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04/10/1987 - City Council SpecialMEMO TO: HONORABLE MAYOR & CITY COUNCILMEMBER FROM: CITY. ADMINISTRATOR HEDGES DATE: APRIL 10, 1987 SUBJECT: SPECIAL CITY COUNCIL MEETING Action was taken at the April 7, 1987, regular City Council to schedule a special workshop/City Council meeting for Monday, April 13, 1987, beginning at 6:30 p.m. I. INFORMAL PRESENTATION/CRAY RESEARCH Representatives of Cray Research will be present to brief the City Council on their plans to develop corporate office buildings on property they recently acquired from Wachovia Bank and Trust adjacent to Northwest Airlines, Inc. There are no handouts available at this time for distribution; however, it is expected that representatives of Cray will have a drawing or additional information to share with the City Council on Monday. Their formal presentation is expected to last about 15 to 20 minutes. They suggested that we allow the Cray representatives to make a brief presentation and then welcome them to our community as a new corporate citizen. II. INTERVIEWS/CHIEF BUILDING OFFICIAL CANDIDATES This office has completed the interviews for Chief Building Official and for additional information refer to the memo attached on pages,3 through /4 and copies of resumes for the candidates to be interviewed by the City Council, enclosed on pages^_/t__ through _ Y3Traditionally, the City e Administrator has presnted the final three or four candidates for each departmental position to the City Council for interviews. There are four (4) finalists to be interviewed and it is expected that the City Council should take approximately 20 minutes with each candidate. Please review the information enclosed on page & for sample questions. The City Administrator would like to spend approximately five to ten minutes between the presentation by Cray Research and the first interview to discuss some ground rules for the interview process. The City Council can either make a decision to hire a chief building official at the special City Council meeting on Monday or ratify the decision at the April 21 regular City Council meeting. III. CONSIDER AIRPORT NOISE POSITION The cities of Eagan and Mendota Heights are scheduled to present information/testify at the Tuesday, April 28, MASAC meeting. The cities of Eagan and Mendota Heights have been meeting in an effort to prepare a joint position as it relates to airport noise and more importantly, how the corridor should be shaped for the future to best minimize the airport noise impact on the two (2) communities. Administrative Assistant Hohenstein has prepared a position paper that carefully addresses a number of issues and presents a suggestion for a noise corridor that would best concentrate air noise and proposes a minimization of noise impact on both communities. Since this position paper does deviate from the Metropolitan Council's position, it is appropriate that the City Council discuss and develop a position for airport noise as it relates to the definition of the corridor. The cities of Eagan and Mendota Heights will be meeting during late afternoon of Wednesday, April 15, to further discuss the airport noise corri- dor in an effort to secure a joint position of the two (2) communities. Later that same evening, the Airport Noise Committee is planning to meet and will consider ratification of the position statement that is enclosed for your review. Administrative Assistant Hohenstein will be present Monday and it is the wish of the City Administrator that a brief presentation be made to the City Council in hopes that a position can be reached regarding the airport noise corridor with the understanding that a final action developing a position for the City of Eagan will be taken at the April 21 City Council meeting. The City Council should remain somewhat flexible, understanding that the City of Mendota Heights have not reached their decision on a noise corridor at this time. It is important that the two (2) cities agree on a noise corridor and present a united position at the MASAC meeting on April 28. Please refer to the enclosed position paper, pages through �, as prepared by Administrative Assistant Hohenste n. IV. ADMINISTRATIVE UPDATE The City Administrator would like the opportunity to discuss the status of several projects he is working on such as the new organizational concept, management by objective, status of a goal setting session with Lyle Sumek, capital improvements budget and other related projects. Discussion on the part of the City Administrator will be kept to a minimum to allow proper City Council input and direction. V. OTHER BUSINESS If members of the City Council wish to discuss any other business, there should be ample time at the work session on Monday. Attached are copies of letters and other information pertaining to lawsuits or issues that would be of interest to the City Council. The copies can be found on pagesAV City hdministrator Ra MEMO TO: HONORABLE MAYOR & CITY COUNCILMEMBERS FROM: CITY ADMINISTRATOR HEDGES DATE: APRIL 10, 1987 SUBJECT: CHIEF BUILDING OFFICIAL Effective with the resignation of former Chief Building Official, Dale Peterson, an employment procedure/search was begun for a new Chief Building Official. The job vacancy was advertised three consecutive weekends in both the Minneapolis Star and Tribune and the