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10-19-2009 CCM'i F T ELK RIVE ~T"Y C I L L T T ELK EVE QTY LL , T i 4, Z00 Members Pxesent: Mayox Klinzing, Councilmembers Zexwas, Motin, Westgaard, and Gumphxey Members Absent; None Staff Present; City Administrator Lori Johnson, Planning Manager Jeremy Barnhart, Environmental Administt~ator Rebecca Haug, City Attorne~r Peter Beck, Finance Director Tim Simon, Parks and Recreation Director Bill Maertz, and City Clerl~ Tina Allard Also Present; Planning Commissioner Pete Lemke ~. Call Meetin To order Pursuant to due call and notice thereof, the meeting of the Elk River City Council was called to order at G;3o p,m, by Mayox 7~Iinzing, ~, Conside~,_~ aI19„~24o9„Agenda, 11~C~YED BY CDUNCILNIENIBER WESTGAARD AND SECONDED BY CQUNCILMEI4~BER MOTIN TO APPR®VE THE AGENDA. MQTI~N CARRIED 5~0. 3. Considex Consent Agenda MQYED BY CQUNCILNIEMBER GU1I~PHREY AND SECONDED BY CQUNCILNIEMBER ZERWAS T®APPRQVE THE FQLLO~ING CONSENT AGENDA: 3,I CHECK REGISTER AS QUTLiNED IN THE STAFF REPORT. 3.~. PAY ESTII4~ATES AS QUTLINED IN THE STAFF REPORT. 3,3. PRQCLAIM[ ~]CT®BER ~G-QCTOBER 30, 2409 AS ~JCN MANUFACTURER'S SEEK. MQTI~N CARRIED 5~0. 4. Q en Mike Phil Becker, business owner of Scooby Doo's --Stated his business does not f t into the cur's ordinance requirements for being able to have temporary signs. He stated there is no approved suxface wl~ere he can locate his sign, Il~~, Barnhaxt explained the following reasons for requiring signage on an approved surface; Approved surfaces are at least 1o feet back from property lines setbacks. ~ Ease of enforcement far staff, City Council Minutes October 1 ~, zao~ Page 2 He stated the property owner could build an approved surface pad located 10 feet back from the property line, Council directed staff to work with Mr. Becker in locating an approved surface pad site, 5,1, Re nest b Ci of Elk River for ordinance Amendment Relatin to wind Turbines Case No, oA 09W04 Public Hea.~xn Co~~l~~ued fro.tn 9 21 09 Mr, Barnhart presented the staff report, Councilmember Motin questioned why tl~e R1a area has to be greater than 3 acres, He stated some 2,5 acre lots can be wide and long enough to allow for a wind turbine with the setbacks and not have any impact to adjacent property owners, He stated he would prefer to see a distance requirement from adjacent properties. Mr. Barnhart stated the distance requirement could be more problematic for staff to enforce because it would involve property surveys, Mayor Klinzing opened the public hearing, There being no one to speak to this issue, Ma~ror z~lin~ing closed the public hearing, Mr. Becl~ suggested the following technical change to the ordinance: ~ Section 38-804 ~b~ should be titled "Required Approvals; exemptions, Section 3S-S04 ~d~ ~4~ should have a heading titled "Safety", MOVED BY COUNCILMEMBER wESTGAARD AND SECONDED BY COUNCILMEMBER GUll~PHREY TG ADOPT ORDINANCE 09-09 AMENDING SECTIONS 30-1 "DEFINITIONS" AND ADDING SECTION 30- 504 "WIND TURBINES" OF THE ELI RIVER CITY CODE OF ORDINANCES wTTH THE TECHNICAL CHANGES SUGGESTED BY THE CITY ATTORNEY, MOTION CARRIED 5-0, ~,2, Re uest b GRE to Amend Conditional Use Permit and License to Burn Alternative Fuels at the Elk River Station F Facili Case No, CU 09-19 Public Hea~x~z Ms. Haug presented the staff report, Mayor I~1.inzing opened tlae public hearing, Tlaere being no one to speak to this issue Ma~ror I~linzing closed the public hearing, Mr, Becl~ suggested the following technical changes to the license: Section l , ..and will burn Tire Deri~red Fuel ~TDF~ ~as eyed deFined by the MPCA, , ,~ Mayor l~linzing questioned if the burn tonnage per day was set by the city or the MPCA due to air emissions and she questioned laow it was determined, Ms, Haug confirmed that the MPCA sets the tonnage and tlae amount is determined by the environmental control devices that are in the facility, City Council Minutes Page 3 October 19, 2~Q9 Mayor Klinzing questioned i£ GRE could burn materials otl~er than those listed in the license as she wanted to make sure the license was inclusive enough. Mr. Beck stated