CITY OF SOUTH LYON
REGULAR CITY COUNCIL MEETING
July 9, 2007
Mayor Doyle called the meeting to order at 7:30 p.m.
Mayor
Doyle those present in the Pledge of Allegiance to the Flag
PRESENT:
Mayor Doyle
Council Members:
Kivell, Kopkowski, Maida, Morelli and Wedell (1 vacancy)
City Manager Cook
Attorney Lee
City Clerk/Treasurer Zemke
Department Heads: Collins & Renwick
APPROVAL
OF MINUTES:
Councilman
Kivell stated that on the bottom of page 2 there had been some discussion
regarding Councilman Dryer leaving, and there was comments by Council Member
Kopkowski suggesting that she would like to see applicants who would be running
for election in November. He stated
that this is not reflected in the minutes.
Council
Member Maida indicated that there was also a typographical error in the last
line of page 2.
CM
7-1-07- APPROVAL OF MINUTES – JUNE 25, 2007
Motion by Kivell, supported by Kopkowski
To approve the minutes of the regular meeting of June 25, 2007 as amended
VOTE:
MOTION CARRIED UNANIMOUSLY
APPROVAL
OF MONTHLY BILLS:
Councilman
Morelli questioned the payment for Police Department promotional materials.
Chief Collins stated that when they do public events, they like to have
items to hand out to the children.
Councilman
Morelli questioned payment for the weed cutting of the 40 acres on Mill Street.
It was indicated that it does get charged back to the property owner.
Council
Member Maida questioned the bill from Corigan Oil. Superintendent Renwick stated that this is fuel for all City
vehicles. It was stated that
Corigan comes out and fills the City’s tanks.
Council
Member Maida questioned payment to Toxic City Testing.
Superintendent Renwick stated that this would be for the Wastewater
Treatment Plant.
Council
Member Maida questioned payment for 8-month pay for custodian.
City Clerk/Treasurer Zemke stated that this is the custodian for the
Historical Depot.
Councilman
Wedell question the payment for ammunition.
Chief Collins stated that this is our normal annual re-supply for both
duty and training ammunition. The
question was asked if ammunition goes bad.
Chief Collins stated that it does not if it is stored properly.
Councilman
Wedell questioned the payment for lawn tractor and asked if this is a new
tractor or repair. Superintendent
Renwick stated that this is a new one for the cemetery.
Councilman
Wedell questioned payment to Tyler Technologies. City Clerk/Treasurer Zemke stated that this is our annual
service agreement for our software programs such as Utility billing, General
Ledger and Cash Receipts.
Councilman
Kivell stated that we have had a lot of fleet repairs that are being taken care
of outside the City and asked why we are not taking care of it more in-house.
Superintendent Renwick stated that some of the bigger equipment such as
the vactor is not something that we can handle.
Councilman Kivell asked if the charges for batteries and other items are
for hardware costs only or installed costs.
Superintendent Renwick stated that this would be the purchase price only.
CM
7-2-07- APPROVAL OF MONTHLY BILLS
Motion by Wedell, supported by Morelli
To approve the monthly bills as presented
VOTE:
MOTION CARRIED UNANIMOUSLY
APPROVAL
OF AGENDA
CM
7-3-07 – APPROVAL OF AGENDA
Motion by Kivell, supported by Kopkowski
To approve the agenda as presented
VOTE:
MOTION CARRIED UNANIMOUSLY
CITIZENS
SUGGESTIONS:
Mr.
Jim Jackson of 22290 Quail Run stated that he is a 29 year resident of the City
and is co-owner of D&G Natures Way. He
stated that he is proposing a Pumpkinfest Road Run prior to the parade. They
have a new company and have worked with an Arizona based company in events
sports marketing promoting large events with 1500+ athletes.
They would like to do the same in Michigan. It would be great for the
community and provide better attendance for Pumpkinfest and the route would be
good for the community in general. They
would advertise in local running magazines and store fronts. 10% of the proceeds
would go to a local charity. They
are proposing a run only event with no walkers due to time constraints with the
parade schedule.
Councilman
Maida questioned the length of the run and the route. Mr. Jackson stated that it would be 5K and would go down
Lafayette to Reynold Sweet. He
stated that he is proposing that they would only need 3 officers.
North of the railroad tracks, they would need to just shut down
south-bound traffic for 5 minutes and once the runners go by, the parade would
start. Chief Collins stated that he
has not seen the route and ordinance does state that a permit should be
requested of the Police Department. Historically, it has been a problem to consider a run on
either end of the parade because we are already closing down Pontiac Trail for
over an hour and it is the only north/south route through town.
