid reasons for denying it. He explained the Council can extend the 60 days for an additional 60 days if it feels that it needs the additional time, and the applicant can agree to or waive the 60 -day rule or consent to an extension of time. He explained that whether it is 60 days, 120 days, or whatever timeframe, there is a deadline that the Council must either approve or deny and give reasons and if they do not do either of those things, then the application becomes approved by the passage of time. He explained there are several reasons that a Council might not act on an application within the 60 days, such as the majority of the Council chooses not to act, or inadvertence, or inclement weather, or there is no quorum; if there is no action, then the Law says that is an approval. He said the critical item is the application for a rezoning and explained the event that requires the extraordinary majority 2/3 vote, which for Brooklyn Center is 4 of the 5 members, is the final act of adoption of the ordinance. He further explained there is another peculiarity of the 60- day rule and outlined that if a member moves for approval and it passes, then the application is approved; if a member moves for denial and it passes, then that is considered action within the 60 days; if a member moves approval but it fails, then the dissenting members would have to state in the minutes the legally sufficient reasons for denial; and if there is a motion to deny and it fails he said it does not matter, the motion just fails. Mr. LeFevere reviewed again that the reasons for denial must be written, legally defensible, and legally sufficient otherwise they could be arbitrary and capricious and would not be sustained and may not be considered a statement for reasons. He said the reasons must be in the public interest and consistent with the Zoning Ordinance. Mr. LeFevere referred to the Comprehensive Plan and explained that it is the planning document that other official controls are built on and it is put into effect to conform with the zoning code and the City is required to conform the zoning code to the Comprehensive Plan. He noted in order to change the Comprehensive Plan, it would require a 2/3 vote. 03/14/05 -14- Mr. LeFevere outlined the requirements for a super majority vote, which would require four votes to rezone residential land to commercial or industrial use. He said that all of these steps prior to the final adoption require only a simple majority vote to pass. He further stated the final action is the adoption of the ordinance, which is not on the agenda for the Council to approve this evening and cannot be on the agenda because it requires publication and Public Hearing. Mr. LeFevere said this affects valuable property rights, and the Constitution requires that the action be defensible and cannot be arbitrary and capricious in order to sustain an action in the area of land use. He said there has to be legally sufficient reasons related to the health, safety, and welfare to justify its decision. Councilmember Niesen said she believed that Mr. Warren stated that it met the 60 -day rule and asked for clarification. Mr. Warren responded that all the requirements of the Law must be completed in order to accomplish the rezoning. He said there were two applications filed; the first was the preliminary plat, which the Planning Commission reviewed and held a Public Hearing and the Council approved; the second application was for a PUD (Planned Unit Development), which is a rezoning with a development plan in hand, and it was forwarded to the Council. Mr. Warren reviewed the procedure, explaining the date the application is received in the Community Development Department is the date the clock begins for the 60 -day period. He said there are provisions in the ordinance which require notice, publication, and Public Hearing. He stated once an application is submitted there are a number of requirements that must be met on the part of the applicant, and the applicant is required to submit in writing its justification for consistency with Section 35 -208 of the City Ordinance. He explained that with all the requirements for publication and notice to property owners within 350 feet of the property, it takes about 30 days of the 60 -day time period to comply with those requirements before the Planning Commission has had a chance to review it. He said the Council had asked that the Planning Commission not leave the Council with its decision to be made on the last day of the 60 -day period. He stated the Planning Commission has altered its procedures for review of a rezoning request. He further stated that typically the zoning request would be referred to the Neighborhood Advisory Committee for review; however, because of the Statute with the 60 -day limit, the Planning Commission altered its procedure to meet the 60 days in order to get the application to the Council for approval in a timely fashion. He said the Planning Commission invites the Neighborhood Advisory Committee to the meeting at which the Public Hearing would take place, provides the Advisory Committee