Approved Minutes 10-1-2003Page 1 of 16
SUMMARY MINUTES OF THE
SAINT PAUL CITY COUNCIL
Wednesday, October 1, 2003 - 3:30 p.m.
CITY COUNCIL CHAMBERS, 3RD FLOOR
City Hall and Court House
15 West Kellogg Boulevard
Web Index
• Consent Agenda
• Communications and Administrative Orders
• For Action
• For Discussion
• Ordinances
• Public Hearings
The meeting was called to order at 3:35 p.m. by Council President Bostrom.
Present - 7 - Benanav, Blakey, Bostrom, Coleman, Harris, Lantry, Reiter
Absent - 0
CONSENT AGENDA (Items 1 -18)
NOTE: ALL ITEMS LISTED UNDER CONSENT AGENDA WILL BE ENACTED BY ONE
MOTION. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS
DESIRED BY A COUNCIL,MEMBER, THAT ITEM WILL BE REMOVED FROM THE CONSENT
AGENDA AND CONSIDERED SEPARATELY.
Council President Bostrom removed Items 6 and 7 for discussion.
Councilmember Benanav requested Item 11 be removed for discussion.
Council President Bostrom stated a requested was received to lay over Item 16 for one week.
Councilmember Coleman requested Item 18 be laid over to October 22 for a public hearing
Councilmember Lantry moved approval of the consent agenda as amended.
Adopted as amended Yeas - 7 Nays - 0
COMMUNICATIONS AND ADMINISTRATIVE ORDERS
1. Claims of Mary Bies, Juan Chavez, Norman Cohen, Luke Hannigan, Vega Gonzales, Krueger Law
Firm (for Youa Thao Vue), Anthony and Wendy Ledo, LouAnn Norquist, Bruce S. Smith, and Susan
Williamson.
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Referred to the Risk Management Division
2. Summons and Complaint in the matter of Edward McDonald v. the City of Saint Paul, Mayor Randy
Kelly, et al.
Referred to the City Attorney's Office
3. Letter from the Office of the City Attorney announcing a hearing before an Administrative Law Judge
on October 8, 2003, at 9:30 a.m., in Saint Paul City Hall, 15 West Kellogg Boulevard, Room 220,
Conference Room B, regarding all licenses held by Darp Corporation, d /b /a Fitti's, 828 Seventh Street
East.
4. Letter from the Citizen Service Office /Division of Property Code Enforcement, declaring 1235
Margaret Street as nuisance property. (For notification purposes only; a public hearing will be scheduled
at a later date if necessary.)
5. Administrative Order:
D002330 Authorizing the Police Department to remit an amount not to exceed $350.00 to Byerly's,
1959 Suburban Avenue, to cover expenses for food service for participants in the Police Department's
Professional Development Institute seminar on Interview and Interrogation.
Noted as on file in the City Clerk's Office
FOR ACTION
6. Resolution - 03 -870 - Requesting City Council approval to formalize the current Friendship between
the City of Manzanillo in the State of Colima, Mexico and the City of Saint Paul, Minnesota, USA.
Discussed after the consent agenda
7. Resolution - 03 -871 - Accepting a "good will" gift of a six -foot Sailfish statue valued at $30,000
presented to the City of Saint Paul from the City of Manzanillo and the State of Colima, Mexico.
Discussed after the consent agenda
8. Resolution - 03 -872 - Authorizing the Department of Fire and Safety Services to accept donations of
$5,000 from the Saint Paul Companies and $2,000 from Health Partners for the Risk Watch Program.
Adopted Yeas - 7 Nays - 0
9. Resolution - 03 -873 - Amending the 2003 financing and spending plan for police security services
provided to the Saint Paul Arena Company.
Adopted Yeas - 7 Nays - 0
10. Resolution - 03 -874 - Approving the renaming of Old Shepard Road to Randolph Avenue.
Adopted Yeas - 7 Nays - 0
11. Resolution - 03 -875 - Adopting the FY2003 Large Neighborhood STAR Program.
Discussed after the consent agenda
12. Resolution - 03 -876 - Memorializing City Council action taken April 2, 2003, denying the appeal of
Mark Voerding, James Hirsh, Thomas Darling and William Sell to a decision of the Planning
Commission approving a conditional use permit and variances for a carriage house dwelling at 449
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Portland Avenue.
Adopted Yeas - 7 Nays - 0
13. Resolution - 03 -877 - Concerning adverse action against the Massage Practitioners license held by
James E. Hubman.
Adopted Yeas - 7 Nays - 0
14. Resolution - 03 -878 - Concerning adverse action against the Solid Waste Hauler license held by
Randy Lee, d/b /a R L B Garbage.
Adopted Yeas - 7 Nays - 0
15. Resolution - 03 -879 - Concerning adverse action against the City Contractor license held by Brian J.
Tankersley d /b /a Tankersley Construction.
Adopted Yeas - 7 Nays - 0
16. Resolution - 03 -880 - Concerning adverse action against the licenses held by San Pelino, Inc., d /b /a
Pelino, 1905 Stillwater Avenue.
