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REGULAR MEETING OF
THE COUNCIL OF THE CITY OF NOVI
Mayor Csordas called the meeting to order at 7:30 p.m.
PLEDGE OF ALLEGIANCE
ROLL CALL: Mayor Csordas, Mayor Pro Tem Landry, Council Members Capello, Gatt, Lorenzo – absent/excused, Nagy and Paul
ALSO PRESENT: Rick Helwig – City Manager
Craig Klaver – Chief Operating Officer
Gerald Fisher – City Attorney
Clay Pearson – Assistant City Manager
Benny McCusker – Director of Public Works
Doug Shaeffer – Police Chief
Nancy McClain – City Engineer
APPROVAL OF AGENDA
Mayor Pro Tem Landry added "Widening of Ten Mile Road" as Mayor and Council Issues Item #1.
Member Capello added Matters for Council Action Item #13, "Novi District Court."
CM-03-12-405 Moved by Nagy, seconded by Capello; CARRIED UNANIMOUSLY: To approve the agenda as amended.
Voice Vote on CM-03-12-405 CARRIED UNANIMOUSLY
1. Announcement of the Annual Holiday Decorating Contest winner, Craig Szewc, by Ron Boron, City of Novi Homeowner Association President
Mayor Csordas presented Mr. Szewc with a plaque to commend him on winning the 2003 Holiday Decorating Contest.
2. Walled Lake Ad Hoc Committee Report – Benny McCusker, City Liaison
Mr. Helwig said the first 6 months of the joint Ad Hoc Committee work had passed, and it was fair to say that the Committee had just begun their work. They appreciate the notion of sun-setting so this is not a full vocation that goes on and on. Administration recommends continuing the Committee for another 6 months so that they can form specific recommendations for consideration by both Walled Lake and Novi.
CM-03-12-406 Moved by Landry, seconded by Nagy; CARRIED UNANIMOUSLY: To provide a 6 month extension for the Ad Hoc Committee, to sunset on June 30, 2004.
Mayor Csordas noted that he wanted this extension to be the final extension for the group, as he did not want the Committee to turn into something that goes on forever. He would like to know a lot about joint ordinances with another community and the City of Novi, which he expressed concern about. He said he would look forward to seeing the results of the report by the Ad Hoc Committee.
Member Paul said that her understanding was the Mav Sanghvi had been the Council liaison to the Ad Hoc Committee with the previous Council. She asked if the City needed another Council Member to fill this vacancy.
Mr. Helwig replied that this was not an intention, but was a preference of Council Member Sanghvi to serve on the Committee. The Committee was set up for 5 citizens, and it just so happened that both communities ended up having a Council member sit on the Committee. It was Council’s prerogative if someone wanted to serve. If not, there was room for another citizen to serve.
Member Paul volunteered to serve as Council liaison on the Ad Hoc Committee. She said the unified ordinances in this case are probably a good thing. The City’s are a bit stronger than Walled Lake, where there is key-holing, something that is very difficult to maneuver. There are too many bodies and too many boats on Walled Lake. If the City can somehow give some of its ordinances to Walled Lake to prevent key-holing, it would be very beneficial for safety. Key-holing is where a person with a little alley-way on the lake can have a dock full of 50 boats, whereas the City has an ordinance that prevents this key-holing. It should be done across the State, but unfortunately is not always done. If the City can somehow enforce different ordinances to be stronger on Walled Lake’s side of the lake, it would be beneficial for Novi.
Mayor Csordas asked who is responsible for enforcement in Walled Lake.
Mr. McCusker replied that Walled Lake has an ordinance officer who enforces their ordinances jointly with their police department. Novi has its ordinance department and also police officers for enforcement. If reckless action is committed on the lake, police officers will take care of the situation, and the Oakland County Sheriff’s Lake Division is also used.
Mayor Csordas said he is willing to listen to anything, but wants to make sure that the City has the "upper hand."
Member Gatt remarked that the Oakland County Sheriff’s Office has a Lake Division that will respond anytime they are called for any problem, and can enforce the State law.
Mayor Pro Tem Landry said his understanding was that the Committee was comprised of 4 members and Dr. Sanghvi, which Mr. McCusker said was correct. He asked if Dr. Sanghvi was being replaced with Member Paul.
Mr. Helwig said there is currently a vacancy on the Committee, and if Council was comfortable with a Member serving on the Committee before, another had volunteered to do so.
Voice Vote on CM-03-12-406 CARRIED UNANIMOUSLY
3. Recognition Pins for 20 Years of Service – Karen Amolsch, Shannon Janes, William Brown, and Mark Kohls
Mayor Csordas said it was a pleasure and honor to recognize and thank some City employees that have been here for 20 years. He presented recognition pins to Karen Amolsch, Shannon Janes, William Brown, and Mark Kohls for their 20 years of service.
1. SPECIAL/COMMITTEE - None
2. CITY MANAGER - None
3. DEPARTMENTAL – Status of Promenade Wetland Restoration – Clay Pearson
Mr. Pearson said he had confirmed that afternoon that the restoration work at the Promenade wetland was complete. The only item that still needs completion is putting some top soil in and seeding, but the grading has been completed. Dr. Tilton’s office was out every day, supervised the cleanup, and took extensive photo documentation. The property owner, Landon, finally received written confirmation from the Department of Environmental Quality that all of their approvals were in place. Administration is very happy with the way that the project turned out.
Mayor Csordas thanked Mr. Pearson and administration for following up and taking care of that issue.
4. ATTORNEY - None
Bill Charles, representing the City of Novi Retirees’ Association, thanked the Mayor and Council on behalf of the Association for the increase in the pension benefits that was passed on November 24th. He wished a wonderful holiday season to the Mayor and Council. Mr. Charles noted that Item #12 on the evening’s agenda was consideration for changing the benefit plan for 8 retirees who retired under administrative contracts and were capped on their health insurance benefits. This made sense 10 or 15 years ago, but in today’s environment with high costs of health insurance, this has put those 8 retirees at a distinct disadvantage in trying to cover their premiums and health insurance. The Association hoped that the Council would look favorably upon that proposal. He said the Association highly endorsed changing those 8 retirees to the same coverage plan as other City retirees. Mr. Charles noted that outside of Novi he is also a Colonel for the Air Force Auxiliary, involved in Homeland Security. He has been working with FEMA for 25 years. FEMA has developed a program for communities for responding to emergencies. President Bush dictated two years ago that FEMA develop community based programs for citizens to protect themselves in a disaster emergency, take care of their neighbors, and help a community to recover from an emergency. FEMA, in concert with the Department of Homeland Security and Americorps, created the concept of CERT teams – community emergency response teams. The first class was taught in Michigan at the Crest facility in Oakland County two weeks prior, where they trained trainers to introduce the concept to communities. He was asked to introduce the concept to communities throughout Oakland County. The concept is endorsed by Sheriff Bouchard, and the Emergency Management Division of Oakland County. He said he would be having discussions with the Police Chief and Fire Chief to work out a program for the City of Novi.
Leroy Asher, on behalf of Ken and Jenny Nanda, wished to address Item #4 on the agenda, reconsideration of the Wilshire Abbey plat. He said he would be happy to address Council when the Item was discussed.
Sonu Nanda, 23001 Beck Road, said she lives in the house with the easement for Cheltenham subdivision right next to it. She said that at the time the easement was formed it was signed by the City of Novi. At that time, the intention was that this was only a temporary easement, and in due course the City would approve a permanent easement for both Cheltenham Estates and Wilshire Abbey when Wilshire Abbey was finally developed. At this point, if the City does approve Wilshire Abbey, the temporary easement that is currently right by her house will remain a temporary easement, and the City will not have fulfilled its obligation signed in 1998 by the City to provide a permanent easement, which is not the temporary easement by her house. She displayed photographs of the easement, and its location to her home.
Mark Adams, East Lake Drive, had noticed that the Walled Lake Ad Hoc Committee was up for sunset and there was no action on the agenda. He appreciated that Council extended the Committee’s charge for another 6 months, as this is a very important group. He suggested that the Committee may find additional issues during the next 6 months that might necessitate prolonging the Committee. He felt including some of North Novi Park into a conservation easement was a great idea. Chip sealing is a great idea for gravel roads, and is very cost effective by controlling erosion and providing better roads. Other subdivisions have such work as curb and drainage problems accomplished by the City without Special Assessments, so he did not believe that chip sealing always should require SAD’s. He asked Council to keep an open mind for his suggestions.
CONSENT AGENDA (Approval/Removals)
CM-03-12-407 Moved by Nagy, seconded by Gatt; CARRIED UNANIMOUSLY: To approve the Consent Agenda as presented.
Roll Call Vote on CM-03-12-407 Yeas: Csordas, Landry, Capello, Gatt, Nagy, Paul
CONSENT AGENDA: (Background information for Consent Agenda items is available for review at the City Clerk’s Office)
A. Approve Minutes of:
B. Schedule Executive Session immediately following the regular meeting of December 16, 2003 for the purpose of discussing pending litigation: (1) City of Novi v Chateau Properties; and (2) City of Novi v CVS Michigan Distribution.
C. Approval of resolution to authorize the purchase of Additional Credited Service by the employee.
D. Approval of Massage Business License for Hands on Health, LLC, 39575 W. Ten Mile Road, Suite 208.
E. Approval to award bid for a Police and Fire Department Uniform Contract to Allie Brothers, the overall low bidder, based on unit pricing.
F. Approval to award bid for a Pager Rental Contract to Verizon Wireless, the low bidder, based on pricing per unit, through the Tri-County Purchasing Cooperative.
G. Approval to purchase Four Hundred (400) radio read remote boxes from SLC Meter Service, single source supplier, in the amount of $32,000.
H. Approval of final pay application and acceptance of work for the Sandstone 5.1 -acre remediation excavation to Waterland Trucking Service, Inc. in the amount of $10,204.36 (final payment amount results in cost reduction of $55,456.42 from original contract amount).
I. Approval of Balancing Change Order No. 2 and Final Pay Estimate No. 3 in the amount of $5,433.61 with Sunset Excavating, Inc. for the West Park Drive/South Lake Court Culvert Upgrade.
J. Approval of Claims and Accounts – Warrant No. 663.
MATTERS FOR COUNCIL ACTION – Part I
1. Approval of Awarding Resolution accepting the bid of UBS Financial Services, Inc., for the 2003 Special Assessment Limited Tax Bonds (SAD170) in the amount of $2,330,000 (Maybury/Tuscany/Singh Sanitary Sewer).
Mr. Helwig noted that he had placed at Council’s seats a revised motion sheet recommending the acceptance of the bid of UBS Financial Services, Inc. For the interest of everyone involved, the net interest cost to this low bidder is 3.417%. The City received 7 bids for the item, which reflects a recent upgrade in the City’s bond rating, as well as outstanding work by the City’s Finance Department.
Mayor Csordas commented that this was great news. As the City continues to upgrade it shows financial stability and discipline, and he was astounded by the 3.417% rate.
CM-03-12-408 Moved by Nagy, seconded by Landry; CARRIED UNANIMOUSLY: To approve Resolution accepting the bid of UBS Financial Services, Inc., for the 2003 Special Assessment Limited Tax Bonds (SAD170) in the amount of $2,330,000 (Maybury/Tuscany/Singh Sanitary Sewer).
Roll Call Vote on CM-03-12-408 Yeas: Landry, Capello, Gatt, Nagy, Paul, Csordas
2. Consideration of an ordinance amending Chapter 4, Article III of the Novi Code of Ordinances by modifying certain restrictions applicable to the location, use and award of prizes in connection with amusement games and pinball arcades for Ordinance Number 03-97.01 – 2nd Reading.
Mr. Fisher noted that this was a request that was initiated at the request of one particular property owner, but as an ordinance of general application throughout the City. Council had before it two alternative drafts, and needed to pass one of those to move forward. Member Gatt had recommended that it would be better to allow younger people on the premises on Friday than on Sunday, taking into consideration that Monday is a school day.
Mayor Csordas asked if there were any other changes to the two drafts.
Mr. Fisher replied that there were a number of other changes that consolidated treatment of the 16 and 17-year-olds together, consistent with a uniform discussion by Council, as well as by Chief Shaeffer.
Chief Shaeffer said the new versions of the ordinance were much more enforceable than the original version, and the Police Department was very supportive of the new drafts. He said the City Attorney’s office did a good job of addressing the Police Department’s concerns in the new drafts.