with the materials submitted by the applicant, and requests input. He said the Planning Commission has always taken these matters under consideration, held a Public Hearing, reviewed the ground rules that have been laid out for evaluating a rezoning, and formally given the Council a set of findings through a resolution. Councilmember Niesen referred to the conditions and considerations included in the resolution and inquired if the resolution were adopted, would it mean that the rezoning was approved. Mr. Warren responded that approval of the resolution indicates to the applicant that the Council is approving the findings of the Planning Commission and the rezoning is approved. He continued that there are other legal requirements to accomplish the rezoning. 03/14/05 -15- Councilmember Niesen raised the question of how this works if the resolution only requires a simple majority vote but the rezoning requires a 2/3 vote. Mr. LeFevere responded that State Law requires a 2/3 vote to approve rezoning. He suggested that the resolution may need to be modified to include that the resolution does not rezone the property and the approval is contingent upon completion of a rezoning. Councilmember Niesen responded that she would like to add the City Attorney's suggested wording as a condition in the resolution. 2. RESOLUTION REGARDING THE DISPOSITION OF PLANNING COMMISSION APPLICATION NO. 2005-003 SUBMITTED BY BEAR CREEK CAPITAL, LLC Mr. Warren said the applicant, Bear Creek Capital, LLC, is seeking rezoning from R -1 and C -1 to PUD /C -2 of five contiguous lots located at the northwest corner of County Road 10 and Brooklyn Boulevard and development plan approval through the Planned Unit Development (PUD) process for a 13,000 sq. ft. CVS Pharmacy. He said three of the five residential lots are zoned C -1, which is a non - conforming use, and if the homes were destroyed more than 50 percent, they could not be rebuilt and the property would need to be consistent with the C -1 zoning. He explained the applicant's plan is to demolish and/or otherwise remove the five existing single family homes and other accessory buildings to build a 13,000 sq. ft. CVS Pharmacy, which would have cross driving, parking, and access rights with the neighboring dental center site to the north. With regard to access, Mr. Warren said the applicant and Hennepin County have tentatively agreed to a proposal that will allow joint use of accesses to the CVS site and the dental clinic site. He said that the seven existing accesses to the County roads would be closed with two new full access points being established, one at the very northeast corner of the dental clinic site and the other at the very southwest corner of the CVS site. He said that a "right in only" access will be established off Brooklyn Boulevard to the CVS drive lane and parking lot; the median on Brooklyn Boulevard will be shortened on the north end; and the median break on County Road 10 will be closed; and the left turn lane from County Road 10 to northbound Brooklyn Boulevard will be extended to just east of the proposed new access to the CVS site. He said Hennepin County had indicated that the proposal had addressed traffic concerns and was an improvement to the intersection. Mr. Warren directed the Council's attention to the Planning Commission information sheet and referred to Page 2 of the report which deals with the zoning guidelines and criteria used to judge whether it should be favorable. He said the City Engineer had reviewed the site plan and made comments relating to the site and building plan, and those conditions are included in the resolution. He referred to Planning Commission Resolution No. 2005 -01 that was adopted by the Planning Commission at its February 17, 2005, meeting. He said the Planning Commission holds a Public Hearing, takes input, and then takes formal action and lists its findings and conditions in a resolution. He reviewed the six conditions included on Pages 1 and 2 of Planning Commission Resolution No. 2005 -01. He explained the applicant requested a variance from the 35 -foot buffer that is required along the west side of the site. He said the Planning Commission believed the modification from the C -2 standard is justified on the basis of the development being an appropriate redevelopment of the area and it is offset or mitigated by various factors, including additional landscaping to provide 03/14/05 -16- additional screening from the abutting R -1 properties. He reviewed the landscaping and screening requirements, noting the applicant proposes an 8 -foot high opaque maintenance free compost fence along with extensive landscaping. Mr. Warren referred to Pages 2 -21 and 2 -22 of the Comprehensive Plan, relating to Brooklyn Boulevard, and stated it recommends gradually eliminating single - family homes and replacing them with either commercial and office /service uses or high- and medium- density residential uses. He displayed Figure 2 -3 of the Comprehensive Plan 2020 and referred to the recommended land use for the northwest corner of Brooklyn Boulevard and County