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CC Minutes 3-10-08City Council Meeting - March 10, 2008 a. Approval of Minutes: -City Council Work Session Minutes dated February 25, 2008 -City Council Verbatim and Summary Minutes dated February 25, 2008 Receive Commission Minutes: -Planning Commission Verbatim and Summary Minutes dated February 19, 2008 Resolution #2008-13: b. 2008 Sealcoat Project 08-06: Accept Bids and Award Contract. Resolution #2008-14: c. 2008 Inflow/Infiltration Project 08-07: Accept Bids and Award Contract. Resolution #2008-15: e. Well No. 12 Project 08-04: Approve Quote for Electrical & SCADA System. Resolution #2008-16: f. Well No. 13 Project 08-05: Approve Quote for Electrical & SCADA System. Resolution #2008-17: g. Stormwater Maintenance: Approve Quote for 2008 Stormwater Pond Cleanout. h. Award of Bid: Recreation Center Lobby Furniture. i. Acceptance of $2,000 Donation from KleinBank of Chanhassen for Summer Concert Series. All voted in favor and the motion carried unanimously with a vote of 4 to 0. VISITOR PRESENTATIONS: Teri Voehl: Hi. Teri Voehl, 770 Creekwood Street. Mayor Furlong: Good evening. Teri Voehl: Hello. We are homeowners of 3 years at a location near where the T-Mobile cell phone tower is going to be impacted. Actually we’re the closest family, and we were not notified of the change of locations, and the cell phone tower is now going to be 231 feet out our front door. And we would like to know why we weren’t notified. We were told an affidavit of mailing was sent. We didn’t receive it. We are extremely irate about this. What it’s going to do to our property value and what it’s going to do to the enjoyment of our property. Mayor Furlong: Okay. I know there was a question that you raised when you sent the email. I don’t know if Mr. Gerhardt… 2 City Council Meeting - March 10, 2008 Todd Gerhardt: Mayor, Kate Aanenson has just, do you have the site plan? Did you bring that down Kate? Kate Aanenson: Sure. Todd Gerhardt: Just want to briefly give the council an update on what the issue is and kind of how we came to making our decision on that. Kate Aanenson: When the original application came in, it was notified and notice in the paper. Notified property owners, and then the development sign went up. At that time the Planning Commission and the City Council did recommend approval. Subsequent to that, because there is a FAA requirement, it does tip the State Historical Preservation Office. Upon reviewing it we noticed the whole application. The same process that went to, for the first application, the sign. The notice in the paper. The property owners. The same list of property owners, based on our evidence. We didn’t get notices that came back on either case. We went back to the file but nothing came back that there wasn’t addressed properly or the such so, it may not have got to the property address but we did what we believe was the same process, and it did get moved. Maybe if I show this one first. The State Historical Society met with T-Mobile. If we can back that out a little bit. Met with T-Mobile to identify, this bigger area met the criteria for the setback but the State Historical Society identified this triangular area as the only place that was acceptable under the State’s criteria. So based on that location, it’s where it ended up which would be moving then over to this side of the property, which met the criteria for the state. In reading the application, it met the criteria of the conditional use and as was pointed out in the staff report, it wasn’t our first choice to move it. You know physically impacted more people, which we recognized, but again we were bound by the State Historic rules, which trumped the City’s regulations on this matter. So we had to recommend that approval. So with that it went, the Planning Commission held a public hearing. Then it went to City Council who approved it at this location. Mayor Furlong: Thank you. Teri Voehl: We were notified of the original location, and my husband attended the Planning Commission’s meetings on that, and the City Council meeting on that. We were never notified that it changed, and we weren’t, this became aware to us on Saturday after we heard some drilling out of our front door behind some pine trees. We looked at the web site and saw that it had been moved. But we were not notified. I would think it’s the City’s responsibility to make sure that the homeowners directly around this are all aware of it. We weren’t aware. We weren’t aware there was a meeting. We weren’t aware that there was a proposed change. We just assumed it was still at the original location. We didn’t receive the mailing. Councilman Litsey: I know one of the things after received your email and then we had a chance to talk a little bit and I sent you some stuff this morning, because I did research it a little bit on my own and then deferred it to staff as well but, there were notice, mailings that went out on the, th I believe it was the 25 of October, which was prior to the Planning Commission public hearing. And I know your name was listed on there and address but that never got to them? 3 City Council Meeting - March 10, 2008 Teri Voehl: It did not, and it also says Drive instead of Street. Our address is Creekwood Street. Councilman Litsey: Street. Teri Voehl: We didn’t get it. Kate Aanenson: But they did get the first mailing, and there are different address. Some say Street, some say Creekwood Drive. The County’s legal says, but none of them