Mr. Jackson stated that they would only be using the main road for a few
minutes and then the rail trail system. Within
40 minutes they would be off the main road.
It should not slow the parade down because they will be running.
Councilman
Kivell asked if they have tried to coordinate anything with the Pumpkinfest
Committee. Mr. Jackson stated that
he has received pre-approval from the Pumpkinfest Committee and the Schools have
given permission as well as the Chamber of Commerce.
Councilman
Kivell stated that it has been indicated that 10% of the proceeds would go to a
charity and asked if this is profitable function. Mr. Jackson stated that it is for profit.
Councilman
Wedell suggested that they coordinate this with the Police Department and bring
it back in proper form. Council
Member Maida stated that they did discus this with the Chief, just not the
specific route. Mayor Doyle stated
that Mr. Jackson also made contact with him and he wanted to bring this forward
tonight to present the idea.
Discussion
was held on the need for assistance by the Police Department as well as
volunteers. Council Member Maida
asked if we have a problem with the number of South Lyon officers, would it be
possible to get Lyon Township to help. Chief
Collins stated that without having seen the route, it is difficult to comment.
Generally, it is not the Police Department staffing that becomes an
issue, but rather the main issue is extending the closure of Pontiac Trail
beyond the time we have for the parade. Every
year we receive numerous calls from irate motorists that they cannot get north
or south on Pontiac Trail. The
question was asked how many officers work for the parade.
Chief Collins stated that we use everyone as well as our crossing guards
and police service aids.
Councilman
Morelli stated that the proposal involves crossing railroad tracks twice.
City Manager Cook stated that all of the trains are un-scheduled.
Chief Collins stated that we would be strenuously opposed to any parade
or run crossing the railroad tracks.
Mr.
Dick Selden of 62401-1 Raleigh Ct. stated that he is a member of the Pumpkinfest
Committee. They had a meeting last
week and there was never a mention of this run.
He stated that around the Hotel area, the area is a “zoo”.
You have spectators and last minute arrivals.
He would suggest a better way would be to start east side of Pontiac
Trail and run north to avoid any further confusion.
OLD
BUSINESS:
1.
Appointments/resignation
a.
Resignation from Council- Ray Dryer
Mayor Doyle stated that
Councilman Dryer has submitted a letter of resignation.
Mayor Doyle read the official resignation effective July 9th.
CM
7-4-07 – ACCEPTANCE OF RESIGNATION – COUNCILMAN DRYER
Motion by Morelli, supported by Wedell
To accept the letter of resignation from
Councilman Ray Dryer effective July 9, 2007
VOTE:
MOTION CARRIED UNANIMOUSLY
Mayor Doyle thanked Ray and
his family. They have done a lot
for the community. Mayor Doyle
stated that as of today we have 30 days to fill the vacancy. We have received 2 letters of interests.
Anyone interested in filling that position should submit a letter to City
Hall.
2.
DeMaria Mediation
Attorney Lee stated that he has provided a summary of the
legal position of the City. He
stated that in approximately 1980 60% of the housing in South Lyon was multiple
dwelling. We recognized that single
family housing was needed to provide revenue to the City and balance out the
social structure. There was a need
for higher value homes to balance out the community so that we did not become
known as a place of slum landlords and the social problems that come with not
having a range of citizens within the community.
As a result, we created the R1-A zoning district, which included larger
lot size to accommodate larger, more expensive homes. With the annexation of the property north of 11 Mile, under
our ordinance, that property came in with the R1-A zoning.
We also created an open-space option for developers indicating that where
they were willing to leave more open spaces we would allow them to create
smaller lots at higher densities in some areas.
DeMaria was one of the first ones to come to the City and request an open
space option for the property now known as Trotter’s Pointe.
City Council at that time deliberated on his proposal and approved it as
it sits today. Some time in the
late 1990’s, without notice to the City and in violation of our ordinances and
in violation of the Master Deed that we approved,
the developer attempted to take the 4 acres which is on the
northwest corner of 11 Mile and Pontiac Trail out of the subdivision before he
turned it over to the homeowners’ association.