Road 10, which is identified as retail business. He said the Planning Commission did review this and did state this proposal is consistent with the City's Comprehensive Plan. He explained that is the key factor, and if the proposed plan does not meet or is not consistent with the Comprehensive Plan, then it should not be approved. He said the Planning Commission finds all of the factors necessary to consider favorably for rezoning have been met by the developer. Mr. Warren said the Planning Commission also reviewed the site and building plan and recommended 19 conditions in its resolution. He said the Planning Commission's consideration, the staff report, the aspects of the rezoning that were evaluated, the portions of the City Ordinances relating to zoning that have been met, and the recommendation and conclusion by the Planning Commission are that the applicant met that test and therefore recommended approval. He said a resolution is offered for consideration by the Council. He stated if the Council makes findings that are land use related, then it can choose to deny the application; however, citing that the City does not need another drug store or suggesting that there are other sites available are not legally sustainable or defensible. He said CVS reviewed other locations and were not interested in the other locations and are pursuing this location. 2.1. PUBLIC INPUT /COMMENT Cheryl Lungura, renting one of the properties to be removed, addressed the Council and said she believes the proposal is good because the houses were supposed to be removed and this area developed as commercial. She indicated there a number of conditions with her house that need repair and fixing which would cause an increase in her rent. She said the landlord has offered her an opportunity to purchase her own home at a price that she could afford. She stated the traffic has always been horrible, many accidents occur, and she believes it would help significantly to eliminate the driveways. She further stated that she does not see a use for this property as a park or school, as it is not a safe place for children. She encouraged the Council to grant approval of the CVS Pharmacy proposal. Kristen Mann, 5415 East Twin Lake Boulevard, addressed the Council and expressed concerns regarding residents in the southwest neighborhood exiting onto County Road 10 from Drew Avenue North. She inquired about the proposed left turn lane heading eastbound on County Road 10 and how far westerly it would extend. Mr. Warren responded that the turn lane would extend down to just prior to the driveway on the home that remains on the corner of Drew Avenue North and County Road 10. Ms. Mann said if there is a redevelopment before the Council and it does meet the 03/14/05 -17- Comprehensive Plan, then the Council should follow the Comprehensive Plan and preserve the integrity of the neighborhood that this project would abut. She expressed a concern with the narrow buffer behind the dental clinic, noting that it currently narrow and does not think it will be improved. She further stated the plan shows that parking will be shared with the neighboring property and there may not be enough parcels combined to allow for the necessary parking to meet the requirements. Phil Cohen, 5501 Humboldt Avenue North, addressed the Council and said this proposal goes beyond the neighborhood and affects the entire community. He said this type of development requires no public funds, increases the tax base, offers employment opportunities, provides consumer choice, and meets the Comprehensive Plan requirements. With regard to tax base, he said it would increase from $9,379 to $90,000 in taxes and this tax base would also help the school district. He stated there are many more difficult projects that will require public funds, and this project is a clean, simple proj ect that does not require public funding and should be given favorable consideration. He reviewed a situation that occurred a number of years ago when he served on the City Council in which a proposed development was denied by the Council and the City was sued and lost. He encouraged the Council to work out a compromise to avoid litigation. Tim Barrett, Bear Creek Capital, LLC, addressed the Council and said he believed after hearing all of the input that it comes down to property rights. He said Bear Creek Capital, LLC, reviewed the City's Comprehensive Plan and researched so that what they brought to the community was going to be well - received and successful. He reviewed the history of the CVS Pharmacy, explaining it has been around for 70 years and the company own its stores. He said in relation to the Comprehensive Plan, the CVS proposal meets the criteria. With regard to the parking lot, he said there is enough parking, but the combined parking lot with the dental clinic site allowed them to reduce curb cuts from eight cuts to three along the County roads. He said Hennepin County approved the plan and commended them on the curb cut reduction. He stated CVS Pharmacy will bring competitive prices and believes it will succeed. He concluded