SUNFISH LAKE PLANNING COMMISSION MEETING - MARCH 16, 2011

7:00 P.M. - ST. ANNE'S EPISCOPAL CHURCH 

Attendants:

Chair:  Andrea McCue.

Commissioners:  Arnulf Svendsen, JoAnne Wahlstrom, and Tom Schlehuber.

City Planner:  Carie Fuhrman.

Commissioner Tom Votel was absent.

1.      CALL TO ORDER:  Chair Andrea McCue called the meeting to order at 7:00 p.m.

2.      APPROVE MINUTES:  Chair McCue asked if there were any additions or corrections to the February 23, 2011 minutes.  Discussion ensued regarding the siding width discussion that occurred during item number 5, the public hearing for the exterior building materials zoning ordinance amendment.  Commissioner Svendsen pointed out that the specific siding width was not It was decided that the reference in the minutes was correct. 

Commissioner Wahlstrom moved to approve the February 23, 2011 Planning Commission minutes as submitted, seconded by Commissioner Svendsen and carried.  (4-0)

3.      Public Hearing:  City Code Amendment – Fees:   Chair McCue opened the public hearing and asked if there was anyone present who wished to be heard.  No persons were present at the public hearing.

Chair McCue closed the public hearing at 7:04 p.m.

Chair McCue asked Planner Fuhrman to give the background of the ordinance amendment to the Commissioners.  Planner Fuhrman explained that the proposed ordinance amendment dealt with the fee portion of the City Code and Zoning Ordinance.  The ordinance proposes four amendments:  one amendment regarding the septic system fees, which are increasing because the City’s septic system contractor has increased their fees; the second amendment adds that charges made by the Forester can be passed through to a developer/landowner; the third amendment states that the “pass through” charges from the City’s consultants will be based on the hourly rates set forth by the consultants providing the services; and the final amendment, and probably most significant, adds an additional fee or charge when a landowner has performed work prior to obtaining the proper land use approval.  The fee would be to compensate the City with regard to verifying the condition of the property prior to the work; verifying and documenting the work that was performed prior to obtaining the requisite approval; and analyzing whether the work already performed complies with the City Code standards and the conditions that may be imposed as part of the approval process. 

Planner Fuhrman explained that the Council wanted to establish some sort of fee instead of allowing property owners to do the work prior to approval and ask for forgiveness without some sort of fee or penalty.  The ordinance amendment proposes an additional fee of $250 to cover the City’s costs.  Planner Fuhrman pointed out that in one particular case where the property owner conducted the work prior to receiving city approval, it did require extra time and costs on her part in order to determine what work had been completed and to determine if it was in compliance with the Code or not.  Planner Fuhrman stated that the ordinance also requires reimbursement for any legal, planning, forestry, and engineering costs incurred related to verifying, documenting or analyzing the previous work.

Chair McCue asked if this administrative fee/fine was actually authorized by the state.  Planner Fuhrman stated that the Council had inquired about establishing another fine, on top of this “after-the-fact” fee, namely an administrative fine that would be payable directly to the City at a previous Council meeting.  Attorney Kuntz researched the legality of that fine and determined that there is no express specific statutory authority that authorizes a statutory city to create an independent administrative fine system.  Attorney Kuntz recommended that the Council not attempt to institute this administrative fine process and instead, wait until the legislature grants specific authority as the chances for litigation are high.  Planner Fuhrman explained that the additional fee is legal, but this administrative fine may not be, which is why the City is not pursuing it at this time.  This Ordinance amendment only addresses the additional administrative fee.

Chair McCue asked about the consultants, whether it be the forester or the attorney, charging a fee to an individual property owner if they come out to their property.  She stated that she thinks that should be clarified.

Planner Fuhrman explained that from her standpoint, if she receives an application for a minor site and building plan review, and the charge goes over the escrow amount, that overage is charged to the property owner.  Planner Fuhrman stated that this is what this ordinance amendment is saying, that extra charge would be payable by the property owner. 

Chair McCue agreed that was fair. 

Planner Fuhrman stated that regular city business costs, such as general questions, are something that the city absorbs generally. 

Commissioner Schlehuber stated that this was kind of a gray area, whether it was regular city business or something charged to the property owner.  He asked how we know what is regular city business with fees being absorbed by the city versus a fee that is passed on to a property owner.  He used the example of the City Forester visiting a property because a property owner called and had questions regarding invasive species.

Planner Fuhrman explained that this specific ordinance is referring to instances with an actual permit application.  It is just adding the forestry piece to the already-existing ordinance language.  Planner Fuhrman pointed out that a similar issue was discussed at the last Council meeting in which a council member had a question regarding an item on the Planner’s bill. Planner Fuhrman explained to the Council that she received a phone call regarding a general question and had to do some follow-up work for it, and this was something that was billed to the City as it is generally a service that the City provides to its citizens.  She mentioned that the Council discussed the possibility of discussing certain fees at the Council’s upcoming workshop. 

Commissioner Svendsen asked what his primary concern was.  Planner Fuhrman stated that he wanted clarification on the charge, and she had explained that she does charge that to the city because there was no application.  She stated that this is generally a cost absorbed by the city.  She stated that if it gets to the point where staff is putting a lot of time into it, then the city might want to ask for an escrow.  Planner Fuhrman clarified that he was not implying that someone should get charged for calling with a routine question. 

