DEEPHAVEN CITY COUNCIL

MONDAY, OCTOBER 3, 2005

7:00 P.M.

Page 1

 

1.         CALL TO ORDER:  Mayor Anderson called the meeting to order at 7:00 p.m.

 

PRESENT:       Mayor Tom Anderson, Councilmembers Kim Crockett, Keith Kask, Paul Skrede and John Wheaton

 

STAFF:            City Administrator Dana Young, Police Chief Virgil Gustafson and Zoning Coordinator Gus Karpas

 

2.         APPROVE CONSENT AGENDA

 

Motion by Councilmember Skrede to approve the consent agenda, which consists of the minutes of September 19, 2005 and the verified accounts, subject to the minutes being amended to reflect the correct vote tallies.  Councilmember Crockett seconded.  Motion carried 5-0.

 

3.                  MATTERS FROM THE FLOOR

 

Mayor Anderson opened the Matters from the Floor portion of the meeting.

 

Jim Hovland, legal representative for Phil Rock, 20155 Lakeview Avenue, commented that his clients would like to continue their request for a controlled burn on their property in light of the letter submitted by the Fire Chief.  They would like some time to discuss their options.

 

Brian Crockett, 17900 Shaver’s Lake Drive, reminded the City Council of the Rake-a-Thon taking place on October 29th, put on by the MCES.  He said it is a great opportunity for Deephaven residents to volunteer their time to help those elderly citizens in the community rake their yards.  Councilmember Skrede said the information was included in the newsletter, and that he will highlight that section on the website.  Mayor Anderson asked Mr. Crockett to come back to the October 17th meeting and make another announcement.  He stated that events like these are important for the community.

 

Howard Bennis, 18650 Minnetonka Boulevard, commented that he saw the city levy was at 5.5% and he wanted to thank the Council and staff for all their hard work in maintaining such a low percentage.

 

Jane Peterson, 4220 Water Street, feels the city should work on the microphones in the Council Chambers since it is hard for some citizens in attendance to hear what is going on.  Mayor Anderson commented that the microphones are for the video production and do not amplify the sound into the room.

 

Hearing no further comment, the Matters from the Floor portion of the meeting was closed.

 

 

 

 

4.         PUBLIC HEARINGS

 

A.                 Variance – Mark and Michelle Mitchell, 19305 Cedarhurst (R-1, 60,000).  A request to structurally alter a roof over an existing non-conforming structure located within the required side yard setback.  The requested variance is for three feet, eleven inches of the required thirty-foot side yard setback.

 

Dave Steingas, 19555 Cedarhurst, contractor for the applicant’s asked if the Council had any questions on the proposed project.

 

Councilmember Kask gave the Planning Commission report.  He said the Commission found a hardship in the need for structural repair and they voted unanimously to recommend approval.

 

Mayor Anderson opened the public hearing.  Hearing no comments, the public hearing was closed.

 

Councilmember Wheaton asked for some clarification on the roofline, both existing and proposed.  Mr. Steingas said the roof currently has a slight pitch, the plan would increase the pitch to prevent future ice dams and to match the proposed addition.  He explained that there would be no further encroachment into the side yard than what currently exists.

 

Mayor Anderson summarized that the proposal would be done within the existing footprint and that the alteration would comply with the height requirements and that there would be no further encroachment into the required side yard.

 

Motion by Councilmember Kask to approve the variance request to encroach three feet, eleven inches into the required side yard setback for the proposed alteration, as presented, at 19305 Cedarhurst.  A practical difficulty exists in the placement of the structure and the need to improve the roof pitch, which is consistent with the remainder of the construction.  Mr. Kask noted that the city’s approval is not binding on the Cedarhurst Homeowner's Association.  Councilmember Wheaton seconded.  Motion carried 5-0.

 

B.                 Ordinance 13-36, an ordinance amending the required lake yard setbacks.

 

Councilmember Kask briefed the Council on the action taken by the Planning Commission.  He said the Planning Commission voted unanimously that no change be made to the ordinance because the proposed change would have little effect on the nine properties it was intended to help.  They felt the change was not appropriate for the amount of benefit received.

 

Mayor Anderson asked the Council for their comments.

 

Councilmember Kask sated that a change to either a fifty or seventy-five foot lake yard setback does little to bring the existing homes into compliance.  He said that even with the proposed change, the properties would still most likely have encroachments into both the front and lake setbacks.  He agrees with the Planning Commission that there is a need for consistency throughout the ordinance and seeing little change in the dimensional situations associated with the properties, he would not support a change in the ordinance.

