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SPECIAL MEETING OF THE COUNCIL OF THE CITY OF NOVI  
 SATURDAY, MARCH 29, 2003 AT 8:30 A.M.
NOVI CIVIC CENTER - COUNCIL CHAMBERS - 45175 W. TEN MILE ROAD

Mayor Clark called the meeting to order at 8:35 a.m.

PLEDGE OF ALLEGIANCE

ROLL CALL Mayor Clark, Mayor Pro Tem Bononi* Council Members Capello, Csordas, Landry, Lorenzo-absent/excused, Sanghvi

APPROVAL OF AGENDA

CM-03-03-084 Moved by Csordas, seconded by Landry; CARRIED UNANIMOUSLY:

To approve the agenda as presented.

Vote on CM-03-03-084 Yeas: Clark, Capello, Csordas, Landry, Sanghvi

Nays: None

Absent: Bononi, Lorenzo

AUDIENCE PARTICIPATION - None

PURPOSE OF SPECIAL MEETING

1. Discussion of policy issues:

a. Origin of ordinance proposals

Member Capello stated the ordinances come to the Ordinance Review Committee or to Planning Implementation Committee or back to Council without any policy decisions being made by Council on whether or not they want to change the ordinance. He thought a procedure needed to be established where Council would give direction to the Ordinance Review Committee, Planning Commission or Planning Implementation Committee about a policy decision to amend or change an ordinance. Then direct what type of amendment or change they wanted to see and somebody to study that. He had requested, from administration, a listing of ordinances that had gone to Ordinance Review over the past few years and what had happened to them. Member Capello noted he didnít know of any other municipality that has an Ordinance Review Committee as ordinances are usually worked on and approved by City Council as a whole. In coming up with this policy, he would ask how ordinances begin and where the direction comes from to amend or create new ordinances. He wanted to see the Ordinance Review Committee continue those ordinances they are working on, however from this date forward, the policy should be that City Council as a whole works on the contents and substance of the ordinances.

Mayor Clark thought the reason Council didnít craft the ordinances was because Council meetings were so lengthy. He suggested placing a time limit on it to come back and if it didnít come back from ORC by that time, it would come back to Council. In addition, give direction as to what the Council as a whole would be looking for.

Member Landry thought this was being discussed because there was a feeling by some that if it originated by someone in particular, it might be a bad thing or a designer ordinance. There needed to be an understanding of the process for ordinances to be proposed to the City and this process of the Ordinance Review Committee. He thought Council should look at both. He also felt the process had gotten bigger than it should be and all ordinances should be finalized by Council. He was not concerned with how it got to Council; the important thing was that it did get before Council and what Council did with it. The Ordinance Review Committee might be a legitimate step along the way but it is not a necessary condition if Council chose to take an ordinance and accelerate it. It is not a bad thing and shouldnít be stigmatized as special interest if this body does expedite the process. The proper procedure is for Council to decide ordinances, however they choose the ordinance to get to Council. He didnít have a problem with a methodology, that is the usual course, but if Council decides at any given time to change that, he didnít think there was anything wrong with that. As far as the origin of ordinance proposals, he cited the phrase that government should be run like a business. This means we have to be competitive with respect to tax base and ordinance proposals and to be competitive every business is flexible or it wonít be in business for very long. We should run the City like a business with the ability to think outside the box. If that means bypassing ordinance review, then thatís what we must do. He doesnít care where ordinances originate if itís something that Council can recognize as legitimate, then they should do so and Council could decide to send it to Ordinance Review or to keep it.

Member Sanghvi asked for a review of what has been happening so far from Mr. Fisher. Mr. Fisher stated his experience has been that they are initiated in a variety of ways such as a need from Council or the Planning Commission has a need for fine tuning, there have been indications from department heads in some instances in situations such as payback or from the administration and he also had initiated thoughts on some ordinances. During his 30 years of experience he agreed with Member Landry that ordinances come from every corner of the community because everyone is carrying out their respective roles and when there has been recognition of a whole or a potential advantage, etc. the source of ideas has not been limited generally. Member Sanghvi asked why Planning Commission was upset, as they should accept the Councilís authority to make the final decision.

Member Csordas agreed with the previous speakers but felt there was value in the Ordinance Review Committee and asked that a time frame be set for every ordinance to come back to Council. He also thought if there was an ordinance that came through that Council wanted to handle they would make the decision and that would not take up the Ordinance Review Committeeís time.

Member Capello noted there were four ordinances with the notation of "no change recommended" and at that point they just fell into the "black hole". He felt the Council as a whole should make the decision whether or not changes would be made and not let the majority, which could be just two people, on Ordinance Review make that decision. He would like to see the ordinances come to Council first. He would like to abolish ordinance review and if Council determined that special work needed to be done in a committee, then establish a committee to review a specific item.