Dennis Cowen, on behalf of Lucky Strike, said he had worked closely since December 1st with Assistant City Attorney Tom Schultz to respond to the issues raised about the ordinance. They did take up the Mayor’s suggestion and looked at about 30 similar ordinances from around the country. Even with the amendments that are made, Novi has one of the most stringent ordinances in the country. Some municipalities have no oversight at all on arcades. He passed on to Mr. Schultz a couple of provisions that he thought were applicable given the issues raised. While those were not specifically incorporated, they spurred further discussion that came up with the final product. He wrote the City a letter on behalf of Lucky Strike, stating that they agree with the substantive portions of the ordinances. There were even things added that were not discussed for the protections of the City. His client asked that the Friday/Saturday option be passed, with the added provision A-3 that would read 11 a.m. to 5 p.m. on Sundays. This would accomplish the issue of having children home before the dinner hour, but would also allow 13-16 year-olds to be there unaccompanied by their parents.
Member Paul said she could not support the ordinance, even though she knew there was support for it on Council. She does not believe that children and alcohol mix in any way, shape, or form.
CM-03-12-409 Moved by Capello, seconded by Landry; MOTION FAILED: To approve ordinance amending Chapter 4, Article III of the Novi Code of Ordinances by modifying certain restrictions applicable to the location, use and award of prizes in connection with amusement games and pinball arcades for Ordinance Number 03-97.01, including the Friday option, with the addition under Section 4-66a(4) of 11 a.m. to 5 p.m. on Sundays – 2nd Reading.
Member Nagy said she realized that the motion would pass, but did not believe the Lucky Strike establishment would be a healthy environment for children.
Member Gatt noted his concern with the amendment for allowing kids from 11 a.m. to 5 p.m. on Sundays. He felt that on Sundays, children should be home and getting ready for school. During the winter time, 5 p.m. is late and dark outside. He realized that in the summer, kids are not in school, so he was not worried about that time. However, he was concerned about the addition to the proposal.
Mayor Pro Tem Landry remarked that in deference to the previous speaker, the way he understood the situation was that a lifestyle center is designed for a family to be able to go to the mall and split up if they choose to. Sunday is one of the biggest days for attracting a family to a lifestyle mall. Parents can go to one spot, and kids can go to another. He agreed with Member Gatt that kids should be home doing their homework on Sunday night. The change to the ordinance that restricts kids’ hours on Sunday to 5 p.m. assuaged his concerns. He said he could support the motion with the 5 p.m. amendment.
Mayor Csordas echoed the previous speaker’s comments, saying that the motion ‘puts the icing on the cake.’ Fountain Walk is a lifestyle mall that is unique to Novi. He said he would support the motion.
Roll Call Vote on CM-03-12-409 Yeas: Capello, Csordas, Landry
Nays: Gatt, Nagy, Paul
CM-03-12-410 Moved by Capello, seconded by Gatt; MOTION CARRIED: To approve ordinance amending Chapter 4, Article III of the Novi Code of Ordinances by modifying certain restrictions applicable to the location, use and award of prizes in connection with amusement games and pinball arcades for Ordinance Number 03-97.01, including the Friday option, with the addition under Section 4-66a(4) of 11 a.m. to 3 p.m. on Sundays – 2nd Reading.
Roll Call Vote on CM-03-12-410 Yeas: Gatt, Csordas, Capello, Landry
Nays: Nagy, Paul
3. Consideration of legal opinion from City Attorney, and approval of resolution directing the commencement of actions required to establish a binding conservation easement on the City's land known as North Novi Park.
Mr. Fisher said this followed up on a considerable amount of history in the City and responded to both citizens’ concerns and Council Members’ desires to fortify North Novi Park from any modifications in the future. On October 15, 2001, Council enacted a resolution calling for such action for consideration, once the Sandstone settlement was resolved. Now that it appears as though the Block Grant matter is resolved and the boundaries of the park are known, this pursuit is not timely. The difficulty is that property law creates a number of difficult considerations in creating the conservation easement, along with the Home Rule Cities Act that places certain prohibitions on actions of this nature, particularly relating to parks. He provided Council with a resolution that, if adopted, would direct actions in pursuit in of the long-term preservation of North Novi Park. This sets forth 5 actions to be taken separately that would ultimately include presenting the matter for a vote of the electorate for establishment, in light of the provision of the Home Rule Cities Act that requires an election for any purposes of any conveyance of an interest in City parkland. The resolution would put in motion a step-by-step process that would accomplish Council’s desires in the long-term, even though there is no precedent that has been approved in the appellate courts in the State of Michigan for this purpose. He said he believed these steps would take into consideration the State statute that enables the establishment of conservation easements, and the Home Rule Cities Act.
Mayor Csordas agreed with Mr. Fisher that process is critical in a situation such as this. The City does not want to create any problems in the process. It is the residents’ land anyways, and they should have the opportunity to speak to their own property.
Member Nagy asked if this easement would be like the one on Garfield Road, where the City cannot do anything with the land for 99 years.
Mr. Fisher said the conservation easement was very similar. 99 years is often considered to be a permanent period of time, and if Council wanted to do the easement in that manner, it could.
Member Nagy asked if it was that evening that Council would make such a decision.
Mr. Fisher replied that that evening, Council could provide additional direction in that manner, as the conservation easement will need to be prepared for later consideration by the Council. If Council wished to pursue the easement in such a manner that would be the way legal counsel would be guided.
CM-03-12-411 Moved by Nagy, seconded by Paul; MOTION WITHDRAWN: To approve of resolution directing the commencement of actions required to establish a binding conservation easement on the City's land known as North Novi Park for 99 years, and direct City Administration to bring forth recommendations to Council in accordance with the 5-step process.
Member Capello said he had concerns about Mr. Fisher’s comments that Council would have to transfer the easement to some kind of third party. He asked if this would restrict the City’s ability to develop the park anyway that Council saw fit.
Mr. Fisher said this depended entirely upon the language of the conservation easement itself. If the purpose was to conserve the land from conveyance only, there would be no restriction on how the land would be developed. The language of the conservation easement will be the road map and the ‘bible’ for what will be prohibited and what will allowed. Included in the resolution was a process for making a recommendation to Council in that regard.
Member Capello commented that he saw Council had to go through quite a few steps to approve the process. He asked Mr. Fisher if he saw a real need to have to go through all of the steps to get to the end result. For the Garfield Road property, Council did not have to go through so many steps.
Mr. Fisher said the Garfield property was a special arrangement. On that easement there are escape clauses and such. That easement was an expression of intent in terms of what Council will be doing with the property, and was also something done in conjunction with the MDEQ or MDOT. That was not the same type of situation.
Member Capello asked if the North Novi Park easement would be more enforceable than the Garfield Road property.
Mr. Fisher replied that the North Novi Park easement would be binding if ultimately approved by the electorate.
Member Capello asked Mr. Fisher if he had any idea what the process would cost the City.
Mr. Fisher assumed that if the City presented the resolution to the electorate at a regular election, which could be next year’s primary, the cost would be minimal.
Member Capello said he was referring to attorney’s fees.
Mr. Fisher replied that these fees were "nominal."
Member Capello asked Ms. Cornelius for her opinion about placing the item on an electorate ballot.
Ms. Cornelius replied that typically a question added to the regular August primary would not cause the City any additional cost, as the election is already in place.
Mayor Pro Tem Landry said that at the risk of sounding unpopular, he was troubled by the easement. The more he thinks about it, the more he asked himself why the City was doing this. North Novi Park did not cause Sandstone. In fact, North Novi Park enabled the City to solve Sandstone. The City used 75 acres as a drastic measure; however, this was done with a great deal of thought, reflection and reluctance. In his mind, the property enabled Council to save the financial viability of the City. The Park was a last-ditch option, but was an option nevertheless, and he wondered why Council would give up the option. Council did what it had to do with Sandstone, not what it wanted to do. Had a prior Council done what Council was about do, the City would never have been able to settle Sandstone. To him, the conservation easement would limit one of the City’s options. He said he would support the motion to have the City Attorney look into the options, but said he was very troubled by the item. Nobody on Council is anxious to sell parkland, so Council does not need to create the easement. He noted that Inquiry #5 was for Mr. Fisher to advise Council as to whether there could be an out in the future for the public health, safety and welfare. He asked Mr. Fisher to report as to whether any conservation easement could be overturned by a future Council if it was absolutely a "last-ditch" resort. He said he would reluctantly support the motion.
Member Paul said she appreciated Mayor Pro Tem Landry’s comments. However, she felt that if there was a loophole to be had, the City Attorney’s office would find it in the easement resolution. If the City got into a jam, it would be able to find a loophole. Everyone helped the City solve a horrible situation with Sandstone, and if the City was in a similar jam in the future, it would have the same ability to do the same thing. The City is in desperate need of parkland, and she believed Council should pass the resolution.
Member Capello said he had asked his questions because he was concerned with the restrictions that the easement would place on the City. The Mayor Pro Tem said he would reluctantly support the motion, but he said he wanted to remind him that the resolution would direct counsel to commence actions to establish the binding conservation easement. The motion was not asking for more input, but rather to tell the City Attorney to get moving on it. He asked if voters would have to approve a referendum in order for Council to try and sell the parkland.
Mr. Fisher replied that under the Home Rule Cities Act, the provision is that land that is master planned for park purposes must be presented to voters before a conveyance may be made. The way that this may be avoided, and has been done elsewhere, is to have the master plan amended as to delete particular property from the master plan. On the one hand, this would require an election, but there is a way around that.
Mayor Pro Tem Landry said that Council needed to know from the City Attorney whether any conservation easement placed upon the property in an extreme situation.
Mr. Fisher replied that the answer was no, which was why paragraph 5 called for providing Council with a recommendation on whether or not various conditions that would allow Council to reverse the easement.
Mayor Pro Tem Landry asked if, were the motion to pass as stated, Council would be directing the City Attorney to pursue a conservation easement that could be reversed.
Mr. Fisher said Council would be asking the City Attorney and administration to essentially bring recommendations back to Council.
Mayor Csordas asked if Council would, in essence, be looking for a 3rd Reading of the resolution.
Mr. Helwig suggested that it would be very helpful to include in the motion that recommendations should be brought back to City Council in accordance with the 5-step process outlined by the City Attorney.
Mayor Pro Tem Landry asked if the maker of the motion would include Mr. Helwig’s suggestion as an amendment.
Member Nagy said she would include as an amendment to the motion that administration should bring recommendations back to City Council in accordance with the 5-step process.
Member Paul agreed to accept the friendly amendment.
Mayor Csordas asked Mr. Fisher to explain the transfer to a 3rd party.
Mr. Fisher said that over the years, attempts have been made to establish conservation easements on property. Challenges had occurred and the law was not very clear because of the lack of a significant precedence. The Michigan Legislature, probably in the late 1970’s or early 1980’s, expressly authorized conservation easements. This is the enabling authority that allows the City to establish conservation easements. He supposed that Council could try to establish one outside of the enabling authority, but it would be "wandering into a territory that does not have strong footing." If Council wants to comply with the enabling statute, it says that a city creates a conservation easement by conveyance to a 3rd party.
Mayor Csordas asked who the 3rd party would be.
Mr. Fisher replied that this could be any number of choices. The typical circumstance is a land conservancy, of which there are a number state-wide, county-wide and otherwise that exist. These are in business to take easements like this for purposes of monitoring and enforcing easements to make sure that they are upheld.
Mayor Csordas asked if the resolution would mean transferring the property to an entity other than an entity within the City.
Mr. Fisher said that only the conservation easement would be transferred, so whatever Council put in the conservation easement, such as that the property shall not be sold for 99 years and will be preserved for park purposes, could be enforced by the land conservancy.
Mayor Csordas remarked that he did not like the resolution on the surface. He felt that Council was losing control of the property. He made the mistake of assuming that a Council could somehow reverse the decision in case of a catastrophic situation.
Member Nagy asked what the easement would be protecting the City from.
Mr. Fisher said the easement takes the will of the current Council and imposes it on the current and future Councils’ wills.
Member Nagy asked if the City were not to have the conservation easement, because the land is currently master planned as parkland, there is no way that the City could sell any portion of that park without taking a referendum to the residents of Novi.
Mr. Fisher said this was true unless the Planning Commission conducted a public hearing, amended the master plan, and took the property out of the park designation.
