View Agenda for this meeting

REGULAR MEETING OF THE COUNCIL OF THE CITY OF NOVI
 MONDAY, MAY 1, 2007 AT 7:00 P.M.
COUNCIL CHAMBERS Ė NOVI CIVIC CENTER Ė 45175 W. TEN MILE ROAD

Mayor Landry called the meeting to order at 7:00 P.M.

PLEDGE OF ALLEGIANCE

ROLL CALL: Mayor Landry, Mayor Pro Tem Capello, Council Members Gatt, Margolis, Mutch, Nagy, Paul

ALSO PRESENT: Clay Pearson, City Manager

Pamela Antil, Assistant City Manager

Tom Schultz, City Attorney

Benny McCusker, Director of Department of Public Works

Barbara McBeth, Director of Community Development

APPROVAL OF AGENDA

Member Paul added the 2007-2008 Budget to the agenda as Item #1.

Mayor Pro Tem Capello added, under Mayor and Council Issues, #3 Unlawful parking of used cars by the Hummer Dealership on Grand River.

Member Mutch added, under Mayor and Council issues, #4 Flower Alley Letter

CM-07-05-085 Moved by Nagy, seconded by Capello; CARRIED UNANIMOUSLY:

To approve the agenda as amended.

Roll call vote on CM-07-05-085 Yeas: Capello, Gatt, Margolis, Mutch, Nagy, Paul

Landry

Nays: None

PRESENTATIONS

1. Building Safety Week May 6 Ė 12

Mayor Landry declared May 6 through May 12 Building Safety Week and presented a proclamation to John Hines.

Mr. Hines said they were very proud to take this week every year to educate the people here in the City and love to educate the homeownerís, including educating them about what was safe for their buildings and homes for children. Mr. Hines commented they enjoyed educating the public as well to let them know that the buildings they were in were safe and sound, and that they could be rest assured that when in a building in Novi it would be safe.

2. National Police Week & Peace Officersí Memorial Day Ė May 15

Mayor Landry declared May 13 through 19 National Police Week, and May 15th as Peace Officersí Memorial Day, and presented a proclamation to Chief Molloy.

Chief Molloy said he would proudly accept the proclamation on behalf of the men and women of the organization and would display it in a prominent place. He noted they didnít have to look any further than the headlines of the national news on a daily basis to know that when citizens, and community members were running the other way from an event, it was law enforcement and brothers and sisters in the Fire service that were running to those events. He said he accepted the proclamation with great pride and appreciated Councilís enduring support.

PUBLIC HEARING

1. Proposed Annual Budget FY 2007-2008

There was no public input.

REPORTS

1. SPECIAL/COMMITTEE - None

2. CITY MANAGER - None

3. DEPARTMENTAL - None

4. ATTORNEY - None

AUDIENCE PARTICIPATION

Ernest Essad, 380 N. Old Woodward, Ste. 300, Birmingham, Michigan, was present to speak regarding Item #3 of Part I. He was present representing Victor Cassis, as he was a neighboring property owner of the property, which was the subject of #3 on the agenda. He commented he wanted to speak about their objections relative to the recommendation for approval of the site plan with conditions. Mr. Essad stated their objections to Council.

1) The site plan as approved and before Council called for the creation of dimensional variances. He said he would leave it to the City legal Counsel to give them the impact of allowing dimensional variances where there was no hardship or practical difficulty demonstrated by the property owner. In this case, the property owner was over building relative to the site and sought Councilís consent to violate the Zoning Ordinance. He said Council would be risking the integrity of the Zoning Ordinance when they allowed dimensional variances to be created where there was no hardship or practical difficulty relative to the size, shape, or consideration of the lot. In this case, there was no practical difficulty demonstrated, only that the building was larger than would fit on the parcel.

2) There was a ZBA variance requirement relative to parking that was contained in the recommendation, and depending on what part of the history of the project was read, it was either a 46 or 50 car variance relative to parking that was going to be required for this project to move forward. He said that was a huge parking variance and Mr. Cassisí property was adjacent and separated only by Paul Bunyan. He said that, in all likelihood, would end up being overflow parking for this large project being put in to the south. He said people would park there and walk over as there would be no other parking available.

3) There was a request for a variance to have a dumpster in the front yard, which was not typically permitted relative to the ordinance. He said that dumpster ends up being Mr. Cassisí view from his property. Clearly, the reason for that ordinance was to put unsightly things like dumpsters and walls that surround it, out of public view.

4) There was a requirement in the plan that an additional curb cut be provided to the property to the north, which was Mr. Cassisí property. There currently was a curb cut on the site that had existed since 1946 when Mr. Cassisí property housed the U.S. Post Office. He said that curb cut was not at issue with Mr. Cassis, and the approval for an adjacent property owner to put curb cuts onto his property, which were not requested or applied for by Mr. Cassis, and which might require Mr. Cassis to file a modified site plan relative to his site since the access and egress to his site would be modified by the addition of the curb cuts. He said under the Cityís ordinance that was probably going to trigger them to have to file a site plan, which they didnít want or have any obligation to do. However, he said they were at some risk in terms of anything he wanted to do on his property unless they took those curb cuts into account.

5) Mr. Essad said the item also called for, relative to alleviation to the parking problem that the property owner had a license agreement to be executed between the City and the developer. He commented that license agreement was apparently intended to allow parking or some portion of the parking to be on the public right-of-way being Paul Bunyan Road. He said the form of the license agreement obviously was that issue couldnít be revoked. If so, the alleviation of the parking item was then litigated. He said they donít get the relief they want for his parking problem if the license agreement was revoked, using the word "license" as he understood it in real estate and how it was portrayed here. More importantly, there was a public asset, being this road, which would be used for private purposes. The sole beneficiary of this public road being used in the fashion proposed was going to be the property owner who was putting the development in.

6) He said there were a number of variances which were required for the site plan to be approved, and they believed the site plan should be tabled this evening to allow the petitioner to go to the ZBA and get their variances first. Then if those variances were in place bring the site plan back to Council for approval, at that time.

7) Mr. Essad said if Council granted the request of the petitioner with respect to the Paul Bunyan usage, what would they do if Mr. Cassis came back and asked for the same relief to use a portion of the Paul Bunyan right-of-way for his big project that he might want to do, or a subsequent owner might want to do someday. He said they would end up shrinking Paul Bunyan down to a less than safe right-of-way through the usage of adjacent property owners for parking. The real answer to the problem was found in the City Ordinances which allowed and provided for shared parking. He said that had been somewhat explored but not yet finalized one way or the other, but simply abandoned by the petitioner in favor of this license agreement with the City.

Victor Cassis, 22186 Daleview, commented that he hoped Council understood that granting a little more time to do his presentation would be in order as they are being very much affected by this item tonight. Mr. Cassis said he was leading a relatively peaceful life until Mr. Nona decided to overbuild, and over develop a property next to him, and disturb his peaceful existence. He said he was present to object to the Main Street development as presented to Council tonight for two reasons. 1) As it negatively affected his property rights, and 2) as a 33 year taxpayer and active participant in this communityís life he cautioned this Council against repeating the mistakes of the past and venturing into contractual partnerships with private entities. Mr. Cassis said three years ago and after a 20 year wait he bought Tom Marcusí property, and it adjoins his Novi Inn property. He said Mr. Marcus offered the property to Mr. Nona, and he chose not to buy it. He said Mr. Nona came before the Planning Commission and Council with a development with over 15 variances. He drew, architected and shaped a development that enhances his financial interests. Mr. Cassis said Mr. Nona relied on the good offices of our City to smooth the path for a highly overdeveloped site plan, and the Council along with the Planning Commission did smooth the path. He said the City was to be commended for wanting to attract a development that was needed to bring closure to Main Street, and to the tax revenue it would bring. Mr. Cassis said Mr. Nona wanted to use a City street to alleviate his over 50 parking spaces shortage. He said the planners, City Council and the Planning Commission all said that the preferable solution was the vacation of Paul Bunyan and shared parking. Mr. Cassis said he engaged, very sympathetically, with Mr. Nona for a shared parking agreement drawn by his attorney at Mr. Nonaís direction, and accepted by him verbally to Mr. Cassis except for two technical issues, which they both agreed to drop. Mr. Cassis said up until today and with many months of estrangement Mr. Nona left him in limbo with $10,000 in attorney fees. Mr. Cassis asked where his peaceful existence was. Mr. Cassis stated he stood before Council today perplexed and wondering why Mr. Nona didnít want to choose the correct option that would spare the City from liabilities as it would be very difficult for him and his insurance to supply this City with insurance against the public coming in and out and doing any kind of sundry stuff on that City road. Mr. Cassis said he had never stood in the way of vacating Paul Bunyan. In fact, he was ready right here and right now to sign an agreement with Mr. Nona monitored by an impartial party of any City choosing, what more could they do. He asked why they would want to allow a big developer to come in, and he said he was very hopeful for his success, but Mr. Cassis had been here for 33 years. He had seen Trammel Crowe, Main Street, James Chen, and had seen them all. He said he had stayed here. Mr. Cassis said this was a big development and he asked Council to please make the right decision. If shared parking and vacation of Paul Bunyan were the preferable solutions he was ready and willing to execute that relief.

CONSENT AGENDA REMOVALS AND APPROVALS (See items A-J)

Member Paul removed Item I.

