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HomeMy WebLinkAbout1979 07-23 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 JULY 23, 1979 CITY HALL CALL TO ORDER The Brooklyn Center City Council met in regular session and was called to order by Mayor Dean Nyquist at 7:00 p.m. ROLL CALL Mayor Dean Nyquist, Councilmembers Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott. Also present was City Manager Gerald Splinter, City Attorney Richard Schieffer, Director of Planning and Inspection Ron Warren, Director of Public Works Sy Knapp, Building Official Will Dahn, and Administrative Assistant Mary Harty. INVOCATION The invocation was offered by Councilmember Kuefler. APPROVAL OF MINUTES - JULY 9, 1979 There was a motion by Councilmember Lhotka and seconded by Councilmember Scott to approve the minutes of July 9, 1979 as submitted. Voting in.favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. OPEN FORUM Mayor Nyquist opened the meeting for the purpose of the Open Forum session. There was no one to appear at the Open Forum. Mayor Nyquist closed the Open Forum session. PERFORMANCE BOND RELEASES The City Manager referred the Council to a memorandum from the office of Planning and Inspection which included a recommendation.for bond releases for Gallery of Homes, Brookdale Ford and Moorwood Townhouses. The City Manager also referred the Council to a copy of a letter which had been received from Mr. Caputo to Mr. Burmeister. The letter confirms a discussion wherein a settlement of $2,250 was agreed upon by the Board of Directors for the Moorwood Homeowners Association covering all claims against First Wisconsin. In conjunction with payment of the settlement proceeds, a general release must be executed by the members of the Moorwood Homeowners Association. There was a motion by Councilmember Kuefler and seconded'by Councilmember Fignar to release the per - formance bonds for Gallery of Homes, Brookdale Ford and Moorwood Townhouses. In discussion of the motion, a representative of Moorwood Homeowners Association asked to be recognized. The representative of Moorwood Homeowners Association stated the Association was very near making a settlement with First Wisconsin as indicated in the letter to Mr. Burmeister from Mr. Caputo. He added it was necessary to sign release forms. He asked the Council to delay the release of the performance bond until the settlement has been finalized and the release forms signed. It was the consensus of the Council to delay the performance bond release until the August 13 City Council meeting in order to accommodate the Homeowners Association. There was a motion by Councilmember Kuefler and seconded by Councilmember Fignar to amend the motion on the floor. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. 7 -23 -79 -1- There was a motion by Councilmember Lhotka and seconded by Councilmember Fignar to approve the performance bond releases for Gallery of Homes and Brookdale Ford and to table the performance bond release for Moorwood Townhouses until the August 13, 1979 City Council meeting. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The Building Official stated there may be a problem with tabling the performance bond release because a new developer was taking over the development and would be posting a new bond for the additional work needed. Furthermore, he stated there was no assurance the people of the Moorwood Homeowners Association would cooperate in signing the release. He suggested if the City delayed the performance bond release, it would put the City in a position between the Homeowners Association and First Wisconsin. The City would be placed in a position of attempting to obtain compliance on maintenance items not site work. The maintenance items in actuality are totally unrelated to the bond and, therefore, the position may not be legally defensible for the City. He stated it may not be in the best interest of the City to be in a position of holding site bonds to get maintenance work done because that was a civil matter. Mayor Nyquist recognized Mr. Ben Caputo,.a. mortgage banking officer for First` Wisconsin. Mr. Caputo stated First Wisconsin has complied with the City require - ments thus far and therefore, First Wisconsin is asking for the release of the bond. Councilmember Kuefler stated the Council has a responsibility to the constitutents and suggested an extra three weeks was reasonable and the bond could be released at that time. Mr. Caputo further stated the development has been inspected many times by the City and at all times First Wisconsin has complied with the City requirements. The City Attorney questioned Mr. Caputo how First Wisconsin would be hurt if the bond was held an additional three weeks. Mr. Caputo responded it did pose a hardship to the company because the company would be unable to close sale on the property. Mr. Caputo explained their $50,000 outstanding performance bond would leave First Wisconsin responsible if a contractor erred in any way in the develop - ment. The City Attorney inquired whether there were contingencies other than the closing which First Wisconsin was concerned about. Mr. Caputo responded the $50,000 outstanding performance bond hindering the closing was the main concern. Mr. Caputo also stated it might be difficult to get all of the individual releases. signed before August 13 due to vacations, etc. The representative of Moorwood Homeowners Association stated the Association found the terms of the agreement thus far acceptable and stated the Association and First Wisconsin were very near a settlement and again asked the Council to delay release of the bond. Again, Mr. Caputo stated there were 24 families involved and all owners must sign the release. The Building Official stated the City might be setting a precedent by becoming involved in this apprently civil matter. He stated he did not have a problem per se with the tabling of the release unless it did in fact create problems for the City in terms of a precedent for the future. There was a motion by Councilmember Fignar and seconded by Councilmember Scott to reconsider the motion which included a delay on the release of the performance bond for Moorwood Townhouses until August 13. Voting in favor: Mayor Nyquist, Councilmembers Fignar, Lhotka, and Scott. Voting against: Councilmember Kuefler. The motion passed. 7 -23 -79 -2- There was a motion by Councilmember Fignar and seconded by Councilmember Scott to reduce the P erformance bond from $50,000 to $5,000. Voting in favor: Mayor Nyquist, Councilmembers Fignar, Lhotka, and Scott. Voting against: Councilmember Kuefler. The motion passed. In further discussion of the motion, Council members stated a reduction to $5,000 would still leave enough money to control a settlement between the Association and First Wisconsin because the stated amount of settlement was $2,250, and yet the release of the other $45,000 would leave less exposure for First Wisconsin in completing the closing. RESOLUTIONS The City Manager introduced.a resolution amending the 1979 General Fund Budget. He stated the resolution, if adopted, will correct an error in the allocation of $22,524 for street department labor involved in the Shingle Creek relocation project during 1978. He explained the expense was budgeted for in the 1978 General Fund Street Department Budget but, through a misunderstanding, was charged to the Capital Projects Fund. Since the misallocation was not discovered until the year had ended and the unexpended 1978 Street Department appropriation balance had been closed to the General Fund Unappropriated fund balance, the expense should now be charged to the 1979 General Fund Budget and the resolution would accomplish that. RESOLUTION NO. 79 -159 Member Celia Scott introduced the following resolution and moved its adoption: RESOLUTION AMENDING THE 1979 GENERAL FUND BUDGET The motion for the adoption of the foregoing resolution.was duly seconded by member Bill Fignar, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. The City Manager introduced a resolution accepting quotations for printing of the Manager's newsletter and fall and winter recreation programs. He recommended the quotation of American Color Press in the amount of $2,231 be accepted. RESOLUTION NO 79 -160 ° Member Tony Kuefler introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING THE PURCHASE OF PRINTING OF THE FALL AND WINTER RECREATION PROGRAMS AND CITY MANAGER'S NEWSLETTERS The motion for the adoption of the foregoing resolution was duly seconded by member Gene Lhotka, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. The City Manager introduced a resolution authorizing truck rental for Central Park site grading (Project No. 1978 -41). He stated the trucks will be used to transfer various soils from their present location on site to areas where those soil types are required to meet landscaping and development plans. Councilmember Kuefler questioned how long the trucks would be used and how many would be used. The City Manager explained three vehicles would be used up to $10,000 of time. In response to questions concerning the grants, the City Manager explained the City has received two grant approvals, two more grants are being finalized and one more grant is in preparation which is not related to•Central Park. He stated the grants -3- were LAWCON grants for.trailways in Central Park. He explained the trailways funding was 90% state and federal and 10% City and the park grant funding was 75% state and federal and 25% City. RESOLUTION NO: 79 - 161 Member Celia Scott introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING THE RENTAL OF TANDEM TRUCKS FOR HAULING MATERIALS IN CONJUNCTION WITH CENTRAL PARK GRADING PROJECT NO. 1978-41 The motion for the adoption of the foregoing resolution was duly seconded by following voted in member Bill Fignar, and upon vote .being taken thereon, g g P g favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. The City Manager introduced a.resolution postponing the bid opening date for Shingle Creek Parkway Project (Contract 1979 - D). He explained approval of the plans for MN /DOT state aid was not received.until July 9, 1979. This did not allow adequate time for a distribution of plans and for bidders to' evaluate the project and submit bids by the scheduled.July 16, 1979 bid opening. Adoption.of a resolution confirming a delay to July 25, 1979 opening date is recommended. RESOLUTION NO. 79 -162 Member Gene Lhotka introduced the following resolution and moved its adoption: RESOLUTION AMENDING RESOLUTION NO. 79 -133, ADOPTED JUNE 11, 1979, APPROVING PLANS AND SPECIFICATIONS AND DIRECTING ADVERTISEMENT FOR BIDS FOR BRIDGE AND ROADWAY CONTRACT 1979 -D The motion for the adoption of the foregoing resolution was duly seconded by member Bill Fignar, and upon vote.being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the.same: none, whereupon said resolution was declared duly passed and adopted. The City Manager introduced a resolution accepting the proposal for installation of roofing on the salt storage building. He stated two proposals have been solicited and acceptance of the bid of G. A. Jacobson Roofing Company in the amount of $6,630 is recommended." RESOLUTION NO. 79 -163 Member Celia Scott introduced the following resolution and moved its adoption: RESOLUTION ACCEPTING QUOTATION FOR ROOFING PORTION OF SALT STORAGE BUILDING IMPROVEMENT PROJECT NO. 1978 -43 (CONTRACT 1979 -F) The motion for the adoption of the foregoing resolution was duly seconded by member Tony Kuefler, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. The City Manager introduced a resolution authorizing a professional service agree- ment with Orr- Schelen- Mayeron and Associates, Inc. for a study of standby power provisions for sewage lift stations. He stated development of a system and plan event sewer backup and /or discharge ene ation is needed to P for standby rawer � r r t of raw sewage in the event of power failure. 7 -23 -79 -4- The Director of Public Works explained Orr - Schelen - Mayeron and Associates had done the original design work on the stations. In response to questions from the Council, the City Manager explained the consultant would be looking at all nine stations and designing a system of standby power for that. He stated the consultant may recommend some standby generators on site and in other cases may recommend switching stations. The City Manager stated it was necessary to receive outside consultation on this matter. In response to other questions from the Council, the Director of Public Works explained the $39,000 will not give specifications but will recommend a type of total program for development of a system and plan for standby power generation. RESOLUTION NO. 79 -164 Member-Tony Kuefler introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING PROFESSIONAL SERVICES AGREEMENT FOR STUDY OF STANDBY POWER PROVISIONS FOR SEWAGE.LIFT STATIONS The motion for the adoption of the foregoing resolution was duly seconded by member Bill Fignar, and upon vote being taken thereon, the following voted in favor thereof; Dean Nyquist, Tony Kuefler, Bill.Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. The City Manager introduced a resolution accepting revisions for the Critical Areas Plan. He explained the City Council had passed a proposed Critical Areas Plan in.accordance with the Minnesota Critical Areas Act and Executive Order No. 130,by the Governor of the State of Minnesota. Following review of the plan, the Metropolitan Council staff suggested certain revisions which the City staff and the Critical Area Planning consultant concurred with. Those revisions are included in the resolution approving rovin revisions to the Critical Areas Plan. The Director of Planning and Inspection indicated he wished the Council to consider adding a point #9 which would read "The City will develop flood plain ordinance consistent with Metropolitan Council guidelines ". In discussion of the resolution, Couricilmember Lhotka stated he would like the reference.to "an upgraded" T.H. 169 deleted. The Council concurred they wished that reference to be deleted. RESOLUTION NO. 79 -165 Member Celia Scott introduced the following resolution and moved its adoption: RESOLUTION APPROVING REVISIONS.TO THE CRITICAL AREAS PLAN The motion for the adoption of the foregoing resolution was duly seconded by member Gene Lhotka, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. ORDINANCES The City Manager introduced an ordinance amending Chapter 17 of the City Ordinances relative to residency requirements for police officers. He stated the ordinance was first read on June 25, 1979, published on July 5, 1979 and is presented this evening for a second reading. 7 -23 -79 -5- ORDINANCE NO. 79 -12 Member Gene Lhotka introduced the following ordinance and moved its adoption: AN ORDINANCE AMENDING CHAPTER 17 OF THE CITY ORDINANCE RELATIVE TO RESIDENCY REQUIREMENTS FOR POLICE OFFICERS The motion for the adoption of the.foregoing ordinance was duly seconded by member Tony Kuefler, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said ordinance was declared duly passed and adopted. The City Manager introduced an ordinance vacating the utility and drainage easement existing on a portion of Lot 1, Block 1, J. R. Murphey Addition. He explained the ordinance was first read on June 25, 1979, published on July 5, 1979. and is presented this evening for a second reading. ORDINANCE NO. 79 -13 Member Tony Kuefler introduced the following ordinance and moved its adoption: AN ORDINANCE VACATING THE UTILITY AND DRAINAGE EASEMENT EXISTING ON A PORTION OF LOT 1, BLOCK 1, J. R. MURPHEY ADDITION - The motion for the adoption of the following ordinance was duly seconded by member Celia Scott, and upon vote being taken thereon, the following voted in favor thereof: Tony Kuefler, Bill Fignar, Gene Lhotka, and.Celia Scott; and the following voted against the same: none, whereupon said ordinance was declared duly passed and adopted. Mayor Nyquist abstained from voting because the ordinance concerned a client of his. DISCUSSION ITEMS The City Manager introduced a discussion on the employee assistance program contract renewal for the City of Brooklyn Center. He referred Council members to a memorandum from Administrative Assistant Mary Harty explaining the back- ground, cost and use of the program. The City Manager recommended the Council approve the contract renewal. There was a motion by Councilmember Lhotka and seconded by Councilmember Fignar to approve the employee assistance program contract renewal. Voting in favor:' Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager introduced a discussion.on identification of legislative issues. by the City Council for the League of Minnesota Cities. He explained the League has asked Councils to recommend five major issues of importance to the City for the Minnesota Cities Legislative Committees. The City Manager asked the Council to complete an included form and those issues of importance would be forwarded to the League. Council members briefly discussed certain issues of importance., self- insurance, sewer rate for elderly, ability of municipalities to set speed limits and the need to simplify the gambling and bingo statutes. DISCUSSION OF INDUSTRIAL REVENUE BONDS The City Manager explained the Council had asked that a public hearing for.the issuance of certain industrial revenue bonds be set for the July 23, 1979 City Council meeting. He explained there was a problem of notice for the public hearing and it would be necessary to set the public hearing and abide by Statutes regarding proper published notice. He suggested the Council might wish to set the public hearing date for August 13. 7 -23 -79 -6- Imo« RESOLUTION NO. 79 -166 Member Bill Fignar introduced the following resolution and moved its adoption: RESOLUTION CALLING FOR PUBLIC HEARING PURSUANT TO MINNESOTA STATUTES, SECTION 474.01, SUBD. 7b The motion for the adoption of the foregoing resolution was duly seconded by member Celia Scott, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. RESOLUTION NO. 79 -167 Member Bill Fignar introduced the following resolution and moved its adoption: RESOLUTION RELATING TO A PROJECT UNDER THE MUNICIPAL INDUSTRIAL DEVELOPMENT ACT; CALLING FOR A PUBLIC HEARING The motion for the adoption of the foregoing resolution was duly seconded by member Celia Scott, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. DISCUSSION ON A REPORT ON NOISE WALLS The City Manager referred the Council to a memorandum from the Director of Public Works which explained that Project Engineer Norm Jansen reports that most sodding work will be delayed until about September 1. The decision of when to start sodding is the contractor's, not MN /DOT's and it -is the contractor `s responsibility to maintain the sod for thirty days after it is laid. The memorandum explains. Mr. Jansen also advised the contraction of the noise walls is complete and that any extension or raising would have to be incorporated into a future contract. It was also recommended that any extension or raising of the walls be discussed with Mr. Weischselbaum. The Director of Public Works indicated that he had prepared a letter to Mr. Weischselbaum which was attached. Mr. Weischselbaum advised the Director of Public Works that he will ask designers to review this matter and then report back to the City Council. Councilmember Kuefler stated he would also like information as to what can be done to maintain the sod in the area on the north side of the freeway near Quail Avenue. He stated he has received complaints from the residents because they cannot maintain this sod due to iron rods and rocks and other debris lying in the weeds. Councilmember Kuefler asked that he be contacted when the information had been acquired. The City Manager stated the Director of Public Works and the City Weed Inspector would take care of the matter and provide the information to Councilmember Kuefler. - AN UPDATE ON THE NO FAULT GRIEVANCE PROCESS The next discussion item was an update by Councilmember Lhotka on the No Fault Grievance Process which the Human Rights Commission is investigating. Council - member Lhotka explained a representative from the State Human Rights Department had spoken at the July Human Rights Commission meeting and explained the No Fault Grievance Process to the Human Rights Commission. Councilmember Lhotka briefly explained the No Fault Grievance Process indicating it was a voluntary process. Both parties in a controversy voluntarily would come before the Commission. If the dispute could not be resolved, the parties would be free to take no action or 7 -23 -79 -7- to take up the matter with the State Human Rights Department. Councilmember Lhotka explained the Commission was interested in the No Fault Grievance Process but there were several areas of concern and questions were raised in the area of data privacy laws as they relate to the records of No Fault Grievance proceedings, the liability of individual commissioners and /or the City for actions taken or not taken as part of the No Fault Grievance Process, open meeting law requirements as they relate to No Fault Grievance proceedings and a clarification of jurisdictional questions. Councilmember Lhotka stated these questions needed answers before the Human Rights Commission would be prepared to make any sort of recommendation to the Council. Councilmember Lhotka stated he would keep the Council informed as to the progress in investigation of the No Fault Grievance Process. PLANNING COMMISSION ITEMS The City Manager introduced Application No..79018 submitted by Arthur Kvamme for a rezoning from R -1 (single family residential) to R -3 (townhouse /garden apartment) of an approximate 3� acre site located between 55th and 56th Avenues at approxi- mately Aldrich Avenue North. This item was tabled by the Commission and referred to the southeast neighborhood advisory group on April 12, 1979. Application No. 79018 was recommended for approval at the June 14, 1979 Planning Commission meeting. Application No. 79018 was tabled at the June 25, 1979 City Council meeting and the Council asked the developer to investigate private covenants as a way to insure owner - occupied townhouses. Mayor Nyquist noted the public hearing on Application No. 79018 had been held and ip closed and the application had been tabled to allow the sides to attempt to reach an agreement. Mayor Nyquist stated it appears in reading the document which is titled "agreement" that the document is not an agreement with the neighbors but only an agreement amongst the owners of the properties in question. Mayor Nyquist recognized Mary Simmons, 5530 Camden Avenue North, who stated there was not an agreement with the neighbors. The document titled "agreement" had been presented to the neighbors and it had not been negotiated. She stated she had checked with legal counsel and the document titled "agreement" does not appear to protect the neighbors. Mr. Kvamme stated he had consulted legal counsel. He stated he was not an attorney but was representing Madsen Floral. He stated a meeting had been held and neighbors had been given notice of the meeting and invited to attend. He stated the people in attendance at the meeting as well as people who he had met with before were not opposed to owner occupied townhouses. He stated he had attempted in good faith to reach an agreement which would be acceptable to the neighbors. Mr. Kvamme stated legal counsel retained by Madsen Floral was in attendance at the Council meeting. Mr. Dougherty was legal counsel for Madsen Floral. Mr. Dougherty briefly reviewed the problem with the land locked land necessitating the R -3 zoning request. He stated he had prepared a written document which he stated could be incorporated into the plat. He stated if Madsen Floral and the other owners in question were attempting to perpetrate a fraud, the City Council could rescind the rezoning. He stated Madsen Floral and the property owners had shown good faith. They also would use the covenant as part of the plat. Again, he stated they had shown good faith effort in their willingness to do something of a particular nature to insure the neighborhood of owner occupied dwellings. Mayor Nyquist questioned legal counsel of Madsen Floral whether or not the neigh- bors could enforce the agreement and how that enforcement would take place. Mr. Dougherty responded the covenant could be filed as part of the plat. The City Council would then have the instrumentality to rescind the rezoning if necessary. 