by stating that it meets all the criteria and the Comprehensive Plan and asked for favorable consideration. Delores Hanson, 3918 58th Avenue North, addressed the Council with a concern regarding the traffic on County Road 10 and exiting her driveway. She discussed there are other vacant properties and suggested other sites for the CVS Pharmacy and questioned who would benefit from this redevelopment. Mayor Kragness responded Hennepin County did a study that indicated this proposed plan will improve the traffic flow. Councilmember Carmody responded by reviewing some of the sites that are vacant as follows: the Jerry's NewMarket site was too large and is not for sale; the Rainbow Foods site has a proposed tenant; across the street from the Fire Department was not available; and the mall where Pep Boys is located is under eminent domain, so these sites were not available to CVS. Tim Willson, 7007 Dallas Road, addressed the Council and said he is currently the Chair of the Planning Commission and was fortunate to have served on the Comprehensive Plan Task Force. He said he spent a lot of time studying the Comprehensive Plan, and according to the Comprehensive Plan, this site is a win/win for the City. He stated the City was not involved in taking any of the land or investing in the proposal, and it meets and exceeds the criteria of the Comprehensive Plan. He 03/14/05 -18- continued the developer has worked with all the land owners and purchased the land and has done this project on their own. He further stated the City and Planning Commission has no input on where a developer can put its property when it is a private development. He said on behalf of the Planning Commission, he recommends approval by the Council. Mayor Kragness asked if anyone else wished to address the Council; there being none, she commended the Planning Commission and the Community Development Department. There was a motion by Councilmember Lasman to adopt Resolution Regarding the Disposition of Planning Commission Application No. 2005 -003 Submitted by Bear Creek Capital, LLC. Councilmember Niesen requested to insert the zoning clarification that the City Attorney had previously outlined. Mr. LeFevere said that a condition could be added and suggested the following language, "Approval of this resolution does not constitute rezoning of the property and approval of the plan is contingent on rezoning of the property." Councilmember Carmody raised the question of whether the rezoning had to occur before the 60 -day time period. Mr. LeFevere responded the Council does not have to rezone the property; it could deny it, extend it, or approve it. He said a rezoning ordinance with a 2/3 vote will have to be passed, or the 60 -day rule will have to operate to cause the rezoning to occur, or a court will have to order the rezoning because it doesn't find there is sufficient basis to uphold the Council's findings. He reiterated the Council would have to adopt the ordinance to effect the zoning. There was a motion by Councilmember Niesen, seconded by Councilmember O'Connor to amend the resolution and extend the time period for another 60 days to move past March 21, 2005. Councilmember Carmody raised the question of the implication if the Council were to approve both the resolution and the first reading of the ordinance on a 3 -2 vote. Councilmember Niesen said unless the Council approves the 60 -day extension, it won't matter if the Council holds the Public Hearing because the 60 days will have expired and the rezoning will be approved by inaction of the Council. Mr. LeFevere said if the Council does not want the ordinance to be adopted by operation of the 60- day rule, the Council will have to direct staff to do an extension of time. He said if the Council wants to prevent the ordinance from being adopted because the 60 days has run out, then the only way the Council can stop that from happening is by directing staff to give notice of an extension up to 60 days. Mayor Kragness commented after all the input and technical and legal information that was provided tonight, she doesn't believe that the Council would have a reason to deny this zoning change. Mr. Barrett addressed the Council and stated that the people who live in those homes are putting their lives on hold. He said if the Council is going to deny the application, then do it as a group and 03/14/05 -19- state the reasons. He indicated CV S is entitled to due process and that includes delivery of what the Comprehensive Plan has directed the Council to do. He said if the Council chooses to deny this application, then do so and CVS will take the actions they need to take. Councilmember O'Connor said this plan does not have the 35 -foot buffer required to abut residential property and, therefore, she will not vote for it. Mr. Barrett responded he cannot disagree with that but can work through that issue. He said it is an issue of site plan and does not govern zoning and suggested adding a condition to help meet that need to satisfy that issue. Mr. LeFevere responded and explained that the reason the application is for a PUD /C -2 is because it does not meet the requirement of the 35 -foot buffer; however, the applicant proposed alternative mitigation measures which the Planning Commission found adequate. He said the PUD is not just a site plan approval, but is a Planned Unit Development and is all about the buffer because that is the only non - conforming issue and it wouldn't be a PUD without the buffer issue. Councilmember Carmody seconded the aforementioned motion on adoption of Resolution Regarding Disposition of Planning Commission Application No. 2005 -003 Submitted by Bear Creek Capital, LLC. The question was called on the motion to amend the resolution and extend the time period for another 60 days to move past March 21, 2005. Voting in favor: Councilmember Niesen and Councilmember O'Connor. Voting against: Mayor Kragness, Councilmember Carmody, and Councilmember Lasman. Motion failed. There was a motion by Councilmember O'Connor, seconded by Councilmember Niesen to table the resolution until after the Council decides on the zoning issue. Councilmember Niesen said if the Council doesn't vote on an extension, then it will pass by inaction. Councilmember Carmody said she does not want this to drag on and she believes she is taking action by voting for approval, as it moves it on, the 60 days expire, and it goes through. She said by not turning this down, it is taking action. Councilmember Niesen withdrew her second on the motion to table the resolution until after the Council decides on the zoning issue. Motion dies for lack of a second. Councilmember Niesen said there are many issues in the Comprehensive Plan, and it supports the C- 1 service /office for the proposed site, and this proposal is retail. She stated the only reference to retail is in the Brooklyn Boulevard Streetscape Amenities Study. She expressed her concerns for the business on the corner as the traffic, safety, and exiting from her neighborhood which is difficult to navigate. She stated she received phone calls and e -mail from people who agree that the traffic is a problem and do not favor this proposal. She said there are legitimate concerns with this proposal, indicating the 35 -foot buffer; however, the applicant stated it could be worked out. She said the Comprehensive Plan and the Brooklyn Boulevard Streetscape Amenities Study do comprehend removing the houses along Brooklyn Boulevard and that has been something that the Council has supported moving toward. She continued what hasn't been supported is moving an encroachment 03/14/05 -20- down onto Bass Lake Road, and it is not indicated in the Comprehensive Plan. She referred to the Comprehensive Plan and discussed the area south of 59th Avenue North. Mr. Warren responded that the comment in the Comprehensive Plan is referring to 59th Avenue North on the east side of Brooklyn Boulevard between Brooklyn Boulevard and Xerxes Avenue North. He further stated the Comprehensive Plan clearly recommends retail business for this corner and displayed the map labeled Figure 2 -3. He said it is a neighborhood commercial node, and retail business is exactly what the applicant is requesting. Councilmember Niesen discussed the parking, expressing the proposal seems too big to fit in that location and there is traffic safety concerns. Mr. Warren requested to comment and said the right in only from Brooklyn Boulevard was recommended by the County. With regard to the buffer, he said Section 35 -355 of the City Ordinance clearly states an applicant can modify from the general underlying C -2 requirements of the C -2 zoning designation given plan consideration and mitigating circumstances and those are the findings and recommendations that have been made by the Planning Commission. He further stated the buffer the applicant proposes in lieu of the 35 -foot buffer is considered to be adequate and appropriate due to the plan that has been submitted. Councilmember Niesen said traffic is very heavy and it is very difficult to get out of the neighborhood. She said the traffic will increase and the sidewalks are close to the street. Mr. Warren responded this particular development will not increase traffic to any appreciable extent on either Brooklyn Boulevard or County Road 10, as it is not a destination generator. He said he does not believe the development will create traffic that will cause gridlock. Councilmember Niesen said she has learned that no other sites are available and understands that availability of other sites is not a zoning issue. She inquired if CVS Pharmacy will be open 24 hours. Mr. Barrett responded that at this time it will not be a 24 -hour pharmacy, noting that determination is generally based on customer needs. Councilmember O'Connor said the traffic turning in and out of the pharmacy will create more accidents. She said it is more of a drive - through area and not a neighborhood - oriented area, and it would be difficult for a walker to get to the site with the sidewalk so close to the street. She further stated the 35 -foot buffer is not compliant with the zoning requirements. Mr. Warren responded the only area where the 35 -foot