CM-03-03-085 Moved by Capello, seconded by Csordas; CARRIED UNANIMOUSLY:

That all ordinances come to the Council table first for direction and Council determines on a case by case basis and, if Council so intends, to establish a special committee. Also, in regard to the origin of the ordinance Council policy should be that ordinances can come to Council from anywhere and from anybody at any time for Councilís decision whether or not to move forward on it both on a policy basis and on a substance and content basis.

DISCUSSION

Member Landry said letís say the Planning Department suggested a motion how would it get to Ordinance Review? Does it come to Council and they send it to Ordinance Review? Council Members agreed it would come to Council first and then be sent on to Ordinance Review. Mr. Fisher said when referring to the Planning Department that would generally focus the attention on a zoning type provision. In those instances it would go to the Zoning Ordinance Amendment Committee first and be reviewed and then it would be forwarded to the full Planning Commission and then to the Council. Member Landry said then it has to first come to Council. Mr. Fisher agreed. Member Landry said he thought the Ordinance Review Committee existed for the Councilís convenience and it shouldnít be abolished but should be recognized as existing for Councilís convenience and if Council chooses not to send something to Ordinance Review they will deal with it at the table. He would not support the motion because he felt they should keep the committee.

Member Capello thought he had a misconception of how the ordinances get to Ordinance Review and then to Council. He remembered as a Planning Commissioner it came from implementation to the Planning Commission and then to Ordinance Review. He didnít remember it going to Council first. He would agree if it came to Council first and Council directed where it went. He revised his motion not to abolish Ordinance Review but require that all ordinances come to the Council table first for direction.

Member Sanghvi said it should be the discretion of the Council to channel where they want the ordinances to go.

Mayor Clark agreed and would support the motion. All ordinances that he and the Ordinance Review Committee had been dealing with came from Council. He suggested placing a time parameter on the ordinance to have it return to Council.

Roll call vote on CM-03-03-085 Yeas: Clark, Capello, Csordas, Landry, Sanghvi

Nays: None

Absent: Bononi, Lorenzo

Member Capello said of the ordinances provided on the list, those that were designated "no change required" never came back to Council. Mr. Helwig said they would provide a report to the entire Council on these ordinances.

b. Performance guarantees

Member Csordas noted his primary concern with performance guarantees was that we have a history of performance guarantees being posted and then there isnít enough money to finish the project. He said it would be his recommendation to hold all performance guarantees until 100% of the project is complete?

Member Capello didnít agree with Member Csordas. He looked at them as completion guarantees, except for woodlands and wetlands, and not a guarantee beyond the completion

date. A lot of the problem areas we have are not because they havenít completed the project but because they have completed it or 90% completed it and it had taken a lot of time before the City has accepted it. It is more of a warranty issue where it collapsed or failed after the project was completed. He thought monies were kept for a one or two year periods for woodlands, wetlands and landscaping to make sure that what was planted would take and that is more of a warranty than a completion guarantee. He didnít know how a dollar value could be put on a warranty of a street, sewer system or water system put in by a developer. The City inspects these and if there is a problem they are made to correct it at that time. Member Capello said they analyze the dollar amount it would take to complete the project in the event something goes wrong. We retain that and give the balance back but that percentage is based on a completion and not on a guarantee or warranty. He felt Council had to look at a completion guarantee that we currently have, and then put a dollar value on a warranty of the completed work. He thought what was being done now functions well that the percentages are released as the work is completed. Member Capello asked Mr. Fisher if it would be legal to retain more money in a completion guarantee than it would take to complete?

Mr. Fisher reported that at the last Ordinance Review Committee meeting they did have the subject of performance guarantees on the agenda. All three members of the committee thought significant progress was being made in the review of the current ordinances and making realignments of the ordinances in certain respects to bring the subject of performance guarantees into a better light for the City. Mr. Fisher said in regard to whether or not we can hold all of the monies to his knowledge that had not been the subject of recent judicial determination. However, there is a trend of new lawsuits that relates to fees and charges that are imposed upon property owners for development and use of facilities and there was a major decision of the Michigan Supreme Court in the last two or three years holding that the fees that were charged for storm water drainage purposes in a Lansing situation really amounted to a tax rather than a fee because the amount wasnít reasonably calculated to be related to the amount that was actually needed to operate the system. He noted he was also aware that a suit had been filed in the Oakland County Circuit Court challenging connection fees for sanitary sewers claiming again that they amount to taxes because there is an absence of reasonable relationship between the amount needed and allocated to that cost. From a legal standpoint it would be something that could be challenged in the area of not returning an unneeded portion of these deposits claiming that you are really taxing the property owner or developer rather than requiring the necessary fees. The strength of that position would be bolstered by the notion that nearly every community in the county and elsewhere does return unneeded portions of the fees. He thought what we are trying to do in the ordinance process that is going through Ordinance Review at this point is make a very straight forward clear and focused effort to identify what is needed and what is not.