Member Nagy asked if the Planning Commission had the public hearing and followed procedures, the matter would still come to Council, which Mr. Fisher agreed was correct. Member Nagy said she did not see the need for the resolution. The Nature Conservancy, as one example, takes the land that they have purchased and eventually sells that land to somebody anyhow. She said she wished to withdraw her motion. The loss of control of the land concerned her, as well as the 3rd party aspect.
Member Paul said she thought the matter was coming back to Council for a legal opinion from the City Attorney.
Member Nagy said her understanding was that Council was giving Mr. Fisher a direction to commence action in order to draft the legal document. She said she was withdrawing her motion because she did not want a 3rd party holding the title to the land that has nothing to do with the City.
Member Paul agreed to the withdrawal of Member Nagy’s motion.
Mr. Fisher said that in view of the October, 2001 resolution that called for the easement, he recommended creating a motion stating that Council has determined not to create the conservation easement.
CM-03-12-412 Moved by Landry, seconded by Nagy; CARRIED UNANIMOUSLY: To direct the City Attorney that Council is not interested in pursuing a conservation easement for North Novi Park, as sufficient safeguards are already in place by which the property is parkland. This provides the City to act in a drastic circumstance if so needed.
Roll Call Vote on CM-03-12-412 Yeas: Nagy, Paul, Csordas, Landry, Capello, Gatt
Mr. Helwig noted that Congressman Thaddeus McCotter had joined the Council’s presence.
Congressman McCotter wished to extend his hand to Council. He said it has been a joy to work with Novi. He hopes to continue the fruitful and productive relationship with the City. He is no stranger to City government, having been a County Commissioner and having watched his mother serve on the Livonia City Council. He wanted Council to know that he appreciates what Council Members do, as he knows that it is very difficult work. He will always be available to help and work together with the City.
4. Reconsideration of the approval of the final plat of Wilshire Abbey Subdivision, and consideration of the status of street dedication in the Cheltenham Estates Subdivision which provides the means of access to Wilshire Abbey Subdivision.
Mr. Fisher noted that this item was very complex. Essentially, this was a reconsideration of the plat of Wilshire Abbey. Last month, the final plat was approved but not signed. At the following meeting, as permitted under applicable rules, Council passed a motion to reconsider and scheduled the reconsideration for this Council meeting, agreeing to take up the matter in light of the fact that Mr. Nanda, developer and proprietor of the subdivision to the immediate south, presented issues that warranted reconsideration by Council. As a practical matter, while the reconsideration of solely the Wilshire Abbey plat was before Council, what also needed to be considered was the interplay of Wilshire Abbey with Cheltenham, particularly as it relates to the access street for Cheltenham. Those two plats had been processed together for a number of years. Mr. Nanda was always the developer and continues to be the developer of Cheltenham. A Mr. Lokey had always been the proprietor/developer of Wilshire Abbey. Mr. Lokey then sold his interests after preliminary plat approval to Mirage Development. Mirage is currently the developer of Wilshire Abbey.
Mr. Fisher said that through the entire process, the City made an extensive effort to try to bring some cooperation between the developments and their developers, particularly because as the property lays out, there is one single point of principle access for both properties, and the Wilshire Abbey property does not have frontage on Beck Road. City ordinances require public access in order for a plat to be approved. The records indicate that there was contemplation for a shared access for Cheltenham and Wilshire Abbey that would be through Cheltenham subdivision. That was the principle access. There was also an issue of secondary access, and as an earlier speaker during audience participation had indicated, when Cheltenham was approved there was a contemplation for a temporary access there with the idea that a permanent secondary or emergency access would be provided. Contrary to some of the points made by that speaker, the easement for Cheltenham did not indicate, nor did any approvals by the City indicate, that the City would provide that secondary access, or that anyone else in particular would provide it. The City has no obligation to provide secondary access for Cheltenham in his opinion.
Mr. Fisher said that Wilshire Abbey also had endeavored to secure, and did secure, a temporary emergency access for its property, entirely separate from Cheltenham. Both developments have temporary emergency access provided, along with construction access. Neither of them technically have permanent emergency access. Cheltenham was permitted to sell numerous lots to property owners, who built homes on those. All but two of the lots in Cheltenham have been sold based upon a plat recorded with the Register of Deeds saying that the roads would be public. There is a representation by the developer of Cheltenham that there would be public roads for that development. Nonetheless, the City approached the developer of Cheltenham and indicated that the roads needed to be dedicated so that the City can accept them. The important part for the City is getting warranty and making sure that the roads are good for a few years, backed up by securities that would pay for improvements in the event of a problem, along with a bill of sale for roads and particularly utilities within the roads. Even though all of the lots had been sold and the plat was recorded saying that these would be public roads, the developer for Cheltenham is now saying that he does not want to dedicate the roads yet. On the other hand, the Wilshire plat went through the entire process with everyone recognizing that access to Wilshire would be through Cheltenham. Yet, Wilshire is now at the stage of final plat approval, but does not have public access because those roads have not been dedicated and accepted. The process for recording the plat is an offer for dedication, and the City must accept a dedication either by resolution or by what is known as a de facto acceptance, which generally is accomplished by maintaining the roads, placing them within the Act 51 list to receive funding for maintenance from the State, and things of that nature. This has not been done. The roads have not been maintained by the City, and the roads in Cheltenham are not on the Act 51 list. It is his opinion that at this point in time they are not public roads.
Mr. Fisher said that Wilshire feels as if the City is picking on them because the City is not approving the plat at this point, or has not approved it yet. Cheltenham believes the City is picking on them because the City wants the roads dedicated consistent with the plan that has occurred. He said his recommendation to Council, in an effort to resolve the situation, is primarily two steps. One is to go forward with an approval of the Wilshire Abbey final plat on the condition that one of three things would happen: That the developer of Wilshire executes a memorandum of understanding assuming the risk that lots other than models cannot be sold and developed until such time as the Cheltenham roads are dedicated; Or, a written authorization from Mr. and Mrs. Nanda, the proprietors of Cheltenham, authorizing the use of those roads and acknowledging that they are effectively public; Or, a court order that expressly authorizes the use of those roads by Wilshire. Along with this, he recommended that the City take the step of providing Mr. Nanda with notice that unless he affirmatively advises the City that he is going to proceed immediately with dedication of those streets, that the City initiate an Oakland County Circuit Court action to seek a court order to allow interim use of those roads by Wilshire, and compel dedication as promised to the City and all of the property owners to whom those lots have been sold based upon the representation that they would be public roads. It was his understanding that when there was a snow this year, the City did receive calls from a number of property owners indicating that those roads were not being maintained or properly salted by Mr. Nanda, which basically confirms the need to get those roads dedicated.
Mayor Csordas asked Mr. Fisher if the roads in Cheltenham are built to City standards.
Mr. Fisher replied that he had asked the City Engineer that question a number of times, as recently as that evening. He felt she was likely ready to confirm to Council that the roads are in a condition that would be ready to dedicate and for Council to accept, given that the warranty and so forth are provided.
Ms. McClain said she had reviewed the records at Mr. Fisher’s request. On August 13, 2003, Mr. John Akin of JCK confirmed that all of the punch list items at Cheltenham had been completed, as far as the roadways for the dedication.
Mayor Csordas asked if there would be a bond or some sort of financial security for a warranty for 2 years that would be posted by the owner of Cheltenham.
Ms. McClain replied that currently, the City has some financial guarantee money. In addition, at the time that the acceptance comes through to the City Council, there would be a 2-year maintenance bond required to start at the time that the City accepts the roads.
Mayor Csordas asked if the City were to accept the roads, and the owner of Cheltenham had posted the financial guarantee, and the developer of Wilshire destroyed those roads in building the subdivision, what would happen.
Ms. McClain said that because Wilshire is acting under a right-of-way permit, and the City has bonds for them from the right-of-way permit, any disturbance to those roads would be covered under Wilshire’s bond, and they would have to replace those roads, just as they would have to replace any damage that they cause on Beck Road.
Mayor Csordas asked if the emergency access on lot 3 of the southeastern portion of Cheltenham would be an emergency access for both developments.
Ms. McClain replied that she believed the wording that was used in the emergency access specified that it was to be a temporary emergency access for Cheltenham only.
Mayor Csordas asked where the secondary access would come in for either development.
Ms. McClain responded that Wilshire also has a temporary emergency access that is located along the north property line of Cheltenham, which has been given for temporary emergency access for Wilshire only.
Mayor Csordas asked if somebody owns the lot that faces Beck Road, which Ms. McClain said is owned by Mr. William Lokey, who is the one who granted the easement.
Miroslav Bolschko, representative of the developer of Wilshire Abbey, said that this was an unusual procedure. He said there was no petitioner, and the issue needed framing for who was asking for what, and then determine who would address that issue. He suggested that the issue be framed similarly to what Mr. Fisher suggested. It appeared the only question was the approval of the Wilshire final plat. He questioned what basis there was to reconsider approval of the final plat. The only suggestion of an issue that he was aware of was that Wilshire did not have public access via public roads. He suggested to Council that the discussion be framed within that framework only.
Mayor Csordas said the discussion would be framed on approval of the final plat for Wilshire Abbey subdivision, and the second half of that was consideration of the status of street dedication in the Cheltenham Estates subdivision, which provides means of access to Wilshire Abbey subdivision.
Mr. Bolschko said he agreed with this. He became involved earlier that day and spent the entire afternoon listening to a myriad of personal issues between the original developer of Wilshire and Mr. Nanda. He said Cheltenham has no current developer because the subdivision is currently developed.
Leroy Asher, of the law firm of Miller & Canfield on behalf of Ken and Jenny Nanda, said he would provide a brief overview of the two properties. Mr. Nanda’s subdivision, Cheltenham, has its access point on Beck Road. Mr. Asher displayed a map of the subdivision that showed the specific access point location, as well as the property line. When Mr. Lokey owned Wilshire Abbey, he owned frontage on Beck Road but elected to except out that parcel, which is the only reason that Wilshire Abbey does not currently have access. When Mr. Nanda came forward in 1997, there was an acrimonious contest between the two property owners. At that time, Cheltenham was tabled for an opportunity for the two developers to try and work together. He and Mr. Nanda spent a number of months trying to work with Mr. Lokey, which was very difficult. The two property owners could not reach an agreement so they came back to the Planning Commission to seek approval to build. As Mr. Nanda was required to have a secondary access point, he was required to go through lot 3. The document that was prepared was a grant of temporary easement.
Mr. Asher said the City never intended for the permanent emergency access to be so close to the house on Beck Road. The idea of Council was that Mr. Nanda had the right to develop his property and had to provide the emergency temporary access on a secondary basis until the Lokey property developed. The recognition was that this would take some time to occur. What transpired after Cheltenham’s approval and the signing of the temporary access was that Mr. Lokey came back before Council in October of 1998, claiming that he was allowed access of that emergency access as well. The minutes of the October 19, 1998 meeting showed that Member Kramer believed the temporary access emergency road on the southern end of Cheltenham was specifically that, and he did not want to see that access continued any longer than necessary to support the development of that subdivision, referring to consideration of Mr. Lokey’s plat. Council Member Mutch stated that she understood this only required temporary emergency access to the south until there was a connection somewhere else, and somewhere else is now Sarnia in the Lokey subdivision. Mr. Arroyo, the planning consultant at the time, did not believe the Nanda’s would have to maintain it if there was another point of access. The City Attorney, Mr. Fried, indicated that he assumed the secondary access was opened and accepted by Council, and that the developer of the most southerly plat could ask to abandon that secondary access maintained for that lot. Essentially, Mr. Fried was saying that at the time the permanent emergency secondary access was obtained, Mr. Nanda would again gain the use of lot 3. The motion that was approved evening, moved by Member Kramer and seconded by Member Lorenzo: To postpone action of the Wilshire Abbey plat to give the applicant the opportunity to work out the northerly permanent emergency access road, and consider the relocation of the detention basin in order to accommodate their subdivision. Mayor Pro Tem Crawford understood that this would be a permanent road, and Mr. Arroyo agreed.
Mayor Csordas asked what road Mr. Asher was referring to that would become permanent.
Mr. Asher showed on the map what route would become the permanent secondary emergency access. This is not a true road. The City wanted Mr. Nanda and Mr. Lokey to work together to have only one entrance, as the City did not want 2 entrances within a few hundred feet. He said it took Mr. Lokey a number of months to come back to the plat approval he received, in May of 1999. The motion that evening, made by Member Lorenzo and seconded by Member Kramer, stated that "and that the subsequent plat shows sufficient landscape buffering area along the emergency access road where it abuts Cheltenham."