buffer is required is along the property line from the CVS Pharmacy to the residential and explained the dental clinic property is only a 15 -foot buffer requirement. He said the mitigated buffer that is offered is about a 33 -foot buffer with an eight -foot fence and the Planning Commission has recommended approval. RESOLUTION NO. 2005-49 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION REGARDING THE DISPOSITION OF PLANNING COMMISSION APPLICATION NO. 2005-003 SUBMITTED BY BEAR CREEK CAPITAL, LLC 03/14/05 -21- The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Voting in favor: Mayor Kragness, Councilmember Carmody, and Councilmember Lasman. Voting against: Councilmember Niesen and Councilmember O'Connor. Motion passed. There was a motion by Councilmember O'Connor, seconded by Councilmember Niesen to direct staff to initiate a 60 -day extension. Voting in favor: Councilmember Niesen and Councilmember O'Connor. Voting against: Mayor Kragness, Councilmember Carmody, and Councilmember Lasman. Motion failed. 3. AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING THE ZONING CLASSIFICATION OF CERTAIN LAND (NORTHWEST CORNER OF COUNTY ROAD 10 AND BROOKLYN BOULEVARD) Councilmember Niesen said she doesn't see the need to hold the Public Hearing. Mr. McCauley responded that since there has not been an extension, the request would be deemed approved. He said generally the resolution and introduction of the ordinance are within the 60 -day period and assuming the Council has approved those, the rezoning in the ordinance becomes more of a housekeeping item that follows up based on the expression of the Council's will. He stated it is up to the Council if it wants to introduce the ordinance and set the date of Public Hearing for April 11, 2005. Councilmember O'Connor said she would be voting against the ordinance amendment because she does not want to change the zoning. Councilmember Carmody said she is taking action on this application by voting on it. She said she wanted to decide on this issue and not drag it out. There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to approve first reading, which sets second reading and public hearing for April 11, 2005. Voting in favor: Mayor Kragness and Councilmembers Carmody and Lasman. Voting against: Councilmembers Niesen and O'Connor. Motion passed. 10a. RESOLUTION IN SUPPORT OF SOLID WASTE MANAGEMENT COORDINATING BOARD'S LEGISLATIVE INITIATIVE TO CREATE A VIABLE SOLUTION FOR ELECTRONIC WASTE Amy Roering, Hennepin County Department of Environmental Services, addressed the Council and said the resolution is in support of the Solid Waste Management Coordinating Board's legislative initiative to create a solution to the growing amount of electronic waste. She stated the Solid Waste Management Coordinating Board consists of two commissioners from each of the counties of Anoka, Carver, Hennepin, Dakota, Ramsey, and Washington. She said Hennepin County has run a recycling program since 1992. 03/14/05 -22- Councilmember Lasman raised the question of what is a viable solution. Ms. Roering responded there are five different elements, including shared responsibility among manufacturers, retailers, and generators; reliable and convenient collection options; responsible recycling of CRTs; a mechanism to address the backlog of CRTs; and a preference for cost internalization or advance recycling fee over end -of -life fees. Ms. Roering explained there are four bills in the Legislature right now which have different mechanisms. Councilmember Niesen inquired about the advanced fee and is not in favor of it. She said it would be more sensible to pay to recycle the electronic waste at drop -off rather than when it is purchased. She inquired if businesses were already addressing this issue. Ms. Roering responded that is another solution in one of the bills, and Hennepin County is reviewing all of the bills. Councilmember O'Connor inquired what would happen if nothing passed, since there already is a law that will take effect July 1, 2005. Mr. Roering responded that as of July 1, 2005, it will be illegal for anyone to throw electronic devices with a CRT in the garbage. Councilmember O'Connor said even if this resolution is not passed, it will it still be the responsibility to recycle electronic waste properly. RESOLUTION NO. 2005-50 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION IN SUPPORT OF SOLID WASTE MANAGEMENT COORDINATING BOARD'S LEGISLATIVE INITIATIVE TO CREATE A VIABLE SOLUTION FOR ELECTRONIC WASTE The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Voting against: Councilmember O'Connor. Motion passed. RECESS Council recessed at 10:23 p.m. and reconvened at 10:28 p.m. 10b. EXPANDED SCOPE OF 2004 AUDIT Councilmember Niesen said she would like an expanded scope of the 2004 audit to include payroll sampling. She read a memorandum she drafted. Councilmember Lasman indicated she is opposed to spending any additional money to do the audit sampling. She also stated she believes the auditor does a thorough job already and hasn't had any reason to not trust the auditor's recommendation. She said she does not believe there is a need for the expanded audit. 