CM-07-05-086 Moved by Gatt, seconded by Capello; CARRIED UNANIMOUSLY:

To approve the Consent Agenda as amended.

Roll call vote on CM-07-05-086 Yeas: Gatt, Margolis, Mutch, Nagy, Paul, Landry,

Capello

Nays: None

A. Approve Minutes of:

1. April 16, 2007 Ė Regular meeting

2. April 19, 2007 Ė Budget meeting

B. Enter Executive Session immediately following the regular meeting of May 1, 2007 in the Council Annex for the purpose of discussing pending litigation and privileged correspondence from legal counsel.

C. Approval of the final balancing change order and final payment to Six-S, Inc. for the Eleven Mile Road Culvert Replacement project, located immediately west of Meadowbrook Road, in the amount of $41,807.58.

D. Approval to apply for the 2007 Assistance to Firefighters Grant (AFG) Program for the total participation amount of $47,235.20.

E. Resolution for Changing MERS Benefits for the General Union (Police Clerks) Division 10 (benefit improvement from B-2 to B-4 through employee contribution), pursuant to the contract.

F. Resolution for changing MERS Benefits for the Dispatchers Division 20 (benefit improvement from B-2 to B-4 through employee contribution), pursuant to the contract.

G. Resolution for amending the Retiree Health Savings (RHS) Plan which provides that contributions elected through December 31, 2006, including terminal leave contributions can continue until December 31, 2007; and that elective contributions will not be allowed after December 31, 2007 (pursuant to IRS agreement).

H. Approval of local Cost Participation Agreement between the Road Commission for Oakland County, City of Novi, and the Oakland County Board of Commissioners for traffic signal installation at the intersection of Twelve Mile Road and Cabot Drive. 

J. Approval of Claims and Accounts Ė Warrant No. 744

MATTERS FOR COUNCIL ACTION Ė Part I

1a. 2007-2008 Budget

Member Paul commented that Council had several work sessions and many discussions, and she made a motion at the last meeting and the majority of Council accepted that motion. Member Paul said she wanted to share that it was not a motion by herself, Member Nagy and Member Mutch also participated in that discussion. She didnít know if they could support the gun range but she wanted everyone to know that a lot of the concessions were mutual. Member Paul shared that she moved $666,000 and change over to next yearís fire station expenditures. The main thing she wanted to discuss with Council was if they wanted to save that for next year she thought it was a great idea. She said a study was done two years ago on what that fire station needed and this year there was money towards that. She said Mayor Pro Tem Capello also made this suggestion as well as Member Nagy stating that the City might get a better bid on the improvements and construction of the fire station if they had all the money up front this year. So, Member Paul wanted to have a short discussion on whether they should move the money in its entirety to this year or whether they should have some savings for next year. She said she was open about that discussion, and wanted to make sure that Administration would have the luxury to look at the entire bidding process in July when they get the plan from the architect of what would be the best financial scenario for the City.

Mayor Landry asked if this year meant 2006-2007 or 2007-2008. Member Paul said 2007-2008.

Mr. Pearson said, as he understood it, there had been an additional $600,000 moved to fully fund both stations for 2007-2008, so now there would $1.2 million. He said the architectural study was underway now and wouldnít be available until July. He thought Council had all the flexibility in the world, and suggested that they budget it in 2007-2008 and they would come back for recommendations once they know what the elements were. At that time, Council could decide whether they wanted to do some, all or none of it.

Member Paul asked if he would like Council to amend the budget so the total amount would be for 2007-2008 Budget. He thought that was in the document they provided because there was already the $638,000 in change, and she had added in another $638,000.

Member Paul commented she had pulled the stream bank stabilization at the end of the meeting, and she would discuss it in length, but she would like to see Council have the Administration come back to Council with a stream bank stabilization plan and use it out of the Drain Fund. She said she was adding any changes to the amendment, and would discuss that under the Consent Agenda Removals. Member Paul said she wanted to share some information and look at the Drain Fund if the Administration would be willing to evaluate what had been done so far, and what needed to be done.

CM-07-05-087 Moved by Paul, seconded by Capello; MOTION CARRIED:

To approve the 2007-2008 Budget after the Public Hearing with the following changes:

1) Remove the following positions, Cultural Liaison person, Training Specialist for Human Resources, mid year Sergeant, totaling $72,429. Also, removal of the Police Officer.

2) Remove the following studies: City Space Efficiency Study, Senior Center Expansion Study, Land Use Studies, totaling $106,000.

3) Use money from the Forfeiture Funds for the following: Police vehicles (10 vehicles), Item 105 Clemis, Item 106 Laptops, Item 107 Printers and Laptops, for a total of $488,365.

Total savings was $666, 834 to be designated in the 2007-2008 Fire Station improvements to Stations 2 and 3 renovations.

For all remaining funds in the Forfeiture Funds to be designated towards the gun range. The gun range can not be started until all funds designated by the approved engineering firm and construction company are gathered in its entirety. The entirety stated as such: equipment, building and all accessories are able to be completely funded by Forfeiture Funds. A second component to the Forfeiture Funds is a plaque to be placed in the front of the firing range on the front of the building or on the front entryway of the building to designate the entire police officers, the Administrators, and the dispatchers who were present the night of the original drug bust on the opening of the building. The third component of that was to name the building after Chief Shaeffer. The fourth component was to remove $189,735 out of DPW for the mechanical systems and designate that to the 2008-2009 DPW trucks.

DISCUSSION

Member Mutch said after the expenditures from the Forfeiture Fund that were proposed would there be any money left in the Forfeiture Fund Fund Balance, and if so how much.

Ms. Smith-Roy replied the estimated balance would be about $56,000. Member Mutch said they had discussed it and they had been using the $800,000 number and asked if this was above and beyond that or were the numbers rounded off and there was more in there than anticipated. She responded there was slightly more due to interest earnings.

Member Mutch said he would leave it to other Council members as to where that money should go. He thought there was discussion about the rest of the Fund Balance being allocated to the gun range.

Member Mutch commented after the motion, he would like to be recognized to raise a couple short policy direction points that came up during the budget process for the Council to give to the Administration. Member Mutch also wanted to make clear that he would not be voting for the budget because of the inclusion of the gun range. He noted he had been consistent in his position on the gun range from day one, and he thought it was important to stay consistent with his votes. He said his vote was not predicated on serious problems with the budget, it was the inclusion of the gun range.

Member Mutch said he recognized any reduction in the millage rate that had been previously discussed was largely symbolic. He said every dollar they could give back to the taxpayers was important but it was not going to be a large amount. However, he thought it would have sent a signal to residents that Council did recognize the financial hardship that some residents were facing in this community. He said granted it would not have put a lot of dollars back but would have been a nice point. He said Council didnít have a discussion about an opportunity to reduce the millage in advance of the library vote, and he thought that would have also been something that would have been helpful. He thought the library question was like the school question coming up in a week, was facing some real challenges because of the financial times. He thought if they had been able to offer residents a guarantee that there would be a millage offset versus a promise of that in the future, he would have liked to been able to present that to the residents.

Member Mutch said, finally, that the Council needed to have a discussion and set some policy about funding capital items. He said while he didnít support funding the gun range through the Forfeiture Funds, it did give Council an opportunity to fully fund the fire station improvements with the money that was freed up in the General Fund. He noted that looking ahead to next year they had almost $6 million in capital improvements that needed to be funded, and right now there was no dedicated funding for any of those items. Member Mutch said they were somewhat reduced now that the fire station was funded, but there were significant capital items that needed to be funded that they were going to fund through General Fund expenditures. He thought they needed to budget for that and felt they had been fortunate to have Fund Balance but that would not always be the case.

Member Nagy appreciated Member Paul bringing up the fact that the motion that came forward Thursday night was written Wednesday night. She said as she went through the items finding monies she would have preferred to take more monies from the budget. She believed that they should be funding capital improvement for the long run in a different way than they were doing now. Member Nagy said it would be difficult to vote against the motion that she sat there typing up. However, like the previous speaker she had been consistently voicing her concerns about the gun range, which were basically that they would add a yearly expenditure for the gun range and her concern that there would not be enough money from the Forfeiture Funds to do the major improvements to the building that was planned in the future. She said also what was interesting was that the date was always changing. She said the residents and taxpayers funded all the departments in the City, and she felt that in the long run it would give some relief to the taxpayers. She noted while she admired the Police Department, their dedication and the good work that they do, she did look at the long term and was concerned about the expenditures on a yearly basis for the gun range. She would not support the motion that she wrote.

Member Margolis stated she absolutely would be supporting this budget. She commented, based on her interpretation of this and some of the comments made previously. She said there was quite a discussion at the Council table about Fund Balance and that whole concept. She said she was pleased that the budget had a very high Fund Balance; however, one of the things they need to grapple with as a Council was their policy on Fund Balance. Member Margolis said the policy actually stated 8 to 12% as a practical matter, and Council had been keeping 14%, and this budget was originally proposed at 16.7%, and now with these amendments and they deferred the DPW her assumption was that the Fund Balance was even higher. Ms. Smith-Roy said the Fund Balance was at 17.45%. Member Margolis said they had long discussions about the concept of Fund Balance at the table, and most experts suggest and the Finance Manager was really comfortable with the 16.7% Fund Balance. She said they needed to have a discussion about changing the 8 to 12% policy. She also thought they needed to have discussions about keeping this amount of Fund Balance sitting there. She said cities, municipalities and public entities received tax money to give benefit to the taxpayers that pay it at that time, and not to hoard money. She said although it sounded great to have a large Fund Balance they really had to balance that against the fact that people were paying taxes to receive services and benefits from the City.