St. Paul Pioneer Press/Dispatch. The vacancy was also advertised in the local papers which both cover a large area south of the river and, in the case of the Sun (Chronicle), the area just north of the river was also covered. In addition, letters were sent to all metropolitan area cities enclosing a job posting and job description along with a request that the city post the job posting and description on their employee bulletin boards. Since this is a department head level position, the requirements/ qualifications for the position were fairly extensive. Enclosed for your information on page is a copy of the job posting/ want ad. Twenty-seven applications for this position were received at the municipal center. Before final screening of these applications, two of the applicants voluntarily withdrew their applications. The remaining applications were screened to determine if the qualifications as listed in the advertisement/posting were present. From this screening, eleven applicants were selected to come to the Eagan Municipal Center for an interview. Ten of the eleven applicants were interviewed by a panel consisting of City Administrator Hedges, former community development director of Burnsville, Mike Falk, and Administrative Assistant Duffy. The eleventh applicant, unfortunately, suffered a massive heart attack and was not able to appear for an interview. In the interview session, each applicant was asked the same set of pre -selected questions. A cop of those questions is enclosed for your information on pagesJ,49 . After the interview, each applicant was rated on the rating sheet, an example of which is enclosed on page Za for your information. From these interviews, four finalists were selected to have a final interview with the Mayor and City Council and City Administrator on Monday evening, April 13, 1987. A schedule listing the four finalists and the times at which they will appear for an interview is enclosed for your information on page Also enclosed for your information are copies of the application forms, resumes, and any other related information submitted by the applicant for each of the finalists. This information is enclosed on page (s) 1.A OJ A period of twenty minutes has been allotted to interview each j candidate on Monday evening. Also enclosed on page _^ for your information is a list of four questions which are presented for your use at the interview session. If you require any additional information on the candidates prior to the meeting Monday, please contact me on Monday and I will supply said information. City Administrator RAGAN - MENDOTA HEIGHTS CORRIDOR DEFINITION The Eagan - Mendota Heights Corridor is an outgrowth of effective community planning and the expressed intent of the MAC and FAA to concentrate the greatest proportion of the air traff is where noise compatible land use can absorb it. The corridor is, by all assertions, the heart of the preferential runway system. Even as air traffic has exceeded the capacity of the traditional PRS configuration, the existence of the corridor has allowed the largest proportion of departures and arrivals to occur away from more densely populated airport neighbors. However, the same increase in traffic has taxed the ability of the corridor to effectively serve this function. HISTORICAL The development of the corridor occurred over the years by a CONTEXT combination of cooperation and confrontation. For many years, areas of both Eagan and Mendota Heights were planned and zoned for commercial and industrial uses. This was as much for safety as for noise reasons. In the early 1970's, when the preferential runway system was devised, it took advantage of the land use and open space southeast of the airport to help alleviate the noise crisis in Minneapolis and St. Paul. Because the PRS addressed only the direction of aircraft from the airport without specific parameters, the traditional neighborhoods adjacent to the Eagan - Mendota Heights Corridor received as much noise as the corridor did. Eagan asserted that aircraft traffic patterns should be modified to keep the worst of the noise in the compatible corridor. In an attempt to accommodate this request, MAC and the FAA established a procedure in 1972 under which aircraft would stay on or north of the extended runway centerline for a distance of three miles from the runway end. The procedure was a significant first step in the evolution of the corridor, but less than a year later the issue was brought before MASAC when Eagan asserted that practical application of the procedure failed to mitigate noise or reduce overflights of adjacent neighborhoods and, therefore, was inadequate accommodation for the disproportionate level of traffic focused on the area by the PRS. Bear in mind that Eagan wasprepared to accept the premise of the PRS if its logical extension was the optimal use of the compatible area provided. CORRIDOR In an effort to protect the preferential runway system from a ACCOMMODATION legal challenge, the FAA, MAC, APA and major airlines met to consider further modifications of the departure procedure. It was determined that a five degree left turn on take -off would better utilize the corridor and the procedure was so modified. On the basis of this accommodation, Eagan rejoined MASAC and abandoned any challenge of the PRS. This modification recognized that the orientation of