Commissioner Schlehuber stated that is what he was looking for clarification on.  If he called up the City Forester and asked him to come over and look at his trees if he had some concerns, and if the Forester came over, would he get charged for that?  Planner Fuhrman stated that she cannot answer specifically for the City Forester. 

Discussion ensued whether city consultants can do work on the property of Planning Commissioner members?  Commissioner Svendsen asked if that just pertained to City Council members?  Planner Fuhrman stated that she was not sure.  Commissioner Wahlstrom stated that she recalled that it only applied to City Council members because the Planning Commission does not make the laws.  Planner Fuhrman stated that would be a question for Attorney Kuntz.

Chair McCue asked about escrows for new permits.  If all the consultant costs are under the escrow amount – we don’t need to bill anyone extra?  It’s just a way of making it possible to charge for the extra amount if it’s needed?  Basically, we don’t need to add these additional fines unless it goes over and above the escrow amount.

Planner Fuhrman stated yes, and that what you are voting on tonight is actually already in the Code.  It is just adding forestry work to the list.  It already states all legal, planning, and engineering costs incurred by the City in an application review process will be reimbursed by the applicant. 

Chair McCue stated that was part of the goal last year, to get the Forester involved in getting rid of noxious plants.

Discussion ensued regarding voting on all of the changes or just voting on one change at a time.  Planner Fuhrman clarified that there were four specific changes proposed in this ordinance amendment. 

Commissioner Svendsen asked if we could vote on Section 202.03 and Section 1201.10, if that would cover everything?

Planner Fuhrman stated yes, that would cover the Code sections being addressed in this amendment.

Chair McCue suggested voting on sections one through four on page one of Attorney Kuntz’s memo.  Planner Fuhrman clarified that Section 1 refers to background information and not any actual language amendments, so it would be sections two through 4.

Commissioner Wahlstrom moved to recommend that the City Council adopt the proposed ordinance amendments (Sections 2 through 4 in Attorney Kuntz’s memo) in regards to the septic system fees; reimbursable charges for forestry work; and the nexus to actual costs related to reimbursable charges, seconded by Tom Schlehuber and carried.  (4-0)

Chair McCue stated that she would like further discussion on Section 5 of the memo, in regards to an additional charge for “after-the-fact” permits or approvals.

Chair McCue asked about the legality of passing this additional fee for “after-the-fact” permits or approvals.

Planner Fuhrman explained that this fee is okay.  The Council was looking at adding an additional fine on top of this, which is the one that that Attorney Kuntz has stated that the Legislature has not yet given authority to cities to impose.  Planner Fuhrman stated that the second fine is not being proposed as a part of this ordinance amendment, just the $250 “after-the-fact” fee is being proposed.

Commissioner Wahlstrom moved to recommend that the City Council adopt the proposed ordinance amendment (Section 5 in Attorney Kuntz’s memo) establishing an additional fee of $250 to cover the City’s administrative costs when a landowner has performed work prior to obtaining proper land use approval, seconded by Tom Schlehuber and carried.  (4-0)

4.      OTHER/NEW BUSINESS:

A.      Variance Ruling Update: Planner Fuhrman explained that at last month’s PC meeting, Chair McCue shared an article regarding municipal authority to grant variances.  She explained that last summer, the Minnesota Supreme Court made a ruling that has limited municipal authority to grant variances.  Basically, the property owner must prove that they do not have reasonable use of their property without the variance, and not whether the proposed use is reasonable.  Planner Fuhrman handed out two articles from the League of Minnesota Cities on the subject and stated that the Legislature may vote on the variance bill soon.  She stated that, currently, however, the League of Minnesota Cities does not support the House version of the bill in its current form because it does not correct the problem of the inconsistencies between variance processing at the county versus city level.  The League is arguing that the inconsistency between the laws for cities and counties create a level of ambiguity and legal uncertainty that is unacceptable.  The League is continuing to work to resolve this issue.   She also stated that Attorney Kuntz will be presenting the City Council with a memo on the topic at the April Council meeting, and the Planning Commission will be copied on that memo.

B.     March City Council Update:  Planner Fuhrman explained that the City Council agreed with the Planning Commission’s recommendation regarding the exterior building materials ordinance and voted to leave the language as-is.  The City Council also agreed with the Planning Commission’s recommendation and voted to establish a time limit on completing exterior building work.

Chair McCue asked what the reaction was from the property owners who are affected by this Ordinance.  Planner Fuhrman explained that she has not had a chance to send the letters out yet.

Commissioner Svendsen asked how the public was aware of this public hearing notice.  Planner Fuhrman explained that it was published in the city newspaper, the Southwest Review, which is designated by the City Council.  Discussion ensued, and the Planning Commission was in agreement that the public hearing notices should also be posted on the City’s website. 

Commissioner Wahlstrom stated that she received a phone call from someone with concerns regarding a spotlight shining directly into their home now that some trees were cut down.  Planner Fuhrman suggested that the property owner speak directly with their neighbor and hopefully they can resolve it.  If it is not resolved, then they can talk to the City regarding if it is in violation of any Codes or ordinances.  She stated that it is nice to first attempt to resolve those issues between property owners before getting the City involved.  Discussion ensued regarding referring those issues to the mayor after first talking with their neighbor.

5.      ADJOURN:  Commissioner Svendsen moved to adjourn the meeting at 7:33 p.m., seconded by Commissioner Wahlstrom and carried.  (4-0) 

Respectfully submitted,

Carie Fuhrman, City Planner