Board of Aldermen Meeting

Meeting Agenda

Meeting Agenda click here

 

 

Meeting Minutes

MINUTES OF THE BOARD OF ALDERMEN MEETING
CITY OF BALLWIN – 300 PARK DRIVE
January 10, 2011

January 10th Finance and Administration Committee Meeting Minutes click here

The meeting was called to order by Mayor Pogue at 7:04 p.m.

             PRESENT                                                   ABSENT
MAYOR TIM POGUE 
ALDERMAN JIMMY TERBROCK 
ALDERMAN MICHAEL FINLEY 
ALDERMAN RON MARKLAND 
ALDERMAN PAT MCDERMOTT 
ALDERMAN FRANK FLEMING 
ALDERMAN JIM LEAHY 
ALDERMAN RICHARD BOERNER 
ALDERMAN KEN MELLOW 
CITY ADMINISTRATOR ROBERT KUNTZ 
CITY ATTORNEY ROBERT E. JONES 

The Pledge of Allegiance was given.

MINUTES

The Minutes of the December 13, 2010 Board of Aldermen meeting were submitted for approval.  Alderman Fleming made the following amendment:  Page 8, paragraph 5:  Delete “Alderman Fleming asked will the end result of approval mean that if U-Gas does not meet their obligation to maintain or repair the wall, will the city have the ability to do this?”  Insert: “Alderman Fleming asked the City Attorney about the retaining wall lease agreement.”  A motion was made by Alderman Fleming and seconded by Alderman Leahy to approve the Minutes as amended.  A voice vote was taken with a unanimous affirmative result and the motion passed.

PRESENTATION
None.

PENDING ISSUES
None.

CITIZEN COMMENTS
None.

PUBLIC HEARINGS
None.

NEW BUSINESS

LEGISLATION

BILL # 3657 - AN ORDINANCE AMENDING THE NEIGHBORHOOD COMMERCIAL OVERLAY DISTRICT APPROVED PER ORDINANCE 10-21 FOR CERTAIN LAND AT CLAYTON ROAD AND HENRY AVENUE IN THE CITY OF BALLWIN.

A motion was made by Alderman Terbrock and seconded by Alderman Fleming for a first reading of Bill No. 3657.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3657 was read for the first time.

A motion was made by Alderman Fleming and seconded by Alderman Terbrock for a second reading of Bill No. 3657.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3657 was read for the second time.

Mayor Pogue said the following:  “A vote in favor of the bill finds that the Petition, as submitted, would not substantially increase traffic hazards or congestion; would not adversely affect the character of the neighborhood; would not adversely affect the general welfare of the community; would not over-tax public utilities; would not adversely affect public safety and health; is consistent with good planning practice; can be operated in a manner that is not detrimental to the permitted developments and uses in the District; and can be developed and operated in a manner that is visually compatible with the permitted uses in the surrounding area.  A vote against the bill means that one or more of these findings are absent.”

A roll call was taken for passage and approval of Bill No. 3657 with the following results: 
Ayes – Fleming, Terbrock, Markland, McDermott, Mellow, Leahy, Finley, Boerner.  Nays – None.      Bill No. 3657 was approved and became Ordinance No. 11-01. 

BILL # 3658 - AN ORDINANCE AMENDING CHAPTERS 1 AND 22 OF THE CODE OF ORDINANCES REGULATING SIGNS IN THE CITY OF BALLWIN AND ADDING NEW SECTIONS WITH REGARD TO DYNAMIC DISPLAY SIGNS.

A motion was made by Alderman Terbrock and seconded by Alderman Fleming for a first reading of Bill No. 3658.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3658 was read for the first time.

Alderman Fleming said this bill seems to be vague in some places.  The bill states, no sign may be brighter than is necessary for clear and adequate visibility.  He asked how bright is that?  The appeal process states that after the business makes an adjustment, the person owning the sign may appeal the determination by delivering a written appeal which must include the name of a person unrelated to the person and business making the appeal.  Within five business days, the city must name another person who is not an official or employee of the city.  He said a third person will have to be appointed to serve on the panel.  He asked how is that person going to be selected?  He said the sign can become useless if the message change time is 20 minutes.  He believes that the bill needs additional time for review. 