Mr. Asher said the reason that Council should reconsider the plat approval was Mr. Lokey’s revenge. What Mr. Lokey did was decide to pull out the lot. This was originally part of the plat, but in May of 1999 was not part of the plat. He said it took Mr. Nanda 5 years to see this. Council’s initial understanding in 1998 and 1999 was that there would be a permanent emergency access provided through Wilshire Abbey. The easement between Mr. Lokey and the people that he sold the rest of the parcel to is a temporary easement for ingress and egress. The easement states that "the grantors, Lokey, wish to convey a temporary access for ingress and egress of emergency vehicles only across grantor’s land, which will burden grantor’s parcel B for the benefit of the 29 lots in Wilshire Abbey subdivision only, and no other lots or subdivisions. This temporary easement shall remain in effect until a permanent secondary access for emergency vehicles is provided…. This temporary easement shall become effective only at the time of legal recording of the final Wilshire Abbey plat. This temporary easement is not for the benefit of lots not part of Wilshire Abbey."
Mayor Csordas asked if this document was executed.
Mr. Asher replied that the easement was executed. He said it was Mr. Lokey’s revenge to pull out the lot. One of the things that he and Mr. Nanda were asking Council to do that evening was release their temporary easement. Their document provides that when an acceptable secondary access has been provided the City of Novi will record a "release of easement," which shall declare that the easement set forth in rider B is of no further force in effect.
Mr. Asher said he understood that Wilshire had the right to come through the Cheltenham subdivision. There is a question on the timing of when this should be done, and there are concerns that Wilshire traffic would destroy Cheltenham’s roads. He understood that Wilshire would provide a bond and come through the roads. However, Wilshire Abbey has to comply with their half of the agreement. If Wilshire Abbey will use Cheltenham’s main road, Wilshire must provide what was promised in 1999, that the emergency temporary access be provided on that property. So that Ms. Nanda’s house can go back to being a regular home without a road one foot away from the bedroom window, they requested that Council table consideration of the final plat until the Wilshire Abbey developers do what they promised to do.
Mr. Bloschko said he had earlier tried to avoid a rehashing of past transactions that constitute history, which is all that what Mr. Asher had commented about really was. He said those comments were a history and a story that this point were irrelevant. There is an answer to everything that Mr. Asher had brought up. He said that a gentleman in attendance at the meeting had a great personal knowledge of all of the history of the developments that was brought up, and said they could rebut a good part of the comments, and explain a good part of everything to Council. However, he said this was not necessary. The essence was that Council gave final plat approval, unequivocally, unconditionally, on November 10th. He said he differed a bit with Mr. Fisher on a few points, which he had discussed earlier that day with Mr. Fisher. Mr. Fisher had earlier said that this reconsideration was pursuant to applicable rules; he personally did not feel there were applicable rules to reconsideration of a final plat approval.
Mr. Bloschko said it was interesting that Mr. Nanda was in attendance, as his plat was approved through the normal process and met all of the rules until now. He provided a copy of the proprietors’ certificate, signed by Mr. Nanda, to Council. The under oath statement of the certificate, signed by Mr. Nanda, stated "President (Mr. Nanda), as proprietor, has caused the land to be surveyed, divided, and dedicated as represented on this plat. And that the streets are for the use of the public." Mr. Bloschko said this was the end of the case, as the streets should be public. He understood Mr. Fisher’s concerns about maintenance, understood legal issues about acceptance by the City, but remarked that the basic fact remained that the streets are public. Mr. Nanda came in and denied that the streets are public, but in fact has barricaded them. He felt Mr. Nanda was interfering in a public thoroughfare. The two separate secondary access easements were approved by Council through the normal plat process, including the one that the Nandas are complaining about. After the plats were approved and the Nandas sold all their lots, they came back to Council complaining about the fact that their plat was approved based on that easement.
Mr. Bloschko said the Nandas can also not come to Council after they have developed their subdivision, sold all of their lots, and are legally obligated to dedicate their streets to the public. This is certainly not fair to Wilshire Abbey residents who are caught in the middle. To some extent, Council is also caught in the middle, as Council approved every step of the Wilshire plat process. Mr. Rossi, the president of Mirage Development, followed every step of the requisite process, and every step was approved by Council on the reasonable assumption that these were public roads, or would soon be public. It is incumbent that the City take whatever steps are necessary to finalize the process, including taking Mr. Nanda to court. Redresses will be sought in court by the Wilshire people for damages from any delays caused by Mr. Nanda and indirectly by Council if it delays the finalization of the Wilshire subdivision. There is a great deal of money tied up in the development, and these are innocent parties in the transaction who have done everything that they have been asked for. The secondary access that Mr. Asher had read from, that Mr. Lokey granted, was at the direction of the Planning Commission and Council in the context of the approval of the Wilshire plat.
Mayor Csordas asked if the roads are public or not.
Mr. Fisher replied that they are not public at this point in time. There is an offer of dedication, but the City has not accepted that offer. The City could accept that offer at any time, but if the City accepted the offer prior to getting the warranty for the roads and there was a problem, the City would essentially be assuming a risk and financial responsibility that it does not have now.
Mayor Csordas asked if the warranty needs to be provided by the developer of Cheltenham.
Mr. Fisher replied that this was correct.
Member Capello asked if the City’s ordinances require a period of time in which a developer has to turn the roads over.
Mr. Fisher said that whether they do or do not in this particular subdivision, in view of the issues that were created, no particular time was established. On the other hand, numerous lots were sold to members of the public on the representation that those roads would be public, and they are not now public, but have people occupying the subdivision. Now is the time to dedicate the roads, for that reason as well as providing access to Wilshire.
Member Capello said he was not at all inclined to use City money to fight the dispute between the two developers, as they should go to court together. He asked what recourse the City would have to force Mr. Nanda to provide his guarantee.
Mr. Fisher said that basically, Mr. Nanda has proceeded under City ordinances. City ordinances require that warranty, and basically by recording the plat and selling the lots, he has essentially agreed already to comply with the ordinances.
Member Capello said he understood this, but asked how the City would make him go and get a letter of credit or a bond and bring this down to the City.
Mr. Fisher said this would be a remedy for the court to fashion.
Member Capello said he knew that the access through Cheltenham would be a temporary access. He remembered working plan by plan to get the storm detention pond where it was located and to get the other emergency access. He knew that once this went in at Wilshire, it would be the permanent emergency access, and the other temporary to the south would be released. He asked Mr. Fisher how Mr. Lokey was able to break off the one piece of property that actually gave him access to Beck Road, and take this out of the plat. He asked if the temporary was approved with the access going out to the road.
Mr. Fisher replied that the temporary access does go out to the road under that easement.
Member Capello said he was not referring to the easement that Mr. Lokey gave to Wilshire, but rather the plat approval. There was a temporary construction permit, and a permanent emergency access going out to Beck Road.
Mr. Fisher said that to his understanding, that was not the way that the final preliminary plat was approved. By the time the final preliminary plat was before the City, that lot had been removed. In other words, a land division occurred.
Member Capello asked if this was something that the City approved. It was hard for him to believe that this would have come back to City Council and would have been approved.
Mr. Fisher said the plat had to have come back to Council for final preliminary plat approval, unless this was done administratively.
Member Capello asked if Council approved the lot split for the lot.
Mr. Fisher replied that Council must have approved the lot split. However, under the Land Division Act, as the Legislature has amended it, accessibility for the back parcel does not require current access, but rather access or the ability to provide access.
Member Capello asked if it might have felt that because there might have been access coming in the future with the public road, that this was adequate at the time of the split.
Mr. Fisher said that access had been platted.
Member Capello asked if Wilshire could be approved with the proviso that they obtain permanent emergency access along the northern part of the property out to Beck Road through the Lokey property.
Mr. Fisher replied that Council could do this. He suggested that in view of all the action that had taken place, Wilshire should be allowed to begin constructing homes and selling property, but making this a requirement within a fixed period of time.
Member Capello said he wished to comment about the "little stub" to the north. There is actually a cul-de-sac there with no indication that a road was going through there. Those residents came forward, both at the Planning Commission level and at the City Council level, and objected to any connection, and there was no connection granted. The property to the south, Beckenham, was supposed to have a connection to Cheltenham. Somewhere in the approval process, this ended up being a cul-de-sac instead of a connection. That entire area has been quite problematic.
Member Capello asked Mr. Fisher if he saw any liability on behalf of the City if Council did not grant the final plat approval that evening until the two developers worked out their own problems.
Mr. Fisher said that in view of this and the actions of the City up to date, it would trouble him not to grant the approval with the clear conditions. He also felt it would be equitable to initiate the case to compel the authorization for use of the entrance road by Wilshire.
Member Capello asked if by "initiate the case," Mr. Fisher meant for the City to file a lawsuit.
Mr. Fisher replied that this was correct, because the City has two things at stake. One is that all of the lot owners in Cheltenham purchased lots on the strength of the representation that the roads would be public, but they are not. The second point is that there was clearly an understanding that the Wilshire Abbey subdivision would be provided access through Cheltenham roads, and the City is now at the final threshold of plat approval for Wilshire Abbey, but there is an improper withholding of that dedication.
Member Capello asked if Cheltenham residents are complaining to the City. He believed the City was plowing and maintaining Cheltenham streets.
Mr. Fisher said the City is not maintaining those streets, and residents are asking the City to do so.
Member Capello inquired why the City was not maintaining those streets. Historically, the City has taken and begun to plow streets before they’ve been accepted in every subdivision in the City.
Member Capello commented that the de facto acceptance would not really hurting the City, since the roads already would have been accepted and approved.
Mr. Fisher said the de facto acceptance would hurt the City because the argument would be created that for all of the time that the City had accepted the roads there should not be a warranty.
Member Capello said this was understandable, but to get that warranty the City would probably have to file a lawsuit anyway, which Mr. Fisher agreed with. Member Capello said he did not buy the argument that the City had to let Wilshire use Cheltenham’s roads when Wilshire was not agreeing to let Cheltenham use the emergency access.
Mayor Pro Tem Landry asked Mr. Asher if his client had offered the streets in Cheltenham for acceptance as public streets.
Mr. Asher replied that Mr. Nanda had not. He said Mr. Nanda understood that he had to do this.
Mayor Pro Tem Landry asked why Mr. Nanda had not yet dedicated the streets for public acceptance.
Mr. Asher replied that Mr. Nanda has concerns regarding the impact on the entry-road street. Nearly all of the lots in his subdivision are built, so all of the heavy construction traffic that will come through those roads to service his subdivision is done. Unless a police officer is posted outside of that subdivision, the construction traffic for Wilshire Abbey will come through his subdivision. Mr. Nanda would like to have his bond, at least for that portion of the road, removed. If there is a bond from the new developer coming in, it will be their heavy trucks that will use that section of road.
Mayor Pro Tem Landry said it was his understanding that the Cheltenham developer had offered the roads for acceptance; however, is not currently willing to post the warranty. He asked if this was correct.
Mr. Asher replied that there was a concern with the fact of whether or not Wilshire should be required to warranty at least that portion of the main access portion of the road, since this traffic will not be from Mr. Nanda.
Mayor Pro Tem Landry asked if Mr. Nanda was not prepared to post the warranty right now.
Mr. Asher replied that this was correct.
Mayor Pro Tem Landry asked Mr. Asher if it was his understanding that the developer of Wilshire Abbey would be required to post a bond to the extent that if they do any damage to Cheltenham’s roads, they will have to pay for it.
Mr. Asher said he understood that they would have to do so.
Mayor Pro Tem Landry asked why Mr. Nanda would not post the warranty if he had that understanding.
Mr. Asher said that Mr. Nanda’s view was that he should be exempted from the bond requirement at least for the stub of the main road in question.
Mayor Pro Tem Landry asked why Mr. Nanda would not post the bond if the bond from Wilshire would pay for any damage to Cheltenham’s roads, but the damage from Wilshire was why Mr. Nanda would not post the warranty.
Mr. Asher said the other issue was raised by Member Capello: that Wilshire was supposed to provide the emergency access.
Mayor Pro Tem Landry said he understood this, and shared Member Capello’s concern over that matter. He asked Mr. Bloschko if his client was prepared to post a bond to the effect that any damage done to Cheltenham’s roads by Wilshire’s people will be repaired by Wilshire people.
Mr. Bloschko replied that his client was prepared to post such a bond.