Laid over to October 8 Yeas - 7 Nays - 0
17. Resolution - 03 -881 - Scheduling a public hearing for November 5, 2003, for ratification of the 2004
sanitary sewer and storm sewer rates.
Adopted Yeas - 7 Nays - 0
18. Resolution - 03 -882 - Concerning adverse action against the licenses held by Shelagh Connolly d /b /a
The Mildred Pierce Cafe, located at 786 Randolph Avenue.
Laid over to October 22 for a public hearing Yeas - 7 Nays - 0
(Items 6 and 7 were discussed together)
6. Resolution - 03 -870 - Requesting City Council approval to formalize the current Friendship between
the City of Manzanillo in the State of Colima, Mexico and the City of Saint Paul, Minnesota, USA.
Councilmember Lantry moved approval.
Adopted Yeas - 7 Nays - 0
7. Resolution - 03 -871 - Accepting a "good will" gift of a six -foot Sailfish statue valued at $30,000
presented to the City of Saint Paul from the City of Manzanillo and the State of Colima, Mexico.
Ann Brisefio, Mayor's Office, appeared and stated there were several guests present from Manzanillo
and the State of Colima, whom she recognized. This friendship has been going on for one year when the
mayors of Manzanillo and Saint Paul signed an agreement. It was more exploratory at that point to see if
they could develop a strategic plan which they have been working on collectively. The friendship is
going to continue, whether or not it's official, but making it official through the City Council resolution
will allow them to be approved by Sister Cities International, a non -profit organization located in
Washington, D.C.
Ms. Briseno stated a good will gift was making its way to Saint Paul from Manzanillo. The gift is a
statue, valued at $30,000, which was created by Sebastian, a world- renowned artist. The statue will be
placed at the Lower Landing Park along the Mississippi River.
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Through Manual Cervantes, a Spanish interpreter and representative from the Manzanillo delegation,
they thanked the City Council for approving the resolutions and the friendship shown to the residents of
Manzanillo, the State of Colima, Mexico.
Councilmember Lantry moved approval
Approved Yeas - 7 Nays - 0
11. Resolution - 03 -875 - Adopting the FY2003 Large Neighborhood STAR Program.
Councilmember Benanav requested a one -week layover for this resolution as he had questions regarding
the ranking of these project. Staff was directed to provide further information to the City Council.
Laid over to October 8 Yeas - 7 Nays - 0
FOR DISCUSSION
19. Resolution - 03 -883 - Finding Comcast of St. Paul, Inc. in violation of its franchise.
It was indicated that this item would be heard after the public hearing regarding the Comcast notice of
violation, Item 45 on today's agenda.
Laid over to October 8 Yeas -7 Nays - 0
ORDINANCES
NOTE: AN ORDINANCE IS A CITY LA W ENACTED BY THE CITY CO UNCIL. IT IS READ AT FO UR
SEPARATE COUNCIL MEETINGS AND BECOMES EFFECTIVE AFTER PASSAGE BY THE
COUNCIL AND 30 DAYS AFTER PUBLICATION IN THE SAINT PAUL LEGAL LEDGER.
20. Final Adoption - 03 -832 - An ordinance amending interim ordinance Council File 01 -648, adopted
November 20, 2000, which imposed a moratorium on the use of property in the area presently under
study for the Arcade Street Area Study pending completion of the study and any possible amendments
to the City's Comprehensive Plan or Zoning ordinance deemed necessary to give effect to the study.
(Dollar Tree Store).
Councilmember Reiter moved approval.
Adopted Yeas - 7 Nays - 0
11. Resolution - 03 -875 - Adopting the FY2003 Large Neighborhood STAR Program.
Councilmember Benanav requested a one -week layover as he had questions regarding the ranking of the
project. Staff was directed to provide further information to the City Council.
Laid over to October 8 Yeas - 7 Nays - 0
FOR DISCUSSION
19. Resolution - 03 -883 - Finding Comcast of St. Paul, Inc. in violation of its franchise.
(The resolution was considered after the public hearing - Item 45)
Councilmember Coleman moved to lay over to October 8.
Laid over to October 8 Yeas - 7 Nays - 0
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ORDINANCES
NOTE: AN ORDINANCE IS A CITY LA W ENACTED BY THE CITY COUNCIL. IT IS READ AT FOUR
SEPARATE COUNCIL MEETINGS AND BECOMES EFFECTIVE AFTER PASSAGE BY THE
COUNCIL AND 30 DAYS AFTER PUBLICATION IN THE SAINT PAUL LEGAL LEDGER.
20. Final Adoption - 03 -832 - An ordinance amending interim ordinance Council File 01 -648, adopted
November 20, 2000, which imposed a moratorium on the use of property in the area presently under
study for the Arcade Street Area Study pending completion of the study and any possible amendments
to the City's Comprehensive Plan or Zoning Ordinance deemed necessary to give effect to the study.
(Dollar Tree Store).
CM Lantry moved approval.
Adopted Yeas - 7 Nays - 0
21. First Reading - 03 -884 - An ordinance creating a new city department to be known as the
Department of Neighborhood Housing and Property Improvement and establishing appropriate
functions and responsibilities.