7 -23 -79 -8� The City Attorney stated private covenants are not enforceable by the City. He stated as City Attorney he did not want to be in a position to decide what consti- tutes an agreement in this situation and what would not but he did state several points to be considered. First, a covenant is enforceable only by the signing parties. Second, a private covenant is not enforceable by the City. Finally, the agreement as written does not deal with a question of whether or not the property could be rental property or had to be owner occupied property, therefore, there is no guarantee of which way the property would be developed. Councilmember Lhotka commented the Council tabled the application at the last Council meeting in order to get private covenants which would be binding. He indicated it was his belief the Council made their wishes clear. He stated he did not think the intent of the Council's wishes had been met. He stated two courses of action were available to the Council. First, the Council could vote on the original issue or second, the application could be tabled again if the parties wished to attempt to reach an agreement. Councilmember Kuefler stated not all of the people in the 350 foot area had been notified of the meeting. Councilmember Kuefler stated the developer had been remiss in not contacting all of the people within 350 feet of the rezoned property. He further stated he concurred with Councilmember Lhotka's comments. Again, he stated the covenant should include people within 350 feet of a rezoned property. Councilmember Scott indicated she had sat in on the meeting held to attempt to reach an agreement. She stated there was more lack of agreement than there was agreement. She commented it appears there is much left to be discussed and decided. She indicated it appears if a binding covenant could be drawn up, the neighbors would be satisfied. She explained she was not opposed to owner occupied town- houses but also understood the neighbors' concerns. Mayor Nyquist stated the problem appears to be that there is only one party involved in the agreement. The agreement was amongst the owners themselves and did not include the neighbors. Mr. Kvamme questioned whether the Council wished them to get 100% agreement of all the neighbors. Mayor Nyquist stated he understood this was a logistical problem and had suggested that the neighbors might wish to consider the formation of an association. Mary Simmons stated she had consulted legal counsel and the neighbors were forming an association. She stated the papers had not yet been returned for the formation of the organization. She stated the neighbors need certainty of enforceability before they would be satisfied. Mr. Dougherty stated the word irrevocable could be added to the agreement which would make it enforceable. Mayor Nyquist commented he would like to give Mr. Kvamme and the neighbors additional time to work out an agreement. Mr. Kvamme questioned how long this application could be tabled. The City Attorney stated the Council had 48 days in which -to make a decision. Mayor Nyquist questioned the applicant as to whether the applicant would concur with a tabling of the applica- tion until the next Council meeting on August 13, 1979. Mr. Kvamme stated he did concur with the tabling until August 13, 1979. There was a motion by Councilmember Scott and seconded by Councilmember Fignar to table Application No. 79018 until the August 13, 1979 City Council meeting. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. 7 -23 -79 -9- The City Manager requested Mr. Kvamme and a representative of the neighbors to provide the office of the City Manager with the agreement or other additional information on August 9, 1979 prior to the August 13, 1979 Council meeting in order that copies could be provided to the City Council for their review. Mr. Kvamme stated it was his understanding the next move was up to the neighbors. Mary Simmons questioned that since Mr. Kvamme had been given an extension, is it the responsibility of the neighbors to seek out Mr. Kvamme. Mayor Nyquist suggested it would facilitate the process if Mr. Kvamme would work through a com- mittee or through representatives of the association of neighbors which is being drawn up. Mrs. Kvamme questioned the Council whether or not it was common practice to pro - ceed with a rezoning in the manner in which this particular rezoning had proceeded. Mayor Nyquist responded the Council does not rezone based on a plan. The situation with this rezoning is that the plan came first and the neighbors want an assurance that that plan will be carried through. Mr. Kvamme questioned whether or not there were models of the type of an agreement which had been discussed. The Council suggested Kvammes check with Creek Villa Townhouses, Orrin Thompson or New Horizon and they might find language which would serve their purposes. Mary Simmons read briefly from a report prepared by her concerning the preliminary requirements for any acceptable covenant between Arthur'Kvamme /Madsen Floral and the neighborhood. The City Manager stated Application No. 79018 would again be considered at the August 13, 1979 City Council meeting. The City Manager introduced Application No. 79035 submitted by Brooklyn Center Industrial Park for site and building plan.approval for the Berger Brothers Retail Sporting Goods Shop located on John Martin Dirve westerly of Perkins. He stated Application No. 79035 was recommended for approval at the July 12, 1979 Planning Commission meeting. The Director of Planning and Inspection pointed out that the building would be located on the 1.35 acre portion of the easterly half of Tract N, RLS 1325, south of John Martin Drive and west of Perkins Restaurant. He stated that 8,820 square feet of the building is designed for retail sales area and 1,425 square feet for storage. He noted the property is zoned for C -2 and that retail sales as sporting goods is a permitted use for that zone. The storage or warehouse space, is con- sidered accessory to the principal permitted use and does not constitute a conflict with the zoning. He noted that the plan provides for the minimum required 85 parking stalls (two designated for handicapped at the northeast corner of the building and adjacent to a service ramp). He pointed out that the layout shows a five foot drain area along the southeast property line and a seven foot drain area along the east property line in keeping with the City standards. In addition, a 15 foot drain area is provided along John Martin Drive. The Director of Planning and Inspection pointed out that the property shares a 30 foot common driveway with a neighboring parcel (proposed for the St. Louis Park Medical Clinic) which is divided evenly by the west property line. Appro- priate access and common roadway agreements will be necessary. The Director of Planning and Inspection indicated the parcel is fairly level varying no more than three feet over the entire site. Drainage would generally be in a westerly direction with the north portion of the site draining towards John Martin Drive and the southerly portion of the site draining to the northeast toward a low 7 -23 -79 -10- area in the common driveway. The Director of Planning and.Inspection briefly reviewed the landscape plan noting that it indicates a four foot high berm in the green area adjacent to John Martin Drive and a two foot high berm around the loading dock area. Plantings for the site include skyline locusts, hackberry and black hill spruce, Fitzer junipers and Japanese bayberries. He also noted that the two traffic grounds in the parking lot were proposed for landscaped treatment. Councilmember Kuefler questioned whether item #11 in the Planning Commission con - ditions of approval takes care of the easement concern. The Director of Planning and Inspection stated it did. Councilmember Lhotka questioned point #7 of the Planning Commission items which referred to an underground irrigation system for all the sodded and planted areas to facilitate site maintenance. He questioned whether irrigation would be required on the island areas. The Director of Planning and Inspection responded that no irrigation system was required on the island areas but there would be a rock and poly treated island with trees The Council briefly discussed the aesthetics of the exterior building treatment. There was a motion by Councilmember Fignar and seconded by Councilmember Scott to approve Application No. 79035 submitted by Brooklyn Center Industrial Park subject to the following conditions: 1. The building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. Grading, drainage and utility plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A performance agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. The building shall be equipped with an automatic fire extinguishing system to meet NFPA Standard No. 13 and shall be connected to a central monitoring device in accordance with Chapter 5 of the City Ordinances. 5. All outside trash disposal facilities and/or rooftop mechanical equipment shall be appropriately screened from view. 6. B612 curb and gutter shall be provided around all driving and parking areas. 7. An underground irrigation system shall be provided in all sodded and planting areas to facilitate maintenance. 8. The property shall be subdivided through platting or registered land survey. 9. A joint access agreement for the common driveway shared by their property and the property to the west shall be approved by the City Engineer prior to the development of the parcel to the west. The agreement shall be filed with the title to the property. 7 -23 -79 -11- " t,. 10. Plan approval is exclusive of all signery which is subject to the requirements of Chapter 34 of the City Ordinances. 11. The applicant shall enter into a standard utility maintenance agreement as approved by the City Engineer. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager introduced'Application No. 79040 submitted:by William- O'Brien Associates for site and building plan approval for an addition to the existing MTC building located at 6845 Shingle Creek Parkway. Application No. 79040 was recommended for approval at the July 12, 1979 Planning Commission meeting. The Director of Planning and Inspection stated the applicant proposes to construct a new 223 stall parking lot to accommodate an expanded operation which would include construction of a driver dispatch area on the south side of the building, maintenance area and bus area on the west side of the building. Internally, a new service bay area would be constructed. He stated that the expansion would increase capacity to 200 buses and it is anticipated that normally there would be no more than 175 buses on the site. He noted that the MTC estimates the maximum number of employees on the site at any one time to be approximately 100. He also pointed out that the total parking on the site plan amounted to 337 spaces, six of which would be handicapped stalls. The parking provided, exceeds the ordinance formula based on the number of employees as well as the square footage calculation. The Director of Planning and Inspection explained that the new driver dispatch area on the south would include lockers, lavatories, a drivers lounge, a dispatch area as well as some offices. He indicated that the new boiler and mechanics area on the north side would include space for storing sand, salt and dirt and the lunchroom. The new maintenance area would include space for parts and equipment storage, an area for mechanical work, a foreman's office, and an advertising shop. The bus traffic flow would be such that the buses would enter the site from Shingle Creek Parkway at the northwest entrance, and at the building at the southwesterly side of the building, and then continue through the drivers area where the drivers would leave the buses for runners to continue with the servicing and parking of-the vehicles. For the most part, buses would not leave the.building for servicing and parking. The only time buses would be expected.to be outside the garage would be during arrival and departure of scheduled routes. With respect to the landscape and berming plans, the.Director of Planning and Inspection noted that the applicant proposes to extend the existing berm on the westerly portion of the site, between the building and the Shingle Creek greenstrip, southerly around the new parking lot to provide screening from the greenstrip. He pointed out the City is currently holding a $20,000 site performance bond posted by Rauenhorst Corporation for landscape and other site improvements under the original proposal. He reported that Rauenhorst has indicated they will complete their portion of the site work. At the time of the original approval, landscaping south of the building in the area of the new parking lot had been deferred in anticipation of the expansion of the MTC garage. The Director of Planning and Inspection stated that the applicant has submitted a landscape plan that indicates additional trees and plantings throughout the site as well as the deferred area. They also propose to relocate existing trees and shrubs affected by the expansion. The Director of Planning and Inspection noted that staff had encouraged the appli- cant to consider the possibility of having joint access with the Spec 9 building on the eastern portion of the site. He stated that they are willing to cooperate with regard to such an access and will be pursuing this further although the sub- 7-23-79 -12- mitted plans do not indicate a joint access. The Director of Planning and Inspection also noted that the plans show the exterior finish of the new addition to be com- patible with the existing building, that being precast concrete panels with a vertical scoring texture. Councilmember Kuefler questioned whether this development would fill out the entire MTC site. The Director of Planning and Inspection responded there was some area left to be developed. Councilmember Kuefler commented he thought MTC also had an option on some adjacent property. The Director of Planning and Inspection commented MTC indicates that this completes the planned development they had in mind. A brief discussion ensued concerning traffic congestion caused by buses in the area of Humboldt Avenue and Freeway Boulevard. The City Manager indicated the City will be in touch with MTC about certain congestion and will be discussing possible ways to alleviate that. There was a motion by Councilmember Lhotka and seconded by Councilmember Fignar to approve Application No. 79040 submitted by MTC Garage subject to the following conditions: 1. Building plans are subject to review and approval by the Building Official. with respect to applicable dodes prior to the issuance of permits. 