Member Nagy said she was very "perturbed" by the situation. The developers were involving the City in something that it should not be involved in. She said the conflict was "absolutely childish," as it could be worked out by the two parties. She asked if the City would incur any liability by accepting the roads, or why it would accept them.
Mr. Fisher replied that the City would be incurring potential liability in the event that the roads were not constructed properly. As seen in other situations, the City could end up with the responsibility for repairing those roads.
Member Nagy asked Ms. McClain to point out specific locations of where Ms. Nanda’s house was, as well as the roads, on a map for the audience.
Ms. McClain highlighted the locations of the house, the access drive for Wilshire Abbey, and the section of Cheltenham road that was being barricaded from Wilshire use.
Member Nagy said the developers should work out their concerns with one another, and commented that the situation was putting the City in jeopardy. She said she would consider the approval process, but not without some kind of formal agreement between the two parties, as she did not want to see the City entangled in the middle of the disagreement.
Member Paul noted that there was an "enormous" pothole on a Cheltenham road for over a year. Water accumulated in this hole, and the roads there were not well cared for. The pothole has since been repaired, but this showed a lot about what the people in Cheltenham had to endure. If Cheltenham would have had the roads approved, and the developer of Cheltenham would have shown that he was willing to work with the City and give it the warranty, she would have been more lenient. However, she had driven over Cheltenham’s roads, which were in terrible condition, and did not have much leeway. She felt badly for the one resident who had to have the easement used by her bedroom window, but this was something that was previously given as an easement. The City has approved the north property, and the Cheltenham developer was not willing to work with the City and give it the warranty. Member Paul said she had no leniency for the Cheltenham developer, and was very concerned that the matter had taken more than an hour to discuss.
Member Gatt stated that he totally agreed with Mr. Fisher’s recommendations and did not see why the City should be afraid to initiate a lawsuit, if that was what it would take to resolve the matter. He agreed with Member Paul that one side was being unfair, and also agreed with Member Nagy’s description of the situation, "childish."
Mayor Csordas asked Mr. Fisher to restate what he felt Council’s options were.
Mr. Fisher said his recommendation was for Council to approve the final plat of Wilshire on the condition that one of the following would occur: That the proprietor/developer of Wilshire would sign a memorandum of understanding assuming the risk for the fact that the public access must await the dedication and acceptance of the Cheltenham roads; Or, for Mr. and Mrs. Nanda to expressly acknowledge permission for Wilshire to use the access road.
Mayor Csordas asked if Wilshire would provide the financial guarantee for a warranty.
Mr. Fisher said this was correct, and continued: Or, a court order be entered, authorizing that utilization. He said he would couple that with the recommendation that the City initiate a case to seek court orders on an interim basis authorizing Wilshire to use the access road in Cheltenham, and a final order compelling Cheltenham to dedicate the roads as represented to the public.
Mayor Csordas thanked Mr. Fisher for the clarification. He said it was "ridiculous" that for seven years, the two developers have battled and battled, and now one petitioner said he would take legal action. He said that Council would listen to Mr. Fisher for recommendations, as it has confidence that he is taking the City in the right direction. The roads are built to City specifications; however, they have not been dedicated to the City. He asked if this statement was correct.
Mr. Fisher said the roads were offered for dedication, were not accepted, and therefore are not public.
Member Nagy asked Mr. Fisher for his recommendation on what action Council should take.
Mr. Fisher said this would be a recommendation to approve the final plat, subject to the three conditions that he had noted; and in addition, to allow interim use of the Cheltenham roads by Wilshire; and to seek an order compelling proper dedication and acceptance, including the warranty.
Member Nagy asked why the City would compel the court for such action, and why Wilshire would not do this.
Mr. Fisher replied that it would not surprise him if Wilshire joined the City in that endeavor. However, it would be a showing of good faith for the City to make this happen as part of the overall process.
Member Nagy asked if the City would ask for legal fees and damages if it commenced in a suit, which Mr. Fisher said was correct. Member Nagy said she wanted to make sure that the City gets everything back.
Mr. Fisher said there is no assurance that the City will get everything back, but will certainly ask for it under these circumstances, as there is no reasonable basis not to be dedicating the roads.
Member Nagy commented that she did not want to accept the streets de facto, and said she was very uncomfortable with the position that Council was put in.
Member Capello said that he had a problem with one of Mr. Fisher’s three requirements in the recommendation. He questioned why the City would want to open up the road when there are no residents there, as it will just carry construction traffic. Wilshire has construction access. The City normally tries to keep construction traffic from coming through subdivisions.
Mr. Fisher replied that in order for lots in the Wilshire subdivision to be sold, they must be sold with public access. There is no public access except through Cheltenham.
Member Capello asked why the road should be opened during the construction phases to construction traffic.
Mr. Fisher said this is not so much a matter of using the roads, but having the right to use them.
Member Capello asked what would happen if Council tabled the item and told the two parties to go back and settle the matter. He asked if the City was in a difficult legal position.
Mr. Fisher said that every day that goes by is painful for Wilshire, which probably has deals pending.
Member Capello said he was concerned that if Council granted Wilshire approval subject to getting the permanent emergency access but cannot get this from Mr. Lokey, then the subdivision might have 5 or 6 houses built, and those homeowners will be deeper and deeper in financial liability.
Mr. Fisher said the temporary access granted by Mr. Lokey for Wilshire Abbey says that this will remain in effect until a permanent easement is established. In some respects it very arguable that this easement is actually permanent.
Member Capello asked if this easement was only applicable for Wilshire, which Mr. Fisher responded was correct. Member Capello said that practically speaking, if there was a fire and the Fire Department could not get through Cheltenham, they would likely use that emergency access regardless of which subdivision it belongs to, which Mr. Fisher said he did not disagree with. Member Capello felt that the City would need to take action at some time in the future and release the temporary emergency access through Cheltenham.
Mr. Fisher suggested that Mr. Nanda could bring that action.
Member Capello said he could not vote in favor of the item that evening, which was why he wanted Mr. Fisher’s opinion about tabling the matter for another 60 days.
Mayor Csordas said the matter was starting to sound "scary and familiar." Nobody on Council wants to go in the direction of denying access to a developer, with someone possibly claiming that the City was not allowing them to develop their property. He said it was an understatement to say he was concerned about this, especially in light of the comments of one of the attorneys that evening.
Mayor Pro Tem Landry said that for all of the reasons that the Mayor had mentioned and intimated, he would make a motion.
CM-03-12-413 Moved by Landry, seconded by Paul; CARRIED UNANIMOUSLY: To approve the final plat of Wilshire Abbey, subject to one of the three conditions articulated by the City Attorney: That the proprietor/developer of Wilshire shall sign a memorandum of understanding assuming the risk that the public access must await the dedication and acceptance of the Cheltenham roads; Or, for Mr. and Mrs. Nanda to expressly acknowledge permission for Wilshire Abbey to use the access road; Or, a court order be entered, authorizing that utilization. If necessary, the City shall initiate a case to seek court orders on an interim basis authorizing Wilshire to use the access road in Cheltenham, and a final order compelling Cheltenham to dedicate the roads as represented to the public.
Member Nagy asked Mr. Rossi what his comment was.
Mr. Rossi said that when he purchased the property through Mr. Lokey, he purchased the land with all of the approvals in hand and was told that everything was approved based upon all of the different approval processes, including staff, the Planning Commission and the City Council. He was told by the City that the secondary access road was specifically to be used for all of the construction vehicles, not just the development, but also all of the home building. They would post a bond for Cheltenham roads, and will direct all of the construction traffic and even the marketing traffic through the emergency/construction access, until such point in time that those roads are dedicated. He does not want to cause any problems. He has done a lot of work in the City and wants to work with everybody, but has been caught in the middle of a situation between Mr. Nanda and Mr. Lokey. He was told by the City that he could move forward, even though he asked the question many times of whether his subdivision would be able to tie into the roads. He was told not to worry because he had permits, go ahead and put in his improvements. One month earlier, the plat was approved without any discussion. However, a week and a half earlier, he was informed that the plat was being reconsidered because there was some opposition from the developer next-door.
Mr. Rossi said he wants to work with everybody and has no vendettas. He said he could guarantee that they would utilize the emergency access road for all of their construction vehicles, and even their marketing vehicles. He said he could not even get into Cheltenham, since those subdivision’s streets are completely boxed off with planter boxes, and he cannot even service his site. He told residents at Cheltenham that he would post signs or whatever they wanted, and has worked with those residents, including moving a berm that they had placed on Wilshire property, at no cost to those Cheltenham residents. He just wants to move forward with the Wilshire development. He said he would work as best he can with the City. He wants things to work out, but does not feel that his plat should be denied, specifically after the approvals and permits were granted and all of the improvements were installed.
Member Nagy noted that Mr. Rossi had developed other subdivisions within Novi. She was on the Planning Commission when he came before them, and appreciated the fact that he seemed to be a man of his word. She noted that Mr. Rossi was willing to do all of the things mentioned by Council.
Member Paul said she lives in Westmont Village, and that developer did not have the roads dedicated to the City. However, their roads were plowed, and there was some road repair work done by the City’s DPW. When that occurred, the City was basically accepting the roads without all of the warranty being done. Therefore, the City is in the hole financially, and had to pay for Westmont Village to be repaired to the front of the subdivision. This was a very costly measure of several hundred thousand dollars that the City does not have to throw in the wind. She felt that the developer, had it turned over the roads to the City, would have had a different situation. Those roads are supposed to be turned over, which is the meaning of public roads. There was no question that Cheltenham should take care of what was supposed to be taken care of when the developer agreed to have the plat approved and have public roads dedicated to the City. Citizens should not have to pay for the road repair of a developer that should be taking the responsibility, but is not.
Mr. Fisher asked whether the motion included the commencement of litigation to compel.
Mayor Pro Tem Landry said this was included in the motion on an "if necessary" basis.
Roll Call Vote on CM-03-12-413 Yeas: Paul, Csordas, Landry, Capello, Gatt, Nagy
5. Consideration of Ordinance No. 03-28.50 to amend the City of Novi Code of Ordinances for the purpose of providing specific regulations for the installation and maintenance of grease interceptors – 1st Reading.
CM-03-12-414 Moved by Landry, seconded by Capello; CARRIED UNANIMOUSLY: To approve Ordinance No. 03-28.50 to amend the City of Novi Code of Ordinances for the purpose of providing specific regulations for the installation and maintenance of grease interceptors – 1st Reading.
Member Capello said he did not see in the Ordinance where it was specifically a requirement that new and existing businesses had to install the grease interceptors.
Mr. Fisher said that businesses do have to install the interceptors. This is a pre-existing requirement under the plumbing code, so it is not a new requirement that the City is making.
Member Capello asked if this was under Chapter 10 of the plumbing code, which Mr. Fisher said was correct. Member Capello asked if there would be a time period under subsection H(i) to give existing businesses to install the interceptors.
Mr. Fisher replied that because there has been a requirement in place, there is no lead time. However, there is a 6 month period of time for testing and keeping logs.
Member Nagy commented that she would like to see fines for non-compliance of this ordinance increased. She felt that the fine for a first offense should be increased from $250 to $500, with subsequent offenses being at least $1000.
Mr. Fisher said that under the Charter, the City is not permitted to do this, as $500 is the maximum fine allowed.
Roll Call Vote on CM-03-12-414 Yeas: Csordas, Landry, Capello, Gatt, Nagy, Paul
Wayne Hogan, 20923 Woodland Glen Drive, thanked the City for putting up the pedestrian button on the traffic signal outside of City Hall. Several families had earlier had trouble trying to get across Ten Mile. He was very happy to see that the button was installed right away.
Member Capello remarked that he had thought Council was going to vote on the Woodlands Review Board in addition to the other Boards and Commissions under consideration for appointment by Council.
Ms. Cornelius replied that during interviews there was discussion that the Woodlands Review Board required a minimum of 3 appointees, and the discussion was to wait for other applicants in February.
Mayor Csordas asked if his summary of the positions of Council appointment for that evening were correct: one appointment for Board of Review; two appointments for Housing and Community Development; three appointments for Storm Water Management; three regular appointments for the Zoning Board of Appeals with terms ending at different times and one alternate appointment.
Member Capello noted that there were three positions on the Storm Water Management and Watershed Stewardship Committee, but only one applicant. He had asked people during interviews if they would be interested in other boards and commissions, and wondered if Council could vote for write-in applicants.
Ms. Cornelius said she did not recall that Council had ever appointed write-ins before.