Mayor Pogue asked when does the moratorium end?  City Attorney Jones said it ends on January 31, 2011. 

Alderman Markland suggested that a unified sign regulation approach be used in conjunction with Manchester and Ellisville.  He thinks that Ballwin should not be the only community with this problem.  He believes that there are problems with the red, white and blue flashing sign. 

Assistant City Administrator Aiken said that the City of Ellisville does not allow this type of sign in any form.  Their ordinance is more restrictive than this proposed ordinance.  Manchester’s ordinance is vague. 

Alderman McDermott said that a restrictive ordinance could open the way for litigation.  If the Ballwin ordinance is similar to the Ellisville ordinance, could this lead to litigation?  City Attorney Jones said that he has not read Ellisville’s ordinance.  Assistant City Administrator Aiken said that the amendments to the Ellisville ordinance were minor and did not deal with dynamic signs.  City Attorney Jones said that the proposed legislation was compared with case law in terms of the first amendment issues.  They key is to try to make the legislation content neutral.  He said this has been done. 

Alderman McDermott said that as time goes on, there will be more dynamic signs.  He is in favor of messages changing in about 12 seconds, but not pulsating.  Perhaps stating that red and blue cannot be used together.  City Attorney Jones said that there is a provision addressing this in Section 22.5, page 4 of the ordinance, which states, “Any sign which by color, location, appearance, character or design resembles, conflicts, or interferes with emergency vehicles or traffic control signs or devices is prohibited.”  He said if it mimics emergency vehicles, this will be prohibited.  Assistant City Administrator Aiken said that the proposed ordinance does not regulate colors because there are so many shades of each color.  This ordinance will prohibit flashing and limit the frequency of the change.  It will also prohibit the use of fade ins that ties to the next message.  This ordinance was the outgrowth of legal action challenging a municipal sign code in another state.  Mayor Pogue said that a 20-minute delay in changing messages is a long time. 

Assistant City Administrator Aiken said that if there are numerous electronic signs along Manchester Road and they are all changing at the same time, how is that going to look.  Alderman Terbrock said that the Walgreens sign is not an LED sign.  As technology progresses, all of the LED signs will look like Las Vegas.  He said that this issue has been challenged in court and restricting the colors will expose the city to litigation.  He said the Ellisville Board of Aldermen are very adamant that they don’t want any dynamic signs.  Ballwin can be a leader in this matter.  He agreed that 20 minute message changes is too long.  He said the likes this ordinance as it is written, and can be adjusted as technology changes. 

Alderman Markland asked will Ballwin be in a legal defense issue over prohibiting billboard size signs.  City Attorney Jones said that billboards are not allowed in Ballwin.  It is in another section of the sign code.  Section 22.64 that regulates billboard signs.  They are limited to 200 square feet, billboard signs are not usually requested in Ballwin.  There is another section that prohibits off-premise advertising.  He said that billboard signs are effectively prohibited in Ballwin.  There was a statute that was enacted several years ago that allowed for greater local control over billboard signs.  There was a subsequent court decision that interpreted that statute to allow complete prohibition.  For that reason, he would be in favor of submitting a change at some point to do away with the entire billboard code and simply state that they are prohibited. 

Alderman McDermott suggested that 35% of a sign could be a changeable message every 10 seconds.  A sliding scale could be used such as 30 to 60 seconds changes could be used on a 50% - 80% area.  City Attorney Jones said that it could not be tied to content and must be neutral. 

Alderman Finley asked should the proposed ordinance be discussed by the Public Health & Safety Committee.  Mayor Pogue said this would not be possible because the current moratorium expires on January 31.

Alderman Markland asked about approving the legislation as it is presented and then amending as the circumstances evolve.  City Attorney Jones said the appeal section is fashioned after commercial and construction arbitration where parties choose the representative, and the two party representatives together choose a neutral representative.  The idea is that it is not left up to the city’s discretion to affirm or deny its own process.  This is a safeguard against first amendment type challenges. 

