CITY OF SOUTH LYON
REGULAR
CITY COUNCIL MEETING
May
10, 2004
Mayor
Doyle called the meeting to order at 7:30 p.m.
Mayor
Doyle led those present in the Pledge of Allegiance to the Flag
PRESENT:
Mayor Doyle
Council
Members: Crawford, Dryer, Schwarck, and Wallace
City
Manager Cook
Attorney
Jennifer Coad
City
Clerk/Treasurer Zemke
Department
Heads: Martin & Renwick
APPROVAL
OF MINUTES:
Councilman
Dryer stated that on page 4, the motion to approve the ballot language, should
reflect that the motion was carried by a vote of 3 to 2.
Also, on the attached proposed ballot language, the “super majority”
for the removal of the City Manager, should reflect that it must be an
affirmative vote of six members, not five.
CM
5-1-04- APPROVAL OF MINUTES – APRIL 26, 2004
Motion by Crawford, supported by Dryer
To approve the minutes of the regular meeting of April 26, 2004 as
amended
VOTE:
MOTION CARRIED UNANIMOUSLY
APPROVAL
OF MONTHLY BILLS:
CM
5-2-04- APPROVAL OF MONTHLY BILLS
Motion by Crawford, supported by Schwarck
To approve the monthly bills as presented
VOTE:
MOTION CARRIED UNANIMOUSLY
APPROVAL
OF AGENDA
CM
5-3-04- APPROVAL OF AGENDA
Motion by Dryer, supported by Crawford
To approve the agenda as presented
VOTE:
MOTION CARRIED UNANIMOUSLY
CITIZEN’S
SUGGESTIONS
Councilman
Wallace stated that during a recent Lion’s Club White Cane event, he noticed
several people blatently violating the handicap parking.
He had an opportunity to talk with Chief Collins regarding the fines
associated with this type of violation.
Chief
Collins stated that most cities have a fine of $90-$100 and some higher.
Our fines are currently $25-$40. Discussion was held on Chief Collins
further investigating how other communities assess their fines.
The
question was asked how often these violations are written.
Chief Collins stated that he does not know the exact number at this time.
However, often citizens will call with a complaint, and the officers will
respond to write the violation.
The
question was asked if this is covered under State Law.
Chief Collins stated that they can write a violation either under local
ordinance or State law.
City
Manager Cook stated that when Chief Smith was here, the fine was $10.
Back in the mid 1990s it was
increased to the current $25-$40.
Discussion
was held on looking at the number of violations written and how often it is
enforced prior to looking at increasing the fine. Further discussion was held on informing people that the
fines have increased prior to implementing them if that is what Council wishes
to do.
OLD
BUSINESS:
Referendum
Petitions – Gateway Commons – City Clerk’s Opinion and City
Attorney’s Opinions
Mayor
Doyle stated that Council had asked our City Attorney to go through and write an
opinion based on the petitions that were filed. We have two separate opinions, one deals with the legality of
the request itself and the other deals with the legality of the petitions.
Attorney
Jennifer Coad stated that the research has shown that zoning amendments are not
the subject of referendum. That is
based on West vs. City of Portage, which is the Supreme Court case, which says
that an amendment to a zoning ordinance is an administrative action and
referendum is applicable to only legislative action. That opinion was discussed during Albright vs. City of
Portage, which is only an Appeals Court decision.
They did hold that referendum could be applicable, but the Michigan
Supreme Court takes precedent and is the law at this point.
The opinion letter indicates that based
on the holding in West, which states that a referendum cannot be applied to
zoning amendments, in their opinion, a referendum is not an applicable action in
this case. She stated that their opinion with regards to the City
Clerk’s rejection of the petitions is that there are a number of deficiencies
including a fatal flaw in that the petitioners failed to appropriately sign and
date the petitions, and that they should be rejected at this time.
City
Clerk/Treasurer Zemke stated that the Clerk’s office did go through and
canvass the signatures, and although the petitions did contain the required
number of signatures, when we looked at the petition form itself, we found
several inconsistencies with Michigan State Election law.
Mr.
Tom Duncan of 60440 Eleven Mile Road stated that he is here for the petitioning
group. He stated that he can
appreciate the opinions of your counsel. However,
they have looked deeply into the petition process, and they have made themselves
subject to wise counsel. Bruce
Laidlaw of Laidlaw Associates in Ann Arbor who has been advisory to both sides
of the petition process and referendum law in the State of Michigan has been
advising them throughout the process.
Mr.