Member Margolis said they had a small discussion on the General Fund Millage. The basic millage rate would stay the same. She said the small reduction that was talked about in the millage rate would have given a total of $83,000 to the entire City or about $1.50 per person. She said although that sounded great as a symbolic or political suggestion, changes in millage rates like that were viewed very negatively by bond rating agencies. She said the Finance Manager gave Council a memo that said that would have been a mistake from that point of view. So, she was opposed to that change, and she couldnít see changing the millage rate to give that small of an increase that would cause trouble with their bond rating with the agencies.

She said that was why they got great, favorable interest rates on the Cityís debt. Also, one of the reasons they had been slowly increasing the General Fund Millage over the past few years was because the debt millages had been reducing. Member Margolis said what they had been doing strategically, and through direction and discussions with the Finance Manager, was really starting to pay as they go for capital items. She said the reason they were doing that was the debt for capital items was reducing and they could now start chunking away money. She said that was what this budget did.

Member Margolis said she was very pleased that they were finally putting the money into the gun range that needed to be there as it was partially funded prior to her tenure on Council. She was happy they could finally fund the gun range for the needs the officers had. She said when they were talking about the maintenance of the gun range the study said it would cost about $1,800 a year. She thought that was a small amount to put in the maintenance of something that would increase the training of Noviís police officers.

Member Margolis thanked the staff. She said she didnít think any of them could imagine the work that went into putting a budget together. She said the fact that they were sitting there tonight after three meetings of discussions among themselves, and with truly not huge changes in this budget was a testament to the fact that the staff did a good job putting together a very realistic and goal directed budget.

Mr. Pearson said, to be clear, there were two resolutions that included the millage rates as well. Mayor Landry said that was the motion.

Roll call vote on CM-07-05-087 Yeas: Margolis, Paul, Landry, Capello, Gatt

Nays: Mutch, Nagy

CM-07-05-088 Moved by Mutch, seconded by Nagy; CARRIED UNANIMOUSLY: To direct the Administration to review the Cityís policy regarding Fund Balance and to return with a recommendation consistent with current practices and needs within the next budget cycle.

DISCUSSION

Mayor Landry asked what he meant by consistent with current practices. Member Mutch said the fact that there was a policy that stated that the Fund Balance should be maintained at 8 to 12 %. He thought Ms. Smith-Roy stated that once in the last 10 years it had ever gone that low for a Fund Balance amount, and the actual recommended Fund Balance this year of 16.7% was in part to deal with cash flow and State Revenue Sharing concerns. He said obviously they were operating at a much higher Fund Balance than the policy recommended. Mayor Landry asked if the motion just called for the Administration to give Council a report and revisit what the recommended Fund Balance should be as a policy. Member Mutch agreed, and assumed if they came back and said there was a change that Council would be adopting a change in the policy to reflect that.

Mr. Pearson asked what timeframe Council envisioned and would it be a July project. Member Mutch said they would want something in place before the next budget. He said it was not something they needed immediately.

Roll call vote on CM-07-05-088 Yeas: Mutch, Nagy, Paul, Landry, Capello,

Gatt, Margolis

Nays: None

Member Mutch said one of the discussions in the budget document covered the Tree Fund and Administration had discussed possibly establishing a working group or some kind of framework to address maintaining the Tree Fund long term.

CM-07-05-089 Moved by Mutch, seconded by Nagy; CARRIED UNANIMOUSLY:

To direct Administration to, within the next budget cycle, establish a process that would allow Council to create a sustainable Tree Fund financially for the long term within the next budget .

Roll call vote on CM-07-05-089 Yeas: Nagy, Paul, Landry, Capello, Gatt,

Margolis, Mutch

Nays: None

1b. Consideration of Ordinance No. 07-124.17, an amendment to the Novi Code of Ordinances Chapter 11, to modify the requirements for the processing and submittal of record drawings.  First Reading 

CM-07-05-090 moved by Capello, seconded by Nagy; CARRIED UNANIMOUSLY:

To approve the First Reading of Ordinance No. 07-124.17, an amendment to the Novi Code of Ordinances Chapter 11, to modify the requirements for the processing and submittal of record drawings.

Roll call vote on CM-07-05-090 Yeas: Paul, Landry, Capello, Gatt, Margolis,

Mutch, Nagy

Nays: None

2. Consideration of the request of Bruce Brickman of General Development for Zoning Map Amendment 18.669 to rezone property in Section 9, east of West Park Drive, north of Twelve Mile Road, from I-2, General Industrial, to I-1, Light Industrial District. The subject property is .83 acres.

CM-07-05-091 Moved by Capello, seconded by Margolis; CARRIED UNANIMOUSLY:

To approve request of Bruce Brickman of General Development for Zoning Map Amendment 18.669 to rezone property in Section 9, east of West Park Drive, north of Twelve Mile Road, from I-2, General Industrial, to I-1, Light Industrial District. The subject property is .83 acres.

DISCUSSION

Member Mutch said there had been discussion regarding this rezoning in the context of the zoning on the larger Novi Corporate Campus. He said right now it was a split zoning and whether the applicant was going to look at rezoning the entire campus to a uniform common zoning.

Mr. Pearson said they had encouraged that on several occasions and the applicant had found it necessary and practical to do it on this kind of a basis. Member Mutch asked if they were paying rezoning fees on each application, and Mr. Pearson said absolutely.

Roll call vote on CM-07-05-091 Yeas: Landry, Capello, Gatt, Margolis, Mutch,

Nagy, Paul

Nays: None

3. Consideration of the request of Triangle Development for Main Street Novi, SP06-38, for modifications to conditions of the Preliminary Site Plan approval. The subject property is located in Section 23, south of Grand River Avenue and east of Novi Road, in the TC-1, Town Center District. The subject property is approximately 20 acres and the applicant is proposing modifications to the previously approved site plan to accommodate leaving Paul Bunyan, aka Sixth Gate, as a public street.

Mr. Pearson said this had come back in this form after the Council asked the applicant to review their request originally for vacation. They had withdrawn their immediate request and were going the route of suggesting improvements to the Cityís right-of-way, which the City owned and controlled. He said these were revisions to the preliminary site plan and there were several conditions which were not atypical. He said there was a positive recommendation from the Planning Commission and the City attorney had reviewed it and found that it met the requirements of the Zoning Ordinance and Council requirements.

Sarah Traxler, Senior Planner with McKenna and Associates, Inc., was present to represent Triangle Development LLC on site planning issues for the proposed Main Street Novi Project. She said Triangle Development LLC was very willing to work with the City to accomplish this landmark Main Street development. She said Council had a letter, written within the past couple of weeks, expressing their willingness to provide an additional curb cut at the north western portion of Paul Bunyan. She said in light of comments during audience participation portion of the meeting she wanted to make a few comments in reply, and she would be willing to answer any questions Council might have.

Ms. Traxler said the preliminary site plan was approved by this Council and recommended by the Planning Commission months ago. At that time, Council had in front of them a parking study by Reid, Cool, and Michalski, that pointed out that there was no parking shortage on this site but rather a parking surplus. She said that was their acknowledgement that when there were a mixture of uses on one site there would be an ebb and flow with the demand for parking spaces that often were not at the same times. Thereby providing a complementary situation by which different uses could accommodate fewer parking spaces than if they were counted simply as individual uses. She said that was the basis for Councilís preliminary approval of this plan.

Ms. Traxler said they believed that the comments regarding the dumpster location, which would as Mr. Cassisí attorney Ernest Essad pointed out require a ZBA variance, was something that would be necessary were that road to remain in the public right-of-way. However, Building 800 was of exceptionally high quality and design standards. She said surrounding that dumpster was a brick wall dumpster enclosure that provided continuity in design with the building that provided something other than the standard dumpster. She said that view would be just as pleasant as the view at the building, and the building would be in view as well.

Ms. Traxler said most importantly to this discussion this evening was that they were prepared to delete the parking from the entire western most portion of Paul Bunyan if that suited the City. If the City wished to remove all those parking spaces in the public right-of-way, that was something they would be more than willing to accommodate. Therefore, that western portion of Paul Bunyan would be used simply for access to the development and to neighboring developments. It would also be landscaped to the high quality and design standards that were seen at the rest of the site.

Mr. Nona said Ms. Traxler was fairly new to the project, and he wanted to offer clarification on the issue of the parking study. He said they had studies done by Reid, Cool and Michalski. The shared parking study for his development only did show a shortage in parking of about 30 or so parking spaces. He said at the suggestion of the Council they did a shared parking study with the Red, Hot and Blue building because they had some parking on his property that they had to move. He said that shared parking study when they combined their development with their development then that showed a surplus. He said that study was made available to the City Planning Department so there was a report to that effect. Mr. Nona said right now, as it was, they did have a parking shortage of about 30 parking spots, and that was for the entire development when it was built. As Ms. Traxler indicated, they were prepared to delete the side angle parking from the 250 feet western part of Paul Bunyan so that they would only have an access road in there. He said that way they would landscape both sides of the road and Mr. Cassis could do whatever he wanted to do when he developed that property.