City Administrator Kuntz said that some dynamic signs can be so distracting that it takes away the character of the roadway.  Mayor Pogue asked if there should be an allowance for appeal.  City Attorney Jones said that the appeal section is fashioned after commercial and construction arbitration, where parties choose a representative and the party representatives choose a neutral representative. 

City Attorney Jones said that 20 minutes is a long time.  The moving and exploding sign images should be avoided.  He said the appeal process is set up similar to protesting a tax payment.  The sign owner gets a notice of non-compliance.  They then have to make the adjustments and file the appeal.  It’s only somebody who is really serious that will take advantage of this process.  Alderman Terbrock said that being a cumbersome process benefits everyone so that it will accomplish its purpose so that we don’t have to go through appeals regularly.  Alderman Fleming said he disagrees.  He said that the process is cumbersome for the city, not for the sign owner. 

Assistant City Administrator Aiken said that the proposed ordinance is straight forward, simple language, 35% is easy to compute, the dimensions, etc.  It is enforceable from our perspective. 

Alderman Markland said that we are trying to prevent distractions for the motorists, and the sign owner is trying to distract the motorist.  Assistant City Administrator Aiken said to imagine that there is a dynamic sign every 100 feet and all changing at different intervals.  This will be a problem.  This could happen in the future. 

A motion was made by Alderman McDermott and seconded by Alderman Leahy to amend Bill 3658, page 4, Section 22-6 Item 5, “A dynamic display may not change or move more often than every 2 minutes,…”., and “remain for at lease 2 minutes before changing…”.  A voice vote was taken with the following result:  Aye:  Terbrock, Finley, Markland, McDermott, Leahy, Boerner, Mellow.  Nay:  Fleming.  The motion passed by a vote of 7-1. 

A motion was made by Alderman Fleming and seconded by Alderman Leahy to amend the amendment to Bill 3653, page 4, Section 22-6, Item 5, to change 2 minutes to 20 seconds in both text references.  A voice vote was taken with the following result:  Aye:  Terbrock, Markland, McDermott, Fleming, Leahy, Boerner, Mellow.  Nay:  Finley.  The motion passed by a vote of 7-1.

Alderman Finley asked about a sunset provision.  City Administrator Kuntz said that the City of Ballwin has not adopted or enacted legislation tied to sunset in any form that he is aware of.  Alderman Finley asked about a review process.  City Attorney Jones said that if a review is going to be conducted annually or regularly, we might be accused of being arbitrary in the way we are enforcing the ordinance.  If it is going to change so often that you can’t count of having a particular code, it defeats the purpose of coming up with an ordinance process.  He said this should not be changed on a case by case basis. 

A motion was made by Alderman Terbrock and seconded by Alderman McDermott for a second reading of Bill No. 3658 as amended.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3658 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3658 as amended with the following results: 
Ayes – Terbrock, Finley, Boerner, Mellow, Markland, Leahy, McDermott, Fleming.   Nays – None.  Bill No. 3658 was approved and became Ordinance No. 11-02.

CONSENT ITEMS:  (Budgeted items which are low bid and do not exceed expenditure estimates and/or items which have been previously approved in concept.)

A. Check Signatories
B. Applebee’s Special Use Exception Transfer
C. Applebee’s Liquor License Transfer
D. Semi-annual Statement of Revenue and Expenditures

Alderman Boerner requested that Item “D”  be removed for further discussion.

A motion was made by Alderman Fleming and seconded by Alderman Terbrock to accept Consent Items A, B, and C.  A voice vote was taken with a unanimous affirmative result and the motion passed.

MAYOR’S REPORT

Tornado:  Mayor Pogue said that there were 101 structures in Ballwin that were damaged during the December 31 F-1 tornado.  He encouraged the Board of Aldermen to consider taking the Community Emergency Response Team training that is offered through Metro West Fire Protection District and the Eureka Fire Department.  He said this is a very valuable 20-hour course.  There is a course being offered through the St. Louis Municipal League and National Incident Management System on January 15 at the Lodge in Des Peres.  He said that he has taken this course and it is recommended for all elected officials. 

Trivia Night:  The West County Chamber of Commerce is having a Trivia Night on February 26.