Bruce Laidlaw of 2023 Vinewood, Ann Arbor, stated that he has been Ann Arbor
City Attorney as well as Township Attorney for a number of Washtenaw Townships
and has frequently worked on both city and township types of referendum and has
worked on the petitioner’s side as well.
When you prepare a petition, you need to look at all of the applicable
laws. In preparing this petition,
we looked at the City Charter and took great pains to comply with that Charter,
which requires that the petition circulator’s signature be notarized.
Then they looked to see if there is a conflicting State Law.
The State Law that was relied on by the Clerk states the form
requirements that apply to a petition to place a question on a ballot for the
electorate. There is no provision
in the Home Rule City Act that says that you need to look to this format as
opposed to the Charter in connection with a referendum petition.
There is a Court of Appeals decision that says that unless there is a
specific statute that applies, you look to the Charter and not to any other
State Statute. If you look at
inapplicable statute, you might look at some of the statements the Clerk made
regarding the reasons the petitions were improper. He discussed the Clerk’s statement that the full text of
the amendment be printed in 8-point type. He
stated that this may apply to an initiative, but this is a referendum
specifically authorized by Charter. He
has not heard the City Attorney’s opinion before tonight, however he has
talked with Parvin Lee on several occasions pointing out to him that West vs.
Portage has not been followed for many years by the Courts of this State.
There have been several Court of Appeals decisions that has made it clear
that this is no longer followed by the Michigan Supreme Court and that zoning
amendments are subject to referendum. He
has also talked with Mr. Lee about the applicability the provision of the State
Law regarding the form of constitutional amendments, pointing out to him that
you have to look at the Charter and not State Law.
Mr. Lee indicated that he would look into it and get back to him, and did
not hear from him until he mailed him a copy of the lawsuit that we have
prepared in this matter. They are
prepared to file the suit unless Council approves the scheduling of this matter
for the August 3rd primary. It
deals in part with the referendum petitions and a major part with another
problem, and that is did South Lyon pass an ordinance that amended the zoning
map? It did not.
There was not an ordinance before the Planning Commission nor was there
an ordinance before the City Council. When
it was approved by Council, it was done by a motion, not even a resolution.
It is basic municipal law, that when you have legislation adopted by
ordinance, you can only amend it by ordinance.
You have a zoning map that designates the Gateway Commons area as R1-A,
and that was adopted by ordinance. The
notice placed in the paper by the City Clerk refers to an ordinance rezoning the
Gateway Commons property from R1-A to PD. There
was not such an ordinance. It is
their view that if we have to take this matter to Court, the Court is going to
say that you are going to have to start over again with hearings before the
Planning Commission and finally an ordinance approved by the City Council.
You have a chance to avoid a lawsuit by placing this matter on the ballot
for the August 3rd primary. They
have had some discussions with the developers of the property about the
possibility of amending the site plan to make it more compatible with the
surrounding neighborhood. We do not
know whether that is going to lead anywhere, but they wanted to give it some
time. The deadline is approaching where they will have to file to
avoid being cut off with State Law deadlines.
For that reason, he would encourage Council to place the language on the
ballot for referendum on the August 3rd primary ballot.
Mayor
Doyle stated that he would like to commend Mr. Duncan and the others for the
work they have done on this. This
is on the agenda for information only. We
have been advised by our Counsel that we need to let this stand.
He stated that he is encouraged that there is dialogue with the developer
and hoping that they can come to some agreement that would benefit to both
parties. The notion of pending
litigation is not going to weigh one way or another, nor should it.
We are caught in the middle. This
process was not done over night, but rather over a two-year period.
We are being counseled to go through and let stand the Clerk’s and
Attorney’s ruling. He stated that
he is hoping that you can come to some agreement.
Councilman
Wallace asked if we want to discuss this further, would we then direct the City
Manager to put it on the next agenda. Mayor
Doyle stated that our City Attorney that wrote the opinion is not here tonight.
Councilman Wallace stated that this would give the City Attorney time to
respond to what has been presented by Mr. Laidlaw, and it would behoove us to
have something on the agenda for next time for further discussion.
City
Clerk/Treasurer reminded Council that the final deadline for getting ballot
wording on the August primary ballot is May 25th.
Our next meeting is May 24th.
It was stated that a special meeting could be called with 18 hour notice.
Councilman Wallace stated that he believes that we need to decipher some
things that has been presented to us.
Councilman
Crawford stated that he is quite comfortable with the opinion of our City
Attorney and does not see a need for any further discussion at this point.
And, if need be, any further discussion can be done in the courtroom.