 

Councilmember Wheaton said he looks at the situation differently.  He doesn’t see a change in the ordinance as a tool to bring the properties into compliance with the ordinance, rather as a way to treat the properties similar to those other properties located off Lake Minnetonka.  He would like to treat the back bay like the interior lakes in the city since it shares many of the same characteristics, such as limited navigability and greater amounts of vegetation compared to typical Lake Minnetonka lakeshore properties.  He is supportive of a reduction to seventy-five feet because it allows back bay residents more flexibility, even if it does not bring them into complete compliance.

 

Mayor Anderson feels the existing setback is not equitable.  He stated that you can’t treat the lakeshore on the back bay on par with those on the main lake.  He noted these properties do not share the same benefits of those on the main lake and that’s reflected in their assessed values, yet they are treated as prime lakeshore in the ordinance.  He said the DNR minimum is fifty feet, while the city requires a hundred feet.  He doesn’t see the rationale.

 

Councilmember Crockett agreed with both Councilmember Wheaton and Mayor Anderson.  She said she was surprised that a reduction to seventy-five feet did not solve more of the issues.  She agrees with Councilmember Kask in that a reduction to less than seventy-five feet is not consistent with the regulation of other interior lakes in the city.  She feels that since seventy-five feet does not ease the constraints on the property, maybe the city should reduce the setback to fifty feet.

 

Mayor Anderson said he would be willing to adjust the setbacks on the interior lakes in the spirit of consistency, to match any change on the back bay.  Councilmember Crockett agreed there is a rational basis for adjusting the setbacks on both the back bay and interior lakes.  She was not supportive of reducing the setback elsewhere on Lake Minnetonka.

 

Councilmember Wheaton was not in favor of reducing the setback to fifty feet.  He’s concerned that people will question such a reduction and why their properties were not included.  He believes there is justification for reducing the setback due to the characteristics of the back bay.

 

Councilmember Crockett asked Kask if he agreed that seventy-five feet would allow for flexibility in reconstruction of the subject properties and that the Council could look at variance requests on a case by case basis.

 

Councilmember Kask said the original goal was to bring properties into compliance, not only with the lake yard, but also to push the properties back from the road due to the large volume of traffic on that portion of Cottagewood Road.  He feels a reduction to seventy-five feet still requires a compromise on both yards.

 

Councilmember Skrede said it’s easy to side with the analysis of the Planning Commission.  He said he has a hard time viewing this area as an interior lake, but understands there may be some validity in that argument.  He said that the proposed change will do nothing to change the situation and that the City Council will continue to hear variance requests from those homeowners.

 

Mayor Anderson said it boils down to whether you view the characteristics of the lakeshore as that of the main lake or as interior lakes.

 

Motion by Councilmember Wheaton to adopt the first reading of Resolution 13-36, reducing the required lakeshore setback to seventy-five feet for those lots located on the natural shoreline of Carson’s Bay and are part of Block 2, Deephaven Shore Acres and Burton’s First Addition.  Councilmember Crockett seconded.  Motion carried 3-2.  Upon a roll call vote to approve the first reading of Ordinance 13-36, Councilmembers Anderson, Crockett and Wheaton vote aye.  Councilmembers Kask and Skrede voted nay.

 

Howard Bennis, 18650 Minnetonka Boulevard, expressed his thoughts on the intent of the original lake setback ordinance.  He stated that the larger setback requirement has to due with water quality and run-off from smaller lots.  He said the required setback can be reduced, but that the Council has to remain vigilant in requiring homeowner’s to provide measures to manage their run-off as the properties are redeveloped.  He noted that the original setback might have been necessary due to the properties having septic systems prior to the installation of city sewer.

 

Councilmember Crockett believes one of the benefits of the back bay area is the wetlands that ring the shoreline, which acts as a filter before the water reaches the lake.

 

Nancy Middleton, 203 Mill Street, Excelsior, agreed with Mr. Bennis.  She noted that as property values rise on the lake, people are looking to construct larger structures to get a return on their investment.

 

C.                 Hearing on the 2006 Deer Management Program

 

Zoning Coordinator Karpas briefed the Council on the Deer Management Program.  He said staff would like to request a DNR permit to remove forty deer and seeks Council approval to participate in the program.

 

Mayor Anderson explained to those in attendance that the city has participated in the DNR Deer Management Program for three years.  He said that the current program traps the deer and the deer are killed.  He said the city has spoken to the DNR about no-kill options and that none are available.  He said the program is necessary due to the safety implications of a large deer population.

 

Councilmember Crockett noted that there are also issues with Lyme disease and destruction of private property.