CITY ADMINISTRATOR’S REPORT

Beer Sales:  City Administrator Kuntz said this is regarding the solicitation of informal proposals for beer sales.  The recommendation is that we continue to offer Anheuser Busch products. 
A motion was made by Alderman Fleming and seconded by Alderman McDermott to accept the recommendation.  A voice vote was taken with a unanimous affirmative result and the motion passed.

2011 Property Tax Rates:  City Administrator Kuntz said this is done on an annual basis and establishes the property tax rate for 2011 at zero.  It is consistent with the action that the Board has taken every year since 1987, when the tax was rolled back from 27 cents at that time to zero. 
A motion was made by Alderman Finley and seconded by Alderman McDermott to draft the legislation as stated.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Richland Meadows Speed Limit:  City Administrator Kuntz said it is the recommendation by Police Chief Schicker to return the speed limit to 25 mph, which is consistent with all of the residential streets. 

Alderman Boerner asked if the enforcement on Richland Meadows has been less than on other streets.  Police Chief Schicker said no and that 69 surveys were conducted on this roadway, averaging 31 minutes per survey.  Of the 69 surveys, 7 speeding tickets were written and issued 3 warnings.  This does not include stop sign surveys at the same location. 

Alderman Boerner asked about the average speed.  Police Chief Schicker said that the average speed is 27.7 mph or less; which means that 85% of the motorists are within the compliance speed limit.  When traffic studies are done, they look at the 85th percentile for establishing a speed limit for any roadway.  With this information, it would be consistent with the previous speed limit of 25 mph.  City Engineer Kramer said that 85% of the motorists are not going to excessively speed on a roadway that won’t allow it. 

Alderman Boerner said that this information suggests that 1 out of 6 vehicles, or 1,200 motorists were driving over 28 miles per hour.  Police Chief Schicker said that the summary is provided based on the information retrieved from the report of the traffic counter.  There were 10 violators out of 69 surveys. 

Alderman Fleming said that the speed limit was reduced to 20 mph because the residents addressed the Board and said that speeding was an issue in their neighborhood and the lower speed limit would make it more safe.  The point of view of the driver and how safe they feel driving at a particular speed isn’t as important as the person who loves on that street and how they feel about it.  The driver may feel perfectly fine driving on Richland Meadows at 25 mph, but the people living there didn’t like it.  There were enough of the residents that came to the Board meeting and asked that the speed limit be reduced to 20 mph.  He said he does not see a reason to change it back to 25 mph.  He believes that consistency, in this case, is not a reason to change it back to 25 mph, and the residents have not requested this.  Alderman Boerner said that he is in favor of keeping the speed at 20 mph.  

Alderman McDermott asked if leaving the speed limit at 20 mph will reduce any federal funding for repairs.  City Engineer Kramer said there is no federal funding for residential subdivisions. 

Alderman Terbrock said that when the residents requested lowering the speed limit, he was in favor of doing this and still is in favor of keeping the 20 mph speed limit.  He said that Richland Meadows is different from any other street in Ballwin.  This is what they want and we should let them have it.  It has been proven that it doesn’t work, but the residents want it and should be able to keep the 20 mph speed limit. 

Mayor Pogue asked if there have been any complaints from the residents regarding speeding since the speed limit was lowered to 20?  Police Chief Schicker said no.  There were no complaints in 2010. 

A motion was made by Alderman Boerner and seconded by Alderman Mellow to draft legislation to permanently adopt the 20 mph speed limit on Richland Meadows.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Police Certification:  City Administrator Kuntz said this is regarding the certification for a program called CALEA, which is the national police certification process that is based on a template of federal guidelines that provides a level of consistency.  The cost benefit for the pursuit of this certification and the continued renewal to retain that certification is not justified for this agency at this particular time.  Police Chief Schicker recommended withdrawing from CALEA and proceed with the Missouri Police Chiefs Accreditation Program.

A motion was made by Alderman Fleming and seconded by Alderman Terbrock to accept the recommendation.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Semi-annual Statement of Revenue and Expenditures:  City Administrator Kuntz said this report is prepared and published twice each year.  Alderman Boerner asked how are the numbers generated?  Finance Officer Loehr said that this is a cash basis.  It is the revenues and expenditures that occurred from July 1 to December 31, 2010. 