Councilman
Dryer stated that Mr. Laidlaw has extensive experience, but we have a good
attorney as well. But, we have two
very different opinions. Aside from
the legalities, he is disturbed that we have 1800 people who signed a petition,
and there is not anything that we can do. He
would like to see our people decide their future. Mayor Doyle stated that he
believes that everyone wants that, but there is a process.
We do not make the rules. There
is Election Law, and close enough is not good enough.
We had a similar situation last year with a set of petitions.
It is nothing personal. Council
does not want to prevent anyone from voting on something, but there is a
process.
Mr.
Tom Duncan of 1270 Buckboard Circle stated that some of the things that concern
him is that when the development was approved, one of the compelling things was
that if you didn’t approve it, you would be sued. And, now Council is not concerned about litigation.
Council has a responsibility to the citizens, and the ball is back in
your court. He asked why the
Clerk’s Office went through the process of canvassing 1800 signatures just to
deny the petition based on 8-point font or lack of a date.
It appears that Council is hiding behind the letter of the law when you
want to and not taking into account the substance of the law.
He would encourage Council to request the counsel to review it one more
time. Obviously there is some
difference in opinions. As a
citizen he does not want to see anything go to litigation, but if you don’t
take it back into your court, you are not allowing them to continue with
leverage on both sides to reach an amicable agreement.
Mr.
Laidlaw stated that the City Attorney is relying on the lack of date as a reason
for invalidating the petitions. These
petitions were all notarized and it states that the circulator appeared before
them on a specific date and is done so under oath.
If there were such a requirement, by any standard, this would be
considered trivial because they are notarized.
He stated that he recently reviewed some petitions for Bridgewater
Township, and he had to advise them to call an election based on petitions that
were handwritten. Certain formalities are often ignored.
Mr.
Tom Duncan of 60440 Eleven Mile Road stated that your biggest reason for Council
to support this is that you do not understand the overwhelming support there was
to sign the petition. Some of you
are out of touch in terms of what you think is acceptable.
In 7-10 days, they were able to obtain these signatures.
If you rely on the lack of date as a basis for denial, it is laughable.
If that is the only thing you have to “hang your hat on”, you better
not hang it there. He stated that
he was not aware that this was on the agenda for discussion only.
Time is of the essence.
Attorney
Coad stated that the only defect in the petition pointed out was the date,
however Parvin Lee did take into consideration all eight deficiencies that were
noted by the City Clerk and takes that into consideration and points out that
one specifically. In Mr. Laidlaw
‘s rebuttal, he did only point to one, but the sum and substance of all of the
deficiencies make the petitions invalid.
Mayor
Doyle stated that there are three parties involved, the City, the developer and
the petitioners, and everyone has a lot at stake. The intent here is to go through and do what is right.
The fact that this group is going through and dialoguing with the
developer is outstanding and would encourage that to continue so that we can
come up with a solution that we can all live with.
If we were to take Mr. Laidlaw’s recommendation, we would be sued by
the developer, and we would lose. They
have gone through two years and taken all of our recommendations and
incorporated them. We have done everything that we were supposed to.
If we were to be sued, it could be devastating.
We have to look out for the City as a whole, and a judgment could be
spread throughout the City for years to come.
Mr.
Laidlaw stated that you may want to ask Mr. Lee how you can amend a zoning map
without an ordinance.
Councilman
Dryer stated that it is more complicated than the petitions not being dated
properly. He stated that he would
like to see Mr. Lee and Mr. Laidlaw discuss the issues. Time is of the essence.
Councilman
Schwarck stated that he would like to point out that this came to Council over
the last two years, and we listened to a lot of people give their comments and
opinions. The developer and
Planning Commission were instructed to sit down and work things out with the
surrounding property owners before the plan came back for approval.
They came back later with the plan.
Mr. Morelli was asked if things were worked out with the group that had
concerns. There was not one other
person in the audience that night to say otherwise. The plan was approved, which locked us into where we are now.
He would like to see everyone happy with this, and would encourage the
continued dialogue between the group and the developer to work things out.
Mr.
Duncan stated that he would like it put to rest that Council did not hear their
concerns from the very first meeting. The
Mayor has misspoken repeatedly to the press.
There were 30-40 people here the night of the public hearing and several
council members were also here and heard the objections regarding this proposed
development. They have been there every single time the project was
discussed except for one time. The only reason they were not here, there were a
couple of ZBA variances that they had to acquire and they were waiting for that.
The developer changed his plan thus eliminating that need.
They did not realize that the plan was going to be before the Council.