the noise URA compatible corridor was north of runway centerline, where the land use remains today. Between 1973 and 1977, two significant events occurred. Runway 29R/11L was upgraded and extended to handle turboject traffic. At the same time, the departure procedure was further modified such that aircraft departing both runways to the southeast were issued headings ten to eleven degrees north of runway centerline. Three issues are significant to further discussion of the corridor. First, these changes occurred when the PRS placed landings principally on the 29 Runways and the departures on Runway 22, thus reducing departure impact in the corridor. Second, traffic levels were sufficiently low that nose to tail departures could occur and little if any diverging separation was necessary. Third, the magnetic headings of the airport runways are five to six degrees greater than their designations. Therefore, the actual orientation of the parallel runways is roughly 116 degrees and the standard departure headings were 105 degrees. Over the next ten years, corridor neighbors and their respective cities developed certain expectations based upon these headings. SPECIFIC In the late 1970's, around the time of airline deregulation, ASSUMPTIONS but prior to the industry's significant expansion, two studies were undertaken which solidified these expectations. MAC developed its Noise Abatement Operations Plan which evaluated existing noise abatement measures by comparing impacts with and without each measure in place. The study focused on a 1977 base case and was completed in 1981. At about the same time, the Metropolitan Council and Metropolitan Airports Commission cooperated in the Noise Map Project to define long term land use compatibility standards for the Aviation Chapter of the Metropolitan Development Guide. The project which was completed in 1983, was designed to define differential policy standards for noise impacted development. As a part of the Metropolitan Development Investment Framework, the noise map's policy contours largely define the character of development, particularly in the corridor area of Eagan and Mendota Heights. The fundamental assumption of both studies was that 105 degree headings would be the dominant departure routes southeast of the airport. In addition, both were predicated on the belief that productive land use control measures or the use of existent compatible land use must complement source noise reduction. Although the MAC plan used an Ldn descriptor and the MC -MAC study used an Leq, both resulted in contours which coincided with the compatible land use in the corridor fairly equitably. While neither Eagan nor Mendota Heights were completely free of noise, the worst of the impact was focused at its middle and its overlap into residential areas was similar in level and scope. A I—A AND MAC The assumptions of both studies were formulated or approved RESPONSIBILITY by the FAA and MAC, either directly or cooperatively with other agencies. Essentially, the corridor headings assumed in both formed the basis for virtually all land use decisions 0 2 through the study period and in its aftermath. With the implementation of the Aviation Chapter in 1983, cities affected by aircraft noise were expected to modify their comprehensive plans to comply with the standards of the policy contours. CITY The City of Eagan, through its comprehensive planning COMPLIANCE process, is essentially completely compliant with the standards of the policy contours. Where current land use is not compliant, its long term designation has been changed to compatible uses consistent with surrounding uses. The City of Eagan, and I believe City of Mendota Heights to a great extent, has modified its planning to be consistent with the expectations provided them by the MAC and FAA. The cities have provided as much compatible area as they were told was needed. If the airport needs to modify its expectations, as it obviously must, it should engage the cities in a discussion of how best to do that. EFFECTS OF The post -deregulation growth in air traffic eroded these DEREGULATION assumptions, however, much as it has all around the airport. As traffic increased, it became increasingly necessary to utilize diverging separation between parallel or successive departures. The need to maintain at least fifteen degrees separation between increasingly greater numbers of aircraft resulted in noise impacts beyond those anticipated in either of the anlayses described above. Even before the studies were complete, FAA procedure provided for diverging separation to the north of the 105 degree heading. Despite its presence in the operational order, the relative infrequency of its use apparently resulted in its lack of consideration by the FAA or MAC in the cited studies. This 90 degree heading when flown from runway 11L resulted in direct overflights of Mendota Heights neighborhoods. COMMUNITY On at least two occasions, the increasing frequency of these RESPONSE overflights resulted in complaints from Mendota Heights to MAC or MASAC. In both cases, the proposed solution was to minimize the use of such headings through controller awareness. In the latter case, occurring in 1984, MASAC also supported internal changes by the FAA which allowed the removal of the restricted flight area from a neighborhood in Eagan and the adjustment of "headings on take -offs to make more consistent ground tracks keeping aircraft within the departure corridor." The latter language resulted in some disagreement on the part of participants as to its precise meaning. Eagan's representative, like others, believed the language to refer to the adjustment of departure headings to account for the wind, thereby approximating the ground tracks of the traditional corridor assumptions. This practice is still followed by FAA personnel who periodically track departing aircraft and adjust headings into the wind to maintain a desired track. NO 3 This interpretation was repeated by the City of Eagan on no fewer than three occasions when resolutions were forwarded to the FAA, MAC and MASAC specifically referencing the 105 degree heading or operational orders which included that assumption. FAA ACTION The FAA interpretation is radically different. The FAA has asserted that the evolutionary development of the corridor has been entirely discretionary on the part of the agency. It has further asserted that the operational boundary of the corridor lies at the edge of the compatible land use along runway heading without regard for the equity of its noise impact; and seemingly siezing as a definition an operational standard which was abandoned as inadequate after less than a year in 1973. The FAA has asserted that the intent of the above quoted language was to: permit the tower to keep noisy aircraft within the corridor. This would be accomplished by keeping departures on or north of the extended runway centerline or 1 ocalizer. This would be accomplished by "playing the wind," consequently, the 105 heading may or may not be used. INCONSISTENT Not only does this definition strain the sensibilities, it IMPLEMENTATION totally ignores essential issues in the initiation of so radical a departure from stated policy. The FAA suggests that MASAC authorized the change despite their being "internal" in nature. MASAC, however, is only advisory to the MAC on noise issues and no record of MAC action on the proposal exists. Therefore, the FAA has acted without approval of the responsible agency. The operational order which includes the change is dated September 30, 1985, more than a year after the cited MASAC action, making any direct relationship unlikely. Moreover, any implementation of the new headings was not known by MAC at the time of the Governor's Task Force meetings in early 1986 as MAC representatives vigorously asserted the 105 degree definition of the corridor throughout the proceedings. Moreover, the FAA's stated objective of the change was to keep noisy aircraft within the corridor. Yet the subsequent modifications of the operational order have only widened the corridor by ten degrees while leaving the 90 degree heading over Mendota Heights intact and in use. In addition, a 1986 study by MAC showed that up to 60% of all traffic departing 11R was south of runway centerline or turned south of centerline before the three mile limit over Eagan neighborhoods. This at a time when sensitivity to the regional noise problem has resulted in 57% of the annual departures and a similar proportion of annual arrivals are concentrated in the corridor area. This definition also overlooks the insidious nature of the widening. It occurred incrementally thereby spreading its increased impact over time. Therefore, the FAA has not recognized a need to undertake an environmental assessment q- 7 4 under FAR Part 1050.ID which requires an environmental assessment and the submission of an EIS or FONSI for: New or revised air traffic control procedures which routinely route air traffic over noise sensitive areas at less than 3,000 feet ABOVE GROUND LEVEL. The modification of the 105 heading after almost ten years of use constitutes a new or revised procedure. The modification routinely routes traffic over at least two noise sensitive areas at less than 3,000 feet. The McKee Addition lying at a distance of three miles has a long term noise compatible designation, but its current use is not. Country Home Heights Addition receives overflights on a regular basis as shown by MAC's study. Essentially, this significant change was undertaken under dubious authority, in direct contravention of its stated objective, without any environmental documentation and, most important, without ever directly involving the cities or public it effects. IMPLICATIONS What does this imply? It implies a need on the part of the FAA and the MAC to do now that which it has overlooked to date: a complete and comprehensive study of the environmental impact of air traffic in the corridor area and mitigative strategies to focus the worst of the impact at the corridor's middle without restricting parallel capacity. The City of Eagan and, I believe, Mendota Heights recognize that the increase in traffic has created a need for a wider area of operations. Aircraft could not be constrained exclusively to 105 degree headings without severely restricting parallel capacity; yet those headings are the only ones the FAA or MAC have adequately or differentially studied to date and the ones on which regional and local preventive land use are based. The Cities of Eagan and Mendota Heights have accepted a regional responsibility to absorb noise impacts as is evidenced by present land use and comprehensive guide plan designations for future land