Laid over to October 8 for second reading
22. First Reading - 03 -885 - An interim ordinance clarifying the length of time of the interim ordinance
governing the Arcade Street Study Area established by Council File No. 01 -648 for a period of twelve
months, and extended for an additional eighteen months in Council File No. 02 -514, for a total of thirty
months, as permitted under Minn. Statute §462.355, Subd. 4.
Laid over to October 8 for second reading
23. First Reading - 03 -886 - An ordinance regulating the use of land for off -sale of "growlers."
Laid over to October 8 for second reading
24. First Reading - 03 -887 - An ordinance amending Chapters 32, 33, 43, 45, 51, 105, 163, 189 and 292
of the Saint Paul Legislative Code to accurately reference the functions of the new Department of
Neighborhood Housing and Property Improvement.
Laid over to October 8 for second reading
25. First Reading - 03 -888 - An ordinance amending Chapters 33, 34 and 60 of the Saint Paul
Legislative Code to establish requirements for student dwellings including regular inspections and
installation of hard wired smoke detectors.
Laid over to October 8 for second reading
26. First Reading - 03 -889 - An ordinance amending Chapter 33 of the Saint Paul Legislative Code to
increase fees 10% for most categories of permits, except for general building permits, and to increase
annual elevator inspection fees 25 %.
Laid over to October 8 for second reading
27. First Reading - 03 -890 - An ordinance amending Chapter 34 of the Saint Paul Legislative Code to
allow for reinspection and excessive initial inspection fees to be collected by special assessment.
Laid over to October 8 for second reading
28. First Reading - 03 -891 - An ordinance amending Chapter 51 (Rental Registration) of the Saint Paul
Legislative Code to allow for interior inspections of one and two unit rental dwellings and clarify
grounds for rental registration revocation.
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Laid over to October 8 for second reading
29. First Reading - 03 -892 - An ordinance amending Chapters 87, 89, 91, 92, 94 and 95 of the Saint Paul
Legislative Code pertaining to the rules and regulations of the Saint Paul Regional Water Services as
recommended by the Board of Water Commissioners of the City of Saint Paul.
Laid over to October 8 for second reading
30. First Reading - 03 -893 - An ordinance amending Chapter 310 (Uniform License Procedures) of the
Saint Paul Legislative Code to increase fees 25% for some categories of licenses in the City of Saint
Paul, to increase Malt Off -Sale 10 %, Food Institutional 100 %, and to create a fee schedule for the
proposed new environmental plan review fees to be created in Chapters 331A, 367, 380, 412 and 412A.
Laid over to October 8 for second reading
31. First Reading - 03 -894 - An ordinance amending Chapter 331A of the Saint Paul Legislative Code to
require food facility owners to apply for an environmental plan review and pay a fee for new
construction and /or remodeling of the facility as well as provide for change of ownership and inspection
fees.
Laid over to October 8 for second reading
32. First Reading - 03 -895 - An ordinance amending Chapter 367 of the Saint Paul Legislative Code to
require tattoo facility owners to apply for an environmental plan review and pay a fee for new
construction and /or remodeling of the facility
as well as provide for change of ownership inspection and fees.
Laid over to October 8 for second reading
33. First Reading - 03 -896 - An ordinance amending Chapter 380 of the Saint Paul Legislative Code
requiring tanning facility owners to apply for an environmental plan review and pay a fee for new
construction and /or remodeling of the facility
as well as provide for change of ownership inspection and fees.
Laid over to October 8 for second reading
34. First Reading - 03 -897 - An ordinance amending Chapter 412 of the Saint Paul Legislative Code to
require massage facility owners to apply for an environmental plan review and pay a fee for new
construction and /or remodeling of the facility
as well as provide for change of ownership inspections and fees.
Laid over to October 8 for second reading
35. First Reading - 03 -898 - An ordinance amending Chapter 412A of the Saint Paul Legislative Code to
require adult massage parlor owners to apply for an environmental plan review and pay a fee for new
construction and /or remodeling of the facility as well as provide for change of ownership inspection and
fees.
Laid over to October 8 for second reading
PUBLIC HEARINGS
36. Resolution 03 -899 - Ratifying the 2003 Right -of -Way Maintenance Assessment Program charges to
be assessed against benefitted properties.
Gary Erichson, Department of Public Works, appeared. He explained that the resolution is to ratify the
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assessments for the work that has been done this year and which were approved in November, 2002.
There is an increase from the previous year which covers additional items including a portion of snow
plowing, $1.8 million for tree trimming, and $200,000 for sidewalk maintenance. The assessment
previously covered the summer street maintenance work. Snow plowing will be subsidized with fund
balance in street maintenance. The accounting system has been changed and the costs match exactly
with the assessment rate classes.