When we received notice through the Assessor’s Office that this was
taking place, we objected. As a
result, they were not given a parcel identification number and that parcel, as
far as the County recognizes, has stayed within Trotter’s Pointe subdivision
and the homeowners’ association has maintained and considers that their own
property. DeMaria also, starting in
2002, started neglecting to pay engineering oversight expenses necessary to
complete the project. As these fees
started to pile up, we insisted that he continue to pay premiums on the bonds
that he posted for the completion of the project, which he did. In trying to collect the $60,000 that he owes us, we filed
suit. Immediately, DeMaria filed a
counter claim accusing us of a number of things and refusing to allow him to
remove this piece of property for his own use.
He stated that he wishes to make sure that the philosophy that he and the
City Manager have been operating under is still in place, which is that the
property north of 11 Mile should remain residential and to restrict commercial
development. However, the Planning
Commission and City Council has approved the Gateway Commons development just
east and north of that intersection. In
the mediation mandated by the Courts, the Mediator came out with a solution that
DeMaria pay us the $60,000 in return we give him the 4 acres. That decision is Council’s alone. He is also concerned that
nobody has ever come to us to ask for a rezoning of that parcel or modify the
site plan or amend the open space agreement executed between DeMaria and the
City. The real question is should
that 4 acres continue to be part of that open space or would you be willing to
amend the open space agreement. If
you believe that the 4 acres should stay part of that development, the
resolution should be to deny. Likewise,
if you believe that times have changed and it is not a good resolution to leave
it as it is, a resolution would be to give the City Attorney authority to
negotiate an agreement that would be brought back to Council for approval.
He stated that they are more than prepared to litigate this matter to
conclusion.
Councilman Kivell asked who actually pays the taxes on that
property. City Clerk/Treasurer
Zemke stated that it is part of the common area or open space.
There is not a separate tax ID number.
Councilman Kivell stated that speaks strongly in that you cannot claim
ownership of a piece of property that you are not paying property tax on.
Essentially, that is the homeowners’ association’s property for use
as park land or open space.
Councilman Kivell discussed the phasing of the development
and the bonding not transportable from phase 1 to protect phase 2, etc.
He asked how can he assert that the bond was only for Phase 1.
Attorney Lee stated that we should not confuse assertions with facts. He stated that we asked that a bond be posted and continue to
be posted. He elected after Phase 1
was complete to simply offer that bond for Phase 2 and again for Phase 3.
We accepted. The only thing we insisted upon was a valid bond.
He stated that he is not concerned because if we receive a judgment
against DeMaria for $60,000 and only $30,000 comes from the bond company, it is
still collectable. He stated that USF&G does not even have an attorney in
this case. DeMaria’s attorney is
also representing them, which raises an interesting conflict of interest issue.
Council Member Kopkowski asked if the property taxes for the
open space is included in all of the individual homeowners’ property taxes
within the development. Attorney
Lee stated that this would be a technical assessing question.
He believes that in valuing each individual home site within Trotter’s
Pointe, the assessor takes into account the benefit of that open space to each
home site. They do not tax that
open space.
Council Member Kopkowski asked if the $60,000 is owed for HRC
bills. Attorney Lee stated that it
is, and we have already paid HRC. Council
Member Kopkowski asked if the bills were given to them in a reasonable time
frame. Attorney Lee stated that
they were billed monthly. Council
Member Kopkowski asked Attorney Lee his opinion in collecting.
Attorney Lee stated that he has no question that we will collect it.
He further stated that if the best of the defendant’s arguments were
accepted by the Court, they would find the bonding company liable for $30% and
DeMaria for the balance.
Councilman Wedell stated that he notes that the case file is
2005 and asked if the counter claim was filed soon after.
Attorney Lee stated that it was done immediately.
Councilman Wedell stated that this all pre-dates the Gateway Commons
development. Attorney Lee stated
that it also predates the date in which he attempted to transfer that property
from the homeowners’ association to himself.
Councilman Wedell asked about the recovery of attorney fees.
Attorney Lee stated that if the mediation is rejected and the prevailing
party is DeMaria, we would be obligated to pay his attorney fees from this point
forward, not anything back. He
stated that he is not concerned about that as there was an earlier mediation on
the fact numbers, which we accepted and he rejected.
You cannot mediate constitutional issues, which is one he has raised in
his counter claim. The Judge
insisted upon appointing a mediator after the mediation panel had determined a
dollar amount. We do not believe
that there is any way the City would be held liable for his attorney fees even
if he were, in the unlikely event, prevail. He further stated that even the
mediator has acknowledge that the counter claim is not “ripe” because he has
not filed an application for a rezoning, he has not filed a request to modify
the open space agreement and he has not filed an application to modify the site
plan.