use. The FAA, through its F.A.R. Part 150 requirements place as much emphasis on such land use as it does on operations. Where land use does exist, the Part 150 requirements imply a need to study optimal operational use of the area. Flight track modification remains an appropriate operational alternative. NEED TO RENEW The Cities' cooperative spirits should not be abused. The ACCOMMODATION presence of such land use was carefully planned. Difficult decisions were made to redesignate certain areas in exchange for accommodations by the FAA and MAC to make them adequate. Compatible land use did not occur of its own, but rather as part of a cooperative effort. Since conditions have changed, as much if not more effort should be placed on defining an optimal, equitable use of the corridor. k 9 PAROCHIAL Unfortunately, parochial interests may taint this discussion. INTERESTS Absent adequate study of the impacts of the broader corridor procedure, residents on each side of the corridor have assumed that their increased aggravation is the fault of the other. Meanwhile interests in South Minneapolis have asserted that any constraints southeast of the airport create a bottleneck which sends more traffic to the northwest. This rhetoric must be faced, challenged and exploded. As to relative fault by corridor neighbors, each is operating under the assumptions it was given by the FAA and MAC via the Metropolitan Council. Unfortunately, the FAA and MAC have done little to abate the finger pointing. When the FAA has undertaken to widen the operational area to 25 degrees to provide 15 degree separations, clearly there is room for improvement to the benefit of both sides. Adequate study of a package of assumptions which will focus the worst of the impact where it can be absorbed best is essential. As to constraints on capacity, full parallel departure capacity exists any time fifteen degrees or more of airspace is available. The Cities of Eagan and, again I assume, Mendota Heights are willing to jointly study means of defining sufficient airspace within the compatible area. This does not mean that flying within an area so defined is as easy as fanning, but requiring controllers to perform feasibile though more demanding work is the responsibility of FAA management. South Minneapolis would still receive parallel departures when there is too great a tailwind component for southeast departures, when weather requires the use of both ILS approaches on the 29 runways, and when peak level arrivals would generate greater noise impacts than would smaller number of departures. In an area with prevailing west winds a departure pattern to the southeast cannot be underutilized when it accounts for 57 percent of all departures. PROPOSED What does Eagan propose? It is not the intent of the City to RESOLUTION recapture the noise environment of the past. However, the noise environment of the past was based on focusing the worst of the impact equitably between the two Cities, as the Metropolitan Council contours do, and a modification of flight tracks accomplish that. To attempt to resolve this issue, the City of Eagan suggests: 1. Adequate Analysis - The City has proposed in the past and continues to propose that differential analysis of several packages of flight tracks with varying concentrations along each track be studied to define a feasible combination of headings providing at least 15 degrees separation which places the worst of the noise impact equitably between the two communities. The Part 150 process affords an excellent opportunity to address this matter through both its land use and operations portions. The current Part 150 corridor element merely describes the present situation in detail without examining any mitigative strategies. 2. ongoing Enforcement - Because human nature seeks the path of least resistance, any resolution of this issue will depend upon adequate management to insure that South Minneapolis receives no more than its operationally dictated volume of traffic and that operational parameters defined through analysis be followed. 3. Ongoing Environmental Assessment - Airport neighbors have become accutely aware of the dynamic nature of the airline industry. However, when changes must occur, environmental documentation should be automatic and preemptive, not grudgingly acknowledged after the fact. The FAA should not presume to go from the equivalent of a two way road to a superhighway without public process and the direct involvement of the cities and citizens effected. 4. Consistent Communication - It is difficult to adequately develop citizen expectations when procedures or assumptions are changed without adequate, direct communication with the City and its responsible authorities. If we are informed, we can keep citizens informed. If we are not informed and the story changes, citizen complaints against the airport are appropriate and inevitable. 