Bill Buth, Building Owners and Managers Association (BOMA), appeared. He extended the
associations appreciation for the time and effort the city puts into preparing the budget. Assessments are
levied against all properties, he said, and taking that into consideration, he recalled that last year when
he appeared before the Council on this issue, he asked that the assessment process for street right -of -way
be the exception to the rule rather than the rule. The assessment for downtown streets in Class Al went
from $5.73 per assessable foot to $7.25, a 27% increase. BOMA's industry has a high vacancy rate and
they are trying to fill those vacancies. However, a 27% increase makes it difficult. He asked the Council
to take that into consideration as they go forward and look at other options that might be able to raise the
necessary money.
Councilmember Harris moved to close the public hearing and approval.
Councilmember Harris responded to Mr. Buth saying that this is only a proposed increase. The City
Council will still debate it and there will be another public hearing on the assessment. This resolution
covers work that has already been done.
Adopted Yeas - 7 Nays - 0
37. Resolution Ratifying Assessment - 03 -900 - In the matter of approving the assessment of benefits,
costs and expenses for the Wheeler/Iglehart Area Paving and Lighting Project. (File No. 18957)
No one appeared in opposition; Councilmember Benanav moved to close the public hearing ad approval.
Adopted Yeas - 7 Nays - 0
38. Resolution Ratifying Assessment - 03 -901 - In the matter of approving the assessment of benefits,
costs and expenses for the Edgebrook/Morningside Area Paving and Lighting Project. (File No. 18973)
No one appeared in opposition; Councilmember Lantry moved to close the public hearing ad approval.
Adopted Yeas - 7 Nays - 0
39. Appeal of John Schlottke to a Summary Abatement Order and Vehicle Abatement Order for
property at 1876 Chelton Avenue. (Legislative Hearing Officer recommends denying the appeals)
Marcia Moermond, Legislative Hearing Officer, appeared and stated that several extensions were
granted by Code Enforcement staff. The person responsible for the property appealed the order for
cleanup, he missed a number of deadlines and did not appear at the Legislative Hearing.
No one appeared in opposition; Councilmember Reiter moved to close the public hearing and deny the
appeals.
Appeals Denied Yeas - 7 Nays - 0
40. Public hearing to consider the report of the Administrative Law Judge concerning the Malt Off -Sale
license application submitted by Chanh Yang d /b /a Super Convenience Store, 922 Thomas Avenue.
Virginia Palmer, Assistant City Attorney representing the Office of LISP, appeared and explained that
this matter was before the Council on a return of an Administrative Law Judge (ALJ) report. It was
before the City Council with a recommendation from staff for approval of the license with conditions.
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The Council referred the matter to an ALJ to determine whether or not there was an over - concentration
of off -sale 3.2 malt establishments that would make granting the license a problem.
The ALJ made findings that, although this would be a fifth 3.2 malt establishment and would create an
over - concentration, it did not otherwise meet the requirements of the ordinance for denial of the license.
The Office of LISP recommended that the Council adopt the report of the ALJ and issue the license.
Chan Yang, the applicant, appeared along with a nephew who translated for Mr. Yang. He noted that a
previous owner had a license to sell 3.2 malt liquor but the person he bought the store from did not sell
malt liquor. Many of his clients have come in wanting to purchase malt liquor and Mr. Yang wants this
to be an all- around convenience store.
Tait Danielson, District 7 Planning Council, 680 North Dale Street, appeared. He said much of the
community is strongly in opposition to this license. The Planning Council is in agreement with most of
what the ALJ said with the exception of granting the license. He cited page 9 of the report where the
ALJ agrees that there may be an over - concentration and he looks to the City Council to make the
decision.
Virginia Palmer reviewed the conditions that were proposed to be placed on the license.
Councilmember Blakey moved to close the public hearing and adopt the Findings of Fact, Conclusions
and Recommendation of the Administrative Law Judge with conditions.
Yeas - 7 Nays - 0
41. Public hearing to consider the appeal of Phil Gerlach and Ted Peller to a decision of the Board of
Zoning Appeals approving a height variance in order to build an addition to the rear of the existing
house at 2012 Iglehart Avenue.
John Hardwick, Office of License, Inspections and Environmental Protection (Zoning Office), presented
a staff report. The property owner of 2012 Iglehart applied for a height variance of three feet in order to
build an addition to the rear of the house. On August 25 the Board of Zoning Appeals (BZA) held a
public hearing. Staff presented their report with a recommendation for approval of the variance. The
BZA took testimony from the applicant and those in opposition. At the time, the Merriam Park
Community Council had not made a recommendation on the request. The Board approved the variance
and subsequently the applicant met with the Merriam Park Community Council to address concerns of
the Community Council. Communication was received on this date from the Community Council
indicating that they no longer have concerns with the variance.
Since the BZA hearing, two additional letters in support were received and one in opposition.
Councilmember Benanav asked if the variance is limited strictly to the house. Mr. Hardwick responded
that the height variance is restricted and will affect only the addition.
Discussion ensued amongst the Council and Mr. Hardwick.
Appearing in support of the appeal were:
Phil Gerlach, 2005 Marshall Avenue, one of the appellants. He said that granting a variance involves a
needs or means test and those tests are very subjective. He feels the Office of LIEP did not take into
account several considerations including an adequate supply of air and light to the adjacent properties.