Member Capello said he had asked if applicants were interested in other committees in order to get them involved. He said they would not be write-in candidates because they had actually applied for other positions. He asked if Council could appoint those candidates to other positions, then later inform them that they were appointed to a position if they were interested.
Mayor Csordas said he did not want to set the precedent for write-ins.
*Council recessed at 10:06 p.m.
*Council reconvened at 10:21 p.m.
MATTERS FOR COUNCIL ACTION – Part II
6. Appointments to Boards and Commissions.
Ms. Cornelius announced the results of Council’s votes for appointments. For the Storm Water Management and Watershed Stewardship Committee, Linda Krieger was appointed for a term ending January 1, 2005. For the Zoning Board of Appeals, Frank Brennan and Brent Canup were elected to terms ending January 1, 2007; Cindy Gronachan was elected to a term ending January 1, 2005; and there were not enough votes to select an alternate member, although John Chambers and Mav Sanghvi each received 2 votes for the alternate position.
Mayor Csordas asked if Council needed to revote for the alternate position to the ZBA, which Ms. Cornelius said was correct and could be done by a motion.
Member Nagy asked to call Member Paul back to the Council table for the voting.
Ms. Cornelius tallied Council’s written votes for the appointment, and announced that the vote was a 3-3 tie for the position between Mr. Chambers and Dr. Sanghvi. There must be a minimum of 4 votes to elect someone to the position.
Mayor Csordas announced that Council would not appoint an alternate at that meeting, but would vote on this at another time.
7. Appointments to Planning Commission.
Mayor Csordas noted that this was a mayoral appointment with the support of Council.
CM-03-12-415 Moved by Csordas, seconded by Capello; CARRIED UNANIMOUSLY: To appoint Mr. Richard Gaul to the Planning Commission.
Roll Call Vote on CM-03-12-415 Yeas: Csordas, Landry, Capello, Gatt, Nagy, Paul
CM-03-12-416 Moved by Csordas, seconded by Capello; CARRIED UNANIMOUSLY: To appoint Mr. Mark Perhson to the Planning Commission.
Roll Call Vote on CM-03-12-416 Yeas: Landry, Capello, Gatt, Nagy, Paul, Csordas
CM-03-12-417 Moved by Csordas, seconded by Gatt; CARRIED UNANIMOUSLY: To appoint Mr. Victor Cassis to the Planning Commission.
Roll Call Vote on CM-03-12-417 Yeas: Capello, Gatt, Nagy, Paul, Csordas, Landry
Ms. Cornelius noted that two of the terms would expire in 2006, and one would expire in 2005.
Mayor Csordas said that Mr. Gaul’s and Mr. Pehrson’s terms would expire in 2006.
Mayor Csordas thanked Council for their support of his nominations. He said Council had appointed 3 people who will do a good job on the Planning Commission.
8. Consideration of Zoning Text Amendment 18.184 to add a new Section 34 "Amendments to Ordinances" to the Zoning Ordinance for the purpose of providing a procedure and standards for allowing a property owner to propose and allowing the City to approve a site specific development, including conditions in conjunction with a proposed rezoning, commonly referred to as the Planned Rezoning Overlay Ordinance. 1st Reading
Mr. Fisher said this was basically a formal opportunity to provide replacement for the process of ad hoc development agreements. This provides a detailed procedure, provides for public hearings and consideration of site-specific plans for property that is proposed for rezoning. It contemplates the preparation of an agreement that would contain all the relevant provisions and also would allow the Planning Commission to recommend, and Council to approve, additional conditions. The best part is that it is a procedure that is expressly enabled by State law under the Zoning Enabling Act, namely the PUD procedure. This would essentially be taking a rezoning and separately taking a PUD and putting the two together. In connection with a rezoning, the City would say that if a property owner is granted a rezoning, the development must look a specific way. This is really what the City has done with a development agreement, but the development agreement does not have the formal procedure that this has. This would go through the Planning Commission with everyone understanding what the process is. This gives the public opportunity for input and formalizes everything. He strongly commended the Ordinance as a process in the event that Council has other projects come along where site-specific use is desirable.
CM-03-12-418 Moved by Landry, seconded by Capello; CARRIED UNANIMOUSLY: To approve Zoning Text Amendment 18.184 to add a new Section 34 "Amendments to Ordinances" to the Zoning Ordinance for the purpose of providing a procedure and standards for allowing a property owner to propose and allowing the City to approve a site specific development, including conditions in conjunction with a proposed rezoning, commonly referred to as the Planned Rezoning Overlay Ordinance. 1st Reading.
Roll Call Vote on CM-03-12-418 Yeas: Gatt, Csordas, Landry, Capello, Nagy
Absent: Lorenzo, Paul
9. Consideration of Zoning Ordinance Text Amendment 18.185 to amend Section 201 definitions: O-R of Ordinance No. 97-18, in order to add a definition of "Refuse Bin (Dumpster, Trash Receptacle)" and to add Subsection 2503.2.f, to modify the standards for trash enclosures within the City of Novi. 1st Reading
CM-03-12-419 Moved by Nagy, seconded by Capello; CARRIED UNANIMOUSLY: To approve Zoning Ordinance Text Amendment 18.185 to amend Section 201 definitions: O-R of Ordinance No. 97-18, in order to add a definition of "Refuse Bin (Dumpster, Trash Receptacle)" and to add Subsection 2503.2.f, to modify the standards for trash enclosures within the City of Novi. 1st Reading.
Roll Call Vote on CM-03-12-419 Yeas: Nagy, Csordas, Landry, Capello, Gatt
Absent: Lorenzo, Paul
10. Approval to award the contract for Design Engineering Services and Construction Contract Administration for Special Assessment District 171 (Echo Valley Subdivision Water Main Extension) to Anderson, Eckstein & Westrick, Inc., with a not-to-exceed fee amount of $21,900.00.
Member Nagy asked Mr. McCusker if the water main would be dropped more than 5 feet.
Mr. McCusker said that most of the water mains in the area are dropped about 5 to 6 feet.
Member Nagy asked if core samplings are necessary for the water mains.
Mr. McCusker replied that only "hand stuff" was probably needed, as there are not a lot of substantial soils needed to support water mains.
Member Nagy asked if the City has any inspection standards, such as a required number of hours.
Mr. McCusker replied that the City usually has on-site inspection throughout the project until it is completed. When bids are completed, a number of hours are factored in for the standard, basing this on no perceived problems. Perceived problems could be anything from weather-related to a gas line break in the area.
Member Nagy said she reviews contracts for her association when they send out things for bid. She was used to comparing contracts line by line. She looked at this item and only saw two items, design and construction. She was not sure if the bids were comparable in terms of line by line items. She saw that the highest bid was $30,000, and the lowest $20,491. She expressed concern with additional inspection costs, such as possibly with bacterial tests.
Ms. McClain said the breakdown of hours was on the second-to-last page of the packet. There were 51 hours allotted for construction observation, 20 hours for staking, 12 hours for soil erosion control inspection, 16 hours for testing, and 12 hours of coordination pay estimates and record drawings.
Member Nagy asked what happens if an inspection does not pass a test, if additional amounts of money would be charged.
Ms. McClain said additional sums would not be charged because if the inspection does not pass the test on the first try, the contractor pays for it to come back.
Member Nagy said she is often worried about bids that are too high or too low, and said she liked the middle amount of $25,871.
Member Gatt noted that administration had opted not to recommend the low bid. He asked why, for a few thousand dollars, the City would not award the bid to a company that operates out of Novi and pays Novi taxes, instead of Anderson, Eckstein & Westrick, Inc., which is a Shelby Township company.
Mr. Helwig replied that it is certainly a prerogative of Council to award on that basis. Council is not bound by the lowest bid. This is sometimes a judgment call based on past experiences with firms and other factors, including price.
CM-03-12-420 Moved by Gatt, seconded by Nagy; MOTION WITHDRAWN: To award the contract for Design Engineering Services and Construction Contract Administration for Special Assessment District 171 (Echo Valley Subdivision Water Main Extension) to JCK & Associates in lieu of the Anderson, Eckstein & Westrick bid.
Member Paul said she had missed part of the discussion for the item because she was in Council chambers. She asked why Council would not choosing Ayers Lewis or Anderson, Eckstein & Westrick, the two lowest bids.
Ms. McClain said the basis for her recommendation was that the City did a quality based review of all of the RFP’s. Of the 11 RFP’s to review, the Engineering Department picked the top 5 in its quality review, which were listed in Council’s packets. Those 5 were Ayers, Lewis, Norris & May; Anderson, Eckstein & Westrick; JCK; Professional Engineering Associates; and Orchard, Hiltz & McCliment. As the cost of the SAD is borne by the 8 property owning participants in the SAD, the City looks very carefully at the financial numbers. When she reviewed the numbers for Anderson Eckstein and the numbers for Ayers Lewis and considered the cost of the soil borings, the Engineering Department decided that it wanted the soil borings done with the water main project. This was the basis for the recommendation of Anderson, Eckstein & Westrick.
Member Paul asked why some bids included soil borings but some did not.
Ms. McClain replied that the City did not require soil borings as part of the RFP. Anderson, Eckstein, based on their experiences, wanted to put forward soil borings as an item. If the City were to decide that it did not want soil borings, it could decide not to do these for a cost reduction. However, the Engineering Department felt it was a good idea to have soil borings done out in that area, as it has been quite a while since any construction was done there, and the City does not know what the soil conditions are.
Member Paul said she knew that in previous subdivisions, JCK was awarded a bid but did not do soil borings, and had an extensive amount of problems because there was no base. Therefore, the soil borings would have prevented many of the errors in the bid, and there was an overrun of what she believed was $600,000. She had spoken with Bill Bullard of the Oakland County Road Commission, as well as Brent Bear, and asked when soil borings are normally done. The Road Commission has soil borings done regularly by contractors because the entity responsible for the construction is financially responsible for any errors. The Road Commission recommended that the soil borings be done by the actual engineering firm to decrease the liability for the municipality.
Ms. McClain said the City does not actually perform the soil borings, but rather hires a contractor to do this. In this contract, Anderson, Eckstein would determine they wanted soil borings and would have those done.
Member Paul asked what other projects Anderson, Eckstein & Westrick has done in the City.
Ms. McClain replied that this is the engineering firm responsible for work in SAD’s 168 and 169, the West Lake Drive water and paving project.
Member Paul asked how this project was going.
Ms. McClain said the project is going well and will be heading into construction. The City is currently in the bidding process, and bids will open on January 13th.
Member Paul said she has had past dealings with JCK in her own subdivision that would prevent her supporting the motion. One initial concern was a several hundred thousand dollar project to repair 800 feet of Westmont Village that caused significant cracking and upheaval of roads because of poor water infrastructure design. She said she would not support JCK’s receiving an award for several thousand dollars more than their previous two.
Mayor Pro Tem Landry said he did not have a problem with JCK’s competence or ability to do the project. He agreed with Member Gatt’s suggestion, as Council had tried on some previous occasions to give approvals to local companies. However, he had a problem doing this with an SAD and forcing local residents to pay for it.
Member Capello said the only proposal attached to Council’s packets was for Anderson, Eckstein & Westrick. He asked why the other proposals were not attached to the packets.
Ms. McClain said that typically, only the recommended bid is attached to Council’s packet. There was one other case where additional proposals were attached because of some issues, South Lake Drive.
Member Capello said it was hard for him, as a Council Member, to compare different bids if he did not have all of the information in front of him. He asked Ms. McClain if she had said that soil borings were not required in the request for proposals.
Ms. McClain replied that the request for proposals did not require nor request soil borings.
Member Capello asked if after the request, it was decided that soil borings were important.
Ms. McClain said that the engineering firm, Anderson, Eckstein, actually recommended that the soil borings be done. If there is decision not to do soil borings, this could be removed out of the proposal. None of the other companies even addressed the issue of soil borings, but Anderson, Eckstein felt they needed to.
Member Capello remarked that important items such as this should be included in requests for proposals so that every company is bidding on the same thing. He noted that JCK did not design and engineer Westmont Village. In regard to Village Oaks, it was not Mr. Helwig’s administration but the previous administration that made the determination of the soil borings that were done there, not JCK, so this was also not their fault.
Mr. Fisher noted that the motion required 5 votes for approval, since money would be spent. His assumption was that the motion was based upon the particular applicant being the most responsible lowest bidder.