Councilman Wedell noted that the first sentence of the
mediator’s recommendation is “As a matter of law, a determination on the
City’s fee reimbursement claim in the complaint has little to do with the
separation of the 4 acre parcel claimed by DeMaria in the counter claim”.
Attorney Lee stated that they will be using that to file a motion to
separate these two cases. We believe the counter claim could be immediately motioned
out and we could go to trial on the collection.
Council Member Maida asked what DeMaria would be paying for
the property. Attorney Lee stated
that is an issue between DeMaria and the Trotter’s Pointe Homeowners’
Association. He stated that he will
be encouraging the homeowners’ association to take some action of their own.
There is only so much that we can do to protect the interests.
They have an obligation to protect their own.
They are quite aware of this issue.
He further stated that we are waiting to obtain a copy of a confidential
settlement agreement between DeMaria and Silverman.
There was a law suit filed by Silverman against DeMaria for some of these
same issues that DeMaria is now raising as a defense for not paying the fees.
We will be sharing that we Trotter’s Pointe as well.
Councilman Morelli stated that it did come in as R1-A, but
the current zoning is R-2 with open space.
The open space provision requires that the property set aside be useable
open space that can be used for recreation, and wetlands and retention/detention
ponds do not count. He stated that
he is not sure that they need that 4 acres to meet that requirement.
However, that is irrelevant because the plan is what it is and that 4
acres belong to the homeowners. He
stated that DeMaria owes us that money and has he faith that we will be able to
collect that. They have not
completed that subdivision. He
further stated that he believes the two issues do not have anything to do with
each other.
Council Member Kopkowski asked if the homeowners’
association wanted him to have that property, do they have the right to do that.
Attorney Lee stated not unless someone comes before Council and receives
a modification to the open space agreement.
City Manager Cook stated that in talking with the President of the
homeowners’ association, the board is opposed to any commercial activity on
that corner. Discussion was held on this type of action requiring a vote of the
homeowners. Attorney Lee stated that another argument that they will be
making is that the homeowners’ association has cared for and improved that 4
acres in the 7-8 years they have been in charge of that property.
CM 7-5-07 – COUNCIL RESOLUTION OF AUTHORIZATION – DEMARIA
Motion
by Wedell, supported by Morelli
Whereas, the City has brought an
action in the Oakland County Circuit Court to collect development fees charged
to the developer of Trotters Pointe subdivision, namely DeMaria and its
subsidiaries, and
Whereas, DeMaria has filed a
counter-complaint seeking a Court order to compel the City to allow it to carve
out of the said subdivision four (4) acres of land which was part of the
approved open space plan approved by this Council and set forth in the site plan
approved by the City Planning and Commission, and
Whereas, the Mediator, appointed by the Court has recommended the City
permit the separation of the four acres in exchange for full payment of the fees
owed with interest pursuant to his report which Council has reviewed, noting the
limitations on development of this disputed parcel contained in the report, and
Whereas, Council finds that the home owners of Trotters Pointe
Subdivision has improved and maintained this property since the completion of
the Subdivision, and no request has ever been submitted by the developer to
amend the Site Plan approved by the Planning Commission, or the Open Space
agreement sought by the developer and approved by Council, and
Whereas, this property is zoned single-family residential, and no request
for rezoning has been filed and no showing has been made that the property
cannot be used as zoned.
Now, therefore, Council rejects the proposal of the Mediator, and directs
the City Attorney to take such action as necessary to collect the debt owed to
the City and oppose the counter-claim filed by the defendant.
VOTE:
MOTION CARRIED UNANIMOUSLY
Mr. Terry Wilson of 1174 Equestrian, President of the
Homeowners’ Association stated that this issue is very “thorny” for the
people who live in the subdivision. There
has been no contact at any time by DeMaria to any member of the board.
At some point it was suggested that they had no objection to the
commercialization of that corner, and that is simply not true.
The board unanimously rejects that proposition, they do not support any
commercialization of that property and they believe that they own that property
as they have maintained and improved it over the last 7 years with no assistance
from DeMaria. While they do not
have the financial wherewithal of DeMaria, they do have opportunity to express
their opposition here before Council and any rezoning meetings.
Council Member Kopkowski asked what they do to maintain the
property. Mr. Wilson stated that
mostly they mow it, keep the weeds down and pick up the trash.
There had been some minimal landscape done some years ago, but they have
not done any additional landscaping. Frankly
open space is what it has been left as and that is what they would like it to
continue being.
Councilman Kivell stated that if he were a homeowner, he
would be quite angry that someone would try to have control over property that
they no longer own.
