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