Member Capello said it is not technically a performance guarantee. He believed included in the development costs are regional storm water basin maintenance fees and felt Council should look at that to see what areas would not have regional basins and make plans to reimburse those maintenance fees to the developers who have paid them and there is not going to be a basin to be maintained. He asked administration to give Council a list of what storm water basin maintenance fees have been paid and what geographic areas and whether or not a basin is ever intended for those areas.

*Mayor Pro Tem Bononi arrived at 9:00 a.m.

Member Landry agreed with the distinction made by Member Capello. The distinction between a completion guarantee and the totally separate problem of a warranty regarding quality of the work that might not be discovered until long after the project is completed. He asked if it was possible for the City to apply a completion guarantee thatís withheld on one aspect of the project against another aspect of the project.

Mr. Fisher stated it was his opinion that these bonds are security amounts that are posted and are not City money but held in trust by the City for the particular purpose for which it was posted. However, with the permission of the developer it may be used for other purposes but without the permission of the developer we are not able to unilaterally re-designate the nature of fund by action on our part. In situations where we are taking money from one place to another the subdivision homeowners should be consulted, as they are the beneficiaries.

Member Landry asked, regarding performance guarantees, what is the evil we are trying to prevent? Are we trying to avoid a developer doing a lousy job and not discovering it until after it is completed? Is this a situation where we inspect a roadway because once we accept it, we accept it and he didnít think there was any other recourse except the general law. Mr. Fisher stated a bond has been required that we retain for a period of time and that is the official code provision in the City. This bond should stay in place for 1-2 years to make sure the facility functions as intended after weíve accepted it. The complication as a practical matter has been that there are instances where a developer has offered a dedication and there hasnít been a formal acceptance. Member Landry asked why there wouldnít be a formal acceptance. Mr. Fisher said they had not investigated why the acceptance hadnít been formally accepted. This isnít a unique situation to Novi but as a result the case law has developed a doctrine that acceptance may be formal or by way of actions by the community such as undertaking maintenance or other things that show evidence of an acceptance rather than in the form of a resolution.

Mr. Helwig noted we are almost totally in a reacting situation, waiting for inspection calls, no formal hand off of responsibilities, inventory of streets that "have been completed" but never gone through an acceptance process. Many times there isnít a completion date and staff would like to see a completion date emphasis. This process hasnít been managed for some time and in the budget at the level of City Council goals, they have made recommendations on how to better manage this. There is a different process for commercial and residential. He was anxious to receive any policy direction from the Council.

Member Capello noted most of the problems with informal acceptance are with the subdivisions because we canít accept roads, storm sewer system and sanitary system until itís 100% complete. Normally we wonít allow the top layer of asphalt on the road until 99% of the construction is done so the contractors donít damage the road. Informally, we are maintaining it but it hasnít been formally accepted. People are moving into the houses and at some point the City would take over the storm sewer because it is running into our system and we are accepting it, the same with sanitary sewers. At the same time we have not accepted the sanitary and storm sewer so informally we are maintaining it, residents are using it but we have not accepted it. A couple of years ago in Committee one of the things that was agreed upon but it never got to a higher lever, was we can accept the sewers and everything except the paved roads and get those issues out of the way. Then accept a cash payment for the continuing pavement of the top layer of the road. If we get the roads out of the way the formal acceptance process should move much quicker.

Mayor Pro Tem Bononi noted she wanted to comment on the discussion about ordinance proposals after Ms. Cornelius updated her on the conversation.

Mayor Pro Tem Bononi said regarding this topic Council was looking at three things. 1) Is the project complete versus not complete, 2) Are all of the components of the infrastructure built to City standards, are those standards documented and has the inspection process at each step along the way, in writing, verified that that infrastructure was built to standards, and 3) There doesnít seem to be time lines with regard to what is required when. She noted she submitted a year ago an ordinance from a city out west with regard to formal requests to continue a project, how you do that, what happens to the money thatís left in escrow and how long you can do this and get away with it. She thought from the standpoint of the process Council needed to know who in the administration owned this. Mr. Helwig said that is what Council would get in the budget document Monday evening as a preview of that because right now it is not owned. There isnít one person in the organization that does this. He said administration thought this needed to be a high level individual that has shown their capability to be a self starter and so forth and they would be recommending Marina Neumaier to assume this responsibility as being our financial guarantee manager and SAD manager. Mayor Pro Tem Bononi said he was talking about the construction inspection function regularly communicating with Ms. Neumaier and reporting to her directly with regard to all the documentation of whether the project infrastructure is complete at each phase and statements regarding being constructed according to City standard. Mr. Helwig said yes, we are not recommending changing any reporting relationships, but it would be Mr. Saven who is already in a loop with the Finance Department. This would be more of a matrix team who would dialogue on a regular basis.