this nay be all that GRE applied for in their permit with the MPCA. Tim Steinbeck, Ells River Station Manager -Stated they are not cooking to burn other fuels at this time, MOVED BY COUNCILMEMBER GUMPHREY AND SECONDED BY COUNCILMEMBER WESTGAARD T®APPROVE CONDITIONAL USE PERMIT, CASE NO. CU 09~~,9 AND THE SOLID wASTE FACILITY LICENSE WITH GREAT RIVER ENERGY WASTE BURNING FACILITY WITH THE TECHNICAL CHANGE SUGGESTED BY THE ATTORNEY, MOTION CARRIED 5-D. 5,3. Re uest b Elk River Landfill Tnc. for Conditional Use Permit and License to Ex and tlae Existin Landfill into 109 Acres of Pro er Located Immediatel T South of tlae Existin Landfill~,_Case No. ~CU.09-12~ Pub11c..He~~ Ms, Haug presented the staff report. She stated staff recommends denial of the conditional use permit SCUP} and license because the landfill expansion would be a conditional use onl~r in the Solid waste Facility Overlay Zoning District and the proposed expansion area has not been rezoned to that district, Counciknember Moan questioned if the Council would still have the opportunity to implement restrictions on the CUP if the litigation regarding the zone change were overturned by the court Mr, Beck stated he believes the city would have the chance for many reasons including that botl~ the landfill and the city agreed to split tl~e land use amendment and rezoning applications from the CUP and license applications so that the landfill didn't have to prepare detailed plans that are required for the CUP and the city didn't have to spend tl~e money required for a consultant to review the plans, He stated he doesn't believe the Council's decision will be overturned, but if zt Were, he felt the court would send it back to the city for completion of the CUP and licensing phase, He stated staff has suggested to the landfill that they withdraw this application and resubmit an application foi_• a CUP and license for the existing landfill if they felt amendments to tlae existing CUP and license were necessary, Mx. Becl~ stated further that it is unclear whether the landfill is asking for a CUP as it was applied for or as tlae plan was amended in tl~e process of the application for the land use plan and rezoning, He stated the landfill submitted a revised plan for a smaller expansion and more developable space, He stated as best as he could determine from the complaint it appears they are suing the city for the revised plan and there has never been any backup material submitted to the city for a CUP for that plan. Mr. Beck stated he can't imagine with all that's been discussed that the court would not send it back for city review of whichever version of the CUP they felt appropriate, Mayor I~linzing opened the public hearing, Stephanie Stolz, Engineer far the Elk River Landfill -Submitted and reviewed a presentation on tl~e CUP and license, She stated they would like to amend the CUP and City Council Minutes October 19, 20Q9 Page 4 license to include the SDA. She stated all the information is submitted with their original March 3Q application, Mr. Beck questioned Ms. Stolz if the CUP and license application is for the facility the landfill proposed at the end of the land use process or for the entire SDA, Ms, Stolz stated that this, the entire SDA, is correct. She further reviewed her submitted presentation regarding an amended CUP and license. She stated the city could Have the conditions in place now for when the Council's zoning decision is overturned in court, Jack Perry, Briggs and Morgan Law Firm -Stated it is the landf~l.l's position that if the cit~r's zone change denial is reversed by tlae court this would be the city's one and only tin~.e to impose conditions, He stated the landfrl.l. felt it was important to get this point across to the city due to the long-term positive relationship between the landfill and the city, and he didn't want the city to think it was tl~e landfdl's goal to catch the city in a "gotcha" situation, He stated tl~e landfill will oppose any conditions imposed by the city if the zoning is reversed Mr, Per~.y stated that ~udge Marco made a preliminary finding that the