Mayor Csordas said he has 100% confidence in the City staff’s and Engineer’s recommendation on who they would support for a project, as they have worked with all of the people and know them well. In their opinion, this is Anderson, Eckstein & Westrick. Although he fully appreciated and understood a number of the previous speakers’ desires to support Novi businesses, he had a great deal of confidence in the City’s recommendation, which was why he could not support the motion.
Member Nagy said she appreciated the fact that it was brought up that because this was for an SAD, the costs would be paid for by the residents of that SAD. She said she could not support the motion.
Member Gatt withdrew his motion based upon Mr. Fisher’s comments.
Member Nagy agreed to the withdrawal.
CM-03-12-421 Moved by Nagy, seconded by Paul; CARRIED UNANIMOUSLY: To award the contract for Design Engineering Services and Construction Contract Administration for Special Assessment District 171 (Echo Valley Subdivision Water Main Extension) to Anderson, Eckstein & Westrick, Inc., with a not-to-exceed fee amount of $21,900.00.
Roll Call Vote on CM-03-12-421 Yeas: Paul, Csordas, Landry, Capello, Gatt, Nagy
11. Award of 2004 Neighborhood Road Rehabilitation/Repaving Program: Soils Testing Contract to the low qualified bidder, TES Consultants, PC, in the amount of $9,935.00.
Member Nagy asked Ms. McClain when the borings would be done.
Ms. McClain said the City has a copy of TES’ insurance, and could direct the company the next day and have them done within the month of December or very early in January.
Member Nagy said she assumed that when borings were done, moisture was also sought. Since the weather has become cold, she assumed the frost went down at least 3 or 4 inches. She asked if it would be more proper to take borings at another time, as she was concerned with the winter effects.
Ms. McClain said that despite the fact that there has been some frost in the ground, much of what was looked for was where the ground water levels are, and this has not yet been affected by the cold weather. The frost sits in the top area of the ground, and much of what is needed to be seen is further down.
Member Paul said that last year, the developer at Westmont Village was mandated to do a soil boring. They actually did this at several locations, but these were never plugged or filled, therefore causing infiltration to the base. All winter long, the water was coming up through the base, which with freeze-thaw caused cracking in the concrete. She did not understand why soil borings would be done at this time. When she had called the Oakland County Road Commission, it was recommended that soil borings be done in the early fall or even in the summer. She questioned why this was done in Westmont Village, or why the City was continuing this pattern. She asked why the soil borings are not filled, and who was responsible for filling those borings.
Ms. McClain replied that in the case of Westmont, the borings and their filling were the responsibility of the developer of Westmont. Those are not City streets and were seen as the developer’s responsibility. This contractor has indicated that soil borings will be backfilled with bituminous cold patch, and this is on the signed contract.
Member Paul said she understood this and appreciated the comment. She asked if areas are ever inspected, since the same thing was supposedly going to be done in Westmont but was not. This caused more cracking of the concrete, which led to more money needing to be paid for the project. She asked who would check to see that the project was actually completed.
Ms. McClain replied that in this case, the City Engineering Department would be checking it. In the case of Westmont, because part of what was taken were the petrographic cores and the City was not notified that they had taken the cores, the City was not able to go out and check to make sure that the work was completed.
Member Paul said this was hard for her to completely grasp, since the City had mandated that those core samples be done and received the results of those. She wanted to make sure that within 1 week of the core samples being completed, that the City has someone go out soon and make sure that the borings are completed and filled to prevent a more costly project in the future.
Mr. Helwig said the City would definitely do this.
CM-03-12-422 Moved by Landry, seconded by Paul; CARRIED UNANIMOUSLY: To approve 2004 Neighborhood Road Rehabilitation/Repaving Program: Soils Testing Contract to the low qualified bidder, TES Consultants, PC, in the amount of $9,935.00.
Roll Call Vote on CM-03-12-422 Yeas: Csordas, Landry, Capello, Gatt, Nagy, Paul
12. Consideration of replacing retiree $3,500 health care premium cap with 80%/20% cost share split, including alteration of prescription drug rider.
Mr. Helwig noted that Member Gatt brought the issue before City Council and had asked that it be placed on a future agenda. He said it was administration’s view that a case could be made for standardizing what health care contributions are on the part of retirees. Statewide systems do this in other states, but in Michigan it is subject to a different set of rules and local negotiations. Ms. Gronlund-Fox has raised the issue that should Council wish to standardize the contributions, that there should be some modernization in keeping with the 80/20 of upgrading the co-pay for prescription drugs.
Member Gatt read an email that Mr. Klaver had sent him about the issue. The email stated that when the $3500 cap on the City’s share of retiree healthcare premiums was introduced, likely in the mid-1980’s, it represented about 80% of the then-current premium. The hard dollar limit, rather than a percentage share, was a City Council request. Once the City had added this benefit to all employee groups, it then changed over through the next run of negotiations to the 80/20 approach so that it was not necessary to renegotiate this number in every future contract as costs increased. The City never deliberately created a difference in benefit levels; in fact, the City frequently raised standardized benefits as a goal during negotiations. It is only because these employees retired before the conversion was complete that that they are out of sync with all other retirees. From that perspective, Member Gatt’s suggestion to convert these retirees is consistent with the City’s philosophy.
Member Gatt said that there were 8 people that the benefits disparity affects. Seven of those are retired employees, and one is the widow of a retired employee. These are all aging employees that, through no fault of their own, fell through the cracks and are now faced with some mammoth medical bills that no other retiree from the City of Novi will ever face because they are under the 80/20 plan. Ms. Gronlund-Fox, in her memo to Council, suggested – and he agreed – that as part of this change in benefits, Council should consider raising the co-pay amount for those 8 people. There were two increase options available: one was a $5/$10 plan and the other is a $10/$20 plan. He talked with Mr. Helwig earlier in the week and learned that every employee in the City now has at most a $5/$10. This may, and most likely will, increase in the future. However, Council has to consider that those 8 people retired years ago, and their final average compensation, FAC, is nowhere near what a retiree will have in their package today. Some employees retiring today will have a FAC of 6-figures. To consider raising the co-pay for those 8 people to a $10/$20 is excessive.
CM-03-12-423 Moved by Gatt, seconded by Nagy; MOTION FAILED: To direct City administration to draft and send a letter to the eight former Novi City employees and one surviving spouse who participate in the City benefit program and are covered under the old health coverage format whereby the City pays the first $3500 of their medical benefit. The letter will offer those eight people the opportunity to switch their payments for their medical benefits from the current $3500 fixed amount plan to the plan being offered to all current City of Novi employees, under which the City pays 80% of medical costs and employee pays the remaining 20%, regardless of the amounts. In return, any one of the former eight employees accepting this offer will forfeit their current $2 co-pay prescription rider, and will in turn accept a $5/$10 co-pay prescription rider. Anyone of the eight employees who currently has a prescription rider other than the $2 co-pay rider will be enrolled in the $5/$10 co-pay prescription rider program. This change will go into effect as soon as possible for those who accept the offer.
Member Capello said the difference between what was proposed by administration on the $10/$20 split and on Member Gatt’s motion for the $5/$10 split was only $4500 a year, which was reasonable given the benefit that the retirees would receive.
Member Paul asked Mr. Helwig if there were any other employees that the City knows of that have needs that have not been met because they have missed a loophole or deadline, or retired before a certain timeframe.
Mr. Helwig said this was a great question, and he was not aware of any other inconsistencies.
Member Paul said she knows that every employee that works for the City works very hard, and she wants to make sure that they are well cared for, especially with healthcare costs so expensive. Some retirees may have 5 to 10 scripts. If these are $20 each and must be filled monthly, this can be a very large bill, especially for a retired person without a large income. She said she would support the motion.
Member Gatt said there is at least one member of the group of eight retirees who gets between 13 and 16 prescriptions filled a month, and that person was not sure if the new plan would be beneficial to her, even with the $5/$10 coverage.
Mayor Pro Tem Landry said he appreciated the motion and the notion behind it, and said he was certainly in favor of offering the group of retirees the 80/20 plan, but said he was concerned about the $5/$10 plan instead of the $10/$20. The City may currently be offering its employees the $5/$10 plan, but he believes it will be moving toward the $10/$20 plan in the future, given what is happening with healthcare costs. He said he was interested in hearing what the expert on the Council, who deals with healthcare costs every day of the week, had to say.
Member Nagy said she understood the spirit for which the motion was made. She noted that the coverage under discussion was only for 8 people. Because those people only retired at the wrong time, it is only fair for the City to cover them under the proposed policy. The retirees are at an important part of their life, and it is only fair to cover them as such. She said she would support the motion.
Member Gatt remarked that he agreed with Mayor Pro Tem Landry’s comments that in the future, employees will go to a higher co-pay, and he would support this. The 8 retirees do not have nearly the retirement checks coming in every month that current employees will have, and the $10/$20 will hurt them much more than the plan would hurt anyone who retires from this point forward.
Mayor Csordas said he was in Washington D.C. over the past weekend, as he sits on the board for a large, self-funded health plan. The Board of Directors consists of members of management of participating companies and organized labor, since it is required by law to have equal representation. They are faced with what Council was discussing, but in an exponential way, because of the rising costs of healthcare and prescription drug benefits. The current trend in prescription drug benefits increasing every year is 22-25%, meaning that if healthcare plan participants do not use any drugs during the course of the year, their rate increases 22 to 25%. The medical trend is 18% per year, meaning that within a little more than 3 years, prescription drug benefit costs will double. His goal is to preserve the benefits for not only retirees but also active members of the City. The following day he had a meeting scheduled with a group that his insurance company provides the benefits for. There are about 1000 members in that group, about 4 times the number of people covered by the City, and they will have an 80% increase in the cost of their medical coverage.
Mayor Csordas said he hoped that the retirees and employees of the City understand that a $5 co-pay is not realistic anymore. Michigan is the home of the Big Three automakers, which negotiate the richest medical benefits of anyone in the country, and they have a $5 co-pay. A $2 co-pay has no place in the current situation. Most plans are going towards $25 co-pays. The theory is that the generic co-pay is set, and the brand co-pay is set at approximately $15 more, just to have people thinking about what they want to do. The term used by the medical industry is efficacy, meaning that the generic drug does the same thing as a brand name drug, but for 20% of the cost. Doctors do wonderful things and extend lives, but have no consequence on the drugs that they prescribe, so they prescribe whatever a drug specification person tells them to without knowing the costs of prescription drugs. He said he did not mean to be disrespectful to doctors, as he works with doctors every day and they do wonderful things.
Mayor Csordas said that in order to preserve benefits for all of the City’s employees, Council had to make what would be considered a hard decision. Future Councils will be faced with hard decisions, such as tax increases when the City builds out, and will certainly face the potential of reducing benefits. This will not be a decision of how much the co-pay will be, but rather what benefits have to be reduced so that the City can afford to provide some level of benefit for employees and retirees. He respected the opinions of all of the previous speakers, and understood the spirit and intent of the motion. Going from a $3500 annual contribution to an 80/20 is contrary to industry practice. He said he would make a personal decision to support this, even though he felt it was a step in the wrong direction. It is true that a generic $10 co-pay and a $20 co-pay are significant, and there are many people who take many drugs per day, resulting in remarkable costs. There are also new treatments coming in the future, and these could range from $1200 monthly to $3800. There is a biotech injectable coming in the future that may cure congestive heart failure and costs $10,000.
Mayor Csordas said he wanted people to understand why it was not unreasonable to ask the people in question or City Council to consider a $10/$20 co-pay. In the case of somebody with M.S. who is spending $2000 per month on a drug, a $20 co-pay is a very good deal. If people were to consider generic drugs, realizing that they are truly the same thing that has come off patent and can be sold for much less, that would be better. Looking at what the City pays for some of the eight retirees’ coverage, one retiree had a 2004 benefit of $12,618, and the City contributed $3500 to that amount. With the new proposal, that member would only pay, with the $10 co-pay, $2128.58, which is a significant reduction in that retiree’s cost. The next retiree’s 2004 benefit cost was $10,642, and paid $7,000 out of pocket. The new coverage would reduce that to $2,000 with a $10/$20 co-pay. He felt that the prescription drug benefit should be $15/$35 to preserve benefits as long as possible.
Mayor Csordas said he could not support the motion, even though it is contrary to business trend and pay more, increasing benefits significantly from a $3500 annual contribution to an 80%/20% split. However, he could not see where it was unreasonable to apply with this a $10/$20 co-pay. He asked Council to consider his remarks, and asked affected people to take a step back and appreciate what he was saying.