2. Grading, drainage and utility plans are subject to review and approval by the City Engineer prior to issuance of permits. 3. A performance bond and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. The building addition shall be equipped with an automatic fire extinguishing system to meet NFPA Standard No. 13 and shall be connected to a central montioring device in accordance with Chapter 5 of the City Ordinances. 5. All outside trash disposal equipment and rooftop mechanical equipment shall be appropriately screened from view. ° 6. B612 curb and gutter shall be provided around all driving and parking areas. 7. An underground irrigation system shall be provided in all sodded.and planted areas to facilitate site maintenance. 8. Plan approval acknowledges that the applicant is willing to share a common access onto Shingle Creek Parkway with the property immediately to the east. 9. The plans shall be amended to indicate 2 to 3 inch trees on the landscaping plan prior to the issuance of permits. 10. The applicant will enter into an agreement with the City under the approval of the City Engineer for acquisition of additional street right -of -way for the purpose of realigning Shingle Creek Parkway adjacent to the bridge over Shingle Creek. 7 -23 -79 -13- 11. Plan approval acknowledges the addition of a 14' x 14' overhead door and service drive located on the southwest side of the proposed new maintenance area to be used only by the articulated buses to gain access to their service stall. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager introduced Application No. 79041 submitted by A. E. I- Design, Inc. /Bob Ryan.Oldsmobile for a special use permit, site and building plan approval for an approximate 1,100 square foot used car sales office for Bob Ryan Oldsmobile, 6700 Brooklyn Boulevard. Application No. 79041 was recommended for approval.on July 12, 1979. The Director of Planning and Inspection stated the building would be a 28' x 41' building constructed south and east of the existing sales building on top of a concrete platform covering the center of the sales area. The new sales office will contain four offices and a lounge area. It will be connected to the new and existing buildings. The Director of Planning and Inspection pointed out that the proposed building will be serviced by two handicapped parking stalls, for filling State handicapped access requirements of one space per 50 regular parking spaces. He explained that both buildings are accessible by means of a ramp leading to a 12' wide open area between the areas.. The Director of Planning and Inspection noted that the exterior treatment of the new sales office will be similar to the existing building and roof. He pointed out that a planter is proposed at the southwest corner of the structure. Councilmember Kuefler questioned whether all of the site improvements which had caused a problem with an earlier application had been taken care of. The Director of Planning and Inspection noted there.was a $20,000 performance bond outstanding but no request had been made for release of the bond. It was the Director's recommendation that the bond should be extended for completion of new improvements. The improvements which had been problematic with another application had been taken care of. Noting that the application involves a special use permit, Mayor Nyquist opened the meeting for a public hearing. There was no one to speak on the application. There was a motion by Councilmember Scott and seconded by Councilmember Fignar to close the public hearing on Application'No. 79041. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. There was a motion by Councilmember Kuefler and seconded by Councilmember Fignar - to approve Application No. 79041 submitted by Bob Ryan Oldsmobile subject to the following conditions: 1. Building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. All outside trash disposal equipment and /or rooftop mechanical equipment shall be appropriately screened from view. 3. Plan approval is exclusive of all signery which is subject to the requirements of Chapter 34 of the City Ordinances. 4. The special use permit is acknowledged for continued approval, is issued to the operator of the facility and is nontransferable. 7 -23 -79 -14- 5. The special use permit is subject to all applicable codes, ordinances and regulations and any violation, thereof, shall be grounds for revocation. 6. The performance bond currently held for site improvements under Applica- tion No. 78001 shall be retained to assure completion of approved site improvements. 7. Grading, drainage and utility plans are subject to review and approval by the City Engineer prior to the issuance of permits. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager introduced Application No. 79042 submitted by Melvin Gittleman for a variance from Section 34 -140, 3c (3) of the City Ordinances (Sign Ordinance) to allow two identification signs at the main entrance to the Twin Lake North Apart- ments and Condominiums, 4500 -4710 58th Avenue North. Application No. 79042 was recommended for denial at the July 12, 1979 Planning Commission meeting. The Director of Planning and Inspection explained that this ordinance provision allows only one free standing indentification sign not to exceed 36 square feet in area at each major entrance to a multiple family residential development. The applicant desires to place two identification signs totaling 36 square feet in an area at a single common entrance to the Twin Lake North Apartments and the Twin Lake North Condominiums. The Director of Planning and Inspection stated the applicant has argued in the letter of application that the ordinance requirements for a variance from the Sign Ordinance are met because: 1) The driveway extending into both developments creates a hardship because it is divided generally by the municipal boundary of Brooklyn Center and Crystal, and the topography is poor on the Crystal.side of the entrance. 2) The situation is unique in that the main entrance serves two separate developments, one in Brooklyn Center, one in Crystal. 3) The granting of the variance will not be detrimental to the public welfare or injurious to other property because the total of the signs is within the maximum allowed by the ordinance. The Director of Planning and Inspection referred to Section 34 -140 containing the standards for variances from the Sign Ordinance. He stated that he did not believe the proposal met the requirements listed therein. A consistent reading of the Sing Ordinance requires that only one free standing identification sign be allowed per major entrance to a clustered establishment. No matter how many businesses or other uses share a common entrance, only one free standing sign is allowed for identification purposes at each entrance. The applicant's situation, therefore, does not seem unique. He also stated that a hardship is not demonstrated in this case apart from the applicant's aesthetic judgment which is considered too subjective a basis for determining hardship. The applicant will not suffer a particular hardship under a literal reading of the ordinance since he will be entitled to one 36 square foot free standing sign, as would be allowed in any similar circumstance. Finally, he argued, the variance if granted would not greatly improve the visibility of the complex, but could pose a safety hazard by possibly construing the common entrance as separate entrances divided by a median. The proposal seems at least potentially detrimental to the public welfare in as much as it creates a potential 7 -23 -79 -15- traffic hazard. The Director of Planning and Inspection pointed out what he considered to be the possibility for confusion from the two signs and the divided median. He also noted that the applicant is not planning on putting a sign at the other entrance to the complex. The Director of Planning and Inspection noted the Planning Commission had given the Planning staff direction to study a possible ordinance amendment to the Sign Ordinance. The Director of Planning and Inspection indicated the Planning staff would be making a study of possible ordinance revisions to the Sign Ordinance, Section 34 -140, 3c (3). Councilmember Kuefler questioned whether this was considered two developments. The Director of Planning and Inspection responded it was considered to be a clustered development with common access. The Building Official stated there could be a possible problem with splitting the signs and the messages because a sign in Brooklyn Center identifying property in Crystal would make that sign a billboard. Mayor Nyquist opened the meeting for purposes of a public hearing on Application No. 79042. Mayor Nyquist recognized Mr. Melvin Gittleman. Mr. Gittleman stated that under ordinance he would be allowed two free standing signs at 36 square feet each plus another 36 square foot sign erected on the Crystal side of the boundary. The proposal would be aesthetically superior to this option. He argued that the property is unique because it is divided by a city boundary. In response to questions from the Council, Mr. Gittleman.stated that he did not presently have directional signs but planned on putting them in. He further stated that he was willing to condition approval of the Sign Ordinance variance on giving up the other signery he would be allowed in Crystal and at the other major entrance. In response to questions from the Council as to whether or not other developments had used signs on both sides.of their major entrance, the Director of Planning and Inspection pointed out that Mr. Dietrich, the developer of the Ponds project, sought two 36 square foot signs. The Director of Planning and Inspection noted it had been suggested to the Planning Commission that if the Planning Commission feels the split in square footage in requirements is appropriate, it should consider an ordinance amendment rather than approve the variance in question. Mr. Gittleman stated that the proposal made sense aesthetically to him. Council members expressed the opinion that there was nothing wrong with the substance of the proposal and in fact Mr. Gittleman should be commended for attempting to aesthetically improve a development but agreed that an ordinance amendment might be a better way to proceed than granting a variance. Mr. Gittleman further explained signs he wished to install would be permanent signs and they would be made of cedar with carved letters. He added the signs would be aesthetically pleasing and would fit in with the landscaping and would provide balance. He reminded the-Council that when the land was zoned the schematic plan for the development included both.the apartments and the condominiums. It was known at that time that the entrance would serve both developments and the clustered develop- ment was contemplated from the inception of this development, thus Mr. Gittleman stated, he did not believe this type of sign would constitute a billboardo In response to questions from the Council, Mr. Gittleman explained the topography on part of the land was poor. There is a sharp drop in grades which would necessi- tate placing a large sign on stilts and Mr. Gittleman stated he did not feel this was in the best interest of the City or the development. 