came back. They all got the first thing so none of them came back to say they were addressed in error so. Teri Voehl: We didn’t get it. Kate Aanenson: I’m not disagreeing that you didn’t get it. I’m just saying all the first ones went out. They did receive the first one. The same address was used the second time and that’s all I’m trying to understand. Teri Voehl: This, yeah I think it’s strange also, but we didn’t get it. I mean this is now 230 feet out our front door. We would certainly have been at any follow-up hearings or meetings regarding this. It’s going to kill our property value. Councilman Litsey: I know when I read through it a little more too, at the Planning Commission there was some residents there that expressed some concerns. Teri Voehl: Yeah, and I read that too. I met with Sharmeen this morning. She gave me. Councilman McDonald: If I could, could I speak to that because I chaired both of those meetings and they were quite heavily attended. In fact you’ve got another couple neighbors over there who were very upset. There was another gentlemen who I think may be even closer. Teri Voehl: No, he’s not closer. Councilman McDonald: Well at the time, as I recall, he was within about 200 feet because that was his whole complaint too was this was right outside his back door. Teri Voehl: He’s much further. Councilman McDonald: He seemed to indicate it was much closer but, we were very upset with the way that this had worked out, and I think I expressed quite a bit of that but as Kate said, it was out of our hands. We had approved the original positioning, where it was at, and again the State came in and at that point we had no choice. And some of my comments at that were, T- Mobile evidently knew about different locations and I think one of the things that I had asked staff to look at in the future was, we can’t just take these guys at their word. If we had known about this a little bit better and had more foresight as to a number of different locations, which I felt we were not given, maybe at that point we could have had better involvement within the community but when it was brought to us on the first time through, this was the most ideal spot and because of the need for cell phone communications in that area, that was one of the reasons 4 City Council Meeting - March 10, 2008 why the commission you know agreed to approve it where it was at. When it came back through the second time, we really felt we did not have much choice and that the impact again, those meetings were attended. A number of your neighbors did speak out about why it was being moved. It was explained. I was under the impression and again within that neighborhood there was a group that was together in all this and that the word would have spread and that everybody who was opposed to it would have been there because the one neighbor you had, he was very vocal in his opposition to it. Teri Voehl: Well the new location is better for him and worst for us. Could you put that back up here so I can. Basically this is our front door. We have windows all along this. This new location is right out our front door. All the windows to the front of our house. When it was originally over somewhere around here, right? Obviously, he lives here. This was going to be, probably within his view but a lot further away from it than we are. I can’t see any reason why somebody didn’t make sure that we were aware of this thing being moved. We found out Saturday, and the footings are in and it’s now up to you all a foregone conclusion and it’s devastating to us. We moved here because it’s a beautiful area and it’s peaceful and it’s quiet and it’s visually very appealing and this was devastating to us. I mean from all of our front windows, our front door, we have a front patio. This is going to be what we look at. Before it was over here we were upset, but now I mean if we would have been notified. One mailing is all? I mean no follow up? No letters? No nothing saying anything, anything was even finalized or anything was being considered. Supposedly one card was sent. We got the original card. My husband attended the meetings. He signed in. He met Sharmeen. He met probably many of you. Well me met many people on the Planning Commission. No one noticed the absence of the person who lives right here? These people over here too are certainly not happy about it. He was out of town for the meeting and couldn’t attend, but he’s irate as well. I mean if it was summertime we do see our neighbors a little more but this all happened over the winter. Nobody sees anybody or we would have heard from somebody. I assume they all thought we knew and probably would see them at the meeting but I mean these ladies are 80 some years old. We don’t run into them often. Mayor Furlong: Okay. What is the normal process of notification? There is a mailing within a certain area. What are the different levels of notification. Kate Aanenson: Yeah, our ordinance exceeds the law. It’s 300 feet. We go typically 500 feet. Sometimes we go beyond that. We did speak to some of the people before the meeting who chose not to show up to the meeting. The two elderly women you’re talking about came in that day or the day before to talk to us about that. We explained to them the State Historic Preservation. Again we’re stuck with that triangular area with what the State approved somewhere in that site. But they did come in and did tell us that they wouldn’t be at the meeting and voiced their concerns. We did share that at