5. Traditional Assumptions When Appropriate - Groundtracks corresponding with the 105 degree heading are still the best noise abatement configuration during late night and off peak operations. The current operational order still requires them when diverging separation is not in use. Noise impacts and overflights outside of the corridor without apparent reason create the most vehement of noise complaints. CONCLUSION In sum, changes have been undertaken which modify substantially the land use assumptions Eagan and Mendota Heights must follow. However, these changes were undertaken without public process. No effort was made to study its impact or consider its relative equity. Because the general area was compatible, the rights of those on either side were overlooked. It is unfair to penalize an area's residents because its governments have acted responsibly. The point of this position paper is not to protect Eagan or Mendota Heights citizens to the detriment of others. Nor is it to secure a noise free environment. No airport neighbor can expect that. However, they should be directly involved in a meaningful way with decisions which affect them. The point of this paper is to elicit an adequate, substantive study of the optimal use of the corridor as a full parallel capacity airway in an appropriate forum. Optimal use meaning that which equitably centers on the middle of the noise compatible area. Eagan and Mendota Heights have accepted a regional responsiblity. The airport has an obligation to cooperate with the Cities to mitigate the adverse consequences of that responsibility. _C� HAUGE, EIDE & KELLER, P. A. ATTORNEYS AT LAW WATER VIEW OFFICE TOWER, SUITE 303 1200 YANKEE DOODLE ROAD EAGAN, MINNESOTA 55123 PAUL H. HAUGE KEVIN W. EIDE DAVID G. KELLER LORI M. BELLIN DEBRA E. SCHMIDT Thomas Hedges Eagan City Administrator 3830 Pilot Knob Road Eagan, MN 55121 April 7, 1987 7- N,pfte s AREA CODE 612 TELEPHONE 456-9000 454.4224 RE: Federal Land Company vs. Cedar Cliff Partnership, City of Eagan, et al Dear Tom: A Summons and Amended Complaint and Petition for Writ of Mandamus was received by the City in the above -entitled action, approximately April 2, 1987. The method of service now commonly used in civil actions is to send a copy of the Summons and Complaint to the Defendant and ask them to acknowledge service, rather than actual personal service. I forwarded a Notice and Acknowledgment of Service to Robert Bell, the attorney for Federal Land Company dated April 7, 1987, which is the effective date for service upon the City. I would make the following comments concerning this action: 1. The 20 day answering period begins on April 7, and expires on approximately April 27. 2. I have forwarded a copy of the Summons and Complaint to the Minnesota League of Cities Insurance Trust and requested that the insurance trust assume the defense on behalf of the City. There are seven parts to the prayer for relief with only the 7th prayer effecting the City. It is a claim for damages in excess of $50,000.00 or alleged inverse condemnation, and also alleges a trespass action, which is somewhat different from an inverse condemnation. In addition, the Plaintiff has asked for an alternative for Writ of Mandamus to direct the City to commence condemnation and pay compensation for an alleged taking. I would expect the insurance trust will deny coverage because there is a clear provision in the January 1, 1987 endorsement that excludes inverse condemnation. However, this is an area of some debate and I do not feel that the City ought to arbitrarily accept the insurance trust's position, if it takes that stand. U Mr. Thomas Hedges April 7, 1987 Page 2 3. Of the 7 prayers for relielf, 6 apply to Cedar Cliff Partnership which consists of John Flanagan, Jim Durning, Loren Spande and M. G. Astleford. I have sent a letter to the three partners who I believe are the only three in circulation, tendering defense on behalf of the City to Cedar Cliff Partnership also. It should be the City's position that Cedar Cliff Partnership caused any alleged damage and they should assume the defense and also any liability. I expect that they will deny this, claiming that the City also is diverting water into the pond and that the City Council did not proceed with a storm sewer outlet project, and therefore, the City has a responsibility. 4. If Cedar Cliff Partnership does not accept the defense, it may be that the City should cross-claim against Cedar Cliff Partnership, claiming that it is the responsible party. 5. There are several aspects to the Complaint as follows: a. The claim is that Cedar Cliff Partnership caused substantial amount of fill or grading to be deposited in and around the ponding area, causing damage to the pond, with several claims for damage. b. In addition, there is a request for declaratory judgment that Cedar Cliff would not be allowed to receive damages from Federal Land Company for any alleged damage to the Cedar Cliff parking lot. I will keep you posted on the status of the replies from Eagan's insurance carrier and the Cedar Cliff Partnership. I will expect that it will be necessary for the City to enter an Answer within the 20 day or an extended period of time. PHH:ras cc: E. J. VanOverbeke Ver7 truly yours, fr,.. HAUGE, EIDE & K LLER, P.A. aul H. Hau eY -54 W uagan 3830 PILOT KNOB ROAD, P.O. BOX 21199 BEA BLOMQUIST EAGAN, MINNESOTA 55121 Mayor PHONE: (612) 454-8100 THOMAS EGAN JAMES A. SMITH VIC ELLISON THEODORE WACHTER .Council Members THOMAS HEDGES April 9, 1987 City Administrator EUGENE VAN OVERBEKE City Clerk Re: Blackhawk Plaza Project Dear Resident: At the April 7, 1987, City Council meeting, the Council directed City staff to set up a neighborhood meeting to discuss the Blackhawk Plaza project in an informal manner. The issues discussed will be forwarded to the Council