7 -23 -79 -16- There was a motion by Councilmember Lhotka and seconded by Councilmember Fignar to close the public hearing on Application No. 79042. Voting in favor:_ Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. Councilmember Kuefler questioned whether or not the Sign Ordinance is specific to R -3 development. The Director of Planning and Inspection responded the,Sign Ordi- nance applies to R -3 through R -7 zoning. Councilmember Kuefler stated he believed there was merit in looking at two signs rather than one and stated he believed an ordinance change might be appropriate. Councilmember Lhotka concurred that the application does not meet the standards for a variance but Councilmember Lhotka stated he would be willing to look at an ordinance change. Councilmember Fignar stated the proposal makes sense to him and further stated two signs could identify both the condominiums and the apartments. He commended Mr. Gittleman for the aesthetic appearance of the complex. He stated he would be in favor of pursuing an ordinance amendment which would allow the two signs. Councilmember Scott concurred with Council members' comments. She noted she was not in favor of granting a variance because the standards for a variance were not met but she was in favor of pursuing an ordinance amendment in order that the square footage could be divided between two signs. There was a motion by Councilmember Lhotka and seconded by Councilmember Fignar to deny Application No. 79042 submitted by the Gittleman Corporation on the grounds that the variance request does not meet Sign Ordinance standards for a variance. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. There was a motion by Councilmember Lhotka and seconded by Councilmember Scott to support the Planning Commission's recommendation to investigate a possible ordi- nance revision to the Sign Ordinance, Section 34 -140, 3c (3). Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. Council members explained to Mr. Gittleman it.might be possible to build the sign by fall if the ordinance amendment is passed. RECESS The Council recessed at 9:45 p.m. and reconvened at 10:00 p.m. The City Manager introduced Application No. 79043 submitted by Howard Atkins for site and building plan approval to add onto and remodel an abandoned service station at 6550 West River Road. Application No. 79043 was recommended for approval at the July 12, 1979 Planning Commission meeting. The City Manager noted Application No. 79043 was not listed on the agenda due to an error. He noted Mr. Atkins had been contacted that the application would be considered at this Council meeting and the City Manager asked the Council to consider Application No. 79043. The Director of Planning and Inspection pointed out that the site plan comprehends an area for outdoor storage to be enclosed by a six foot high opaque fence as - required by'Section 35 -412 of the City ordinances. He noted that the plan proposes nine parking stalls, which would be four short of the minimum required using the service /office parking formula. He stated the applicant has also provided a proof of parking plan indicating the additional parking stalls can be provided on the 7 -23 -79 -17- site. The Director of Planning and Inspection indicated that the nine stalls provided is based on the service /office formula.for 1,400 square feet and the warehouse parking , formula for the remainder. The Director of Planning and Inspection noted that the applicant proposes to close two existing curb cuts on:66th Avenue North and one on West River Road resulting in an L shaped sodded and sprinklered area at the corner. He indicated that the prope would be served by a 30 foot wide curb cut at the southwest corner of the property along West River Road. He pointed out a six foot wide riprap area would be installed at the northeast corner of the property leading to 66th Avenue North to assist with site drainage, The Director of Planning and Inspection reported to the Council that the plan initially submitted by the applicant did not meet the present requirement of a 15 foot green - strip along West River Road. The applicant had modified his current plan to provide the greenstrip. He added that this has had an effect on the parking layout but not on the number of stalls provided on the site. o The Director.of Planning and inspection commented that the exterior of the building would be stucco and a mansard roof treatment would be carried entirely around the building. The area behind this screen fence is presently concrete block and will be painted to match the stucco treatment. The Director of Planning and Inspection pointed out that the applicant proposes to add shrubbery such as dwarf junipers and purrmadial arborbita around the perimeter of the site to fill in with existing shrubbery and plantings. An.underground irrigation system in sodded areas is also provided. The Director of Planning and Inspection stated that the proposed use represents a very appropriate conversion of the abandoned gas station and added that in the process of recycling the building less traffic would be brought into the neighbor- hood. The Council briefly discussed the application. There was a motion by Councilmember Fignar and seconded by Councilmember Lhotka to approve Application No. 79043 submitted by Howard Atkins subject to the following conditions: 1. Building plans are subject to review and.approval by the Building Official with respect to applicable codes prior to the issuance of permits 2. Drainage, grading and utility plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A performance agreement and supporting.financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved.site improvements. 4. The building shall be equipped with an automatic fire extinguishing system to meet NFPA Standard No. 13 and shall be connected to a central monitoring device in accordance with Chapter 5 of the City Ordinances. 5. An underground irrigation system shall be provided in all sodded and planted areas to facilitate site maintenance. 7 -23 -79 -18- 6. All outside trash disposal facilities and rooftop mechanical equip- ment shall be appropriately screened from view. 7. A continuation of 8612 curbing shall be permitted around existing driving areas. 8. Existing underground fuel tanks shall be removed from the site prior to the issuance of permits. 9. Plan approval is exclusive of all signery which is subject to Chapter 34 of the City Ordinances. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager introduced Application No. 79044 submitted by P. J. Gaughan, Inc. for site and building plan approval to construct a 48 unit townhouse development on a 6.5 acre site located westerly of France Avenue at approximately 68th Avenue North. Application No. 79044 was recommended for approval at the July 12, 1979 Planning Commission meeting. The Director of Planning and Inspection pointed out that the property is zoned R -3 which permits townhouses or garden apartments and single family attached condominiums at a density of no more than eight dwelling units per acre. He explained that the property is bounded on the north by five R -3 zoned properties facing 69th Avenue North and the City water tower; on the east by France Avenue North; on the west by C -2 zoned property which faces Brooklyn Boulevard; and on the south by three single family residential parcels, two of which abut Grimes Avenue North and the other, France Avenue North. He stated that the 48 townhouse units would all be three bedroom units and would be clustered in groups of six units to a cluster. Two handicapped units are contemplated for the complex. All units with the exception of the handicapped units would be two levels. Two different floor plans are proposed. The Director stated that the applicant comprehends meeting the ordinance required parking of 96 spaces by providing 61 outside parking stalls and 35 garage stalls. A network of walkways accessible to the handicapped joins living units, garages, and open space recreational areas within the development. The Director of Planning and Inspection pointed out that access to the site is primarily off France Avenue with one access point at the northeast corner of the site and the other at 68th Avenue. A third access point is located where Grimes Avenue dead ends. He stated that it was questionable.as to whether this would have been a desirable location because it would encourage cut through traffic through the development. He reported the Fire Chief had reviewed the access point at Grimes Avenue and indicated that there is no safety need to require the Grimes Avenue access point. The Director of Planning and Inspection stated that a four foot high opaque screened fence is required where R -3 abuts R -1 and such a screening device is indicated along the south property line. In addition, a six foot high opaque redwood.fence is being proposed along the west property line to screen the townhouse property from the car dealership to the west. He pointed out that berming is proposed along France Avenue North. The Director of Planning and Inspection stated that based on ordinance criteria, seven six diameter trees are required for this development. He noted that the applicant proposes three Norway maples and four green ash on this site to meet 7 -23 -79 -19- this requirement. Sparkler crabs, sugar maple and Colorado green spruce are also proposed. He added that shrubs and plantings include purple lilac, purple leaf, sand cherry, Siberian arborvitae and Manay juniper. He noted that the applicant also proposed seed in certain areas of the site, primarily in the common or space area. The common and recreational areas include playground equipment in three separate areas as well as a tennis court. Council members questioned how many tennis courts were comprehended A representati of P. J. Gaughan responded one tennis court was comprehended. In response to further questions from the Council, the representative responded the project will be financed with Section 8 financing. A brief discussion ensued as to whether or not there was a notification requirement. Councilmember Kuefler stated he was concerned with the proposal to seed rather than sod. The representative responded some portions of the site will not have to be disturbed and those portions of the site will be seeded rather than sodded. He stated their reputation for maintaining sites is excellent and stated if the seeding is not effective, the area would be sodded. Councilmember Kuefler noted the Council was concerned it would not end up as an abandoned weed patch. The Director of Plan- ning and Inspection stated a performance bond will be held and if there is a problem with that, it can be taken care of with the performance bond. Council members questioned whether this was the same type of financing as was provided for Ewing Square. The representative stated the units were partially subsidized. Council members briefly discussed the treatment of the building as proposed. In response to questions from the Council, the Director of Planning and Inspection answered all of the units are two story except the handicapped units which will all be on one level. The City Manager cautioned the developer that the City has had problems with parking when developments are occupied before the access to the parking lots and the parking dots are ready to be used. The City Manager cautioned the applicant that unless parking lots are paved and ready to go, the dwellings could not be occupied. The Director of Planning and Inspection recommended this should be added as a condition of approval. Councilmember Lhotka questioned what control the City has over exterior treatment for a building. The Director of Planning and Inspection stated the City had set no criteria for.types of exterior material because this is considered an aesthetic judgment on the part of the developer and architect. The Council decided by consensus that they wished to add an additional condition of approval to stipulate that parking lots and access to the parking lots must be paved and ready to go before the units can be occupied. There was a motion by Councilmember Fignar and seconded by Councilmember Scott to approve Application No. 79044 submitted by P. J. Gaughan subject to the following conditions: 1. Building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. Drainage, grading and utility plans are subject to review and approval by the City Engineer prior to the'issuance of permits. 