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He disagreed with LIEP's conclusion as it is a large structure approaching 2000 square feet and nearly
double the size of the existing building. A structure that large and tall will have an impact on the
neighbors to both the east and the west. He raised the question of whether the addition will affect the
character of the surrounding area saying it is hard for him to judge at this time.
Mr. Gerlach said a lot of the questions the neighbors had could have been answered with a more detailed
plan. He asked that the Council refer the issue back to the Merriam Park Community Council to have a
formal review of the structure and how it would affect adjacent properties.
Catherine Perrone, 2005 Marshall Avenue, said that prior to the public hearing on the variance, Mr.
Hardwick was on vacation for a week so neighbors who called him with concerns were not able to talk
to him. She felt there was a fundamental lack of understanding of the process saying that many of them
were not aware that Mr. Hardwick's staff were preparing a recommendation and they did not know they
should be submitting letters to LISP. It was noted in Mr. Hardwick's report that no communications
were received which would not have been the case had they understood the process.
Ted Peller, 2016 Iglehart Avenue, the second appellant, displayed photos of the homes in the area
including the existing house at 2012 Iglehart. He also asked that the matter be send back to the Merriam
Park Community Council.
Appearing in opposition to the appeal was Bruce Bakke, the home owner of 2012 Iglehart Avenue. He
said he does not think the issue of light is a legal issue and he feels the setback and height restrictions
are acceptable. In response to Mr. Gerlach's statement that the sketch is incomplete, Mr. Bakke said the
only thing at issue was the height of the roof. He responded to Mr. Garlach and Dr. Perrone via e -mail
answering all the questions they posed. The reason for the taller roof is to make the addition fit the
house, Bakke said.
With respect to Mr. Gerlach's statement that there had not been a chance for discussions on the facts of
the addition, Mr. Bakke said he stayed within the law, he talked with as many people as he could and
they have since met with the Merriam Park Community Council. The sticking point seems to be that the
addition is to large, Bakke said, yet it is within the standard of what's allowed. The house is being made
handicap /wheelchair accessible and in order to do that there are things that have to be done differently.
Mr. Bakke displayed photos of his house and surrounding homes including some with towers. He feels
the house will be compatible with the neighborhood.
Gretchen Fett, the designer of the addition, said they are matching the heights of the rooms. The first
floor is 9 feet and the others are a little over 8 feet. The basement is a little lower and the elevator will
open on two ends to accommodate that. It is a walk -out basement and the other floors match. She said it
was her recommendation that they get a zoning variance because she believed that in order to match the
architectural integrity of the 12x12 roof pitch, in keeping with the rest of the neighborhood, the best
thing for the house would require the same type of roof pitch.
Councilmember Benanav asked if this will continue to be a single - family home. Mr. Bakke responded in
the affirmative.
Councilmember Benanav moved to close the public hearing; Yeas - 7 Nays - 0.
Councilmember Benanav told Mr. Bakke he feels he has done a great job with this project and he
appreciates that he wants to invest in the neighborhood. However, there are process issues and he wants
to insure that the neighbors have been heard so he wanted to work with Mr. Bakke and the neighbors to
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get the addition built to everyone's satisfaction.
Councilmember Benanav moved to lay over two weeks.
Laid over to October 15 Yeas - 7 Nays - 0
42. Public hearing to consider the appeal of Robert Clapp, River Run Properties, to a decision of the
Board of Zoning Appeals denying three variances in order to split property and create a new and
buildable lot at 1016 McLean Avenue.
John Hardwick, Office of License, Inspections and Environmental Protection (LISP), presented a staff
report. The appellant applied for three variances in order to subdivide the property at 1016 McLean
Avenue and create a new buildable lot. The proposed lot split would create lots that do not meet the
minimum size requirements and would leave the existing house with a non - conforming side yard
setback. The Board of Zoning Appeals (BZA) held a public hearing on this request on August 11, 2003,
at which time staff presented a report with a recommendation for approval of the variances. District 4
did not make a recommendation. One neighboring property owner in opposition testified at the hearing.
After taking testimony, the BZA denied the variances finding that keeping the two lots as a single parcel
was a reasonable use of the property and that any hardship associated with the proposed lot split was a
self - created hardship. Also, without plans that would indicate what the new house would look like, it
was not possible to determine the impact on the adjacent properties. Finally, the BZA determined that
the applicant's primary desire appears to be to increase the value and income potential of the property.
Rob Clapp, 412 Belvidere Street, the appellant, appeared and read his statement which was distributed
to the Council earlier. There previously was another house on this lot and when the buyer purchased the
lot she was told by the city that it was a buildable lot. She combined the two parcels to save on taxes but
was not aware when she combined them that she would be creating a non - conforming lot. The BZA has
acknowledged that the City of Saint Paul has set a goal to create 5000 new housing units and the
proposed variance would allow the creation of a new housing unit in the city which is consistent with
the City's housing goal.
The BZA made an argument that the proposed house would impair the amount of air and sunlight to the
existing home. Mr. Clapp said when the BZA first considered it, they did not have a sketch of where the
new house would be. There will be eight feet between the houses and 12 feet between the other house so
there will be more of a side yard than most houses.