Mayor Pro Tem Bononi asked whether or not there was any pull in the City standard? Are there City standards that should be improved, updated, backed down on, implemented or created that we donít have now that would address some of the problems that we see happening over and over. Mr. Helwig stated he would like to take the time to report back to her thoughtfully on that, as it is a key question.

Mayor Pro Tem Bononi said she was looking at specifics from the standpoint of street deterioration of streets that are not very old, a standardized sidewalk specification, for example, the sidewalk along 9 Mile west of Taft. There are stretches of that sidewalk that donít even have joints in them and she wanted to know how long that would last in our climate. She wanted to know how we could have specifications so that to be fair to people providing this infrastructure, we are telling them how to do it, inspecting their work and then we would have a reasonable expectation that that structure would last and be up to our standards. She was looking for a general review with regard to the specification as well.

Member Sanghvi felt a performance guarantee and development agreement was interrelated. The discussion has been confined to subdivisions and developments other than performance guarantees. What if we expect them to perform at a particular level and with a time frame and with guarantees of finishing and rewarding for finishing up or penalizing for being late in completing them. It seems to be a totally different issue but he thought this might go with that. As far as the road issue and once they are completed and gone, he asked if there was an insurance or warranty kind of thing we could expect these developers to have so that if anything went wrong, a claim could be made by the City to rectify the problem. He agreed that we are sitting on other peopleís money in trust and we have no business using it for other than what it was intended for. Once we give the Certificate of Occupancy to the homeowners, that should be the time to know everything is working properly or they donít move in because they would be the ones to put pressure on the developers. He asked that this be explored.

Member Capello spoke about reporting procedures because the ways they function now donít work. He detailed how the consultants give a punch list, the developer makes repairs then back to the consultants or re-inspection and if approved, Haim Schlick does an inspection and creates his own punch list. Then they go back and do the work and it all starts again. He said at the point of a punch list, he would like to see administration totally take it over so a final decision could be made and the developer given a limited number of days to get the work completed to streamline the process. Mr. Helwig noted in the past, the City was at the whim of the consultants dragging out the process. Now that we are aware of that, we are in a position, with our staff to direct that and we have a whole new field of expertise and professionalism with consultants. These issues have been raised as Council authorized these new relationships and he thought there would be a much greater responsiveness and coordination. Reporting back to Council would be one of Ms. Neumaierís major responsibilities. The goal is to be measuring that, having the standards and specifics and having everyone working together to get that done.

Member Capello said he didnít think there was any incentive for the consultant to continue to inspect and inspect, as he didnít think they got paid by each additional inspection. He thought the consultant wouldnít get paid until the project is approved. Mr. Helwig said the former woodland consultant was on an hourly basis and the amount of money the applicants and City were spending was obscene. Member Capello said he was talking about engineers. He asked if there was something that could be done for the Main Street or Gateway projects under our development agreements where we could require some kind of completion guarantee for the privatized work that it would never be turned over to the City. He asked if they could have required the developers of Main Street to guarantee that that project would be completed with some type of guarantee even though we would never accept it. He said they had a concern with the Gateway project if we are going to enter into some type of a development agreement where they are getting incentives to do a multi use project with a residential retail and office and they create Phase One as retail or residential and never finish it. We are not getting what we bargained for. Is there a way that we can require that?

Mr. Fisher responded yes, but what mechanism that had been utilized in related situations such as a PUD, what we have required in an agreement or a set of covenantís, restrictions and conditions, is a provision that established a specific responsibility for completion and maintenance of common areas, storm water areas, wetland and woodland maintenance with the understanding that if that was breached, notice would be given for a hearing to determine the due process. If a finding of a breach, a time is set for completion, and if the developer doesnít complete it, the City has the right but not the obligation to enter upon the property, cure the violation and place an assessment on the tax rolls for money expended by the City.

Member Capello said he was talking about the structure. Letís say Phase 2, the building on Main Street. He asked if they could have taken the rest of that real estate and used it as the performance guarantee or the security for completion. Then if they default, the City could take that real estate and get the project completed one way or another?

Mr. Fisher said there are two questions there. One, what is the scope of the Cityís legitimate interest as it relates to completing a project and two, what is the means of guaranteeing the City wouldnít go in a hole to get the project done? Member Capello said not going in the hole but just to have some means. If we get the land back we can get someone else to finish it.

Mr. Fisher said the legitimate scope of the Cityís interest is not to complete the building but to make sure that health, safety and welfare situation is not impacted and that a nuisance or blight isnít created. Rather than complete a building, he thought if something was sitting there for an unreasonable period of time that would create blight then the Cityís legitimate interest would be to remove it rather than complete it if a blight, situation occurred and to secure the site. In terms of paying for that work he didnít recommend getting involved in mortgage issues and redemption issues. He recommended having the obligation of the property be security but by way of an assessment that would go on the delinquent tax roll. That gives the City the money and indirectly it accomplishes what Council is saying because if the property owner doesnít pay the taxes, then the property is sold for taxes. Member Capello thought this would come to Council in the Gateway Ordinance.