7 -23 -79 -20- 3. A performance agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. All outside trash disposal facilities shall be appropriately screened from view. 5. B612 curb and gutter shall be provided around all driving and parking areas. 6. Berming along France Avenue North will be no less than three to four feet in height. 7. The entrance area at 68th Avenue North should be designed to provide a clear alignment with 68th Avenue North. The entrance at Grimes Avenue North will be closed as indicated on the plans submitted. 8. Occupancy permits will not be issued for any unit in the complex until appropriate access and parking for that unit is installed in accordance with the approved plans. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager introduced Application No. 79045 submitted by Car -X Service Systems, Inc. for a special use permit, site and building plan approval for a`Car -X muffler shop at 6810 Brooklyn Boulevard (previous approvals have been given for this site under Application Nos. 76067, 77020 and 77025). Application No. 79045 was recom- mended for approval at the July 12, 1979 Planning Commission meeting. The Director of Planning and Inspection noted that motor vehicle repair is a special use in the C -2 zoning district. The Director of Planning and Inspection reviewed that a special use permit and site and building plan approval was granted under Application No. 76067 in December, 1976 for a Car -X muffler shop on the same site. Site and building plan approval for a Winchell's Donut Shop on the southerly portion of this site was granted under Application No. 77020 in June, 1977. He explained that the concept behind the approvals was to create a sort of mini commercial center; with Car -X being the owner of the site, leasing the building to Winchell's for their use. The concept never materialized and Car -X is proposing to go forward with their plans. He noted that the special use permit expired one year after approval because construction never got under way and no extension was ever requested. Regarding the plan, the Director of Planning and Inspection indicated that Car -X proposes to construct an approximate 3,200 square foot, four stall muffler service shop. The plans do not differ much from those approved in 1976. They indicate parking for 15 vehicles with one being for the handicapped. Based on the automobile service station parking formula of three stalls per each enclosed service bay and one for each employee. He added that they have also provided a proof of parking showing that 30 spaces can be located on the site. Based on retail store parking formula, 29 spaces would be required for an approximate 2,000 square foot building. The Director of Planning and Inspection stated the applicant is requesting to defer certain landscape improvements and the underground irrigation system on a portion of the site in the hopes that they may be able to lease or develop the southerly portion of the site at a future date. The Director of Planning and Inspection advised that any deferral of improvements for the southerly area be for a specific time period with the applicant well aware that the performance bond will not be released until such time as the area is dealt with. 7 -23 -79 -21- The Director of Planning and Inspection indicated that the exterior treatment proposed is a face brick with the treatment being uniformly applied around the building. Mayor Nyquist opened the meeting for the purposes of a public hearing on Applica- tion No_ 79045. There was no one to speak on the application. There was a motion by Councilmember Fignar and seconded by Councilmember Kuefler to close the public hearing on Application No. 79045. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none; The motion passed unanimously. There was .a motion by Councilmember Lhotka and seconded by Councilmember Fignar to approve Application No. 79045 submitted by Car -X Service Systems subject to the following conditions: 1. Building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. Grading, drainage and utility plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A performance bond and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. The building shall be equipped with an automatic fire extinguish - ing system to meet NFPA Standard: No. 13 and shall be connected to a central monitoring device in accordance with Chapter 5 of the City Ordinances. 5. All outside trash disposal equipment and rooftop mechanical equip- ment shall be appropriately screened from view. 6. B612 curb and gutter shall be provided around all driving and parking areas. 7. The special use permit is issued to the applicant as operator of the facility and is nontransferable. 8. The permit shall be subject to all applicable codes, ordinances and regulations and violation, thereof, shall be grounds for revocation. 9. An underground irrigation system shall be provided in all,land- scaped areas to facilitate site maintenance. Installation of the irrigation system and landscaping on the southerly portion of the site proposed for future development may be deferred for up to two years. Additional landscaping will be provided subject to Planning Commission review. The performance bond will not be released in its entirety until the total irrigation system and the landscaping is installed. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. DISCUSSION ITEMS The City Manager introduced a discussion of Howe, Inc. which comprehended the following 7 -23 -79 -22- issues: 1) The.appeal by Howe, Inc. from an administrative order of the City's Building Official to remove the currently existing temporary structure on their site. 2) Report on the chemical analysis regarding damage to the private lawns and what opportunity citizens might have in working through the City in seeking a solution to the problem. 3) The possibility of a phase out of Howe, Inc. through ordinance changes. 4) Development of a chemical storage ordinance. 5) Consideration of explosive permit. The City Manager explained a memorandum, had been prepared by his office which addressed the above mentioned five issues and made recommendations on them. He stated this memorandum had been provided to Howe, Inc. and one copy had been provided to the neighborhood for their information. He briefly.reviewed the appeal by Howe, Inc. from an administrative order of the City's Building official. He stated the process of appeal is directly to the City Council and that the results of the hearing must be forwarded to the State Building Inspector. He stated a review of the information pertaining to the building permit and related history was sufficient to uphold the action of the Building Official. The City Manager reviewed the events preceding the appeal by Howe, Inc. Councilmember Kuefler questioned the City Manager as to whether or not his under- standing was correct that the temporary building was allowed for salvage purposes. The City Manager responded that was correct and the major portion of the salvage was completed. Councilmember Fignar asked for a clarification of when the extension of the permit expired. The City Manager responded that in a letter dated January 17, 1979, the Director of Planning and Inspection informed the Howes of the issuance of a permit for a temporary building for fire salvage purposes. This letter also listed a number of other conditions relating to the use of the temporary building such as: other uses were expressly prohibited; the building be removed by May 1, 1979; and that a performance agreement and $5,000 financial guarantee be submitted to assure the removal of the building. The City Manager also stated that an extension of time, from May 1, 1979 to July 1, 1979, for use of the temporary building for fire salvage purposes was granted at the Howes' request in a letter dated May 4, 1979,in which the Director of Planning and Inspection restated the previous.conditions relating to the temporary building and noted no further extensions beyond July 1, 1979 would be granted. He further stated the City had been generous in extending the permit and.had done so because there were some delays because no place could be found to haul the residue from the fire for a period of time. For this reason, the City had been generous in extending the permit but had emphasized the extension was temporary and it did expire July 1, 1979. Mayor Nyquist recognized Mr. James Russell, attorney for Howe, Inc. Mr. Russell stated that there was no restriction in the City Ordinances restricting what temporary buildings could be used for and yet the City refused intially to allow Howe, Inc. to build a temporary building. He reviewed that a maintenance shed, a place for spare parts and garage facility, had been lost in the fire. Howe, Inc. had a great need for a building. At one of the initial meetings, the City Attorney suggested that salvage operations might be acceptable under the ordinance. Howe accepted the notion of salvage because of the great need, thinking that Howe, Inca would have approval for a new building within a short period of time. Mr. Russell reviewed that the Council had approved a building for Howe in concept but that plans had not yet been agreed upon. Mr. Russell stated the need for the building still remains. He emphasized the City was not looking at heeding that need. He stated the original restrictions on the permit were not warranted. 7 -23 -79 -23- Mayor Nyquist questioned Mr. Russell as to whether or not there was an understanding as to the purpose and intent of the agreement. Mr. Russell responded there was no question in the purpose of the original agreement but that the appeal is from the original ruling. In response to questions from Mayor Nyquist, Mr. Russell stated it was not appealed initially because Howe, Inc. had approval for the temporary building. Mayor Nyquist questioned Mr. Russell as to whether or not at this point they were asking to change the original purpose of the agreement. Mayor Nyquist further stated if the building is being used for things other than salvage, it is in violation of the agreement. Mr. Russell responded there was a tacit understanding between Howe, Inc. and the City that the building was being used for purposes other than salvage. The City Manager stated there never was a "tacit understanding" between Howe; Inc. and the City as to uses other than fire salvage for the building. Mr. Russell stated although State Building Code requires the City to adopt the code, the City has interpreted all codes and ordinances in such a manner as to set up roadblocks whenever possible for Howe, Inc. Mr. Russell stated a fair interpreta- tion of the code would allow other uses for the temporary building than simply new construction or salvage. Mr. Russell contended that staff began with a false premise. Mr. Russell further stated Howe, Inc. signed the agreement under duress but later found out that other uses could be permitted for the temporary building. Mr. Tom Howe stated that permanent type equipment used in conjunction with the salvage was stored in the building but was also used for other uses at Howe, Inc. The City Manager stated the City had given no approval for other uses and further stated it would be extremely difficult for the City to police activities to determine exactly what was salvage and what was maintenance.. Mr. Russell stated the building cost $15,000 and vehemently insisted that Howe still has a need for the building. He contended the staff is taking an obstructive position. He stated extensions will not make the building permanent. He said it w only the onerous attitude of the staff which made them insist that the building be torn down regardless of need. Mayor Nyquist reviewed that a January 10, 1979 letter from Mr. Bill Howe requested the temporary building for salvage purposes. Mayor Nyquist questioned whether Howe, Inc. still needed the building for the purpose for which they asked for it, that being salvage. Mr. Tom Howe responded that Howe, Inc. still needs the building for salvage. Mayor Nyquist stated Mr. Howe's attorney, Mr. Russell, implied that the need was to get by until a new building was built not for salvage. Councilmember Kuefler stated it appears that Howe, Inc. is continuing to salvage very slowly so that they can utilize the building for other purposes. He questioned Howe, Inc. as to when the salvage operation would be completed. He questioned what the true need of Howe, Inc. was for salvage as opposed to a manufactured need. Mr. Tom Howe responded the salvage operation was carried out at times when it'could be carried out relative to other workload. Councilmember Kuefler questioned Howe, Inc. on two occasions as to whether or not it was fair to set a time line and deadline for salvage operations. He received no response from Howe regarding a specific time as to when salvage could be completed. Tom Howe stated he wished to make a clarification. First, salvage operations at Howe, Inc. have not been completed, and second, in -house maintenance is done on vehicles which cannot be moved back and forth. Mr. Russell stated the.end date for the temporary building would be when Howe, Inc. gets the new building. 