prior to the April 21, 1987, City Council meeting where this item will receive formal action. Please note that the improved Blackhawk Road design has not been finalized yet and will not be prior to April 21. The neighborhood meeting has been scheduled for Thursday, April 16, 1987, at 4:30 p.m., at the Eagan Municipal Center Council Chambers. Sincerely, Jim Sturm Planning Department JS/j j THE LONE OAK TREE THE SYMBOL OF STRENGTH AND GROWTH IN OUR COMMUNITY 0 Z HAUGE, EIDE & KELLER, P. A. ATTORNEYS AT LAW WATER VIEW OFFICE TOWER, SUITE 303 1200 YANKEE DOODLE ROAD EAGAN. MINNESOTA 55123 PAUL H. HAUGE KEVIN W. EIDE DAVID G. KELLER LORI M. BELLIN DEBRA E. SCHMIDT Mr. Tom Hedges City Administrator City of Eagan 3830 Pilot Knob Road Eagan, MN 55121 RE: Excavation/Nuisance Complaint Dear Tom: March 31, 1987 Issue. AREA CODE 612 TELEPHONE 456-9000 454-4224 The City Council, at its meeting on March 3, 1987, directed the staff to inquire into methods that could be utilized by the City to correct the nuisance and complete the .cleanup of the Bieter Company property at the northeast intersection of I35E and Diffley Road. Excavation Permit Number 21194 was issued to the owners of the property and, it is my understanding that the City Council, at its meeting on February 3, 1987, requested the owners who were present at the meeting to comply with the City's demand that the excavation ordinance be properly complied with. A letter was sent to Ron Cornwell of the Bieter Company on February 9, 1987 asking that the grading permit be renewed for 1987 until work is complete and inspected by the City Engineering Division. In addition, at the March 3 meeting, the City Council directed the staff to contact the Dakota County Soil and Conservation Service for a proposal to correct the grading and erosion problems that exist on the property. Question. After a private property owner fails to correct grading/erosion problems on its property according to the City's Erosion/Excavation Ordinance required by the excavation permit, may the City correct these problems and charge the costs to the owner? Analysis. There are several statutes that deal with abatement of nuisances and correction of defects, however, there is no clear direction in the Minnesota Statutes. Some of the areas that generally treat the issue are as follows: 63/ Mr. Tom Hedges March 31, 1987 Page Two 1. Chapter 561 deals with the methods of remedy available including injunction, damages or a combination of both for abating nuisances and trespasses. There does not appear to be any provision for a city billing specific property for abatement of nuisances under that chapter, however. 2. M.S. 412.221, Subd. 23 provides that a city council may abate/prevent nuisances through ordinances. 3. M.S. 429.021, Subd. 1(8) allows a city council to abate nuisances in draining swamps, marshes and ponds on public or private property and to fill the same. This is a special section to the local improvements statute that allows assessments to be levied. There should initially be a clear finding of a nuisance prior to determination to proceed under that section. If it is determined that there is a nuisance, the City could proceed with a public hearing under section 429 and by findings of fact and conclusions, determine whether such nuisance exists and if so proceed through the special assessment process. 4. Eagan City Code Section 4.30, Excavations and Fills, provides for the issuance of an excavation permit subject to compliance with the ordinance. a. It provides that a petitioner should pay for all reasonable costs incurred by the City for review and inspection and also spells out in detail the regulations covering restoration of the property. The restoration shall be accomplished according to an approved plan and time schedule and requires a surety bond to be posted conditioned upon complying with all the requirements of the code and a performance bond running to the City at a minimum of $500.00 for each acre, conditioned to pay the City the costs and expenses of restoration. b. In addition, Subd. 10 provides that a conditional use permit shall be required for all excavation or fill permits required under that section in all areas zoned other than commercial industrial. C. The violations include an injunction from further work under the permit, revocation of the permit and citation for violation of the ordinance. 4. M.S. 471.92, entitled Dangerous Excavations, Maintenance and Abandonment, allows a governing body to regulate abandonment of open areas and the City can set out penalties. However, there is no specific provision for the City billing the owner of the property for such cleanup work. 15 Mr. Tom Hedges March 31, 1987 Page Three 5. Under M.S. 463.25, if an excavation for building purposes is left open for more than six months without proceeding with the erection of a building or, if any excavation or basement is not filled to grade or otherwise protected after a building is destroyed, demolished or removed, a governing body may order the excavation to be filled and the costs shall be charged against the real estate provided under M.S. 463.21. This section appears to deal only with excavation for building purposes and does not specifically treat the situation at hand. 6. Eagan City Code Section 10.21 deals with the removal of weeds and grass, public health or safety hazards and treating or removing insect infested or diseased trees. If the owner fails to comply with the City's directives, the City may proceed to correct the defect and levy a special assessment against the affected property. This provision does not specifically deal with excavations however, unless there are public health or safety hazards that exist. Conclusion. 