Mr. Nona said he had several very friendly discussions with Mr. Cassis and the concept of the shared parking between Mr. Cassisí development and his development was something that he, Mr. Nona, had initiated and suggested. In fact, at the first meeting Mr. Nona said he offered to have his architect do conceptual site plan on Mr. Cassisí property to show what could be built on that property with and without shared parking. Mr. Nona said it was obvious that with shared parking Mr. Cassis could build approximately 20% more building than he would otherwise on a stand alone building. Mr. Nona said the problem came in when his attorney started putting the agreement together. He said when he put the agreement about shared parking the way it was written, his understanding of shared parking was that the customerís from Mr. Cassis could use Mr. Nonaís parking but the customers of Main Street could not use the parking on the proposed Cassis property. Mr. Nona told him that was not the way shared parking worked, and he tried to explain that to Mr. Cassis, and that was basically the breakdown on the shared parking. Mr. Nona said he still had that agreement that was drafted by the attorney, and could make it available to Council, traffic consultants and to others to decipher.

Mr. Nona said, having said that, they were prepared to enter into shared parking because their intent was to have a nice Town Center development in Novi, whereby all the adjoining properties and developments could share parking. He said that was a concept for downtown. The reason they were putting in angled parking on Paul Bunyan was not because they were over building or because they needed parking; it was because they were providing street parking on all the streets that they were providing. He said it was a large development and they were putting a lot of effort and investment into it, and they really hadnít come in requesting any substantial assistance from the City. He said they appreciated all the cooperation and support that they had received but they stand to do what was right to work with Mr. Cassis and the City to accomplish a good development.

Mayor Pro Tem Capello said he made the motion to table this a while back to give Mr. Nona and Mr. Cassis an opportunity to talk to each other to see if they could resolve this. He said he had very little faith that they would come to any resolution, and his intuition was correct. He didnít feel that Council could hold up the development of Main Street because of a boundary dispute between the two property owners. He said he had heard Mr. Nona say that he would withdraw that request for a variance and delete the west 250 feet of parking along the south side of Paul Bunyan Drive, correct. Mr. Nona said they were prepared to do that, if that was what Council wanted. Mayor Pro Tem Capello thought there was adequate parking there. They were putting in a parking structure, and if they had a parking problem they would have to deal with it more than Council would. He said their tenants would complain, move out or not move in. Mayor Pro Tem Capello said if Mr. Nona was comfortable so was he. He felt if there was a parking problem in a downtown district, good for them, because it would work itself out. He thought people would just park a little further away and walk. He was concerned that Mr. Cassis had a point in regard to the dumpster. Mayor Pro Tem Capello didnít feel that just having the same brick wall to enclose the dumpster that the building was made out of was adequate. He had seen too many of them, and if Paul Bunyan was now going to be an actual City street instead of a vacated street and part of a parking lot, and would be in that 250 feet, there would be landscaping along the right-of-way and they could landscape around that dumpster as opposed to just having a solid brick wall. Mr. Nona said in addition to the wall there would be landscaping around the dumpster, and he added that this was a dumpster around the medical building. He said the medical building was really visible from four sides. He said there was no front and back of the medical building, and it was brick on all sides, and was a high quality aesthetically pleasing building. Mr. Nona said if the dumpster was going to have a fairly tall brick wall and anything else that was needed to shield that area. Mayor Pro Tem Capello said then his answer was yes, and Mr. Nona was willing to give additional landscaping around that brick wall to make it less visible from Paul Bunyan since they were not vacating it.

Mayor Pro Tem Capello said at first he thought Mr. Cassis wanted two curb cuts, and then he thought today that he said he didnít want them. Mr. Cassis replied that he had never said he didnít want his own curb cut that was existing there. He said that was his and had been there and it should stay there. Mayor Pro Tem Capello asked if he wanted a second curb cut. Mr. Cassis responded that he didnít care whether Mr. Nona gave him a second curb cut or not. He said that area was another parcel of land and it was not developed. He said his main curb cut was what Mr. Nona was encroaching on, and Mr. Cassis didnít know where it would be. Mayor Pro Tem Capello said that Mr. Cassis had the main curb cut and asked again if he wanted another one. Mr. Cassis said he had no problem with a second curb cut.

Mayor Pro Tem Capello said he could be in favor of this with deleting item #3, enhancing item #4 with additional landscaping and keeping the curb cuts.

CM-07-05-092 Moved by Capello, seconded by Margolis; MOTION FAILED:

To approve the request of Triangle Development for Main Street SP06-38 for revision to the Preliminary Site Plan approval granted November 13, 2006 subject to the following recommendations of the Planning Commission:

1) All comments of the City Councilís approval of November 13, 2006approval remaining in effect, with the removal of the condition of to vacate Paul Bunyan,

2) City Council building setback waiver for the 700 and 800 buildings, with respect to the Paul Bunyan right-of-way, 3) Zoning Board of Appeals variance for lack of parking lot setback along the Paul Bunyan right-of-way,

4) Zoning Board of Appeals variance to allow a dumpster enclosure in the front yard, along Paul Bunyan right-of-way,

5) License Agreements being developed for all fixed objects and non-standard parking in the Paul Bunyan right-of-way,

6) Applicant providing additional right-of-way for Paul Bunyan along its southern length and the eastern edge,

7) Applicant providing two curb cuts to the properties to the north,

8) All the conditions and comments in the staff and consultant review letters.

Mayor Landry said it still had to be subject to the ZBA variance on #3. Mr. Schultz thought it would be a lesser variance but there would be some areas where the parking lot set back variance would still be needed. Mr. Schultz said, as he understood it, it was the area within that west 250 feet on the north side of the road that was now not going to be parking spots. He said there would be other areas that would still need setback relief. Mayor Pro Tem Capello would include that amendment.

Member Gatt said he had been a big supporter of this project from day one, and he continued to support it but he would not support this motion because he would prefer that Mr. Nona and Mr. Cassis try once again to work out a shared parking solution that both of them seem to want. Member Gatt said when Mr. Nona was describing the attorneyís agreement Mr. Cassis was shaking his head like that was not what he understood it to be. He asked that this matter be tabled as he didnít want to vote on something that would hurt a 33 year resident of this City, and he would not support that.

Member Nagy echoed the comments of the previous speaker. She thought that Mr. Nona and Mr. Cassisí attorney came forward and made comments and she felt this was an inappropriate place to make comments. She commented that she didnít understand why this couldnít be worked out right now in the hallway. She wouldnít support the motion. She felt this had gone on for a long time and didnít seem to be that difficult to work out. She said Mr. Cassis had been around long enough to know what shared parking meant and being Chair of the Planning Commission he knew what it meant. She said somewhere there must be a breakdown in communication and the two of them needed to work it out. She said they do support the development and had worked with Mr. Nona. However, there was also a person present who owned property, had been a good resident for 33 years, and had brought business into the community. She said they were two businessmen who should be able to sit down and figure this out. She said she would prefer that this not come to Council again with this tit for tat. She asked them to work it out, and said she would support a motion to table this.

Mr. Schultz said initially Council was talking about having the parties reach a shared parking arrangement because the proposal was to vacate Paul Bunyan. He said it would be owned by someone and there needed to be a right of ingress and egress. He said what was before

Council now was to leave it a public road, which the Planning Commission decided it was OK with. He said if the issue being considered by some Council members was letís go back to a shared parking arrangement; essentially that was a determination that Council wanted to see a road vacated again, which was tabled the last time Triangle was here. He said that was a policy decision that had to be made first before they could talk about whether there ought to be a shared parking arrangement. If the road wasnít vacated, the City had no ability to tell to the petitioner they had to go to the neighbor and give a shared parking arrangement. He thought there might have been some misconception, probably early on, that really once it becomes considered a public area again, they were in a different section of the ordinance. The Town Center Ordinance said "if parking is permitted on a public street and there is a public street adjacent to your property you can reduce your onsite off street parking area". He said that was essentially the issue here; should there be some consideration given to the site plan approval here if some of the parking spaces were shown on that public road. He thought what Mr. Nona said was that in deference to the idea that the property owner on the other side of the road might want to also use that public right-of-way to count for that credit, he would remove those from the plan and he would still meet the requirement. Mr. Schultz said he wanted to be sure that Council was aware that that was the overlying issue here. If it was going to stay a public street, shared parking was something they didnít have the ability to impose. If Council wanted it vacated, shared parking was something that was required. However, they had to answer the first question first that being would it stay a public street, and if so, it was hard for them to talk about requiring shared parking arrangements, and requiring an agreement.

Member Margolis commented that she would support the motion and certainly regretted that they had this difficulty between two well respected business owners in the community. She said as a Council member she was looking at the action they would take tonight. She believed it was reasonable under the circumstances. She noted when they were here before they decided to table the vacation of the street and move in a different direction. She said this was what came back to them and it had a positive recommendation from the Planning Commission and from staff so she would be supporting the motion. Secondarily, she did not want to see the Main Street project continue to be delayed as it was too important to the City and to the Cityís future.

Member Paul asked Ms. McBeth to shed some light from a planning perspective, if she was comfortable with this site. Ms. McBeth said the plan was the same as essentially the plan that the Council approved in November 2006. She said they didnít make any noticeable modifications to the plan, and were just requesting the removal of the one condition, which was to vacate a portion of Paul Bunyan. She said they were as comfortable with the plan as they had been in the past. She noted that it seemed that the applicant was trying to take into consideration the property to the north, if the street was not vacated by providing the two curb cuts; one to the existing building, and one curb cut to the vacant piece of property.