zoning decision of the Council is incorrect, He stated this is the Council's one and only opportunit~r to impose conditions on the CUP and license and referzed to a lawsuit in Duluth, De~anis Bu~lett, ~251G 225~~~ Court -~ Stated he is with the Ridges of Rice Lake Homeowners Association and the Association is against the expansion, CUP, and license, .A~~ela Nlathzson, 22382 Tipton Street -Stated she is concerned with the Council adding conditions to the CUP and license because the landfzl.l attorney could turn around and use it against the city, She asked Council to continue with floe denials of any permits for tlae expansion of the landfill. Mayor I~1i.nzing closed the public hearing. Mr•, Beck stated he would Tike to clarify what Conditional Use Permit is being asked for, He further stated Ms. Stolz stated the original March application, but Mr, Perry is suing the city to obtain approval of the smaller version as he understands it. Mr. Perry stated this is unt~.l7e and not stated in the complaint, He stated Mr. Beck errored in not telling the Council the landfill would be willing to accept the reduced footprint if the city gave them the zoning change, Mr. Beck asked for clarification from the attorney on what portion they are asl~ing for CUP and licensing approval, Mr. Perry stated the original March 30 application, Mayor I~Iinzing stated the license is dealt with on an annual basis and this is not what has been presented to the Council tonight by Ms, Stolz. Mr. Beck stated Ms. Stolz spoke to the ongoing operations of the landfill license which is reviewed annually, He stated the licensing changes Ms. Stolz discussed can be amended at anytime with a separate application, He further stated the action tonight by tlae Council should be on floe application to expand the landfill, Ms, Haug confir~x~ed it would be a separate application to look at any amendments to the license for the existing facility, City Council ltinutes October ~ 9, X009 Page 5 Counci.ltnember Moon wished to clarify that the '~1rit of Mandamus moves cases along and is not a preliminary f nding against the cite. Mr. Beck stated this is correct and signing the writ of mandamus does not address the merits of the case. Councilrnember westgaard asked the landfill why they wouldn't be willing to continue their long-standing positive relationship with the cite to work out the conditions for a CUP and license at a later date if the zone change were re~Tersed. He stated tlae parties have agreed to disagree on the zone change issue which will resolve itself but questioned why each group can't work with each other, He asked for confirmation From tl~e landfill that they don't wish to continue the long-standing relationship. Mr, Perry reiterated this is Council's only chance to add conditions to the CUP and license and stated the landfill doesn't wish to continue its relationship with the city, Mayor I~linzing stated the correct zoning is not in place to approve the CUP and license to expand the existing landfill so Council would have to deny it based on the cit~r's regulatory process, She stated the city is still in the position to require within its regulatory process an application from the landfill for a CUP and license whether the zoning decision is overturned by the court, She commented it would be difficult to believe any court would make a decision on an amendment to the city's Comprehensive Plan and then include that the city would have to circum~rent its regulatory process for CUP and license approvals. Mt'. Perry stated this is tlae city's only opportunity to impose conditions. Councilmember Moon stated lie would like to find out more information on the Duluth case and he questioned why there would be any issues with approving conditions that could be contingent upon the court decision. Mr, Beck stated the city's attorney handling the landfill lawsuit is fully aware and in support of the recommendation before Council tonight, He stated this item could be continued if the Council wanted to review the Duluth case, He stated the landfill lawsuit is based on a "gotcha" situation because Mr, Pes.