Member Landry asked if someone bought property and left it fallow, they can do that? He was concerned especially in the Gateway context that if someone purchased property and were allowed a special use or approval under a multi use under the Gateway and they are tricking us because all they want to do is build residential, is there anything we can do?

Mr. Fisher said the way ordinances have addressed that issue is to require that a percentage of each phase be developed before the next phase of the other use can be completed. In this case not more than 50% of the residential may be developed until Phase 1 or 2 of the commercial has at least commenced on a legitimate basis.

Mayor Pro Tem Bononi said she would not enter into the private sector lest we be accused of venturing into the free enterprise zones with regard to property ownership. Not to mention the market had a way of sifting who is successful and who is not and from the standpoint of private projects she would not want to go there. She thought there were already vehicles in place that if they are used with regard to tracking developments, could go a long way towards seeing that we have such completions. They are the phasing language and she thought our compliance efforts at that havenít been what they should be. With regard to our building permits, evidence of progress and if there is not evidence of progress what our compliance people can say to that and also citation for that. An example of evidence of progress or non-progress was the project on the northwest corner of Novi Road and Grand River, which went on too long and she asked what policy could be put in place so that didnít happen again. She said those things are already on the books and all we have to have is vigorous action, tracking and compliance. Also, we donít take near enough advantage of applying conditions of approval where they lawfully may be applied. Hearing Mr. Fisher suggest that with regard to phasing approvals that we can attach conditions to those phasing approvals, each phase having to stand on its own with regard to completion and provision of all services required. However, in the approval of that land use permit, we can certainly attach conditions that if the applicant wishes to change one of those, they are back before Council. Phasing requirements must be clear, implementation of those and permit approval are clear and then follow up on that. She said to use an example like Main Street, it is a very important question and a good example to use asking ourselves what is our interest there? She saw our interest in it above our interest in seeing businesses and developments in our community succeed, the only actual financial interest she saw there is the SAD that still exists. So, from the standpoint of how the completion of that development relates to that SAD and the fact that we are looking to have that infrastructure paid for, seems to her to be what their interest is. She would not be interested in looking at any further policy with regard to private properties.

c. Development agreements

Mr. Fisher said the City has resorted to development agreements in certain instances that really have occurred on an ad hoc basis with no systematic procedures or policy consistent with all developments we want to do. As a consequence of the concern about that as well as a number of concerns that he perceived on the part of some Council Members and Planning Commissioners he identified this as something that he wanted to work on. He enlisted this issue with regard to Novi as well as a couple of other communities in order to reduce the cost to each community. He developed a proposal for Council consideration in this area that would create a policy for anyone seeking a re-zoning would have to elect another option under the ordinance, that he thought was authorized by State law, to submit a site plan and a proposed agreement with conditions, etc. that are all laid out in terms of what kind of policy and conditions we would insist upon in advance.

Mayor Pro Tem Bononi asked if this would apply to all applicants for re-zoning?

Mr. Fisher said any applicant for a rezoning. Nobody would want to do this as an applicant for a rezoning unless there was a need to do it because it tied the applicantís hands to one site-specific plan and use. If someone asked for a multi family classification but said they wanted to build duplexes rather than a sprawling multi family project they would opt for this mechanism rather than coming up with it on an ad hoc basis. They would ask Council if they could use this mechanism and it would be strictly in the legislative prerogative of the Council with various criteria and standards contained in the ordinance. The property owner would ask for a site specific proposal for example requesting the site plan containing X number of units that would be on this plan, with the road configuration and all that but it would be done on a methodical planned in advance sort of basis rather than an ad hoc basis. He thought it was something that was enforceable and a step up in terms of certainty from the utilization of development agreements. He said he sent it to Mr. Evancoe and discussed it with Mr. Helwig and the conclusion is that it is a favorable tool to the City in terms of providing control. Itís also a tool that a developer could come forward and say they wanted to do a site specific development on this property without receiving the criticism, they just want the rezoning and once they get the rezoning theyíre on their way to do whatever they want.

Mr. Helwig stated Mr. Fisherís memo was sent to Council on March 14th. Mr. Helwig said we need to have available a meaningful PUD option for the community. This is the means Mr. Fisher is suggesting to do that. That involves extensive negotiations; trade offs, getting greater open space than any of our normal requirements require or the developer even wants to see. Mr. Helwig thought this would be a meaningful way that developers would seek to enter into PUD development options with us to get more community benefits.