1. The Eagan Ordinance 10.21, does allow the City to complete work and charge the owner if the issue is one that is determined to be a public health or safety hazard and then the City may also assess the affected property. 2. Code Section 4.30, Excavations and Fills, does provide for some remedy including potentially collecting on a performance bond but it would be advisable to make certain that the bond has been posted and is current and that the bonding company will honor the demand of the City. Certainly, a property owner could, under the right circumstances, be cited with violations of the ordinance for non-compliance. M.S. 429.101, Subd. 1(c) deals with the removal and elimination of public health or safety hazards under sections 463.15 to 463.26. 3. A close investigation of the property and the circumstances should take place and if assessments are intended to be potentially levied, the public hearing process should be followed. Ver truly yours, HAUGE, EIDE & KILLER, P.A. �,' Paul H. Hauge PHH:jjm -� Thorson -Cornwell Co. 5200 Willson Road - Suite 201 - Minneapolis, Minnesota 55424 Telephone: (612) 927-7796 b April 9, 1987 Mr. Tom Colbert, City Engineer City of Eagan 3830 Pilot Knob Road Eagan, MN 55122 RE: Bieter Co. 35-E and Diffley Road Dear Tom: I know there has been some concern regarding the appearance and possible erosion of our site at 35-E and Diffley Road. I met the excavating contractor at the site today to make arrangements for "cleaning it up", spreading black dirt and seeding. He will begin as soon as load limits are removed so he can bring in the necessary equipment. With normal -winter snowfall, the snow cover would just now be disappearing. Unfortunately the site was pretty well exposed most of the winter. Please call if you have questions. Very truly yours, Ronald G. Cornwell RGC/rg Copy: Tom Hedges Dale Runkle Chuck Hall Bea Bloomquist M;.-mter and Dis Natij al Ass.:; tion of Homebuilders - f0ember—Minneapolis Home Builders Association—Minnesota Apartment Association hImnescta Mobile Home Ass:Dcintion— f;Ainnesota Housing Inst*e—Licensed Real Estate Broker—Registered Professional Engineer 1 CONFIDENTIAL MINUTES OF A SPECIAL MEETING OF THE EAGAN CITY COUNCIL EXECUTIVE SESSION - BIETER COMPANY EAGAN, MINNESOTA MARCH 31, 1987 At 11:10 p.m., on March 31, 1987, at the Eagan Municipal Center, the Eagan City Council special council meeting went into Executive Session to discuss the current litigation commenced by Bieter Company against the City of Eagan on March 26, 1987. Present were Mayor Blomquist, and Councilmembers Smith, Wachter, Egan and Ellison. Also present were City Administrator Tom Hedges and City Attorney Paul Hauge. Paul Hauge reviewed the Complaint that was submitted by the Bieter Company and the following issues were discussed:. 1. It was noted that the address for the Bieter Company partnership is 5200 Willson Road in Edina, the address for Joseph Christensen, attorney for the partnership. 2. The Complaint indicated that the owners had approached the City in 1979 concerning development of the property but did not submit an application until 1986. 3. The claim has been made that the land adjoining the freeway is not appropriate for residential purposes, but it was noted that immediately on the west side there are several housing developments. 4. The question was raised as to whether the applicants had submitted information to the City during the 1980 Comp Guide Review. 5. There was discussion concerning the prayer for relief, including damages for the costs of submission of an application and inverse condemnation. 6. Mayor Blomquist reviewed with the members present, some of the other lawsuits that the City has been involved in, in recent years, including 35E-Blackhawk Lake action, the Aghassi case, the open meeting law violation case, the Amcon case and the O'Neill case 7. Councilmembers have been receiving calls from Cornwell and Klohs concerning the potential for resolving the issue, including compromise uses of the property. 8. The City Administrator discussed with the City Council, the potential conflict that the Larkin, Hoffman firm may have in the event that they are selected as special counsel for the City. Executive Session Council Minutes March 31, 1987 Blomquist moved, Egan seconded the motion to direct the City Attorney's office to represent the City in the action as follows: 1. To enter an Answer and pursue the defense of the action vigorously. 2. Consider the possibility of entering a Counterclaim for damages, including all costs incurred by the City, including administration fees, attorneys fees, costs, etc. 3. That the City Attorney contact the appropriate liability insurance carriers for the City and tender defense to them on behalf of the City. 4. That the City Attorney's office use Chris Dietzen of the Larkin, Hoffman firm as an advisor, where appropriate, during the course of the action. All councilmembers voted yes. ADJOURNMENT At 11:55 p.m. the meeting was adjourned. PHH City Clerk �%z