There was concern that the new construction would bring down the value of homes in the area and Mr.
Clapp said he had letters from appraisers and surveyors that it would only increase the value of the
neighborhood. He noted that the three variances are quite minimum. Five thousand square feet are
required to have a buildable lot but every house on that block is 4,000 square feet. Two of the variances
are actually one and the other variance is 1 foot, 8 inches for the four foot minimum side yard set back.
Appearing in opposition to the appeal was Leonard Mealey, 1008 Mclean Avenue, who lives next door
to the lot. He noted that Mr. Clapp is also with Remax Realty. He said he believed the initial plan was
that they were going to profit by splitting the property, put a house on it, and sell it.
Councilmember Lantry moved to close the public hearing; Yeas - 7 Nays - 0.
Councilmember Lantry moved to deny the appeal saying she did not find that the Board of Zoning
Appeals made any errors in their finding of fact.
Councilmember Coleman said his understanding is that the problem does not exist with the house that
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would be built but with the existing house, that that particular lot would be the non - conforming lot.
Councilmember Lantry said her understanding is that they would take one conforming lot of 9,000
square feet and make two non - conforming lots.
Mr. Hardwick acknowledged that Ms. Lantry's explanation was correct. The minimum lot size
requirement in that zoning district is 5,000 sq. ft. so the two parcels combined exceed the minimum lot
size requirement but once the parcels are split then each parcel would not comply with the minimum lot
size requirement.
Councilmember Coleman questioned when the lots were combined and Mr. Hardwick said it is done
through the Ramsey County tax office and not through the city so he had no record.
Councilmember Lantry said it is obvious to her that this is being done for economic gain and variances
cannot be granted simply for economic gain.
Councilmember Coleman said there were originally two lots and because they were combined quite
recently, he felt the Council was being unduly technical. He did not see a reason why another home
should not be built on the lot.
Councilmember Blakey questioned what the harm is in building on this lot. Mr. Hardwick responded
that testimony was presented that this is already a congested area considering
the number of houses on the block. At the BZA hearing, there was testimony that it would not only
increase the density but would increase traffic as well.
Vote on Councilmember Lantry's motion to deny the appeal:
Yeas - 3 Nays - 4 (Blakey, Coleman, Harris, Reiter)
Motion Failed.
Councilmember Coleman moved to grant the appeal based on errors with respect to the Board of Zoning
Appeals findings - specifically that this is not a circumstance that the owner created or that the lot cannot
be put to reasonable use.
Motion of Intent - Appeal Granted Yeas - 6 Nays - 1 (Lantry)
(Coleman left the meeting)
43. Public hearing to consider the application of Twin Cities Habitat for Humanity for a combined plat
to create ten (10) residential lots and two (2) outlots on the Northwest corner of Mississippi Street and
Hyacinth Avenue.
Patricia James, Department of Planning and Economic Development, presented a staff report. Habitat
for Humanity built ten twin homes at Hyacinth Avenue, Westminster and Mississippi Streets and they
are now requesting plat approval so they can subdivide the lot and sell the properties. The plat generally
meets all of the conditions required in the Zoning Code. Public Works has some technical issues that
they feel are best worked out with the Ramsey County Surveyor before the plat is recorded at the
County. Staff's recommendation was for approval of the plat subject to conditions that the technical
problems are resolved working with the applicant, and the Ramsey County Surveyor and the City
Surveyor, and that the applicant file a copy of the Council Resolution with the plat when it is recorded at
the County.
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No one appeared in opposition; Councilmember Reiter moved to close the public hearing and approval.
Motion of Intent - Application Granted Yeas - 6 Nays - 0 (Coleman not present for vote)
(Coleman returned)
44. Public hearing to consider the application of Stonebridge Development and Acquisition, LLC for a
combined plat to create four lots for new residential development at Davern St., Norfolk Ave., W. 7th
St., and Munster Ave.
Patricia James, Department of Planning and Economic Development, presented a staff report. This is a
proposed development for Gateway Village Plats. They are proposing four lots for residential
development. The details of the arrangement of the buildings have changed somewhat and a revised staff
report was presented. Staff recommendation is for approval of the plat subject to conditions that the
applicant grant the City in a separate document a pedestrian easement from West Seventh Street to
Norfolk Avenue and that the applicant revise the final plat prior to recording with Ramsey County to
show a water utility easement in Wheeler Street between Graham Avenue and West Seven Street, and
that a copy of the resolution be recorded with the plat.
No one appeared in opposition; Councilmember Harris moved to close the public hearing and approval.
