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09-17-2012 CCM MEETING OF THE ELK RIVER CITY COUNCIL • HELD AT THE ELK RIVER CITY HALL MONDAY, SEPTEMBER 17, 2012 Members Present: Mayor Dietz, Councilmembers Zer-'yas,Motin.AVestgaard. and Gumphrey Members Absent: None Staff Present: City Administrator Calvin Portner,Planning Manager Teremy Barnhart, Park Planner Chris Leeseberg, City Attorney Peter Beck,Environmental Adiminstrator Rebecca Haug,Parks and Recreation Director Michael Hecker, Fire Chief T.John Cunningham,and City Clerk Tina Allard 1. Call Meeting To Order Pursuant to due call and notice thereof,the meeting of the Elk River City Council was called to order at 6:30 p.m. by Mayor Dietz. 2. Pledge of Allegiance The Pledge of Allegiance was recited. 3. Consider 09/17/2012 Agenda • MOVED BY COUNCILMEMBER MOTIN AND SECONDED BY COUNCILMEMBER WESTGAARD TO APPROVE THE AGENDA. MOTION CARRIED 5-0. 4. Consider Consent Agenda MOVED BY COUNCILMEMBER GUMPHREY AND SECONDED BY COUNCILMEMBER ZERWAS TO APPROVE THE FOLLOWING CONSENT AGENDA: 4.1 CHECK REGISTER AS OUTLINED IN THE STAFF REPORT. 4.2.A PUBLIC WORKS FACILITY PROJECT PAY ESTIMATES AS OUTLINED IN THE STAFF REPORT. 4.2.B NATURE'S EDGE BUSINESS PARK PROJECT PAY ESTIMATES AS OUTLINED IN THE STAFF REPORT. 4.3 RESOLUTION 12-51 STATING SUPPORT FOR THE DEVELOPMENT OF THE MISSISSIPPI RIVER TRAIL(US BICYCLE ROUTE 45). MOTION CARRIED 5-0. 5. Open Forum No one appeared for Open Forum. • City Council Minutes Page 2 September 17,2012 6.1 City of Elk River Volunteer of the Month-Mayor Dietz Mayor Dietz introduced,read, and presented a plaque to September Volunteer of the Month S Gladys Olmsted. He provided the following background on Ms. Olmsted's service within the city: • CAER food shelf volunteer for 33 years • Service as an election judge for the city • 4-H volunteer • Emmanuel Lutheran Church volunteer 6.2 Mark Bezek,ISD 728 Superintendent—Information on District Levies This item is delayed to the October 15,2012, Council meeting. 7.1 Request by Elk River Landfill,Inc. for Amendments to Their Solid Waste Facility License to Operate the Existing Landfill Ms. Haug presented the staff report.Ms. Haug noted the expiration date under 3)License Period, should be changed to September 17,2013. Mayor Dietz opened the public hearing. There being no one to speak to this issue,Mayor Dietz closed the public hearing. MOVED BY COUNCILMEMBER MOTIN AND SECONDED BY COUNCILMEMBER WESTGAARD TO AMEND THE SOLID WASTE • FACILITY LICENSE FOR THE ELK RIVER LANDFILL TO OPERATE THEIR EXISTING LANDFILL AS OUTLINED IN THE STAFF REPORT WITH THE DATE CHANGE NOTED ABOVE. MOTION CARRIED 5-0. 7.2 Request by CSP—Elk River.MN LLC for a Conditional Use Permit to Amend the Existing Spectrum High School CUP for a Building Expansion at 17796 Industrial Circle.NW,Case No. CU 12-16 Mr.Barnhart presented the staff report. Mayor Dietz opened the public hearing. Ku Vang,owner's representative, stated he is available for any questions. Mayor Dietz closed the public hearing. Councilmember Westgaard questioned if this expansion was part of the original building plan and if more expansion plans are expected in the future.He stated he would like to see an overall master building plan completed by the applicant and has concerns because the facility is located in an industrial park. Rick Peterson,Spectrum representative,stated the expansion won't increase enrollment but is needed for more room in the music department and for three teachers to now have their own classrooms. 4110 City Council Minutes Page 3 September 17,2012 MOVED BY COUNCILMEMBER WESTGAARD AND SECONDED BY COUNCILMEMBER ZERWAS TO APPROVE CONDITIONAL USE PERMIT, CASE NO. CU 12-16 AS ILLUSTRATED ON DRAWINGS DATED SEPTEMBER 6,2012,WITH THE FOLLOWING CONDITIONS: 1. ALL COMMENTS OF THE STAFF COMMENT LETTER DATED AUGUST 13, 2012, SHALL BE ADDRESSED, INCLUDING LIGHTING, LANDSCAPING,AND ENGINEERING COMMENTS. 2. AS A CONDITIONAL USE PERMIT IS NOT A BUILDING PERMIT,THE APPLICANT SHALL APPLY FOR ALL REQUIRED PERMITS. 3. THE DEVELOPMENT SHALL MEET ALL APPLICABLE FIRE AND BUILDING CODES. MOTION CARRIED 5-0. 7.3 Request by Alliance Machine/Brian Provo for a Conditional Use Permit for Outdoor Storage at 17520 Tyler Street(Northstar Business Park), Case No. CU 12-17 Mr.Barnhart presented the staff report asking for the public hearing to opened and closed. Mayor Dietz opened the public hearing.There being no one to speak to this issue,Mayor Dietz closed the public hearing. This item will be renoticed and come back to Council at a later date. • 7.4 Request by Mark Leadens for Conditional Use Permit to Operate a Dry Cleaning Establishment at 927 Highway 10. Case No. CU 12-15 Mr.Barnhart presented the staff report. Mayor Dietz opened the public hearing.There being no one to speak to this issue,Mayor Dietz closed the public hearing. Councilmember Westgaard asked for clarification on Condition#4 requiring the applicant to meet all applicable fire codes. Chief Cunningham stated the applicant