03114/05 -23- Councilmember Niesen said the auditor told her that sampling in the audit is common, but sampling in the payroll area is something that has not been done. She said there is an error in payroll and the explanation did not satisfy her. Councilmember Lasman stated she does not care if the auditor does the payroll sampling, but she does not see a need. Mayor Kragness indicated the Council is to be dealing with policy issues, not management issues. Councilmember Carmody said she agrees with Councilmember Lasman in not expending any additional funding for the expanded scope. She suggested that wording be included in the motion. Mayor Kragness said she has a concern with the word "consensus" because she doesn't think the entire Council has agreed upon it and does not think this is something the Council should be involved. Mr. McCauley said this was not an agenda item included in the materials and the audit is up to the Council. He said what's not functional is when a Council is not dealing with the auditor as a whole Council. He suggested contacting the auditor and requesting the auditor to prepare an outline for the Council on random sampling of payroll and put it on as an agenda item at the next meeting for Council consideration. There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to direct staff to have the auditor prepare a proposal on what the auditor will be doing in its expanded scope of the 2004 audit for the Council to consider at its next meeting. Motion passed unanimously. loc. REQUEST OF WATERSHED COMMISSIONS FOR COMMENT ON PROPOSED CAPITAL IMPROVEMENT PROGRAM COST SHARING POLICY Mr. McCauley said the Watershed Management Commissions submitted a proposal requesting review and comment on a proposed Capital Improvement Program Cost Sharing Policy. He said it involves the levying of an ad valorem tax on all properties in the watershed to fund $125,000 per year in contribution to capital projects in the watershed. He stated it proposes assessing 25% of the annual project cost to the City directly benefiting and 50% to the contributing or benefiting communities. He added the Watershed district would then determine a Capital Improvement Plan. He said the benefit of the concept is that there would be an assemblage of money to do some of the larger regional projects. He said the downside is that currently each community has control over projects, and with this proposal the Watershed could decide to impose a capital improvement on a 2/3 vote of the Commission and certify some or all of the cost to the county for an ad valorem tax levied on all taxable property in the watershed. Mr. Blomstrom said there are large projects that serve large drainage areas that would be a benefit to Brooklyn Center, noting one of the areas is the wetland area north of Twin Lake. He said one 03/14/05 -24- concern would be where to draw the line on the CIP and what would be the structure; another concern would be that every city would want to include all of its watershed projects on the list and then someone else would have to pay a portion of it. He said he recommends there be some type of formula to cost share for these projects and there be some type of control that if a project is considered to be placed on the Capital Improvement Program for the watershed it should serve more than one individual city. Councilmember Carmody said she believes this is a cooperative way that cities can work together to move forward and address drainage issues for both the contributing and benefiting cities. She said a concern would be that there is a proposal for a $36 fee on the water bill with the Clean Water Legacy Act for water quality, and then this would add another ad valorem tax for watershed. There was discussion regarding the funding of the Watershed Management Commission's Capital Improvement Projects and amount they would spend each year and how that amount can be levied. Councilmember Carmody referred to Page 4 of the materials from the Watershed Management Commissions relating to the project Inline Treatment Devices, Crystal Lake, with an estimated cost of $400,000 and a proposed city share of $300,000. With city budget fluctuations, she raised a question for the Watershed of what would happen if the city could not afford to do this project when the time came for the project to be considered. Councilmember Carmody said she is in favor of doing some of these projects and the Watershed has indicated it is looking for feedback from the cities. Councilmember Niesen said in reviewing the information from the Watershed Management Commissions, the proposed Cost Sharing Policy indicates the Commission's share should be 25 %; the cities' share 75 %, with the area directly benefiting from the project to be apportioned 25% of the cost based on proportion of lake or stream frontage; and 50 percent of the cost apportioned on contributing/benefiting area. She said when she first reviewed this information, she thought the cost would be born on the taxpayers directly on the water. Councilmember Niesen said there are so many jurisdictions governing water and the owners of property along the water do not necessarily pollute the water, nor will they benefit from it being cleaned up. She said she believes there should be something included that would ensure that waterfront taxpayers won't have to bear the burden of the entire amount. Councilmember O'Connor said she would like the Watershed Commission to consider ideas of naturally reducing the pollution, such as not installing curbs with street projects so the water would soak into the ground and not flow to the river and streams, and not use the salt on the roads in the winter. 