They may have dropped the ball, but they did not drop the interest.
City
Manager Cook stated that obviously, Parvin Lee is not here tonight to address
the comments made by Mr. Laidlaw. It
is simple enough to call a meeting or have language prepared for the next
meeting for submission the following Tuesday.
This would give some time to deal with the issues and there is still time
to negotiate. Mr. Wallace stated
that this is why he was proposing to put a spot on the agenda for discussion and
possible action, if needed. It may
end up being a moot point.
CM
5-4-04 – AGENDA ITEM - MAY 24TH AGENDA
Motion by Wallace, supported by Dryer
To direct the City Manager to place discussion and possible action on the
May 24, 2004 agenda regarding
the
Referendum Petitions dealing with Gateway Commons
VOTE:
MOTION CARRIED UNANIMOUSLY
Acceptance
of Gifts - $200 from Phase V Women’s Club and $1,580 from the South Lyon
Area Soccer Club
Mayor
Doyle stated that the Colonial Acres Phase V Women’s Club has donated $200 to
the Fire Department. We need to
accept their generous gift.
CM
5-5-04 – ACCEPTANCE OF GIFT - $200 FROM COLONIAL ACRES PHASE V WOMEN’S CLUB
Motion by Crawford, supported by Schwarck
To accept the gift of $200 to the South Lyon Fire Department from
Colonial Acres Phase V Women’s Club
VOTE:
MOTION CARRIED UNANIMOUSLY
Mayor
Doyle stated that the South Lyon Soccer Club has also donated a bench and a set
of soccer goals for use in McHattie Park at a cost of $1,580.
Kristen Cunningham has indicated that the goals will be installed at the
end of May.
CM
5-6-04 – ACCEPTANCE OF GIFT – SOUTH LYON SOCCER CLUB - $1,580
Motion by Wallace, supported by Schwarck
To accept the gift of $1,580 from the South Lyon Soccer Club for the
installation of a bench and soccer
goals
in McHattie Park
VOTE:
MOTION CARRIED UNANIMOUSLY
$20,000
DNR Grant – Emerald Ash Borer Tree Planting
Superintendent
Renwick stated that this is a grant put out by the DNR, and is a matching,
reimbursable grant for the replacement of Ash trees throughout the City.
We will complete the work and submit documentation for reimbursement.
The
question was asked how we are disposing of the diseased trees.
Renwick stated that we are chipping them.
City Manager Cook stated that according to the guidelines, they have to
be chipped into small pieces. He
stated that we have 400+ Ash trees within the public right-of-ways.
This is for informational purposes only, no action is required at this
time.
Community
Survey Results
Mayor
Doyle stated that we have been given the results of the community survey.
We received 190 responses out of the 700 that were mailed.
He stated that this is not a scientific survey, but it does give us an
idea of what people are thinking. These
results will be posted on the City’s website.
NEW
BUSINESS:
Memorial
Day Parade – VFW – May 31st – 10:00 a.m.
Chief
Collins stated that the request is for the annual Memorial Day Parade.
The request is the same as in the past, however they are expecting more
participants. We need Council to
approve the related road closures.
CM
5-7-04 – APPROVAL OF ROAD CLOSURES – MEMORIAL DAY PARADE – MAY 31ST
Motion by Wallace, supported by Crawford
To approve the parade route for the Memorial Day Parade on May 31, 2004
at 10:00 a.m. and the related
street
closures:
·
Warren
Street, Second Street to Ten Mile
·
Ten
Mile from Warren to Reynold Sweet Parkway
·
Reynold
Sweet Parkway from Ten Mile to Stryker
·
Stryker
Street from Reynold Sweet to the South Lyon Cemetery
VOTE:
MOTION CARRIED UNANIMOUSLY
Councilman
Wallace stated that he would also like to remind everyone that the VFW does
provide food and refreshments after the ceremony in the cemetery.
They are located on McHattie next to Brown’s Rootbeer.
Michigan
Municipal League Annual Convention – September 26, 2004 to Octob4er 2,
20045
City
Manager Cook stated that we need to know who will be attending so that room
reservations can be made. Mayor
Doyle and Councilmen Crawford, Dryer and Schwarck indicated they would be
attending.
CM
5-8-04 – ADJOURNMENT
Motion by Crawford, supported by Wallace
To adjourn the meeting at 8:39 p.m.
VOTE:
MOTION CARRIED UNANIMOUSLY
Respectfully
Submitted,
_______________________________
________________________________
John
Doyle, Jr., Mayor
Julie C. Zemke, City Clerk/Treasurer