 

Motion by Councilmember Crockett to approve the city’s participation in the Deer Management Program for the removal of up to forty deer and to accept the language included in the contract with Nuisance Animal Removal Service.  Councilmember Wheaton seconded.  Motion carried 5-0.

 

D.                Resolution 40-05 - assessment of delinquent sewer/storm sewer, water and garbage/recycling utility charges.

 

City Administrator Dana Young explained that unpaid utility bills are assessed against property taxes by Resolution from the Council.  He said that the list in front of the Council will change as additional payments are made prior to submittal to the County.

 

Motion by Councilmember Skrede that the Council adopt Resolution 40-05, certifying the list of properties to assess for unpaid utility bills.  Councilmember Anderson seconded the motion.  The motion carried 5-0.

 

5.         UNFINISHED BUSINESS

 

A.                 Request to conduct a controlled burn at 20155 Lakeview Avenue

 

Jim Hovland, legal representative for the Rock’s, reiterated his prior comments that his clients would like to delay action on their request due to the comments submitted by the Fire Chief.  They would like an opportunity to discuss their options with the Fire Chief.

 

Mayor Anderson opened the request for public comment.  Hearing no comment, he asked the Councilmembers for their comments.

 

Councilmember Skrede discussed the second paragraph of the letter, which stated the property does not meet the objectives of the fire department.  He said he discussed the issue with the Fire Chief who said he doesn’t see the need for the suggested training in the near future.  Mr. Hovland said he felt that portion of the letter referenced a complete burn down.

 

Mayor Anderson asked why the Rock’s were only interested in a burn down as an option.  Mr. Houland said there was a tax advantage if his clients donated the home as a charitable use.  Mayor Anderson commented that the city has never requested such donations from residents.  He said the Council could act on the request in front of them and that the Rock’s are free to approach the Council at a future date if they feel they have a more viable offer.

 

City Administrator Young clarified that the Rock’s have approached the Council to conduct an open burn.  He said if the Fire Chief is not interested in using the property, the Council should deny the request.

 

Councilmember Kask referenced the Fire Chief’s letter and said the Council deferred the request to the Fire Chief, who is not interested in using the property.

 

Motion by Councilmember Crockett to deny the request to conduct an open burn at 20155 Lakeview Avenue.  Councilmember Skrede seconded.  Motion carried 5-0.

 

Jane Peterson, 4220 Water Street, expressed concern about the request and commented that there are training facilities available to the fire department in St. Paul.  She feels the combination of the density of the neighborhood and potential smoke issues should prohibit residents from requesting such burns.  Councilmember Skrede commented that the Fire Chief did not want to inconvenience the neighborhood.

 

Dr. Christian Schrock, 20100 Lakeview Avenue, feels there should be an ordinance put in place prohibiting burning requests in the city.  He said the winds off Lake Minnetonka, the effects of smoke on adjacent properties and, in this case, the disbursement of mold spores warrants such regulation.  He feels it’s a mistake to allow residents to request controlled burns.  Mayor Anderson pointed out that the City Council and the Fire Chief were not supportive of the request.  He explained that the City Council also takes into account citizen input.

 

Mayor Anderson reminded those in attendance that the request was denied.  The Rock’s are welcome to come back to the Council with another request and if that were to happen, all properties within three hundred feet of their property will be notified.

 

Dr. Schrock stated that he still feels an ordinance should be put in place.  Mayor Anderson said that would be a slippery slope.  The city, if able, would like to provide opportunities for the Fire Department to train because it benefits the whole community.  If the city were to adopt an ordinance, it would take all properties off the table, even those which may be ideal.

 

 

 

B.                 Ordinance 05-29, amending Section 535 on Public Nuisances

 

Councilmember Crockett stated that she would like to table any discussion on enacting further amendments until after the Town Hall meeting on October 17th.  She would like to get public input on the issues, especially on the outdoor storage of vehicles.

 

Council agreed to discuss the item after the Town Hall meeting.

 

6.         NEW BUSINESS

 

A.                 Approve 2006 LMCC budget

 

Sally Koenecke asked the Council if they had any questions on the proposed budget.  She distributed a letter regarding potential Federal legislation as it relates to cable and broadband.

 

Councilmember Skrede asked about the build out fee required by cable companies for areas in town currently not in the service area.  He discussed a situation a neighbor of his was having difficulty obtaining service at a property, which previously had service.  He asked if any areas of Deephaven were outside the current service area.  Ms. Koenecke stated  that Deephaven was completely built out.