Member Gatt noted that Mayor Csordas was much more learned and scholarly on the health coverage subject than he would ever be, but said he knows the retirees more than the Mayor. The one retiree that the Mayor pointed out with very high premiums has those because he is married and his wife is still alive. Six of the eight retirees’ spouses have already died. The second person that the Mayor mentioned is taking 13 to 17 prescriptions per month, and the $20 prescription cost would end up costing her more money under the change than if she stayed with the $2 prescription rider. He said he understood what Mayor Csordas had said earlier, that the $2 prescription co-pay should not be in existence, but noted that this plan is in existence for all employees who retired prior to a couple of years ago. As the City goes forward with its employee benefit packages, he would wholeheartedly support a dramatic change. He felt the City should get out of the MERS and out of the 100% funded insurance programs. He works for Oakland County, and their benefit programs are nothing compared to what the City has, but that is for current and future employees. The eight people of discussion were hired and worked under the premise that they would get a decent retirement and be able to live, but are unable to do so because of rising medical costs. He felt the $5/$10 was a compromise on the issue for those eight people, and this was something that the City would never be faced with again.
Member Nagy commented that Council was only discussing the benefits for 8 people, and they are not at the primes of their lives. While she understood everything that the Mayor said, noting that she is self-employed and worried about insurance, she felt that this was a special circumstance. The retirees are not concerned about surgery, but rather are worried about medication since that is a day-in, day-out part of their lives. She said she agreed that Mayor Csordas was right, but supported the motion because it would only apply to 8 people.
Roll Call Vote on CM-03-12-423 Yeas: Capello, Gatt, Nagy, Paul
Nays: Landry, Csordas
CM-03-12-424 Moved by Gatt, seconded by Capello; CARRIED UNANIMOUSLY: To postpone consideration of replacing retiree $3,500 health care premium cap with 80%/20% cost share split, including alteration of prescription drug rider, until the January 5th, 2004 City Council meeting.
Voice Vote on CM-03-12-424 CARRIED UNANIMOUSLY
13. Resolution to classify the 52-1 Court as a class III court.
Member Capello noted that last year, Council began to investigate the possibility of local communities taking control of the 52-1 District Court as a class III court. It was his understanding that the preliminary step in that is to get a resolution passed through the Legislature to classify the 52-1 Court as a class III court. He said he would like approval of the Council to direct Mr. Fisher’s office to come back to Council at the first meeting in 2004 with an explanation and report on what it would take to get that resolution passed, and the effect of such a resolution. It was his understanding that merely the passing of the resolution does nothing to the effect of the Court; it is merely the first step. If Council wants to go ahead and move forward, it can, but it won’t have any effect on Council.
Judge Dennis Powers of the 52nd District Court said the resolution process would involve negotiating with the County, as there are many benefits that have to be negotiated with the County. He noted that there are 70 employees at the Court, varying from 30-32 years of experience down to the new hires. Once this is done, negotiations would ensue with Novi, since Novi would be the primary sponsor of the Court, which would be the 49th District Court. These things would have to go on simultaneously at the same time negotiations with all the municipalities are taking place. He noted that the Court covers 190 square miles’ worth of jurisdictions, and these need to be negotiated with to see if they want to be part of the funding unit or remain as they currently are. Once this has been negotiated with each of the municipalities inside the District, the authority would then be created. The authority is the buffer between the Court and the units that make up the 49th District Court. As this is going on, Mr. Fisher would hopefully be going to the Legislature, asking them to create the enabling legislation to have the 49th District Court, which should be a fairly easy step. The authority does not run the Court; the Court runs itself. Funding is mandatory by State law, and the setup is run by the Supreme Court, because it is a separate branch of government. There is a Chief Judge and a Presiding Judge in the 49th District Court, and they would run the Court. The authority is there to handle the funding issues, which is what needs to be done. The amount of negotiation involved in this takes a tremendous amount of time. If, in fact, Novi is interested in creating the 49th District Court, then the negotiations have to start. The City Attorney would be involved in negotiations with the County and with the City to see how everything would shape up when the switch is made.
Mayor Csordas asked Judge Powers if he was saying that the City would then have 70 additional employees to do things like provide benefits for.
Judge Powers replied that the funding unit for the Court would become the City of Novi, but noted that the Court generates substantial income. The Court will not run in the red unless it is burdened with things that the County or the funding unit would place on it, which would not be part of the Court. Courts run in the black, especially in growing areas like Oakland County. There are monies that would pass from the State to the authority back to the funding unit, for instance the judges’ salaries. The City may pay the judges’ salaries but these are only a pass-through.
Member Paul asked how this would all transpire. She asked if the judges would be at all involved in the process, or who would begin the process with the County.
Judge Powers said that once Council has decided that it wanted to proceed, the next step would be talking to the County. The County would like to see all of the 52nd District Court dissolve itself into the local municipalities and become separate district courts, which means they would become class III courts as Member Capello had stated.
Member Paul asked how long the process takes.
Judge Powers replied that this depends on how much time and energy is put into the process. It could take 1 to 2 years, depending on how much time is put into it.
Member Paul asked if the process would be initiated through the court system to the County.
Judge Powers said it would be initiated by the Novi City Council, if it so desired. The City Attorney would be writing legislation for the State; the State would then hopefully pass enabling legislation, which he said would pass because other municipalities are onboard if Novi is onboard. Novi is key to making the conversion happen, since it makes up the largest part of the Court district. The Court would still sit in Novi, as it is required by law to sit within Novi’s boundaries.
Member Nagy said she was having trouble with the concept. She was hesitant in moving forward because it would require the time of the City Attorney, whose time costs the City money. She said it was only fair to do something for the benefit of not only Council, but of the general public whose money would be spent pursuing the process, to have some kind of presentation as to what the process would entail and what the conversion would mean. She would like to see the pros and cons of the proposal for the City of Novi. The public needs to understand the proposal before Council asks the City Attorney to pursue the item.
Member Nagy asked if there are many municipal courts in the state of Michigan.
Judge Powers replied that nearly the entire state has class III district courts, as there are very few class II courts left, such as the 52-1 District Court.
Member Nagy asked how many class II courts are in Oakland County.
Judge Powers said the County has 4 such courts. The 52nd District Court system has 4 divisions – 1, 2, 3 and 4 – located in Novi, Clarkston, Rochester Hills, and Troy. This system will soon dissolve.
Member Nagy asked if more judges would be needed for the conversion of the District Court to a class III court.
Judge Powers said the new court should not require more judges because it is caseload driven.
Member Nagy asked if the caseload would increase with the new court.
Judge Powers replied that it shouldn’t, since the cases are going to be the same number, regardless of whether the Court is a class II or class III court. The way tickets are written may change, but certainly not the caseload, which runs close to 60,000 cases a year.
Member Nagy said she felt that while perhaps the lawyers in attendance understood the proposal, the general public may not have understood.
Mr. Helwig said that for some time, the City has had philosophical discussions, though it is a formally-adopted City Council goal, to review and pursue this. There has been hesitancy, as he has been told, from the County to pursue this, which has now changed. For the last 2 years at least, the City has been asking the District Court for a financial Performa of what this might look like as the City being the prime host, which the City has not yet received. He said that with the change in posture at the County, it sounded like the judges and the District Court were prepared to move ahead and give the City exactly the type of hard financial picture of what this would look like for Novi. He said this would go "way beyond" Mr. Fisher. This would be an administrative responsibility, beyond Mr. Fisher, in terms of personnel, finance, and information technology. This would be an additional organizational challenge. He has worked with municipal courts in two larger cities, and there are tremendous community benefits from those, as the courts market themselves as a "community court." There was recently a case where a company that can do forestry work could be sentenced to deal with some of the City’s ash borer trees. A community court can become more a resource than could be imagined today for networking and interacting with City Council community priorities. He said administration could get the information for the presentation that Member Nagy desired.
Member Nagy said that what Mr. Helwig had mentioned was exactly what she was looking for, something that everyone could understand about the benefits that the change would bring to the City. The majority of people need to understand why Council has made the change a goal.
Member Capello noted that the forester that Mr. Helwig had mentioned was actually sentenced to several hours of community service to cut down trees. He was promised that the City would get some of those hours.
Member Capello said he just "wanted to take a bite of the cookie" to get the process rolling. Council will get the information that was asked for, and he was just trying to move through the process a step at a time. He was just asking for approval to have Mr. Fisher come back to Council in January and say what the City has to do at the State level. Council can discuss what to do after that, and welcome Judge Powers back to help it through that process.
Member Nagy said she could agree to Member Capello’s request. She asked if this would be part of Mr. Fisher’s retainer or above and beyond the retainer, and it was answered that this would be above the retainer. She suggested that the item be discussed at a normal hour during the evening so that the general public could watch it.
* Unanimous Council consensus was to request an administrative presentation on the 52-1 District Court Resolution for the second meeting in January, 2004.
MAYOR AND COUNCIL ISSUES
1. Widening of Ten Mile Road – Mayor Pro Tem Landry
Mayor Pro Tem Landry said he had received a request to read a letter that he received from a resident.
"Dear Mayor Pro Tem Landry, We have been residents of Novi since March 1996 and during that time have witnessed the unfettered growth of both residential and commercial properties. Generally, each new subdivision boasts bigger and more expensive homes. Each new commercial property increases vacancies, not only in the older commercial properties, but in the new ones as well. Developers are constantly trying to change existing zoning to allow them to make more money, whether by increasing the number of homes already zoned, or a change from residential to commercial. These developers do not have the best interests of Novi and its tax-paying voters at heart. (The City’s) elected officials must act for the benefit of the residents who elected them and not for private interests. Many residents have moved here from Troy and Bloomfield to escape the traffic and streets that have been widened to highway-like proportions. With this in mind we are writing to voice our opposition to the widening of Beck and Ten Mile Roads to five lanes each. These actions will be of no benefit to the residents of this area, as they will only add congestion and faster traveling vehicles. We can only see this as a benefit to the Catholic Central students, faculty and staff in aiding their commute, or to help developers fight opposition to commercial and residential sprawl. Doesn’t Novi currently have enough homes for sale, or enough vacant commercial properties? We understand that funding for the roadwork is available through monies currently held in the road fund or via Act 51. We would like to know how the City intends to pay for the land it would have to take through outright purchase or via eminent domain. In addition, what consideration has been given to the drastic drop in property values along these roads once they are widened? How would the City compensate in the budget for the reduction in tax revenues and the loss of new residents to Novi? We would like this letter to be read in a public forum and our questions addressed and answered in the same forum. Regards, David and Jackie Haas, 22726 Summer Lane, Novi."
Mayor Pro Tem Landry asked Mr. Helwig if the City was currently pursuing obtaining any extra right-of-way on Beck or Ten Mile Roads.
Mr. Helwig replied that the City is not in this process, and noted that in that evening’s Council packet was a copy of his response to the letter that the Mayor Pro Tem had read. In his response, he indicated that Council adopted a resolution at the end of 2000 rescinding widening funds for Ten Mile Road east of Novi Road to Haggerty. There are currently no plans or dollars allocated for anything west of Novi Road. There has been no discussion of widening Beck Road and no funds therefore allocated.
AUDIENCE PARTICIPATION - None
* Council recessed to Executive Session at 11:54 p.m.
* Council reconvened from Executive Session at 12:17 a.m.
CM-03-12-425 Moved by Landry, seconded by Capello; CARRIED UNANIMOUSLY: To authorize the City Attorney to pursue a settlement in the matter of City of Novi versus Chateau Properties, Inc., d.b.a. Chateau Communities, Inc., and James R. Anderson.
Roll Call Vote on CM-03-12-425 Yeas: Csordas, Landry, Capello, Gatt, Nagy, Paul
Mr. Fisher asked Council to clarify his understanding of the motion, that City legal counsel would be authorized to finalize a resolution and enter orders with the Court.
Mayor Csordas said this was correct.
CM-03-12-426 Moved by Paul, seconded by Capello; CARRIED UNANIMOUSLY: In the matter of City of Novi versus CVS Warehouse settlement agreement, to approve the judgment with understanding that the City will include the proper parties involved.
Roll Call Vote on CM-03-12-426 Yeas: Landry, Capello, Gatt, Nagy, Paul, Csordas
There being no further business to come before Council, Mayor Csordas adjourned the meeting at 12:20 a.m.
Lou Csordas, Mayor Maryanne Cornelius, City Clerk
Transcribed by Steve King
Date approved: January 5, 2004