the meeting that they had come in so. Mayor Furlong: But other than mailings, are there any other? Kate Aanenson: That’s our typical process. Todd Gerhardt: Put up the development sign. 5 City Council Meeting - March 10, 2008 Kate Aanenson: Yeah, and a notice in the paper. Teri Voehl: But nobody moved that sign either. I mean it was originally off 101. Kate Aanenson: It came down and then it went back up though. Teri Voehl: But it didn’t go over here to tip us off either. Councilman Litsey: Where did the sign stay Kate? Over more by 101. Kate Aanenson: Correct. Todd Gerhardt: And you want it to be visible you know. It’s on the property that’s being impacted so, as the number of cars that go by, if we put it back over there, some of the people that live closer to 101 may not see it so. We try to keep our web site up to date on all the development activity going on. There was a public hearing at the Planning Commission. That was advertised in the paper, and I know everybody doesn’t look at that. We send out notices. I apologize that you didn’t get notified. Staff will sit down and talk about what other procedures we can go through to try to notify people. Bottom line is that I don’t know, our hands were tied. I think Roger might be able, the city attorney might be able to give you more detail, but our hands were tied on this. We didn’t have a lot of choices when it came down to, I think Kate showed you the triangle of where this thing could be located and that’s not a lot of room to move the tower around. Teri Voehl: Even within the triangle, do you have? Because at probably the worst possible location for our home, and the best for Mr. Halla. It’s right here. It’s in the furthest most corner of his, of this, it’s closest to our house. Our house is right here. I mean even if it was up here it would be better but the whole thing is devastating to us. Todd Gerhardt: Understand. Councilman Litsey: I certainly understand your concerns and wish you had received the mailing and had a chance to you know, to come. Earlier on in the project when you were tracking it, was it just kind of your assumption that it was going to be, was a done deal where it was at? That it was over with? Teri Voehl: Well we knew it was a done deal where it was at. I mean I didn’t even know there was a potential for them to change it. The City Council voted and I mean that all was, right? I mean it was all. Todd Gerhardt: You’re absolutely right. I mean when it originally went through, you know everybody probably left that meeting thinking it was concluded. 6 City Council Meeting - March 10, 2008 Teri Voehl: Yeah, we had no reason to assume there was going to be any changes and we didn’t hear from anybody that there was going to be any changes and we didn’t hear from anybody that there was going to be any changes. Todd Gerhardt: And then when SHPO got involved, the State Historical Society, you know they challenged the location of it and not 100% sure who contacted them to have it modified and changed. Once they made application for that change, we had no choice. We followed the same procedures that we followed the first time it was approved. Used the same mailing list and notice and processes, and I know you weren’t notified or didn’t receive the mailing. Teri Voehl: But don’t you think it’s extremely strange that the people that live right here, when you move it to right here, or right here, didn’t show up for the next meetings and hearings on this? We had no idea. Mayor Furlong: And I guess all we can say is, to, and I think Mr. Gerhardt said it. We’ll take a look at the process. Teri Voehl: That doesn’t do me any good. Mayor Furlong: And I don’t know that you’re going to get an answer that you’re looking for tonight if that answer is to not have that tower built there. If that’s what your question is about. The issue that’s concerning is whether or not people get noticed. You say you didn’t get it. I believe you, and yet I hear what was done and it was the same process used the first time. It’s the same process that we use all the time. Teri Voehl: It’s one card sent out, and if you miss that you get a 150 foot cell tower? Mayor Furlong: Well what I heard is that was the notice for the public hearing. It’s directly sent to property owners within a certain area. There’s also the development sign that goes up on the property, which went up the second time I understand. Teri Voehl: In the same location. Mayor Furlong: But, and that could have been development of something with nothing to do with the cell tower too. If there was another application brought in by that property owner, the sign would go up. And I know we notice in the newspaper as well and not everybody reads all those but I guess the question is, and what Mr. Gerhardt said is, we’ll take a look at it and see what. Teri Voehl: Well we get the Chaska paper, not the Chanhassen paper. Mayor Furlong: Excuse me? Teri Voehl: We get the Chaska paper. Mayor Furlong: Okay. 7 City Council Meeting - March 10, 2008 Teri Voehl: Not the Chanhassen paper. Mayor Furlong: Okay. And our official newspaper is the Chanhassen Villager, and that’s what we designate every year so that’s where our official notices go so that’d be part of the problem too. But we can empathize with your situation. I think the challenge here and the reason it was moved is because the State Historical Society, as I understand it by statute, has over riding authority in this situation. Even though it was originally approved, they disapproved it