7 -23 -79 -24- Councilmember Kuefler stated he disagreed because salvage is the issue. Mr. Russell responded Howe was entitled to a temporary building for purposes other than salvage. Mayor Nyquist stated the City abides by agreements. Howe, Inc.. accepted the terms of the agreement and now they are trying to expand the agreement. Councilmember Scott offered an analogy of the terms which might be set for receipt of a driver's license. Councilmember Scott stated the recipient must abide by the conditions and /or the license is issued for a certain period of time. Mr. Russell offered a counter analogy stating in conclusion that the restrictions were wrongful in the first place. The City Attorney called Mr. Russell's attention to the exact words of Section 1601 (d) of the State Building Code which states as follows: temporary buildings such as reviewing stands and other miscellaneous structures conforming to the require - ments of this code, and sheds, canopies, or fences used for the protection of the public around and in conjunction with construction work may be erected in fire zone #1 or #2 by special permit from the Building Official for a limited period of time, and such building or structure shall be completely removed upon expiration of the time limit stated in such permit.. The City Attorney stated the Building Official had interpreted the building code correctly. The City Attorney stated if the Council accepts Mr. Russell's interpretation, temporary buildings would not be restricted at all. Councilmember Fignar stated it was his understanding that the argument Howe is making is that until Howe gets a decision from the court, they have a need for a temporary building in order to store the equipment. Mr. Russell stated that was correct. Mayor - Nyquist recognized Mr. Leo Hanson, 4903 Brooklyn Boulevard, who stated Mr. Russell's arguments were a joke.. Mr. Hanson stated he had observed that no salvage is being done at Howe, Inc., they simply want to keep the building. Mr. Hanson stated Howe, Inc. is always asking the City to give them something in addition to what they originally asked for. There was a motion by Councilmember Lhotka and seconded by Councilmember Kuefler to uphold the Building Official and the Director of Planning and Inspection's ruling, and to deny the appeal made by Howe, Inc. from an administrative order to remove the currently existing temporary structure on their site. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Lhotka, and Scott. Voting against: none. The motion passed. Councilmember Fignar• abstained from voting. ' The City Manager next asked the Council to consider the possibility of a phase out of Howe, Inc. through ordinance changes and also the consideration of an explosive permit. The City Manager asked the Council to consider them simultaneously because the City Manager's recommendation concerning the explosive permit is tied to the City Manager's recommendation on an ordinance to phase out Howe, Inc. The City Manager stated since the City Council ordered a review of the potential alternatives for phasing out the Howe nonconforming use, the attorney and the City Manager and Planning personnel have reviewed the situation. He stated the review has weighed heavily on the advice of the City Attorney as it relates to the potential success of any alternatives selected. It is the belief of the City Manager, the City Attorney and Planning staff that the State Legislature has granted the City of Brooklyn Center the power to effectively regulate Howe Fertilizer in several ways. One way is through zoning. Another way is through the general welfare clause, which is the power of the City Council to provide for the government and good order in the City, and to protect public and private property to the benefit of residents, trade, commerce and in the promotion of health, safety, order and general welfare; and a third way is by virtue of the City statutory power to control 7 -23 -79 -25- nuisances and to provide for their prevention and /or abatement. The City Manager stated Howe, Inc.'s chief problem is its manufacture of fertilizer. This manufacturing is both a.nonconforming.use and 'a nuisance. It is a process which produces much of the dust around the site and it is also the process which produces the ammonia like smell, and in the end, it is the process which creates the need for a major use of explosives. He recommended a course of action.which will elimina the nonconforming aspects and the nuisance aspects of Howe, Inc. which will not cons of a regulation of a use rather than a taking of the property.- The City Manager noted it is the belief of the City that the City has ample authority under its Zoning statutes and general welfare statutes to eliminate nonconforming uses by amortizing them over a period of time and /or to eliminate the nuisance aspects of their uses through the application of a nuisance statute. Based on this, the City Manager stated it'is his recommendation that the City Council authorize the staff to prepare- an ordinance which would phase out the nonconforming and nuisance aspects of the Howe, Inc. operation. He further recommended that if in light of the phasing out of the nuisance aspects and the manufacturing process, which involves dust and . ammonia type smell as well as others, the need for the explosive in the operation of the Howe facility would be substantially reduced, if not eliminated. During the interim period it would be our recommendation that Howe, Inc. be allowed to use the kinestik type explosive as it represents another step -in making the dangerous busi- ness of use of explosives safer. He stated the City is still concerned that explo- sives are used on a regular and continuing basis adjacent to residential areas and - heavily traveled thoroughfares. He stated, therefore, the City staff does not consider this to be an acceptable solution on a long term basis. The City Attorney briefly elaborated on comments made by the City Manager. He stated the nonconforming use can often be extended over a longer period of time. He stated in fact, a nonconforming use had standards which could last forever until a court case in 1968. In 1968, Minnetonka phased out billboards in residential areas. This was appealed by the Naegele Sign Company. The court ruled that the phase out was legitimate if the phase out time corresponded with the life of the use. The City Attorney reminded the Council that Howe, Inca had been a nonconforming use since 1957 and, therefore, it had been in existence as a nonconforming use in excess of 20 years. He suggested following the course of action as recommended by the City Manager and also that the action be litigated immediately to find out if the courts would support the action. He further stated Minnesota Statutes give no one the right to maintain a nuisance. He stated it is time for the many questions which have been plaguing the City and Howe, Inc. and the residents for such a long period of time to be confronted and answered. There was a motion by Councilmember Kuefler -and seconded by Councilmember Fignar to authorize the City Manager to prepare an ordinance which would phase out the non - conforming and nuisance aspects of the Howe, Inc. operation. During the interim period the City Council authorizes the City Manager to prepare a permit to allow Howe, Inc. to use the kinestiks type explosive as it represents another step in making the dangerous business of use of explosives safer. The Council recognizes the explosives are used on a regular and continuing basis adjacent to residential areas and heavily traveled thoroughfares and the Council does not consider this to be acceptable on a long term basis. Voting in favor: Mayor Nyquist, Council members Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The City Manager stated that he could prepare conditions for a permit for use.of explosives which could be brought back to the Council at a subsequent meeting for their review and approval. The City Council concurred with that time line. 7 -23 -79 -26- As the memorandum from the City Manager stated, since the Council has authorized the City Manager to prepare an ordinance for phase out, the City Manager recom- mended that rather than wait for the amortization period within the ordinance to pass, the City should commence a declaratory judgment action requesting the court to declare the amortization schedule as reasonable and not in violation of consti- tutional rights. Coupled with the court action on the nonconforming use and action for abatement of nuisance based on the history of pollution and contamination of the residential and neighborhood should be commenced. The requested abatement would be for the most severe contamination immediately and the remainder thereof with an amortized schedule set up within an ordinance. The Council concurred with this recommendation. The City Manager asked the Council to consider his recommendation to authorize him to prepare an outline of and an estimated cost for developing a chemical storage ordinance for the Council's review and after receiving that report, he recommended the Council could then make a decision on whether or not to order the work on the preparation of such an ordinance. He further stated a chemical storage ordinance is complex and the City needs technical assistance to do an effective job on such an ordinance. There was a motion by Councilmember Fignar and seconded by Councilmember Kuefler to authorize the City Manager to prepare an outline of and an estimated cost for developing a chemical storage ordinance. Voting in favor: Mayor Nyquist, Council - members Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The Mayor recognized Mr. Leo Hanson. Mr. Hanson asked the City for assistance in getting an attorney to assist them in the problem with the lawns. The City Manager stated assuming that Atrazine laden particles are still being blown and deposited throughout the neighborhood area, and assuming that Howe, Inc. is responsible for this contamination, individual property owners in the area have a right, under Minnesota Statutes, to maintain a private action for a nuisance. These private claims of citizens could be consolidated with a nuisance action brought by the City. He stated the City was not encouraging the residents to initiate private lawsuits nor is the City discouraging them from initiating private lawsuits. He stated that was a decision to be made by the residents and they would have to consult their own legal counsel to make that decision. The City Attorney stated that private actions for nuisance are available if the residents choose that option and that consolida- tion of them with the City's case is a possibility. The City Attorney emphasized that the Brooklyn Center City Attorney cannot represent private clients and he is not encouraging litigation. Again, he stated that was a decision to be made by the residents. He stated if they wished assistance in getting an attorney, they should call the Hennepin County Attorney Referral Service for that assistance. Mayor Nyquist. recognized Mr. Grotbeck from the Agricultural Department. He stated that soil samples from the Howe site indicate high concentration of Atrazene. These dust samples were taken to ascertain whether or not sufficient concentrations of Atrazene were present to kill lawns if this material was to become airborne and drop on adjacent lawns. Mr. Grotbeck stated there was sufficient concentrations of Atrazene on the site to kill adjacent lawns. However, he stated he could not absolutely confirm that this was how the lawns died. He stated it seems to be a logical conclusion. He stated he was currently in contact with PCA and other State agencies to inform them of these facts and would be able to report back within the near future. 