Motion of Intent - Application Granted Yeas - 7 Nays - 0
45. Public hearing concerning the Notice of Violation issued to Comcast of St. Paul, Inc. by the City's
Office of Cable Communications regarding Article I §109(e) of the cable television franchise. (Public
hearing continued from August 27)
Holly Hansen, Cable Communications Officer for the City, appeared. She noted that this item was
before the Council as a continuation of the August 27 public hearing. The issue is a Notice of Violation
that was issued to Comcast. She read the language of Article I, Section 109(e) of the franchise as
follows: "The parties agree that Internet service shall be treated as a cable service for purposes of this
franchise and a franchise fee paid on all revenues therefrom until such time as court or agency of
competent jurisdiction over this franchise rules that this service is not cable service and all appeals from
the decision have been exhausted." While the FCC has ruled that cable modem service is not a cable
service and they classified it as an interstate information service, that decision is currently on appeal in
the Ninth Circuit and the FCC has not issued any rules prohibiting the payment of franchise fees on
cable modem service. Further, the materials that have been submitted for the record since August 27 do
demonstrate that the decision is on appeal and that is precisely what the franchise addresses.
When the City negotiated the franchise with the cable operator in 1998, the `96 Cable Act had been
passed, they knew that there was some discussion and uncertainty as to how cable modem fees might be
classified in the future and that's precisely why Section 109(e) is in the franchise.
A number of claims have been made by the company and cable staff has reviewed and addressed them
with the City Attorney's Office staff and with the telecommunications law firm of Miller VanEaton.
Ms. Hansen said it's important for the City Council to realize that the City has been financially harmed
by the cable company's non - payment of these fees. It is estimated that in 2002 approximately $125,000-
150,000 was lost in franchise fee revenue and that in 2003 it could be $300,000 or more as more people
subscribe to the service or if rates go up. It's also unknown when all the appeals from the Ninth Circuit
and from the FCC decision will be exhausted and it's unknown when the FCC will make a ruling on
these issues. This period of uncertainty began on March 15, 2002 and it is not known when it will end.
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Ms. Hansen requested the Council lay over the resolution for one week as Comcast had presented more
materials on this date that staff had not reviewed yet. She further recommended that the public hearing
be closed on this date including the submission of all materials.
Councilmember Coleman questioned if the public hearing is closed and the Council had questions from
both the Cable Office and Comcast, under the ex parte order how the issues would be addressed. He
asked if the ex parte order could be lifted. Manual Cervantes, City Attorney, said it would not be his
recommendation that the ex parte order be lifted. The idea behind the ex parte order is that all
information that is channeled to the adjudicative decision - making body be done in a public way; that
both parties be privy to that discussion.
If the issue is that all parties should be present during communication, Coleman asked why that is not
applied to both sides as that does not appear to be happening during the course of the discussions.
Mr. Cervantes said he was not aware of the outside contact that Coleman referred to but that's what the
purpose of the rule is. The way the courts handle these types of questions is that there is a cutoff for
when material will be submitted and at that point if the adjudicative body wants to read the material and
raise questions, a hearing would be necessary to do that. He recommended keeping the public hearing
open until the Council has an opportunity to review the most recent submissions but close the
submission of all materials on this date.
Councilmember Coleman asked if there are presently any other active court cases. Ms. Hansen
responded that there is nothing specifically regarding the appeal of the FCC `s decision. The Ninth
Circuit case is specifically the appeal of the FCC decision. There have been other court cases related to
specific franchises; one in Louisiana Jefferson Parish vs. Cox Communications and the other, the City of
Chicago vs. AT &T Broadband. Those franchises have different language than St. Paul's so it's not
precisely the same issue and they're in different circuits than St. Paul is.
Councilmember Coleman asked if there has been any ruling that would support a finding that this is a
cable service as opposed to the FCC's declaration that it is an interstate information service. Ms. Hansen
said the issue in St. Paul's franchise pertains to how the payment of franchise fees on that service are to
be treated until the final ruling is made.
Councilmember Harris noted that Ms. Hansen said the FCC ruling did not specifically state anything
about franchise fees and that St. Paul should be able to allow franchise fees. In the documentation from
Comcast's attorney he cited, "subsequent decisions by the federal courts and numerous statements by
the FCC staff confirm that this determination means that where a franchise contemplates a 5% franchise
fee, Section 622 of the Federal Cable Act now precludes the collection of franchise fees on cable
Internet services such as Comcast."
Ms. Hansen said the City's attorneys addressed that issue in a September 24, 2003, correspondence. The
Section 622 argument is one that the attorneys disagree with. Section 622 defined the cable fee but it
didn't intend to reach as far as the company would have it reach.
Greg Blees, Council Research Director, questioned if this matter was laid over one week and new
information is brought forward whether the Council could still ask Comcast questions at a public
meeting. Mr. Cervantes advised that the Council is not prohibited from asking questions during a public
hearing.
Councilmember Coleman said the dispute is not how wrong is Comcast; the dispute is whether the
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Cable Office's and their attorney's position is the right one or whether Comcast's position is the right
one. He noted that Comcast has not had an opportunity to speak with the Council but the Cable Office
has had open and continuous contact with Councilmembers without the other side being present. He
questioned how that can be considered fair in any kind of due process.