Member Paul commented she was struggling because they had to very respectable business men in our community and she wanted to support both of them. She said Mr. Nona was bringing a new project that they were really looking forward to because it brought a lot of people into this area. She also wanted to support Mr. Cassis because he had been a business member of the community for 33 years and had been a very active participant in the City. However, she felt if the road needed to be vacated they would have to address both owners, but without the vacation she didnít see any legal reason they could hold this project up. She asked Mr. Schultz if she was correct. Mr. Schultz said if it stayed a public street, and that was the proposal, the question the Council would be asking itself was did they want to permit counting those spots that were in the public right-of-way and shown as improvements that the applicant was going to build, and if Council thought that was appropriate then they would approve the plan the way it was presented. He said they could require removal of those spaces, but then the question would be do they still meet parking requirements. Mr. Schultz thought the answer to that, within the 250 feet, was probably that they did. He said this was an approvable plan if the Council made the determination that it was OK to have that parking in the City right-of-way, which still remained the Cityís right-of-way and could be changed just like any other street. He said Council controlled the street regardless of what the site plan was. He said that was also true when the property owner to the north came in and said they wanted to change it to do this; it would still be the Cityís right-of-way and still Councilís authority.

Member Paul asked Ms. McBeth to share with her some of the comments that Mr. Schultz made and add comments regarding if they use the parking spaces that were on Paul Bunyan, and would the parking requirements still be met, if those parking spaces were not included on Paul Bunyan Road. Ms. McBeth thought it was consistent with what Mr. Nona had indicated. She said they did supply the shared parking study, which showed that when they included the adjacent property to the south of the Red, Hot and Blue property they met the requirements. However, she understood there was also a revised shared parking agreement that they would expect to be submitted with the final site plan. She said they would make a determination, at that point, whether that was done accurately and had the adequate number of parking spaces. She noted that at this point they were not highlighting any waiver for parking spaces in the recommendations they had made because to this point they had not seen a need for a waiver for parking spaces.

Member Paul said with those comments she felt Council was required to make a judgment tonight and not table it again. She felt they were meeting the parking requirements. She wanted to hear other comments but didnít understand why they should not support this.

Member Mutch asked Ms. Traxler to illustrate to Council her earlier comment when she indicated that they would be removing the parking from the Paul Bunyan right-of-way.

Ms. Traxler showed, on the overhead, the parking they were prepared to eliminate on the northern portion of Paul Bunyan if that would make Council more comfortable with the proposal to eliminate the condition of vacating Paul Bunyan.

Member Paul said that would be strictly along the portion that Mr. Cassis owned. Ms. Traxler said yes. Member Mutch said going further east there was a second curb cut and then additional parking, which would all remain. Mr. Traxler responded yes, it would remain.

Member Mutch said in terms of vacating a portion of Paul Bunyan as he understood it now the site plan approval contemplates leaving a portion of that as a public street and the remainder would be vacated. Ms. McBeth commented that was one option that was discussed in the write up in the packet that the western portion adjacent to the two parcels controlled by Mr. Cassis, at this point, would remain a public road. The east portion could be vacated, and they were looking for some input and direction from Council, if they were to bring something like that forward. Member Mutch said, in terms of that demarcation between public and private would take place, was that approximately where that second curb cut would be. Ms. McBeth said the second curb cut would be included in the public road portion, and everything beyond that would be considered for possible street vacation. Member Mutch said currently it was still considered a public street, and Ms. McBeth agreed.

Member Mutch said he had an issue with that. He thought from a policy perspective Council needed to address that issue first. He didnít think it had to hold up the motion tonight but thought they were putting the cart before the horse here because they were approving a site plan with various conditions and sending it to the ZBA when vacating that eastern portion controlled a number of the issues they were talking about. Member Mutch also thought they needed to address it in terms of a control issue whether they, as a City, either need or want to retain control over that public right-of-way for that portion that was not adjacent to the properties that Mr. Cassis owned. Member Mutch said he would rather see that vacated and not be the Cityís responsibility. He thought that would get them out of some of the needs for setback variances, potentially, for Building 700, therefore, he thought they were out of order in that sense.

Member Mutch had a question about the parking requirements in the TC District. He said he was looking at this based on previous discussion with the understanding that if Paul Bunyan was vacated the northern half would go to Mr. Cassis, and the southern half to Triangle. He was looking at this public street in the same sense, and asked how it was that Triangle, as previously contemplated, was able to take credit for the public street parking that was occurring on the north half of the street, and, in fact, were doing that for the portion further east.

Mr. Schultz responded that this was the first time Council had seen this area where the parking was as a public road instead of a vacated area that would be private property covered by a shared parking area. He said when that came to the Planning Commission they looked at the layout and it was essentially the same as had already been approved as an appropriate way to develop the site. Although, he didnít think there was a particular discussion about it at the Planning Commission, it did fall within that provision in Section 1602 of the TC District that if adjacent to public streets and there was parking permitted, which there was, that might reduce required parking. He said, essentially, the way staff did that was to say those counted as parking spaces, which amounted to the same thing. Mr. Schultz said theoretically Council could say it said Council could count those or the Planning Commission, if it was the reviewing body, could count those. He said in order to not have them count Council would have to say those were not going to count towards their required off street parking and therefore they would need to find other spaces.

Member Mutch said from a policy viewpoint, he didnít know if they would run into this issue elsewhere in Town Center, but he would have a problem with allowing an applicant who didnít own property on both sides of the road to get credit for the parking on both sides of the road. He recognized, in this case, that some of the parking would only exist because the applicant would improve the street, but from a City policy perspective they should get their side of the road only. He thought that would be the fair way to address that. If Mr. Nona was eliminating the parking on the western portion that was contemplating remaining a public street, it sort of made that issue moot, but moving further east he had a problem with that viewpoint. He had a problem precisely because of the issue Mr. Cassis or Mr. Essad raised during public comments, which was OK they got credit for those parking spots and when he came in to do his development, absent a shared parking agreement, essentially the public street in front of his business had been taken over and credit given to another developer. Member Mutch said he could understand his concern there. He said it seemed to him that it was contrary to the previous discussion that a shared parking agreement was only necessary if the street was vacated. He thought a shared parking agreement would be necessary in either case to at least lay out who would get credit for what in terms of the use of the public street.

Mr. Schultz said there was nothing in the ordinance that would preclude the Council or the Planning Commission if it was a site that only went to the Planning Commission, from giving credit, essentially, to both property owners. It could be a factual determination at the site plan approval stage that these were compatible and it was OK, given the uses that were there, for both of these abutting parcels on either side to get full credit for it. He said in other words, there would be no requirement to hash out an agreement. Mr. Schultz said the only clear thing to him regarding which property would go which direction was the first area right along Novi Road where there were properties within that same initial plat. He said where Paul Bunyan came in if they vacated that plat, half would clearly go in one direction and the other half in another direction. He said when past that easy area, which was past the existing building there, they would be in a more complicated situation because the entire road was only in the one plat. He said part of the complication, he was guessing, in terms of which side did the property owners want to be on was it was not clear that all of that didnít go in the Triangle direction. He said they didnít make a decision last time and it was an issue of which direction it would go. He wanted to make clear that it was not obvious, that in that public road, the north side would attach to the property on the north. He said it might, but it was not clear.

Member Mutch said he recognized that but was looking at it as long as the City was controlling the public right-of-way, and as long as this would be a public street, it should be up to the City to decide how that parking would be credited. He thought the point Mr. Schultz raised earlier that Council could decide to split the difference and give parking credit to both might be something to be contemplated in the motion or in a future motion because that would address at least some of the concerns.

Member Mutch said he was trying to understand where Mr. Cassisí concerns were. He said the curb cut was an issue and asked if it was his understanding that if the curb cut was left in place as is, he was fine with that. Mr. Cassis said he was. Member Mutch said if Mr. Nona removed the parking spaces on the north side of the road would that address his concerns. Mr. Cassis said the real issue was to go even further east. He also wanted to remind Mr. Schultz, who Mr. Cassis was glad he brought out the plat situation, that from a very authoritative source with Metropolitan Title because of no vacation on that plat on the first 100 feet or so of Paul Bunyan starting from Novi Road. If the street was vacated it would all go to his side. He said all the way out to the end of his property which was the second lot, the vacated lot, should be vacated too. He said there was no reason for one side of the street to take it from the other side. Mr. Cassis said what would satisfy him was he didnít want to be put in a situation where he was, right now, putting together a development, and if he came to do the development, Council would tell him the Mr. Nona took everything already and there wasnít any spare parking for him to have any shared parking. Mr. Cassis said he would be out and these were the main reasons he was objecting to this. Member Mutch asked if Mr. Cassis wanted Council to come further west with the vacation of the street. Mr. Cassis said he thought so because it would remove the City from having it half vacated and half not vacated, which would make it an even more complicated situation.

Member Mutch asked him how far east of Novi Road he would want to leave it as public. Mr. Essad said he had an old plat which showed that there was approximately 512 feet, and thought Mr. Nona probably had a good survey of it. He said the point Mr. Cassis was making was that there was parking being counted to one parcel. If the development came to the north side they would want to count that parking again, and ultimately there would be a shortage of parking because the parking was double counted for two different projects. He said elimination of the road and an agreement, as provided for by ordinance, eliminated the issue of the City involvement with it and the City parking, and put the parking into private hands with enough parking for everybody.