~iy's case argues they "got us" and we have to approve whatever they applied due to a Host Fee Agreement with the landfill in 2003. MOVED BY COUNCILMEMBER GUMPHREY AND SECONDED BY COUNCILMEMBER ~ERWAS TD ADOPT RESOLUTION D9-5G DENYING THE APPLICATION OF ELR RIVER LANDFILL, INC. FDR A CONDITIONAL USE PERMIT AND LICENSE TO ALLOW E~PAN~ION OF THE ELT RIVER LANDFILL. Counci.linember Moon stated lie would prefer to continue this item until the city could review the Duluth case, MOVED BY COUNCILMEMBER MOTTN TO CONTINUE THIS ITENT TO NOVEMBER 2, 2Q09 SO COUNCIL CAN REVTEVII THE DULUTH CASE AND OTHER.APPLICABLE CASES RELATED TO THIS MATTER. MOTION FAILED DUE TO LACK OF A SECOND. ORIGINAL MOTION CARRIED 4-~., Councilmember Motin opposed due to his wish to continue this item for further review, City Council Minutes October 19, 2009 5.4. Consider Plat Extensions for Pintail Estates ~1est Oaks and Rock Rid e Estates Mr. Barnhart presented the staff report. MOVED BY COUNCILMEMBER MOTiN AND SECONDED BY COUNCILMEMBER ZER~AS T®APPROVE THE FOLLOWING PLAT E~TENSTIONS: PINTAIL ESTATES TO SEPTEMBER 17, 2010 'LEST OARS TO OCT®BER 1, 2010 ROCKY RIDGES ESTATES TO OCTOBER 15, 2010 MOTION CARRIED 5-0, Page G G.1.. Resolution Authorizin Staff to Submit Re zonal Park and Trail Le ac ~ Pro ram Grant A lication for the Planned Mississi i River Trail Mr. Maertz presented the staff report. Discussion was held regarding how the cit~r would fund the city match portion of ~4G2,94G. Ms. Johnson stand the city could use funds from various sources which haven't all been speciFcally identified at this time. Councilmeir~ber V~estgaard expressed concerns with committing match funds when the city budget is tight, It was noted the city could walk away from the grant money at anytime if Council chose alternative budget goals. MOVED BY COUNCILI~EMBER ZERWAS AND SECONDED BY COUNCILMEMBER MOTIN TO ADOPT RESOLUTION 0957 AUTHORIzING STAFF TO APPLY FOR A REGIONAL TRAIL LEGACY GRANT, MOTI®N CARRIED 5~0, G.2. Review 20I0 Fee Schedule Ms, Allard reviewed the draft 200 fee schedule. Mayor I~linzing requested clarif cation of what "units" are and suggested the city consider this as an alternative way to charge for sewer availability fees. Counciln~ember Zerwas expressed concerns with security alarm fees and stated he has heard negative comments from his constituents regarding why they need to have their information stored in a police data base. Ms. Johnson noted the fee is a one-time fee and that the intent is to eliminate false alarm calls, Staff was directed to provide fLirther information on security alarms at a future Council meeting. City Council Mttiutes Qctober 19, 20Q9 7. Other Business K.e,rolution Ke~ardin~ lY~etland ~ec~sions Ms. Haug presented the sta~~ report. MOVED BY COUNCILMEMBER ~ERwAS AND SECONDED BY COUNCILMEI~IBERwESTGAARD TO ADOPT RESOLUTION 09-55 REGARDING THE ADMINISTRATION OF THE WETLAND CONSERVATION ACT, MOTION CARRIED 5r0, 8. Council U dates There were no Council Updates. 9. Staff Updates -.~.-~.. Update an .Krause ~'rivate Kennel Denial Page 7 Ms..Allaxd stated that Waltef• and Rebecca Krause were required to be down to three dogs on their property by Qctober 1 ~, 2009 based on a previous Council resolution. She stated that Ms. Krause updated city staff on her progress and asked for an extension of'the deadline, Council agreed to extend the deadline based on Ms, I~rause's efforts to comply with the resolution. MOVED BY COUNCILMEMBER GUNIPHREY AND SECONDED B~Y COUNCILMEMBER ZERwAS TO EXTEND THE DEADLINE FOR THE IAUSE'S TD LIMIT THEIR DOGS DOWN TO THCREE BY NOVEMBER 12, 2009, MOTION CARRIED 5~0. Council stated the deadline would not be extended again. I0. Ad' ouf•nment There being no further business, Mayor I~linzing adjourned the regular meeting of the Elk River City Council at 7.35 p.m. She £urtlaer stated the City Council will go into a Closed Session pursuant to 1~ttorney-Client Privilege, MN Statute 13D,05, subd, 3~b~, for the purposes of discussing the Elk River Landfill lawsuit. w~ f~ ._~ "'` ~ ~ Tina Allard, City Clerk 1 y~ ~r ~ ~ ~.~.. Stepha ie I~linzing, Mayo-=~