would have to meet the requirements of the currently adopted 2006 fire code. He further noted the applicant is requesting a variance from a specific section of the 2006 fire code relating to sprinkling systems because it has been changed in the 2012 code. Attorney Beck stated the State Fire Marshal has the authority to grant the variance but they will take input from the local governing body. He stated if the variance is granted and the applicant is following the 2006 fire code,he would be meeting the requirements of Condition#4. Councilmember Motin disclosed the applicant has been a client in the past on unrelated matters. • City Council Minutes Page 4 September 17, 2012 MOVED BY COUNCILMEMBER MOTIN AND SECONDED BY COUNCILMEMBER GUMPHREY TO APPROVE CONDITIONAL USE PERMIT, CASE NO. CU 12-15 TO OPERATE A DRY CLEANING ESTABLISHMENT WITH THE FOLLOWING CONDITIONS: 1. AS A CONDITIONAL USE PERMIT IS NOT A BUILDING PERMIT,THE APPLICANT SHALL APPLY FOR ALL REQUIRED PERMITS. 2. ALL EXTERIOR SIGNAGE SHALL REQUIRE A PERMIT. 3. ALL EXTERIOR CHANGES WILL REQUIRE A PERMIT AND ARCHITECTURAL DRAWINGS. 4. THE BUILDING SHALL MEET ALL APPLICABLE BUILDING AND FIRE CODES. MOTION CARRIED 5-0. 8.1 Request for Fire Code Variance by Mark and Penny Leadens, 927 Highway 10 Chief Cunningham presented the staff report. Mayor Dietz questioned why the city is still following the 2006 fire code. Chief Cunningham stated the State dictates what cities follow and the state has not adopted the 2012 fire code. Councilmember Motin questioned what would happen if another dry cleaning business came in and wanted to follow the 2012 fire code. Chief stated the condition as written is specific enough to only apply to this applicant for this specific dry cleaning business. Attorney Beck stated the variance granted is based on information submitted by the applicant and the chemicals they are using and if they don't meet the variance requirements, they will lose the variance. Councilmember Motin questioned how enforcement would be monitored. Chief Cunningham stated it would be monitored via the fire inspection program. MOVED BY COUNCILMEMBER WESTGAARD AND SECONDED BY COUNCILMEMBER GUMPHREY TO APPROVE A FIRE CODE VARIANCE TO MARK AND PENNY LEADENS FOR THE PROPERTY LOCATED AT 927 HIGHWAY 10 AND THAT THE PROPERTY SHALL COMPLY WITH CHAPTER 21 OF THE 2012 VERSION OF THE INTERNATIONAL FIRE CODE FOR THE PURPOSES OF OPERATING A DRY CLEANING BUSINESS. MOTION CARRIED 5-0. Attorney Beck noted the attorney,Mr.Nielson,is not expected until 7:00 p.m. for item 8.2. 8.3 Request for Authorization to Consider Changes to the Business Park Zoning District Regulations Mr.Barnhart presented the staff report. • City Council Minutes Page 5 September 17,2012 Councilmember Morin stated he is not in favor of changing the regulations for outdoor storage in the Business Park District. He commented that when the Council reviewed the district regulations they wanted a higher standard set for the Business Park. Councilmember\Vestgaard stated he is in favor of staff reviewing options for outdoor storage. He questioned if there would be a difference between the Business Park and Industrial District regulations. 1\Ir. Barnhart stated he would not recommend the same requirements for both districts. Councilmember Zerwas concurred with reviewing and discussing options. It was the consensus of the Council to have staff review and bring back some options for outdoor storage regulations. 8.4 Football Scoreboard Installation Expenses Mr. Hecker presented the staff report. Councilmember Zerwas stated the intent of this report is to inform the Council of an additional unbudgeted, spent cost for the scoreboard. He stated staff should've brought this to Council's attention before spending the funds. Councilmember Motin concurred and stated staff could have handled it better by requesting a special meeting and he further questioned the city administrator if staff has authority to • spend the money without Council authorization. Mr.Portner stated he felt it appropriate to bring this to Council's attention noting that sometimes fee donations can have hidden costs attached to them. Mr. Hecker reiterated that sometimes donations are not always free and staff will look at other ways to analyze these in the future. 