Member Mutch asked what part of Paul Bunyan they contemplated remaining public. Mr. Cassis showed Council on the overhead and said he couldnít go any further because he didnít own beyond what he indicated. He said it was up to Council and City policy.

Mr. Cassis pointed out the Tom Marcus property, how far back it went, and also pointed out what belonged to the old plat that had not been vacated yet. He said if it was vacated it would go all of Paul Bunyan to the north side, and who got what where didnít matter to Mr. Cassis. He said what he wanted to do was what was good for the City. He said he didnít want any favors he just didnít want mistakes of the past repeated in this City. Mr. Cassis said Council was entering into a license or whatever they wanted to call it with Mr. Nona, and he might sell it and Council had seen that happen from Mr. Chen and others.

Member Mutch said he was like other members as he didnít want to hold up this project any longer, but he thought they needed to address, as a Council, the issue of how much of the street would be vacated and how it would impact the various projects. He thought they also needed to discuss the issue of whether they could credit parking to both projects because it would address some of the concerns of Mr. Cassis regarding the impact on his property.

Member Mutch said regarding the properties Mr. Cassis showed Council, it looked like there was another parcel between his property and the parking lot on the north side, and asked if there was.

Mr. Schultz thought that parcel was a number of narrow platted lots combined together, and in the original plats the numbering of those lots continued to the south so that the frontage along Novi Road were originally in that same plat.

Mayor Landry said he would support the motion. He said this was before Council on February 12 th, and out of deference to the parties it was tabled to allow the involved parties time to work it out. He said that was almost 90 days ago, and he agreed with Mayor Pro Tem Capello that if it had not been worked out by now it would not be worked out among the parties. He said this plan was basically the plan previously approved by City Council, Planning Commission and Administration. He said what they were discussing was a concept of whether the parties could work out shared parking. He said what this did, in effect, was have the City do the shared parking because by allowing them to use the roadway Council had the ability to

allow both parties to use the roadway. He said that was Council accomplishing what they were unable to. Mayor Landry said Council could allow them to share the road and the parking. He said this project needed to go forward and Council needed to move this on. He noted Mr. Cassis would get his two curb cuts and the project moved on. He said none of the road would be vacated, and Mr. Schultz agreed. Mayor Landry said they would deal with the road vacation at a later time as the project needed to move forward.

Roll call vote on CM-07-05-092 Yeas: Capello, Margolis, Landry

Nays: Gatt, Mutch, Nagy, Paul

Member Paul asked if they could add as an addendum to the motion that the public road right-of-way on Paul Bunyan would have shared parking between both the north and the south side of the road.

Mayor Landry asked if that could be done, and Mr. Schultz said it could.

CM-07-05-093 Moved by Paul, seconded by Margolis; MOTION CARRIED:

To approve the request of Triangle Development for Main Street SP06-38 for revision to the Preliminary Site Plan approval granted November 13, 2006 subject to the following recommendations of the Planning Commission:

1) All comments of the City Councilís approval of November 13, 2006 approval remaining in effect, with the removal of the condition of to vacate Paul Bunyan,

2) City Council building setback waiver for the 700 and 800 buildings, with respect to the Paul Bunyan right-of-way,

3) Zoning Board of Appeals variance for lack of parking lot setback along the Paul Bunyan right-of-way,

4) Zoning Board of Appeals variance to allow a dumpster enclosure in the front yard, along Paul Bunyan right-of-way,

5) License Agreements being developed for all fixed objects and non-standard parking in the Paul Bunyan right-of-way,

6) Applicant providing additional right-of-way for Paul Bunyan along its southern length and the eastern edge,

7) Applicant providing two curb cuts to the properties to the north,

8) All the conditions and comments in the staff and consultant review letters.

Also, shared parking for both the north and the south side property owners.

Roll call vote on CM-07-05-093 Yeas: Gatt, Margolis, Paul, Landry, Capello

Nays: Mutch, Nagy

AUDIENCE PARTICIPATION Ė None

MATTERS FOR COUNCIL ACTION Ė Part II

4. Appointments of Youth to Boards and Commissions

Clerk Cornelius announced the appointments to the Boards and Commissions.

Aditya Sathi Beautification Commission

Bala Sekaran Historical Commission

Yangcheng Liu Housing and Community Development

Smrithi Dharmarajan Library Board

Nicholas Kristock Parks and Recreation Commission

5. Reconsideration of a request from Interphase Land Development LLC, applicant for Casa Loma, for a variance from Section 11-68(a)(1) and 11-68(a)(5) of the Design and Construction Standards requiring water main extensions longer than 800 feet (990 ft. main proposed) to include a secondary connection point to allow for a future looped connection, and requiring secondary water main stubs to be extended to the property lines for future extension.

Mr. Schultz said a motion to reconsider needed to be made formally on the record in order to place this back on the table.

CM-07-05-094 Moved by Capello, seconded by Mutch; MOTION CARRIED:

To reconsider the request from Interphase Land Development LLC For a variance from Section 11-68(a)(1) and 11-68(a)(5).

Roll call vote on CM-07-05-094 Yeas: Margolis, Mutch, Nagy, Paul, Landry,

Capello, Gatt

Nays: None

Steve Witte of Nederveld was present representing Dave Compo from Interphase Land Development. Mr. Witte said at their last meeting with Council they had requested a waiver from requiring them to construct a secondary water main stub to the south property line, and that motion was denied. Mr. Witte noted that during that meeting there was quite a discussion regarding special assessment districts and that Council did not want future property owners coming to Council ten years from now asking them why they had approved this. Since that time, he said they had talked with City staff and the City Attorney, and the applicant now wanted to propose an agreement placed solely on preferably Lot Unit 6 but also would be willing to entertain Unit 2. He said it would basically require one of those units to pay for all of the future cost associated with the future water main stub. Mr. Witte said this way there would be one person attached to it versus ten people. Mr. Witte said Mr. Compo was going to build and live on Unit 6, so that was why he would prefer that the agreement be attached to Unit 6 as opposed to Unit 2. The reasoning for allowing the waiver was the water quality and quantity was 2,000 gallons per minute with 20 PSI, which was the City standard. He said the water quality issue was discussed at the last meeting stating that looped systems improved the water quality and therefore they wanted it. He said the applicant had agreed to the water loop, it was just deferring that construction. He said one of the employees from the City department said that they actually didnít like dead end water mains because of sediment and having to clean them out. He said if the City required the stub to be constructed now, in essence, they were creating more dead end water main. So, once again, the applicant wasnít opposed to constructing the water main, he just didnít want to do it now because they didnít envision it ever being needed. However, provisions were set up in the form of easements and the agreement that if it was ever needed, he would do it.

Mayor Pro Tem Capello commented that he asked to have this reconsidered and had originally voted against it. He said what changed his opinion was the fact that now the developer said he would assume the financial responsibility of installing the water main when needed, and would place a lien on Lot #6 to secure that payment. He said the payment would be made anytime the water main was required to be installed, and immediately, or on his sale of Lot #6, whether before or after construction of the home. Mayor Pro Tem Capello said the applicant would do this, in stead of passing the cost on to the entire subdivision or the previous owner of Lot #2, or to the developer to the north. Mayor Pro Tem Capello wondered if there needed to be some type of foreclosure or enforcement language, if the applicant didnít pay to install the water main for Lot #6.

Mr. Schultz said they would be happy to beef up the lien process where they would be putting it on the tax rolls.

CM-07-05-095 Moved by Capello, seconded by Gatt; CARRIED UNANIMOUSLY:

To grant the variance from Section 11-68(a)(1) and 11-68(a)(5) of the Design and Construction Standards requiring water main extensions longer than 800 feet (990 ft. main proposed) to include a secondary connection to forestall or delay installing said secondary connection until such time as the property to the south was developed. There would be a water main and construction easement across Unit #2 in recordable form, and the developer would pledge as collateral and security Lot #6 to secure enforcement of construction of that water main when needed and the water main shall be paid for at the time the preliminary site plan approval was made for the property to the south, or at such time as Lot #6 was sold by the developer. Also, to include language that would maintain the easement free and clear of fences or any permanent or substantial landscaping.

DISCUSSION

Member Mutch said originally he had voted in support of the variance on one condition. Although, he did ask to have included language that would maintain the easement free and clear of fences or any substantial landscaping, and offered that as a friendly amendment to the motion. Mayor Pro Tem Capello accepted the amendment and stated that it was a given when having an easement that they would not be able to put anything permanent on top of the easement, and any loss to the vegetation or fences was the property owners responsibility. The amendment was also accepted by the seconder of the motion.

Member Paul said at the last meeting she was specifically concerned about a Limited Liability Corporation dissolving and their responsibility being removed. She said now that there was a lien on Lot #6, if that Limited Liability Corporation were to be sold or dissolved would the lien on the property cover the costs without the City being charged at all in the sewer district. Mr. Schultz said it would attach to the land and not to the entity, and if there was a sale or disposition of that asset that would trigger the other language that said pay it now.

Member Nagy said if the lien was put on the property and there was a foreclosure on a mortgage would the City be behind the mortgage. Mr. Schultz said they would put it on the lien as essentially an addition to the tax rolls and that would take priority.

Mayor Pro Tem Capello said, following up with Member Paulís question, the developer and title holder to Lot #6 was the one making the financial guarantee so there was at least security in Lot #6 itself. He said it was not as if Lot #6 was owned by one person and the financial requirement to construct the water main was someone else; they are one and the same person. Mr. Witte said that was correct.