 

Councilmember Crockett asked about the city’s role in the LMCC budget process.  City Administer Young explained that the LMCC oversees the actions of the cable company on behalf of the city.  He said their budget is paid for through franchise fees.  He said the Council is required to pass the budget through a motion.

 

Councilmember Skrede asked whether the LMCC had enough budgeted for equipment needs for the upcoming year.  Ms. Koenecke said they had and noted they were going to start web streaming Council meetings on the internet.  She said they would not be live at this point, but they hope to do that in the future.

 

Motion by Councilmember Crockett to approve the 2006 LMCC budget.  Councilmember Kask seconded.  Motion carried 5-0.

 

B.                 Order abatement of public nuisance at 5000 Highcrest Drive

 

City Administrator Young briefed the Council on the existing situation at 5000 Highcrest Drive.  He said there has been no response to repeated requests to bring the property into compliance.  He noted the property owners were invited to the Council meeting, as required by the city ordinance, to address the concern.

 

He recommended that the Council pass a motion to have the Public Works Department mow the property and bring it into compliance.  He stated that the property owners will be billed for the time and expense and if the bill is not paid it would be assessed against the property.

 

Motion by Councilmember Skrede that the Public Works Department mow the property at 5000 Highcrest Drive bringing the property into compliance with the ordinance and that the cost be passed onto the property owners.  Councilmember Wheaton seconded.  Motion carried 5-0.

 

C.                 Other

 

Councilmember Skrede asked about a letter included in the packet about litigation and joint power agreements.  City Administrator Young explained that a recent court award allowed a plaintiff to receive the maximum award from each of the cities that had entered into a joint powers agreement.  He said this is an important issue for the City of Deephaven due to its membership in the Excelsior Fire District.

 

Councilmember Skrede used the example of a controlled burn in one of our member cities which leads to a lawsuit.  He said that not only could the Fire District be required to pay damages, each member city individually may also be required to pay damages.  Mr. Young commented that based on this scenario, instead of the cap amount of $300,000 being awarded, it could be as much as $1,800,000 for the District and its five cities.

 

Administrator Young said the LMC is asking for the court to reconsider its decision based on the potential negative impact on cities.

 

Councilmember Skrede said he is going to bring this issue up to the Fire Board for discussion.

 

7.         REPORTS FROM BOARDS, COMMITTEES AND DEPARTMENTS

 

A.                 Public Safety

 

Police Chief Gustafson told the Council his officers will provide training on car seat installation and safety on October 29th.  He informed the Council that union negotiations will begin on October 4th.

 

Chief Gustafson told the Council of a deficiency in the protective vests of three of the city’s officers.  It appears that they do not provide the protection as advertised.  He is currently seeking a reimbursement for the cost of the vests in order to replace them.

 

The Council discussed options in obtaining vests for the officers in a more timely manner.  Councilmember Skrede supported the authorization of funds for the immediate purchase of three vests.

 

B.                 Public Works Committee

 

City Administrator Young discussed the monthly report of activities and asked the Council if they had any questions.  Councilmember Crockett asked about the progress being made by staff to eradicate Dutch Elm.  Mr. Young said a report will be presented to the Public Works Committee at their next meeting later this week.

 

Councilmember Skrede asked if there was any resistance from property owners.  Mr. Young said he would find out more at the next Public Works Committee meeting, but that he knows of at least one property with about fifteen trees that need to be removed.  He anticipates some friction due to the cost of removing those trees.

 

Councilmember Kask asked when the buoys would be removed from Carson’s Bay.  Mr. Young said they could be removed any day.

 

Councilmember Wheaton asked about the grading of the hockey rink and the status of the proposed swale.  Mr. Young said that these issues are going to be discussed at the upcoming Public Works Committee meeting.

 

C.                 Administration

 

City Administrator Young said that this season’s park projects are coming to an end.  He said that the sand around the fountain at the Children’s Park would be replaced with sod.

 

Mr. Young said he would be meeting with the Engineer to compile a list of potential sanitary sewer projects.  Councilmember Crockett asked if he had a feel for any big projects.  Mr. Young said he would know more after discussions with the City Engineer.

 

Mr. Young reiterated that negotiations with the Police union were to begin on October 4th and he informed the Council that he has provided a list of potential communication tower sites to the representative of Nextel.

 

Mr. Young reminded the Council that Tonka Care would be holding a meeting to discuss illegal substance abuse.

 

ADJOURNMENT

 

Motion by Wheaton to adjourn the meeting.  Councilmember Crockett seconded.  The motion carried 5-0.  The meeting adjourned at 8:55 p.m.

 

Respectively submitted,

 

 

Gus Karpas

Zoning Coordinator