Member Sanghvi asked if this was development specific or generic? Mr. Fisher stated it would be a development specific arrangement, with a specific piece of property with a site plan as well as a written text of an arrangement. Member Sanghvi said this would be up front as promised by the developer in connection with the rezoning. Mr. Fisher agreed and said it would be something that a developer would propose as a promise in connection with a rezoning.

Member Landry asked if such development agreements that would attend a rezoning request were as binding and as difficult to change in the future as a general zoning ordinance? Mr. Fisher stated, if ten years down the road the development has been taken beyond construction and at the point his expectation would be that we would have in place some sort of conservation easement or whatever we would require for open space, that would prevent that from happening. The primary focus of development agreements have been the period of time between the approval of the rezoning and the submission of applications, etc. for development and they focus on the notion that if a proposal for development is inconsistent with the agreement reached, then the City has the prerogative of re-zoning it back to what it was. In this case, with this type of PUD authority in our quiver, he thought they would be able to follow the project down the road more clearly and have the authority to say no and to enforce it.

Mayo Pro Tem Bononi put this matter on the agenda because she felt they needed such a vehicle. One of her first concerns was the motivation that gets them to the point that they feel they need a development agreement. She hoped it was not that we would propose to use a development agreement because one of our ordinances, namely the PUD combined with a rezoning vehicle, is not sufficient to address the concerns that we are continually seeing. In addition to looking at the usage of development agreements she would also be looking for a total re-review of the PUD. She said it sounded like that was what was being said with regard to its sufficiency now and how it could be updated to work hand in hand with a development agreement. She asked if she was correct? Mayor Pro Tem Bononi asked Mr. Fisher if he had an opinion.

Mr. Fisher said he didnít have an opinion on other outstanding ordinance provisions that we have but he knew that there was a gap and this is designed to fill the gap and provide us with this tool that is separate and distinct and in addition to what we have. Mayor Pro Tem Bononi said that was exactly what her concern was but her concern was that the demonstrated vehicle that we are going to use is as strengthened as it can be and that those items that need to be addressed by a development agreement donít have to readdress the constitution. That we address the main points that we are looking for in a PUD from the standpoint of process, policy and procedure in proposing a PUD with specific circumstances to the degree that we can do that under our State law and anything that isnít addressed is taken care of by the development agreement. She did not want to see rewriting of the constitution, complicated agreements that would take a lot of time to track and implement. Also, she would be looking for the PUD language to clearly address and the applicant to clearly demonstrate what the benefit to the community would be if an applicant was proposing to use such a PUD development agreement not necessarily including a cost benefit analysis. She thought that Council and the administration would look to negotiate projects that were ostensively greater in quality and it would require demonstrated proofs that the quality and the project really does have that kind of attribute about it. She said Mr. Helwig mentioned earlier that in such proposals we would probably be looking at greater than. As a planner, she said sometimes we are not looking at greater than qualifications. Sometimes we are looking at lesser than. For example, if we were talking about a landmark building by an internationally acclaimed architect who would propose to go one story higher and who would propose to have 5% or 10% less open space, thatís a lesser than status and should still come back to demonstrated value. She would also look for the ordinance language to reflect who owned that negotiating responsibility. On development agreements in general, she broke it down to the pros and the cons. The pros she said was if talking about a narrow focus, it would be easier than amending an ordinance and it should be a lot easier. Why would we want to amend an ordinance for a specific distinctive circumstance? We probably would not. It also has the ability to tailor the agreement to a development, which might be unique in some way that does not specifically refer to our ordinance. Some of the concerns she would have are legal expenses to review the agreements and she would be concerned that there be an application process with a fee attached so that we wouldnít be talking about folks bringing it forward to see if it would fly utilizing a lot of the Cityís resources, which the City and its residents must pay. She would be concerned about after the development agreement was agreed upon, the tracking and compliance time that it required and the internal value of the time to do that and the legal staff time, which could be reflected in application fees. She would also be concerned about disagreements with regard to what the language of the agreement says that might end in legal entanglements. That is why she wanted to see very narrow development agreements that refer to an expanded PUD language. There had been concern expressed earlier about which is more binding and as a planner she would be more comfortable resting the majority of their concerns on a well-crafted ordinance. Mayor Pro Tem Bononi said the next concern is that this process could take the progress and/or compliance of the agreement out of the public view. She did not mean behind closed doors but she thought if they didnít have a regular process for reporting on this whether in Council packets or legal counselís regular Council reports. She was concerned that questions to legal counsel costs this City time as they are billed to the City and it is another administrative concern and also she would want anyone with questions about the agreements free and easy access so that if they called Mr. Helwig and he didnít have immediate response he has to refer that person to legal counsel and she was very concerned about that. Lastly, she was concerned about a question regarding transferability with regard to these agreements and whether or not the agreements could be stated to be known at the point that the person tries to transfer them to someone else with whom we have not negotiated, agreed or the quality of the proposal might change or be adversely affected as in comparison with something that appears in the covenant and restriction that runs with the land.