7 -23 -79 -27- Mr. Russell stated-the matter of the dying lawns is a mystery to Howe and also to Ciba - Geigy, the chemical company. He stated the dead lawn problem appears to be part of the outflow of this fire. He further stated the Pollution Control Agency assumed supervision and control of all the cleanup after the fire. He explained Howe, Inca was not even included in discussions of that cleanup. He stated Howe, Inc. has already paid $161,000 for the cleanup.. He agreed that the burden of'restitution for the dead lawns shouid.not fall on the residents. He reminded the Council that the fire which caused the damage to the lawns was an accident. He stated Howe, Inc. wants to participate in resolving the problem but they as of yet do not know what is the best thing to -do. He said Howe, Inc. is presently investigating what possible remedies there might be but he stated the fact development has been slow. SELECTION OF CITY PROSECUTOR, CITY ATTORNEY The City Manager reviewed that t h e firm of Sch ieffer and Carson was splitting effective_ August 1 and there was need to designate a City Prosecutor and a City Attorney. The City Manager reminded the Council that earlier discussions had taken P lace as to whether or not that function should be split or should be retained as one firm. The City Manager stated the Council had received a letter from Mr. Clayton LeFevere and from Mr. Richard Schieffer requesting that the firm of LeFevere, Lefler, Pearson, O'Brien & Drawz be considered for the prosecution work for the City. Prior to the discussion by the Council, the City Attorney asked to make some remarks concerning the letter and.prosecution within the City of Brooklyn Center. The City Attorney stated Brooklyn Center in his estimation has received the best P rosecution services in the County for the last twelve to thirteen years and stated many would agree with that conclusion. He stated there was much more to a good prosecutor that being aggressive. He stated good prosecution has more to do with the entire system than with one prosecutor. He outlined several factors which contribute to good prosecution: 1) Good report writing by police officers (He stated Brooklyn Cneter reports are excellent in large part due to in -house training). 2) Prosecution must work effectively with the Chief of Police or the designated police administrator. 3) Thorough preparation is necessary and plea bargaining standards must be set and followed. 4) It will be helpful to hold municipal courts in Ridgedale and Brookdale. (The City Attorney stated in his estimation it was possibly.through his efforts that there will be suburban courts rather than simply downtown courts because of his influence as Chair of the Prosecutors Association for many years.) 5) The history of high quality prosecution over the years. 6) Administration of the prosecution program is important. The City Attorney stated there were several points that he would like to make in addition to the City Council. 1) The Council should select the City Attorney and the City Prosecutor. He stated he had.the utmost in respect for the Chief of Police but it is still the City Council's responsibility to make the selection. 2) Pro- secutors do turn over every four to five years, possibly for two reasons: pro- secutors eventually want to work at a higher hourly wage and oftentimes prosecutors burn out because of the nature of the work. 3) Prosecution needs backup because calendars cannot be controlled. 4) There is a strong link between civil and criminal work within a city. It is easier to work with one firm particularly when there is a great deal of overlap. You can lose accountability when more than one firm is being used. 5) In other cities where the prosecution work and the general counsel work is split, it is often due to personalities. 6) The costs of using the LeFevere firm in which Sch i e ffer will be an affiliate, would be $45 an hour. This is an honest appraisal of what should be charged. 7) The City Attorney stated the proposal offered by the LeFevere firm addresses several of the questions raised by Council at an earlier meeting such as.cost, status quo, (The City Attorney stated he had been the City Attorney for many years and had trained prosecutors for twelve to thirteen years), backup. 7 -23 -79 -28- Councilmember Kuefler stated he agreed with many of the City Attorney's remarks. He. stated the success of a program is the ,firm not the individual prosecutor. He stated he saw many advantages in going with the LeFevere firm such as their track record, backup and the fact that the fees are competitive. The City Manager stated he had advised others such as Mr. Clelland not to formally present a proposal and give quotes. He further stated the current City Prosecutor, Mr. Clelland, has an excellent working relationship with police officers and with the police administration. The City Manager stated he did not see a problem with backup if Mr. Clelland was used for prosecution. He stated he was not attempting to be an advocate for the present City Prosecutor but the present situation is optimal and it would be best administratively to continue this situation. Further- more, the price quoted by Mr. Clelland for the City Manager was $40 an hour. The Mayor recognized the Chief of Police for any remarks he might have. He stated he had been with the Brooklyn Center Police Department for 20 years and has seen a number of prosecutors. of those prosecutors, Mr. Bill Clelland, is the brightest and sharpest City Prosecutor that Brooklyn Center has had. He stated the police administration is able to deal effectively with Mr. Clelland and the police officers also work with him very effectively. Furthermore, it takes approximately one year and possibly more for a police department to adjust after there is a change in city prosecutors. This creates a long period of chaos and relative ineffectiveness. He stated it also destroys the unity of the enforcement effort of the Brooklyn Center Police Department for a period of time. Councilmember Scott questioned what guarantee the City would have that Bill Clelland would continue as City Prosecutor. The City Manager stated he had received that commitment from Mr. Clelland in writing. The City Manager stated Mr. Clelland enjoys this aspect of the law and could the City continuity. Councilmember Kuefler stated he had the utmost respect for the Chief of Police but he stated he felt the impetus for selection of a City Prosecutor was coming from the wrong court. He stated it was the'Council's responsibility to make the decision and the approach they were experiencing presently seemed inappropriate. The City Manager stated this split in the firm was not precipitated by the City staff. T Y Manager t The Cit er stated it was the final decision of he Council to decide the City Prosecutor and the City Attorney but that City staff provided a recommenda- tion because it influenced their area of work so heavily. Councilmember Lhotka stated he had earlier suggested going out for bids and still felt that was a good suggestion. He also stated he did not recall that any problems had. been brought to the attention of ;the Council about City prosecution. He stated.` he concurred that a large firm could provide needed backup for prosecution work. Councilmember Fignar stated it is true that when a key person is lost it is difficult to make a transition. He stated he would not want to lose Dick Schieffer as g eneral counsel for the City but that he is also looking at the recommendations of the City Manager and the Chief of Police and considered them valid and appropriate. He stated he would like to try splitting the prosecution work and the general counsel and review it at a later time after experience had been gained. The City Manager stated the City staff was prepared to work with whatever decision ' f reference to s i is he City's staff lit the prosecution P the Council made but t t y P and general counsel work. Mayor Nyquist stated change generally induces inefficiency. He stated he was concerned with the statement as made in the letter from the LeFevere firm which stated that the City could choose whoever the City wanted to do the City prosecution 7 -23 -79 -29- work. He stated it would appear that one City would suffer if Brooklyn Center got to choose whoever they wanted. Brooklyn Center might be in the same position down the road. There was a motion by Councilmember Lhotka and seconded by Council- member Kuefler to retain the LeFevere firm for both prosecution work and general counsel work. Voting in favor: Councilmembers Kuefler, Lhotka, and Scott. Voting against: Mayor Nyquist and Councilmember Fignar. The motion passed. The City Manager stated he wished to get Council authorization to allow Mr. Clelland to finish the prosecution work which he is presently involved with. There was a motion by Councilmember Scott and seconded by Councilmember Lhotka to authorize Mr. Bill Clelland to continue the prosecution work in which he is presently involved. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously, LICENSES Motion by Councilmember Lhotka and seconded by Councilmember Scott to approve the following list of licenses: COMMERCIAL KENNEL LICENSE Northbrook Animal Hospital 413 66th Ave. No. GAMBLING LICENSE Earle Brown School P.T.A. 6126 Lilac Dr. No. Father Donald Schumaker Council 6772 Knights of Columbus 7025 Halifax Ave.. No. GARBAGE AND REFUSE COLLECTION VEHICLE LICENSE Bautch Disposal Service 10264 Xylite St. N.E. Block Sanitation 1949 Teton Trail Blueboy Service 6764 Colorado Ave. No. Browning- Ferris Industries 9813 Flying Cloud Dr. Midwest Grease Company P. 0. Box 222 Redwood Falls Shobe and Sons 3621 85th Ave. No. Walter's Disposal Service 2830 101st Ave. N.E. Art Willman & Son 62 26th Ave. No. ITINERANT FOOD ESTABLISHMENT LICENSE Keith Schmidt 6230 Kyle Ave. No. Brooklyn Center Jaycees (City Softball Tournament) MECHANICAL SYSTEM'S LICENSE G. Sedgwick Heating & Air Cond. 1001 Xenia Ave. So. RENTAL DWELLING LICENSE Initial: Larry W. Karkela 5821 Camden Ave. No. 7 -23 -79 -30- Renewal: Irvin & Ruth Schloff 4819 Azelia Ave. No. .Amos Levang 4100 Lakebreeze Ave. No. Le"Ray & Keith Mortensen 4110 Lakebreeze Ave. No. Warren Samuelson 4200,04 Lakebreeze Ave. No. Edward & Helen Peterka 3401,13 47th Ave. No. Outreach Group Homes, Inc. 507 69th Ave. No.. TEMPORARY ON -SALE NONINTOXICATING LIQUOR LICENSE Keith Schmidt 6230 Kyle Ave. No. Brooklyn Center Jaycees (City Softball Tournament) Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. GAMBLING LICENSES There was an application by Father Donald Schumaker- Council #6772, Knights of Columbus for a gambling license. There was a motion by Councilmember Kuefler and seconded by Councilmember Fignar to approve a Class B gambling license for #6772, Knights of Columbus. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. .There was a motion by Councilmember Lhotka and seconded by Councilmember Scott to approve a waiver of a $10,000 fidelity bond for the gambling license for the Knights of Columbus. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. There was an application for gambling license for Earle Brown PTA. There was a motion by Councilmember Scott and seconded by Councilmember Fignar to approve a Class B gambling license for Earle Brown PTA. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhtoka, and Scott. Voting against: none. The motion passed unanimously. There was a motion by Councilmember Kuefler and seconded by Councilmember Lhotka to approve the waiver of a $10,000 fidelity bond on the gambling license for Earle Brown PTA. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar,, Lhotka, and Scott. Voting against none. The motion passed unanimously. RESOLUTION NO. 79 -168 Member Bill Fignar introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING THE PURCHASE OF ELECTRONIC CASH REGISTERS The motion for the adoption of the foregoing resolution was duly seconded by member Tony Kuefler, and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Tony Kuefler, Bill Fignar, Gene Lhotka, and Celia Scott; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. ADJOURNMENT Motion by Councilmember Fignar and seconded by Councilmember Lhotka to adjourn the meeting. Voting in favor: Mayor Nyquist, Councilmembers Kuefler, Fignar, Lhotka, and Scott. Voting against: none. The motion passed unanimously. The Brooklyn Center City Council adjourned'at 12:30 a.m. 7 -23 -79 -31- r Clerk Mayo 7 -23 -79 -32-