8.2 Martin Moritz Fence Mr.Barnhart presented the staff report.He noted some property owners were in the audience with presentations for the Council. Mayor Dietz asked the city attorney for his opinion regarding the legality of the city's ordinance. Attorney Beck stated he researched the issue and found that Chapter 344 does not preempt the city's zoning ordinance authority to regulate fences and he does not see any legal impairment to the city. He stated it may be worth Council discussion to review the four (outlined in the staff report) scenarios that involve fences in agricultural settings. He discussed the merger between the city and township back in the 70's and why this language may be in city ordinance. Councilmember Gumphrey questioned if the fence was already installed when this issue • came up at Open Forum at the August 20,2012,Council meeting. City Council Minutes Page 6 September 17,2012 Mr. Barnhart stated he did nor know if the fence was installed then• but it us up now. Man-McDevitt-Kraljec, 10159 201st Avenue- Stated she is opposed to the city changing the current code regarding the five-foot setback. She is further opposed to exempting the _Moritz's from meeting the current code requirements. She stated the fence is now completely installed. She submitted pictures showing the destruction to her and her neighbor's property and the environment. Raef Kraljic, 10159 201st Avenue- Stated they were not informed the fence would be installed. He stated he was forced to hire a surveyor to identify where encroachment on his property occurred with trees removed and stumps left on his property. He reviewed a map that highlighted the encroachment onto his property.He stated he is opposed to changing the five-foot setback and it is good protection for neighboring properties. He stated the buffer from his property has been removed and makes it less marketable. He stated the Moritz's equipment was on their property to install culverts into the Trott Brook. He further stated his trees have been damaged due to the heave equipment use. Mr.Jim Neilson, 118 East Main Street,Anoka—Attorney for Mr. Moritz stated he has never seen a case where a governmental body tries to keep a fence off a property line.He stated his client will have to pay for any property violation issues and the ordinance is a completely different issue. He stated i\ll T Statutes Chapter 344 does apply and have precedent in this case. He stated a barb or wire fence erected five- feet from the property line would allow the adjoining property to adversely possess the additional five-feet of land. He stated City Code Section 30-796-refers to boundary fence but does not define it.He further stated there is no definition in city ordinance of a Property Line. He provided an example stating Mr. Moritz's property is the county road on the east and south side of his property. He stated the boundary line is not where the government occupies it for a road but • rather the section line on the east and south side. He stated the easement is not a property line. Attorney Neilson discussed the partition fence and board fence law and stated the law allows for barbed wire in four different sections of state statute.He stated a board fence could be installed so the cattle won't go through the fencing. He stated the five-foot of land would be worthless and questioned its taxable value.He stated many of the barbed wire fences in Elk River are most likely right on the property line.He further stated Mr.Hagen (Mr. Moritz's adjoining neighbor) has a barbed wire fence installed right on the property line.He stated Mr.Moritz received a letter from Sherburne County Public Works stating he was in violation of putting in a driveway without a permit,which was brought to the county's attention by someone other than the government,which Attorney Neilson thought was odd. He stated the driveway has been there for 40 years.He suggested the city delete from its Code,Section 30-796 (d)(2)c,the words "...but not as boundary fences"and footnote#3 from Section 30- 1007 regarding keeping of livestock being prohibited from within five-feet of any property line. Mayor Dietz stated after the August 20 meeting,it was his understanding that Attorney Neilson and his client would wait for an answer regarding the five-foot setback until the September 20 City Council meeting;but his client went ahead and installed the fence anyway without caring what the City Council had to say on the matter.He questioned why Attorney Neilson is back asking the city to change the ordinance after they went ahead and violated it anyway. • City Council Minutes Page 7 September 17,2012 Attorney Neilson stated that in the farming business there are certain times when work has to be done. He stated Mr.Moritz has been trying to complete his fencing project for two years but he only had the time to do the fence at the time he actually installed it. He further stated Mr. 'Moritz has cattle that have to eat and eating fresh grass saves him money then he doesn't have to use his hay. Councilmember Westgaard questioned if there was additional work done to install the fence since Attorney Neilson and his client were here at the August 20 meeting. Mr. Nielson stated yes. Councilmember Westgaard further asked if i\a. Nielson advised his client to move forward with installing the fence on the property line. Mr.Nielson stated he told Mr.Moritz that if he had to install the fence to get the cattle on his property that it was his opinion that state law overruled the city ordinance. Councilmember Westgaard expressed disappointment noting that the fence issue was discussed at the August 20 Council meeting and the City Council at that time did not disagree