Member Sanghvi felt this was a philosophical issue and if we believe best government is least government, we should look at these things more carefully if we are setting up too many things.

Mr. Fisher said he wanted to highlight a couple of parts in the ordinance that address the issues that Mayor Pro Tem Bononi had raised to provide Council with some assurance going forward. The approval process would end up with Council and would include 1) result in enhancement of project area as compared to the existing zoning and such enhancement would be unlikely to be achieved or would not be assured in the absence of utilizing this mechanism, 2) it tracks closely to what Mayor Pro Tem Bononi was indicating. City Council must conclude in its discretion that as compared to the existing zoning and considering the site-specific land use proposed by the applicant it would be in public interest to grant the rezoning overlay. Then it defines what balancing mechanism would be applied there as a standard, 3) Over and above all that in terms of the specific aspects of the project they are to be reviewed based upon the general standards for approval of uses subject to special approval, which we already have in the ordinance that makes sure that things like pedestrian and street traffic are organized in a proper manner. There is a fee requirement provision.

The applicant shall pay a fee for the Cityís cost and expenses incurred by the City in the review of and preparation of documents for a rezoning with rezoning overlay and escrow shall be established in an amount specified by City Council Resolution. Additional reasonable amounts shall be contributed as required in order to complete the process of review and approval and any unexpended amounts would be returned.

Attorney Fisher exited the meeting at 10:05 a.m.

Council recessed at 10:06 a.m.

Council reconvened at 10:24 .m.

d. Community development philosophy

Mayor Pro Tem Bononi felt her questions could be resolved with more communication to Council. 1) If we do have a plan, what are the prioritized items on the plan and what is the plan to promote and market OST? 2) Are we encouraging, at the Planning Level or the community development level, multi family usages? If we are encouraging them why are we doing that? She recalled another Council that had a line in the sand about no more multiple. Do we need it? We have asked the question about how many units that we are seeing both in our Master Plan For Development and in our build out. 3) Are we still encouraging retail and how many vacant storefronts do we have? Do we have a plan in place to encourage the use of those vacant storefronts and what else positive could they do the encourage that? She asked how all of these things were relegated to the Master Plan that we have now and will these things be considered in a Master Plan Amendment that she presumed the Planning Commission would undertake?

Mayor Pro Tem Bononi said she has seen a managed growth, smart development proposal that is coming out of the Planning Department and would be addressed by the Planning Commission at some point. She asked if they were really looking at controlled expansion or continuing to address everything brought before them? Are they looking at specific parameters with regard to growth or arenít we? She felt they had to be really careful with regard to managed growth, smart growth developments unless they were really committed to doing that because it brings with it very difficult concepts that she as a planner was not ready to embrace, including in town use rezoning infill. Smart growth discourages outward growth and infrastructure extension. She was not a fan of infill land usage. She was also concerned about re-hab and re-use issues with regard to properties around town that are not looking so great including the older strip malls with no updates and no landscape. What is our program and she would like to hear about that, as we should have an idea about where we are going between Council, Planning Dept. and administration.

e. Zoning compliance philosophy

Mayor Clark asked Mr. Helwig if he thought there were enough resources in this area and at this time to get the job done? Mr. Helwig answered no, and said there was a lot of tracking and systematizing they needed to do before recommending consideration of any additional people. He said the City now had a high caliber Information Technology Director. Rob Petty is doing an outstanding job and he has a lot of catch up work to do. He is reviewing everything along with Kathy Smith-Roy and Finance, the Permit Plus System for all of our building inspection, permit tracking, SAD tracking and financial guarantee tracking. When you think about it, tracking all the conditions that come with zoning decisions and ensuring that what is built and completed is in total compliance with all those conditions. That is a sizable tracking undertaking and they needed to do work there before talking further about people resources. We have to be sure the inspectors have that tracking information system. It is no different than the technology that the police department has been provided in their patrol cars with all the information at hand with the laptops. He thought they were working in the right direction and understood the importance of this.

Member Capello exited the meeting at 10:33 a.m.

Member Sanghvi felt several issues were involved in this zoning compliance philosophy. He thought part of it was we donít seem to be policing adequately the decisions that have been undertaken. If we are to enforce it, we need to police it and there should be some teeth in it such as staff. If you donít have that, no one takes it seriously. We should be informing people that we mean business about observing the compliance with zoning and action.

Mayor Pro Tem Bononi said she had asked a lot of zoning compliance questions going back along way. It is a tough game and she would not want to do it. Itís very difficult and it takes a certain type of person to do it effectively and get results. That is not to say that we are not responsible for implementing our ordinances and making sure that infractions are addressed. She thought some things might be enhanced and asked Mr. Helwig how he saw zoning compliance with regard to his philosophy on zoning compliance and how it should be accomplished.