Roll call vote on CM-07-05-095 Yeas: Mutch, Nagy, Paul, Landry, Capello, Gatt,

Margolis

Nays: None

6. Consideration of Zoning Ordinance Text Amendment 18.215, the request of the Northern Equities Group to amend Appendix A of the City of Novi Code of Ordinances, Ordinance 97-18, as amended, known as the City of Novi Zoning Ordinance, at Article 23A, Planned Office Service Technology, to permit educational facilities in limited instances. Second Reading

Mr. Pearson said there were questions at the last meeting regarding profit/not for profit status, and Council had heard opinions from the City Attorney regarding practical difficulties in making those kinds of distinctions. He said they had done some research and there was a memo about square footage limitation, and it was the opinion of the Planning Department that they would not necessarily recommend that they provide the background for Council, and it was not included in the draft language before Council.

Member Margolis said she would move to approve the second reading, as they had discussed this last time and some of the background material helped. She noted there was concern about some of the non-profit status of a higher education facility but they were also talking about a limited number of institutions that qualified under that kind of situation. She said when looking at a lot of the background on economic development the presence of higher education in a City or an area was a positive for economic development. She thought it was a great idea in terms of moving this forward and allowing some mixed uses in Office Service Technology.

CM-07-05-096 Moved by Margolis, seconded by Gatt; MOTION CARRIED:

To approve Zoning Ordinance Text Amendment 18.215, the request of the Northern Equities Group to amend Appendix A of the City of Novi Code of Ordinances, Ordinance 97-18, as amended, known as the City of Novi Zoning Ordinance, at Article 23A, Planned Office Service Technology, to permit educational facilities in limited instances. Second Reading

DISCUSSION

Member Paul appreciated Member Margolisí comments about bringing business into the area but she would not support any tax exemption facility being able to go into the Cityís highest paying tax area. She said she would not support the motion.

Member Mutch agreed with Member Margolis that having institutions of higher learning in the community benefited the overall community. He also pointed out that they were able to get Walsh College into Novi outside of the OST District, so he didnít see OST as the zoning district they had to go into. Member Mutch also, based on the information provided, had less of a concern that they would have a significant amount of this kind of development in the OST District. He said if it became a problem, they could revisit it, tighten the language up and look at a square footage restriction.

Roll call vote on CM-07-05-096 Yeas: Nagy, Landry, Capello, Gatt, Margolis,

Mutch

Nays: Paul

CONSENT AGENDA REMOVALS FOR COUNCIL ACTION

I. Approval of contract extension to Anderson, Eckstein and Westrick to provide additional streambank stabilization design and construction engineering services for the Middle Branch of the Rouge River in the vicinity of Meadowbrook Lake in the amount of $16,134.50 Ė Member Paul

Member Paul said they had Anderson, Eckstein and Westrick provide streambank stabilization and bidding for construction services of the Middle Branch of the Rouge River, mainly around Meadowbrook Lake. She said there were other areas of concern and several people had come forward that were close to Meadowbrook Lake and commented they were losing their backyards on Chapman Drive and Ennishore. She noted she had a letter from James Bruce and she and Mr. Hayes had gone out to his home. She said he lived along Bishop Creek and was having the same problems that exist in this area and said six feet of his backyard had gone into Bishop Creek. She asked that they continue to look at these areas as Bishop Creek went from a trickle to almost 10 feet across when there was a bad storm. She said Mr. Bruce sent an article in regarding Troy receiving an award for a stream project, and they took their dead Ash trees and lined some of the streambank stabilizations with them and hooked them into the side of the streambank. She said they also did some landscaping as well as cinder block. She wanted to pass this along to Mr. Hayes and Mr. Pearson and ask if when looking further into the budget, they could look at areas that they could provide streambank stabilization and pay for it out of the Drain Fund. She was looking for some environmental amenities for those who keep having these difficulties.

CM-07-05-097 Moved by Paul, seconded by Nagy; CARRIED UNANIMOUSLY:

To approve of contract extension to Anderson, Eckstein and Westrick to provide additional streambank stabilization design and construction engineering services for the Middle Branch of the Rouge River in the vicinity of Meadowbrook Lake in the amount of $16,134.50.

DISCUSSION

Member Nagy said they had talked about streambank stabilization in a lot of areas, especially on Meadowbrook Lake, and had asked people not to mow to the very end. She said if they were going to use Drain Funds, why not just get signs that said they couldnít mow pass this point. She thought it might be the only way to get people to understand what they were supposed to do.

Roll call vote on CM-07-05-097 Yeas: Paul, Landry, Capello, Gatt, Margolis,

Mutch, Nagy

Nays: None

MAYOR AND COUNCIL ISSUES

1. Request a Special City Council joint meeting in May for briefing with the Economic Development Corporation regarding Brownfield Development Ė Mayor Landry

Mayor Landry said he was proposing a joint meeting of Council and the Economic Development Corporation as an informational study session regarding tax increment financings, specifically Brownfield Developments. He said they were all familiar with the fact that the remaining development parcels in the City were difficult, and the City was increasingly being asked by potential developers to consider a Brownfield. Mayor Landry said all he wanted to do was get educated on it, and was not suggesting Council go one way or another. He felt that since they were being asked to consider this as an option, they should be educated on it, whether it was Brownfield or any other tax increment financing.

Mayor Landry said Oakland County was willing to come in and give a brief informational of 20 or 30 minutes with them for questions and answers. He said it would be a public meeting and anyone could attend. Mayor Landry suggested meeting in June jointly with the EDC for one hour.

Mayor Pro Tem Capello thought it was a great idea and it was time to do it. He asked if they could do it at the beginning of a regular meeting. Mayor Landry thought it would be difficult to be moving all those people around since it was a joint meeting. He suggested scheduling the meeting at 6 P.M. before a Council meeting.

Member Paul said she didnít mind meeting before a Council meeting in June. However, she would like some general information about Brownfield Development and what had been done in other communities. She thought if the Council and EDC were educated before they came, they would have better questions and better information. Member Paul said when they went to Portage they had several areas they had done with Brownfield Development, and they captured those taxes to redevelop that area.

Mayor Landry proposed the meeting of June 4th and there was consensus. Mr. Pearson said they would definitely have a background packet for Council, regarding incentives and environmentally challenged sites, and he would like to bring in a developer who had done this to round out the perspectives. Mayor Landry asked Administration to ask the EDC to set that up with Oakland County.

2. Paul Bosco Beck Road sewer Ė Mayor Pro Tem Capello

Mayor Pro Tem Capello commented that this had been bouncing between Mr. Bosco and the Administration for a couple of years. He explained that Mr. Bosco tried to tie into the sanitary sewer in front of his house, and a few months later he had a sewer backup and realized there was a break in the pipe.

Mr. McCusker said he basically had a chronology of what they had found in their files in trying to track this when Mr. Bosco originally called. He noted his department responded and went out there to check the main sewer and found there was dirt and debris in the main sewer, and his sewer lead south was backing up into his home. Subsequently, they tvíd the inside of the sewer to determine where it was coming in from and found it was coming in from his lead in the main sewer. He said on excavation by Mr. Boscoís contractor, they found his sewer lead had been collapsed down below, and further back from where he tapped into the lead that was up on the surface area. He said at that point, they went back, cleaned the sewer, repaired it and had Mr. Boscoís tap put into the manhole that was adjacent to the area where his lead formerly was. He said they tracked this because of the change in engineering companies, and the actual different project that happened in this general area; it had been kind of a treasure hunt.

Mayor Pro Tem Capello said Mr. McCuskerís memo said that "it appeared that the backfilling to Manhole 31 had crushed the riser". He asked if that was within the right-of-way. Mr. McCusker replied it was in the sanitary sewer easement and Mr. Boscoís lead was six to eight feet north of that manhole. He said the excavation had to go below 20 feet because when the adjacent development tied in, the connection they were tying to was not aligned properly. So, they had to plug the manhole, which was supposed to be the future high school connection on the Bosco property, and reconnect a 12 inch main coming out of Kirkway Place just south of there. He said it was probably air tested when they had it all exposed and then when they were backfilling, it probably was crushed at that point. He said they didnít know for sure because they couldnít find the air test records. Mayor Pro Tem Capello asked if it appeared that any of the construction Mr. Boscoís contractor did in connecting the sanitary sewer caused the crushing. Mr. McCusker said no, where he had connected to the lead was probably 15 or 20 feet from the location where it was crushed. Mayor Pro Tem Capello commented that it wasnít Mr. Boscoís fault at all, and Mr. McCusker replied it was not.

Mayor Pro Tem Capello said when he tried to put sanitary sewer under the Novi sewer system it wouldnít flow. Mr. McCusker said he connected to the lead that they thought would connect him to the sewer but the lead was gone below. Mayor Pro Tem Capello asked how much money they were talking about that Mr. Bosco had to expend. Mr. McCusker said it was about $6,700. Mayor Pro Tem Capello asked if that was total and Mr. Bosco said he believed it was.

Mayor Pro Tem Capello asked Mr. Bosco if all he was requesting was for the City to reimburse him for was $6,700, and Mr. Bosco said yes. Mayor Pro Tem Capello asked if an insurance claim had been made, and Mr. McCusker said yes. Mayor Pro Tem Capello asked what the insurance company said. Mr. McCusker said they had governmental immunity.