Mr. Bill Rodman of 1176 Chestnut asked if the City is
successful in separating the two issues, how will the City approach the land
issue. Will the City still fight
the fact that it is under the open space? Attorney
Lee stated that we received notice from the County that they requested a parcel
identification number for the 4 acres. He
immediately sent a letter saying do not issue one because as far as we are
concerned, it is tied to the open space agreement and the site plan.
From our standpoint, until this Council agrees to modify the open space
agreement and the Planning Commission agrees to modify the site plan, we will
oppose any recordation of a deed suggesting that DeMaria is the owner.
As far as we are concerned, the owner of record is the homeowners’
association and will remain so until something else occurs to allow that deed to
be recorded.
Councilman Kivell asked if we have an idea as to the accrued
interest. Attorney Lee stated that
it varies from 5.75-6.5% or some blended rate.
Mr. Jim Dinsmore of 1042 Equestrian Drive asked if you were
the developer, why would you try this. It
was stated that they are bargaining with the City’s money.
NEW BUSINESS:
1.
Contract with American Society of Composers Authors and
Publishers- contract Amount- $284.00
Attorney Lee stated that the American Society of Composers
Authors and Publishers (ASCAP) acts as agents for about 72% of all copyrighted
music. There are two other
organizations that own the balance. ASCAP
went to International Municipal Lawyers Conference and came up with some kind of
an agreement for cities to pay licensing fees to use music.
That would be okay if you have disc jockeys and hold dances, music on
telephones and other things where there is benefit from using their music.
But, the only music the City of South Lyon is involved with is we make
our parks available for free concerts during the summer.
No fee is charged and no revenue received by the City.
ASCAP has sent a letter citing cases against tavern owners, promoters and
other people who use the music where there is a profit.
There has never been a decision saying that a non-profit, particularly a
government who has no benefit from the music should pay for copyrighted music.
He has modified the contract that we have with the musicians that play
our free concerts to include that they are warranting to us that they are either
playing their own music or they have license to utilize the music and hold us
harmless in the event we are sued. He
stated that it is only $284 and you can pay it to have peace with this group,
but as a principal, he feels it is wrong. The moment we pay this, the other two groups will come to us
and they might want more. He would
prefer that the City take a position and not pay. In the event we are sued, it
would be his recommendation to stop offering free concerts or collect enough
revenue to pay the licensing fee.
Councilman Kivell stated that he can understand the
philosophical part. It is their
property and they are deserving of a royalty.
However, this agreement should be for revenue generating events, not free
concerts in the park.
Council Member Maida stated that it would be a shame if they
come back and sue us and we are not able to provide the free concerts.
This brings people into the area and area families participate and enjoy.
CM 7-6-07 – ASCAP PROPOSAL
Motion
by Kivell, supported by Kopkowski
To
deny the contract with American Society of Composers Authors and Publishers
VOTE:
MOTION CARRIED UNANIMOUSLY
2.
Block Party Street Closure- Winchester 7/21/07- 11:00 a.m.
– 9:00 p.m.
Chief Collins stated that we have a request for the
Winchester block party. It is the
same area as in previously years. It
would have very minimal impact on traffic and he would recommend approval.
CM 7-7-07 – STREET CLOSURE – WINCHESTER BLOCK PARTY
Motion
by Kivell, supported by Morelli
To
approve the street closure for the Winchester Block Party July 21, 2007 from 11
a.m. to 9 p.m.
VOTE:
MOTION CARRIED UNANIMOUSLY
COUNCIL
COMMENTS:
Councilman
Kivell stated that he has been noticing, in particular around the multiple
family homes with single garages, there are cars crossing over the sidewalk
causing people to have to go out into the street.
Chief
Collins stated that they could give some emphasis with warnings and then
enforcement on general patrol. Normally,
if we receive a complaint they do respond and ask the person to remove the
vehicle, if they do it again or do not want to comply, then they proceed with
enforcement.
Council
Member Maida stated that she would like to invite everyone to Big Boy on July 19th
for a benefit for Active Faith. A percentage of the tickets that night will go to Active
Faith and there will be celebrities waiting tables.
CM
7-8-07 – ADJOURNMENT
Motion by Morelli, supported by Wedell
To adjourn the meeting at 8:30 p.m.
VOTE:
MOTION CARRIED UNANIMOUSLY
Respectfully
Submitted,
_
___________________________
_______________________________
John Doyle, Jr.
Julie C. Zemke
Mayor
City Clerk/Treasurer