Mr. Helwig responded it must be accomplished in a systemized manner not just a complaint basis. Itís more important here because we have a very active ZBA, Planning Commission and City Council agenda and if youíre not careful that can be a runaway. He said there are different ways to organize it but believed because of the volume of work and the nature of it we need to continue to cross train and prepare many people to be able to notice deficiencies and yet it is a specialty. He felt more hands on were needed rather then fewer hands-on.

Mayor Pro Tem Bononi said more specifically, if you were giving a charge to the staff in regard to how they shall issue orders to take care of a zoning infraction, what would that general charge be?

Mr. Helwig stated it should be answered in a firm, documented, researched and done in a customer service professional manner. Also, that this is unending and the work is never done and it must be done if we are to become the community that this City Council expected us to become. Mayor Pro Tem Bononi said she was glad to hear that because she had had concerns over time and some citizens felt in some areas, enforcement was selective and she hoped that would not be the case. For example, specification of the spot light on garage sale signs but that is not one of our priorities only compliance issues. She believed priorities issues are erosion and sedimentation control, littering control, obstructions in ROW and run down buildings. She looked for consistency in prioritizing goals as it specifically is called out in the Charter as a duty for the Manager. She was looking for not only the resources to do the job but to do the job. She thought it might be helpful that there is a clear expectation in our community that if youíre not going to live up to your responsibility as a resident or business owner to follow the ordinances that they could fully expect to be told about it, expect to receive notification regarding an opportunity to comply and if there is no compliance they can expect a citation. That is what our local laws are about and she was interested to see, with regard to some of the examples she gave in ordinance compliance, that we look very carefully at how we do this job and she was counting on him to do that.

Mr. Helwig thanked Council for the discussion on policy, focus and dialogue. He said they take Councilís charge very seriously and that section that appears in every Council/Manager Charter he had seen where the City Manager is accountable for the enforcement of all laws. There has been a lot of careful consideration put into the budget document coming to Council on Monday for Councilís perusal. 1) Hold the tax rate where it is at 10.54 mills ensuring that our financial reserves are being held in reserves with 14% for our rainy day funds. That includes the Governorís 3% reduction in State Shared Revenue and they even recommended another 2.5% of what we receive held in reserve in case that gets changed at the State Level. Put $150,000 in the Judgment Trust Fund for general needs, deductibles, unforeseen claims, replace police cruisers, Mosquito Enhancement Abatement Program so we can work with the County and finally what people can we add to enhance service to the community. He said if Council looked at their goals adopted in February there are strong statements about enhancing services to the community. Mr. Helwig said five positions were being recommended. There is a lot of equipment we canít replace and a lot of other requests from departments that we canít even get close to touching. They are asking for one Police officer, one Fire Protection Officer, one environmental code compliance officer, a financial manager to assist Ms. Neumaier so she could enhance the monitoring of SADís and financial guarantees and one forestry technician that was requested last year.

Member Sanghvi said with the amount of work that has increased in the Building Department what kind of proportionate increase have we had in the staff? He said all these people are over stressed and thatís where it starts breaking down. If there isnít enough people and he knew it cost money to have people, but it also costs money to run the City the right way too. We have to find some money somewhere to help various departments inadequately staffed so they can function in an optimum fashion. Otherwise, we are running around trying to fix emergency problems and we donít get anything regular done. Member Sanghvi said management by crisis is not the best way to manage anything.

f. Other

Mayor Pro Tem Bononi had asked to place her comments on the record regarding Item 1A, which was the origin of ordinance proposals. She said her comments had been addressed but asked if a formal motion was made and Mayor Clark said it was. She hoped that they would have the opportunity to submit future policy statements. She didnít want the policy process to be lost. She referred to a letter from Mr. Helwig of August 14, 2002, which was a fiery indictment about lack of policy and communication between Council and City Managerís office. She felt there was something to be said here and she would like to do this at least twice a year and after each policy meeting is over perhaps Council members might feel free to submit other subjects that occur as time goes on and she suggested that the City Clerk handle that. She said they might see commonality of concerns coming in and perhaps she could relay that to Council. She also suggested that the administration by way of Mr. Helwig encourage the public to make suggestions whenever they feel that the manner in which business is done or how priorities could be improved. She said if there is another meeting it should include the specification of items to be discussed at the Council table prior to a policy meeting. She was

looking for feedback so there was a record of what was done and then if anyone wanted to bring any policy forward it could be done at a regular Council meeting under Mayor and Council Issues. She would not want the work done today to fall by the wayside.

AUDIENCE PARTICIPATION none

ADJOURNMENT

There being no further business to come before Council, the meeting was adjourned at 10:51 a.m.

________________________________ _______________________________

Richard J. Clark, Mayor Maryanne Cornelius, City Clerk

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Transcribed by: Charlene Mc Lean

Date approved: April 7, 2003