Mr. Boscoís contractor thought Mr. McCusker explained it that they tied into the end of the existing lead that they left for the property, and they werenít close to the problem area. He said the problem was not caused by them, and he believed it was caused previously when they tapped into the manhole and disturbed the existing riser on that line.

Mayor Pro Tem Capello said it appeared to him that the City might not be directly at fault, but indirectly at fault within our right-of-way. He said it was pretty clear that Mr. Bosco or his contractor didnít cause the damage, and he didnít think Mr. Bosco would be asking for $6,700 if he didnít really feel it was the Cityís fault.

CM-07-05-098 Moved by Capello, seconded by Nagy; CARRIED UNANIMOUSLY:

To reimburse Paul Bosco $6,700.00 for the expense he had to pay to fix the sanitary sewer in the right-of-way of the City along Beck Road based on the facts stated in the report from the DPW.

DISCUSSION

Member Mutch said he was sympathetic to Mr. Boscoís situation and obviously he was not at fault. However, on the other hand, with the information Council had received from Mr. McCusker it seemed pretty clear that no action by the City caused this problem. He asked if there was any recourse against the party they believed caused the damage, and what kind of precedent were they setting by reimbursing Mr. Bosco.

Mr. Schultz responded that if they knew for sure who a particular party was that caused the damage there would be recourse against that party. He said the tougher question was the precedent issue as the City received claims for things that happened in the private portion of a sewer or water pipe that were often in the right-of-way enough that Council at least had to make sure that as part of this discussion thereís sentiment on the part of Council to do this. He said he thought they could but they might be faced with other people who would say they were sort of in the same boat as the person before them tonight. He said as he understood the questioning they were talking about the fact that the damage occurred in the sewer easement they canít necessarily, in this particular incident, tie that to a particular entity or someone undertaking activity, at least as he understood the DPW memo. Mr. Schultz thought that might distinguish it from other issues, but it was a policy question of whether or not Council wanted to take an issue where they directly had immunity, and say Council thought it was appropriate for the City to pay this at this point.

Member Mutch asked Mayor Pro Tem Capello, in terms of this action, how could they distinguish this from the other situations when someone else said it was not their fault, and asked why they had to pay for the repairs. Mayor Pro Tem Capello said he was looking at this situation where the City actually allowed improvements in the right-of-way for the development just to the south of this property, and possibly didnít supervise or monitor properly, and had some responsibility for allowing or causing failure. He thought it was different from something just wearing out from age. This was a brand new system and within a matter of three or four months of hooking into it it was backing up into his house. Member Mutch thought that was fair and a legitimate distinction. He said he would be looking for communication from Administration regarding how situations like this could be addressed. He said it didnít happen very often but he didnít want it to become a regular practice because a developer potentially might have caused damage that might cause the City to reimburse repairs.

Member Nagy thought she understood Member Mutchís point. She thought Council might be able to make this a one time only thing. She said she had heard complaints like this from other people regarding the development to the south. She thought $6,700 was a lot of money so she wanted to do this as a one time thing. However, there should be a set policy. Member Nagy commented that she didnít understand why they couldnít determine who did this. She asked if they knew who the contractor was.

Mr. McCusker said they knew that the subdivision from the south connected and that it was probably air tested at the time and probably air tested out. Then during the backfill procedure it was crushed, unbeknown to them, because it was 20 feet below grade. Member Nagy asked who had the records for the air testing. He responded that JCK was the contractor at the time, and they had picked up 20 of their file cabinets and files but had not found those records yet. He said on top of this, that part of the utility coming out of Kirkway Place had not been accepted yet by Mayor and Council.

Mr. Schultz understood the sentiment of making this a one time thing and there being a policy. However, there was a policy, and the policy was that the City, for the most part, exercised its governmental immunity, and said the City didnít control private action even when itís in the City right-of-way. He said they couldnít say they were going to make it a one time thing, but what they could do, as he understood the motion, was rely on all the information from Mr. McCuskerís report. Mr. Schultz said Mr. McCusker talked about the soil issues with regard to where the main and the connection was. He said factually the issue next time someone said something happened on their property and wanted to be reimbursed and the City claimed governmental immunity; there would be a need to distinguish this as a one time thing not because Council said it was a one time thing but because it was factually different. He said that was the question Council would have to ask itself on this motion.

Member Nagy asked if Mayor Pro Tem Capelloís motion encompassed what Mr. McCusker said. Mr. Schultz said he understood it. Member Nagy said thatís the reason that her comment was not relevant. Mr. Schultz said it was very relevant but he wanted to be sure that the meetings minutes could be looked at. Member Nagy said based on what Mr. McCusker said it seemed to her to be reasonable to reimburse Mr. Bosco. She said she would support the motion.

Roll call vote on CM-07-05-098 Yeas: Landry, Capello, Gatt, Margolis, Mutch,

Nagy, Paul

Nays: None

3. Unlawful parking of used cars by the Hummer Dealership on Grand River Ė Mayor Pro Tem Capello

Mayor Pro Tem Capello said when the Hummer Dealership came to Council to expand the Gateway District, the image they were going to create on the corner of Meadowbrook and Grand River was very important to Council. He said he and Mayor Landry met with them on numerous occasions, worked with the ordinance and worked with them, and came up with an agreement. He said, in his view, it wasnít until the ninth hour that he realized that they also planned to sell used cars. He said the only reason he was going to let them go there and they were going to get his vote was because they were selling Hummer and it would give Novi a unique business establishment on that corner. He commented that on several occasions he saw that they were displaying used cars in front of the building. He said they were very selective regarding how many cars they could display, they promised to keep the used cars in the back of the lot not visible to the roadway, however, they continually display used cars on Grand River. He asked Mr. Schultz to discern what they could display and where. He thought that information would be on the site plan but was not sure it was on the contract documents. He said they were not going to listen to the City after being told several times, and suggested it was time to write some tickets. Mr. Schultz said he would be happy to bring correspondence next time. He said he did have a meeting with Mr. Quinn, and the way they left it was they were going to present some language with assistance and drafting it from his office for Councilís consideration to document the agreement that there be nothing but Hummers in that front display area. Mr. Schultz said the ball was in his court to be sure that got to Council.

Mayor Pro Tem Capello asked if the site plan was clear enough to issue tickets. Mr. Schultz said they were told they would have the opportunity to make their pitch on that issue before the tickets were written, and he felt he had to honor that. Mayor Pro Tem Capello said that was fine.

4. Flower Alley Letter Ė Member Mutch

Member Mutch said Council had correspondence from the Flower Alley business owner who was concerned about sales of, in this case, Easter flowers from the back of a truck from a parking lot in a local Novi business. He said they came to discover they had been granted a permit and they raised objections and concerns to that. Member Mutch said, personally, he was quite surprised that was allowed by City Ordinance. He said over the years a number of people in this community had expressed concerns about these transient sales operations whether a truck full of flowers, furniture, etc. pulling up in town, sometimes not permitted. Member Mutch noted he had a real concern if the ordinance had that kind of provision allowing that kind of activity. He recognized there were certain temporary uses of this nature but had always thought it was limited to the business establishment. He said if a furniture store was having a tent sale in their parking lot over a weekend that was fine, or activities like the art fair or the Fifties Festival, which was coordinated with existing business establishments. However, he had a real problem with what occurred with this situation and similar one. He asked for feedback from Council to see if this was something that needed to be addressed and tighten up the ordinance language to avoid these situations. Member Mutch said, going back to the previous discussion, he didnít think it was the image they wanted to present as a community. He thought the business owners raised a legitimate concern about the impact of those kinds of uses on existing City businesses paying taxes and trying to make it in this economy. At the very least, he would like to have an understanding of what kind of uses were coming into town under these permits, and whether they should look at limiting the language.

Mayor Landry suggested asking the Administration to put together a report of what the current status of the ordinances were, and Council could look at that in an off week packet. He said they could then add it as an action item or at Mayor and Council Issues. He agreed and said he would like to look a report of what the actual ordinance was and what it would allow. He suggested that Mr. Schultz put this together. Member Mutch agreed.

Member Gatt thought the answer was in the memo that was given to Council, and that was raising the permit fees to an extremely high amount that would limit outsiders from coming in. However, he didnít see much difference in this or outside agencies coming in to solicit in the City that they had talked about recently. He said he didnít know if they were legally able to keep outsiders out who come in legally with a permit to sell flowers or anything else.

Mr. Schultz said it sounded like a section of the memo would present that, and a different one was speech and another would be kind of a commercial activity. He said there was usually a different level of scrutiny. The commercial activity could be regulated a little more than door to door speech.

Member Margolis said from the reading of the memo on that specific incident, although they had a permit, her understanding was they were discovered to be in violation of that permit, and the City took action against that. She agreed they should look at that but the extent of that use was not within the permit use and the City staff did take action on it.

Member Paul asked if they could look at what other cities were doing in regard to this issue when they bring this back to Council. She felt it would add insight that they might not have had as well as what was being done here and what the fee was.

AUDIENCE PARTICIPATION - None

ADJOURNMENT

There being no further business to come before Council, the meeting was adjourned at

9:25 P.M.

________________________________ _______________________________

David Landry, Mayor Maryanne Cornelius, City Clerk

______________________________ Date approved: May 14, 2007

Transcribed by Charlene Mc Lean