Lis Veith, Assistant City Attorney who assists the Cable Office with legal issues appeared and said that
Comcast raised the same question that Councilmember Coleman raised and she clarified it for Comcast
counsel. The Cable Office itself is not a party to this - they are not an adversary and the Council is not
the neutral party - the action that is to be taken is to be taken by the City of Saint Paul; the City would be
the one to find Comcast in violation. Ms. Hansen is the staff person to advise the City Council on their
position. That is why the communication between the Cable Office and the Councilmembers is
necessary and the ex parte rule applies to Comcast or to whomever might be on the other side of the
issue in order to prevent any undue influence that might be occurring. If the Council has any questions
about the materials that have been submitted, they can be sent to Ms. Hansen and she could ask comcast
to provide an answer.
John Gibbs, Vice President with Comcast, and Kathy Donnelly- Cohen, Director of Governmental
Affairs, appeared. Mr. Gibbs updated the Council on what has transpired since the last hearing. The
Federal District Court in Chicago did issue their ruling in a matter involving a franchise quite similar to
St. Paul's and determined that in light of the March 15 FCC order, Section 622 of the Cable Act did
prohibit the assessment of franchise fees on Comcast's Internet service. A fair amount of
correspondence was submitted from Comcast, as well as others, since the last hearing and Mr. Gibbs
asked that it be included and considered as part of the record.
In the September 24 or 25 filing of the Cable Office, Gibb's said the Cable Office minimized Comcast's
concerns over the discriminatory and anti - competitive effects of this fee on Comcast's Internet service.
They indicated that other providers, such as telephone companies, are subject to common carrier
obligations that Comcast has not assumed. They also indicated that Qwest's DSL service, which is
Qwest's version of high speed Internet service, is subject to a 9.5% universal service charge that doesn't
apply to Comcast Internet service. Mr. Gibbs contended that neither of those suggestions are true.
Comcast is a telephone provider, and Internet service provider, as well as a cable service provider, Gibbs
said, and they do have common carrier obligations on their telephone service. Comcast has assumed
common carrier obligations but where they apply - on the telephone service.
With respect to the suggestion that this is somehow a level playing field because Qwest DSL service has
a 9.5% universal service charge and that Comcast Internet service does not, it is not true Mr. Gibbs said.
Qwest consumer DSL service does not have a universal service charge but their telephone service does.
Comcast does currently pay a franchise fee of 5% on their cable service revenues for the opportunity to
be in the rights -of -way and to conduct cable business in St. Paul which amounts to $1.7 million
dollars /year. The broadcasters, the satellite service providers do not pay franchise fees. None of the
Internet providers and the other competitive telephone providers pay franchise fees to be in the rights -of-
way or franchise fees to the City of St. Paul to conduct their business. This issue is not about whether
they'll continue to pay the $1.7 million for cable service, it's just about Internet service. Their view is
that the federal law is quite clear at this time.
Councilmember Coleman moved to close the public hearing. Yeas - 7 Nays - 0
At this time Manuel Cervantes, City Attorney addressed the issue of the upcoming City Council policy
session on equal access to city contracts. His recommendation was that they not go through the public
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hearing and entertain questions because it would delve into the issues involved in litigation with a
former employee.
Councilmember Blakey said, in this particular case when they are a government that is to be operating
for the people, he feels they must be transparent. The fact that there have been issues surrounding this
particular situation of equal access since 1995 -96, and even before that, it causes a problem of trust and
credibility in the community when a public hearing is scheduled and for representatives of the
administration as well as the city structure to talk about equal access and then are asked not to hold a
public hearing because of a potential law suit. Blakey said he did not find that worthy to not hold a
public hearing. Not having a public hearing and a policy session is more detrimental to the issue of equal
access than having it, Blakey said.
Council President Bostrom said the problem is that there was not a pending lawsuit when the policy
session was initially discussed.
Councilmember Harris said the department is not filing the lawsuit and the policy session will not be
about employment practices or the termination of an individual but how the department operates and
how it complies with federal statutes.
Councilmember Benanav concurred that they should go forward and look at the policies.
Mr. Cervantes told the Council there is some risk in the way the public can shape the testimony. It could
become a self - serving event for the former employee. The other part of the problem is that statements
made by staff who do not have all of the personal knowledge, have not worked on particular facets of a
program, or do not speak in general terms could be construed as something different at trial as it is
today. Council is asking staff to speak to the issues and it could be turned around and used against the
city in the future. He said if the Council was not willing to put it off indefinitely, the City Attorney's
Office would want to be involved in talking with staff and anticipating the types of questions the
Council has so City Attorney staff can respond. The City Attorney's Office would recommend a two or
three week layover given the litigation schedule that the attorney dealing with this issue has.
Councilmember Lantry said there is always a way for people to get their way out even if the Council
does not hold a hearing. She said she was somewhat apprehensive about waiting because something else
could happen and they'd have to wait again. She also noted that the policy session was planned before
the lawsuit was filed.
It was agreed to go forward with the policy session on October 8
Councilmember Lantry moved to adjourn the meeting. Yeas - 7 Nays - 0
ADJOURNED AT 7:54 P.M.
Daniel Bostrom, Council President
ATTEST:
Minutes approved by Council
Mary Erickson November 12, 2003
Assistant Council Secretary
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mce
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