that the ordinance should be reviewed regarding the location of fences and the definition of partition and livestock fence. He stated the City Council specifically asked staff to look into the matter and bring it back as soon as possible and Attorney Neilson and his client chose not to work with the city to work through the issue when less than one month has gone by. Councilmember Westgaard questioned if Mr.Moritz applied for a wetland mitigation permit • to install culverts in the Trott Brook. Mr.Moritz stated it is not Trott Brook but Old Judicial Ditch#1,which was annulled in the 1960's by Sherburne County and given back to landowners. He stated he cleans the ditch out all the time and the DNR has approached him that he could be fined but they never did anything to him because he owns his portion of the ditch. Councilmember Westgaard stated the city has a wetland mitigation ordinance that Mr. Moritz should be adhering to and he further stated the city currently has a fence that is installed that is in violation of city ordinance. Councilmember Zerwas questioned how long the five-foot setback has been in effect in city ordinance. Attorney Beck stated it was originally adopted in 1982 and amendments were made in 2001 and 2004. Attorney Neilson questioned when the city took over the township and if the 1982 City Code covered all of Elk River. Attorney Beck stated after the merger in 1978,the county ordinances continued to be in effect for the township areas and the village/city continued to follow their ordinances. He stated a new Council and Mayor worked on drafting a new city code which was adopted in 1982. • City Council Minutes Page 8 September 17,2012 Councilmember Gumphrey concurred with Councilmember Westgaard and stated the city was going to look at this in a rational way but that Ir. Moritz acted on his own. He stated • this is a perfect example of why a five-foot setback is needed. He further stated he is disappointed in 1r.Moritz. Mr.Moritz stated he did cut a couple of trees by accident and he offered to make amends. He further stated the pictures shown by Ms. McDevitt-Kraljec weren't accurate. Council noted the civil issue is not before them today. Councilmember Motin stated Attorney Neilson basically told his client it is okay to violate city ordinance. He stated it's the wrong way to go about it by asking for forgiveness,rather than permission. He further stated there are many ways around adverse possession and it wouldn't apply in this situation. He stated he hasn't made any decision on the five-foot setback for fences. Robin Hagen, 20296 Twin Lakes Rd NW, stated setbacks most likely wouldn't have meant anything to i\1r.Moritz. She stated the only reason they installed a fence was to protect their property because every time they left for work their trees would disappear. She reviewed photos of trees/branches cut into their property. She stated Mr.Moritz removed the monument marker and put his own posts out and left the monument marker sitting to the side. She stated she now has semi-trucks driving by because they put a road in right on the property line. She stated they have a 100 year old grainer),they can no longer get behind to perform maintenance to it. She stated the Moritz's should have to follow the law and that it is in place for a reason. Councilmember Westgaard suggested directing staff to do more research on other 111 communities and to bring this item back to a Council worksession.He also asked for past history on why the five-foot setback may have been chosen and requested all parties be notified in order to participate in the discussion. Councilmember Zerwas stated he is inclined to go with Option#1 (outlined in the staff report) of making no changes to the ordinance and to enforce the current ordinance as it is written. Councilmember Motin concurred but stated it also makes sense to get more information as to the purpose of the setback and what other communities are doing.He noted some sort of buffer would seem appropriate. Mayor Dietz questioned if the city changes the setback to two-feet,how it would affect Mr. Moritz. Attorney Beck stated there would be no non-conforming use rights because the fence was illegally installed Councilmember Gumphrey concurred with Councilmember Zerwas and further stated you need to account for the cows sticking their necks through the fence to eat the neighbors grass Attorney Beck asked for clarification on Council's direction. • City Council Minutes Page 9 September 17,2012 Council consensus was to proceed with the city=s code enforcement process Chapter 50, S Article V.) for illegal fences and to direct staff to do some further research with what other cities are doing on the matter. 9. Announcements Mr. Portner noted the Wapiti Appeal is scheduled in St. Paul, at 9:30 a.m., on\Vednesday. 10. Adjournment There being no further business,Mayor Dietz adjourned the meeting of the Elk River City Council at 8:22 p.m. s /4. Jol z J. Dietz,Ma o Tina Allars, tty k • •