and therefore it was not allowed to go there. Teri Voehl: I understand the process but I don’t understand why there was not a second attempt made to notify us. Mayor Furlong: Well, and I think that’s something that we’ll consider is how many attempts are reasonable number of attempts to let people know, and that’s something we can review. Teri Voehl: So what is our recourse? Mayor Furlong: With regard to? Teri Voehl: Trying to stop this cell tower from being outside of our front door? Mayor Furlong: Mr. Knutson? Roger Knutson: There is no recourse available through the City. The City has approved it. They’re under construction. Teri Voehl: So we have to find a real estate attorney and see if we can have an injunction? Roger Knutson: Certainly that’d be your own, you can try. Teri Voehl: As a taxpayer of the city, I am extremely upset that we weren’t notified. I think everybody in this audience would like to know if there was a 150 foot cell tower put right outside their front door. Councilman Litsey: I certainly understand your concerns and I think the concerns were brought forward, at least to some extent, at the Planning Commission meeting. I think they did take a look at those concerns from some of your neighbors in the area to see whether or not it was, those were at least taken into account. And then of course you have to go by what’s legally, we can and can’t do in terms of projects and then we move forward. So I think it’s good to look at the process. It doesn’t help you tonight. I understand that. I think that’s all we really can do at this point unfortunately. Councilman McDonald: Mayor, one point. I was just going to say if I could, one of the things that we did try to do at the Planning Commission because there was involvement from everyone, we did put extra requirements on the cell phone tower as far as to try to camouflage it a little bit 8 City Council Meeting - March 10, 2008 because we were sensitive to the fact that yes, everyone in that area is now going to go out at some angle and that they would see this tower up in the air. And they did bring forward a number of ways to paint it or to try to at least minimize the visual impact. I understand that it’s still there but we did try to take all that into account. We looked at a number of different items but again by the second time it came through, I really felt that the commission’s hands were tied. We couldn’t do anything about it at that point. Councilman Litsey: The other thing too, if my memory serves me right and I think it was Mayor Furlong who brought this suggestion up was that if the tower wasn’t used for a period of a year or so, that it had to be removed. Not that that helps you immediately but I know there was some talk about that technology maybe being obsolete within 5 years and if that’s the case, and if in fact it’s not used, then at least that was what memorialized in that approval that they’re going to have to take it down so it doesn’t sit there for another 20 years, just for no reason. And I thought that was a great amendment at the time and probably will come into play. Not immediately but hopefully down the road. Mayor Furlong: Okay, thank you. Anyone else for visitor presentations this evening? Okay. Let’s move on with our next items. JIMMY JOHN’S, 7851 MARKET BOULEVARD, APPLICANT, KRAUS-ANDERSON, INC.,LLC: REQUEST FOR SITE PLAN APPROVAL WITH VARIANCES FOR A 1,650 SQUARE FOOT ONE-STORY RESTAURANT BUILDING; AND A CONDITIONAL USE PERMIT TO ALLOW A FREE STANDING, FAST FOOD RESTAURANT IN THE CENTRAL BUSINESS DISTRICT (CBD) LOCATED ON LOT 1, BLOCK 1, MARKET STREET STATION. Kate Aanenson: Thank you. This item appeared before the Planning Commission on their th February 19 meeting. The Planning Commission unanimously recommended approval. The site itself for the Jimmy John's is part of the Market Street Station project, which was approved th in 2003. Located just south of West 78 Street. The request is for a conditional use for the restaurant. When we approved the original site for Market Street Station we looked at a restaurant pad here and an additional restaurant attached to the Dinner Theater itself. At that time this was originally approved for 2 sites. The project that’s being requested tonight is just for one use itself, and the other factor on that is, that this does require a conditional use. As you recall one of the issues that we talked about with the code updates is that a free standing restaurant in the central business district probably doesn’t need to be a conditional use. At this point that’s how the code reads so we are getting a conditional use that’s one, I just want to circle back to that point. That’s one of the things that we would be changing. A free standing. It’s not a drive through. That we wouldn’t make that a conditional use. The architecture itself would be similar to what’s at Market Street Station and it does meet all the requirements of the district itself regarding the pre-cast stucco and the like. It will have an entrance facing, I’ll just show the elevation. It does meet the requirements for fenestration. We added additional, the applicant added an additional window. The front itself faces, this is the back side of the hotel. This is the existing dumpster. So the back side, the patio side is actually to the interior. There will be a door here but that’s the control point coming in would be this so that’d be exit only so there’s sidewalks. The Planning Commission did discuss access and sidewalks that is shown more 9