03/14/05 -25- FIX HOUR OF ADJOURNMENT There was a motion by Councilmember O'Connor, seconded by Councilmember Niesen to extend the meeting past 11:00 p.m. for another 15 minutes. Motion passed unanimously. Continued discussion ensued regarding Item No. l Oc, and Mr. Blomstrom responded the Watershed looks at nutrients, chlorides, temperature, and various different elements that affect the water. Mr. LeFevere responded the Commission is looking at a number of non - structural improvements, such as phosphorous fertilizer, goose droppings, curly leaf, and the City is doing that as well as part of the Storm Water Management Plan. He explained the request from the Watershed Management Commissions is how to pay for this and whether to do capital projects. Her further sated it cannot all be done with the non - structural elements. Councilmember O'Connor said she would like to see this done naturally and not do any large g proj ects. Mr. McCauley said the Watershed Management Commissions are looking for reaction to the proposed Capital Improvement Program Cost Sharing Policy, and it would like the Council to identify the issues it would like the Commission to address. Mr. LeFevere said under the Joint Powers Agreement, all capital improvement projects require a 2/3 vote of the Watershed Management Commission. He said in order to levy a tax, the County Commissioner would have to approve it or the commission could, with a 2/3 vote, simply send the bill to the City and the City would have to come up with the funding. He said this proposal is to try to develop some consensus to find the best way to fund these projects. Councilmember Niesen inquired if anyone in the audience wanted to comment. Curtis Erickson, 4809 Twin Lake Avenue, addressed the Council and said the lakeshore property owners are the most conscious about how the lake is being taken care of, and they shouldn't have to be penalized for living on the lake and having to pay to clean it up. There was discussion regarding funding these projects and where it would come from. There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to table the request of the Watershed Commissions for comment on proposed Capital Improvement Program Cost Sharing Policy to March 28, 2005. Motion passed unanimously. 10d. SET DATE AND TIME FOR CITY COUNCIL RETREAT There was a motion by Councilmember Lasman, seconded by Councilmember Niesen to amend the 2005 City Council meeting schedule to set the date and time for the Council Facilitated Retreat for Wednesday, September 14, 2005, at 2 p.m. at Earle Brown Heritage Center. 03/14/05 -26- Councilmember Carmody said she would be voting against this, as she does not think the Council is benefiting from the Facilitated Retreat and she does not want to spend the money to bring Mr. Neu from Colorado. Councilmember Niesen said Mr. Neu is working on the City Manager's review and would like to see him finish that. She suggested waiting until 2006 to discuss whether or not to continue with the Facilitated Retreats. Voting in favor of the aforementioned motion: Mayor Kragness, Councilmember Lasman, Councilmember Niesen, and Councilmember O'Connor. Voting against: Councilmember Carmody. Motion passed. 10e. RESOLUTION TO RECEIVE PETITION FOR STREET AND STORM DRAINAGE IMPROVEMENTS ALONG 48TH AVENUE NORTH FROM DREW AVENUE NORTH TO LILAC DRIVE NORTH Mr. McCauley said Cass Screw and Machine Company, which owns parcels on both sides of the street along 48th Avenue North from Drew Avenue North to Lilac Drive North has requested the street improvements be done and agrees to pay special assessment costs as apportioned by the City. RESOLUTION NO. 2005 -51 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION TO RECEIVE PETITION FOR STREET AND STORM DRAINAGE IMPROVEMENTS ALONG 48TH AVENUE NORTH FROM DREW AVENUE NORTH TO LILAC DRIVE NORTH The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. 10L RESOLUTION RECEIVING AND ACCEPTING SUMMARY OF KEY OBSERVATIONS AND CONCLUSIONS AS PREPARED BY CARL H. NEU, JR. This item was moved from the Consent Agenda to Council Consideration Item No. l Of. There was a motion by Councilmember Niesen, seconded by Councilmember Lasman to table this resolution due to the late hour. Motion passed unanimously. 03/14/05 -27- 11. ADJOURNMENT There was a motion by Councilmember Niesen, seconded by Councilmember Carmody to adjourn the City Council meeting at 11:20 p.m. Motion passed unanimously. / City Clerk Mayo 03/14/05 -28-