A motion was made by Alderman Boerner and seconded by Alderman McDermott to accept the report.  A voice vote was taken with a unanimous affirmative result and the motion passed.

STAFF REPORTS
None.

CITY ATTORNEY’S REPORT

City Attorney Jones said on December 23, in the Schnucks Development case, the Circuit Court of St. Louis County ruled in favor of the City of Ballwin and determined that the decision of the Board of Aldermen was not arbitrary or unreasonable.  The zoning ordinances are permitted to stand as adopted.  The plaintiffs have 30 days to file a post-trial motion.  If they don’t do this, the decision will become final on January 22 and an appeal would have to be filed 10 days after that, which would be February 1.

Mr. Greenburg’s petition for a writ of habeas corpus in the Supreme Court was denied.  The last pending piece of litigation is the appeal that he took from the November 5 order.  He said he is waiting for Mr. Greenburg to file a legal file with the court.  His appeal became final on December 5.  The legal file is due on February 4. 

In the sewer lateral case, he said we received a brief on December 27.  The consortium of cities held a meeting in the County Counselor’s office and divided up responsibilities for the brief.  The brief will be drafted in four parts by different attorneys, and then combined to form one brief.  It will allow input of all the cities involved.  The cities have filed a request for an additional 15 days to file the brief, which will be due on February 10.  The court of appeals will most likely grant the motion. 

City Attorney Jones said the draft ordinance regarding door-to-door solicitation will be presented at the next meeting. 

ALDERMANIC COMMENTS

Pervious Pavement:  Alderman Terbrock requested a meeting of the Public Works Committee to discuss pervious pavement. 

Great Streets:  Alderman McDermott said that the owners of Schrader Funeral Home and Izzac property attended a meeting regarding the development of the Red Lobster property.  They were happy that they were informed of development to take place.  There was a good discussion among the property owners.  They are happy that we took the initiative as a city to encourage them to talk to each other. 

Funding of Appeal:  Alderman Markland said that he was told that there were over 800 individuals that contributed to the Schnucks court case.  He said we spent tens of thousands of dollars of their money to oppose.  At this time, we don’t know if there is going to be an appeal to the decision. 

A motion was made by Alderman Markland that if an appeal should be made at a future date, that the city not spend any more of the citizens’ money to fight them, and instead allow the co-defendant, Schnucks, to bare those costs.  There was no second to the motion.  The motion died for lack of a second. 

Planning & Zoning Meeting:  Alderman Fleming said the meeting was regarding the Red Lobster site re-development.  He said that it was hoped that at the next meeting three major issues would be discussed:  1) access to their site and the surrounding sites;  2) drainage,  3) general appearance items. 

Finance & Administration Committee meeting:  Alderman Fleming said the recommendations that were suggested will be included in the Minutes.  It was suggested that the best place to start deciding how to spend the additional street supplement can be discussed at the Public Works Committee meeting. 

Snow removal:  Alderman Leahy thanked the Public Works Department for the good job they did on snow removal on Christmas Eve. 

Storm debris:  Alderman Leahy thanked the Parks & Recreation Department for the good job of cleaning up the trees that were damaged in the December 31 storm. 

CERT Training:  Alderman Finley asked if the CERT training could be tailored to Ballwin specifically.  Alderman McDermott said that the class is federally sponsored through FEMA.  The classes are usually on Friday, Saturday, and Sunday.  It is slightly tailored to the area. 

Funding of Appeal:  Alderman Terbrock said that Alderman Markland made a motion for us to not continue funding any appeals that come along in the Schnuck’s development case.  He asked the City Attorney if this is possible.  City Attorney Jones said that the City of Ballwin would have to file a brief.  Who is paid to do it would be a matter of discussion by this Board.  The City of Ballwin is the entity that was sued by the plaintiffs.  Schnuck’s Markets, Inc. intervened in the case.  The relief that was requested by the plaintiffs could only be given against the City of Ballwin, not against Schnuck’s.  Ballwin would have to respond to the brief.  He said that the insurance company for the City of Ballwin has been paying the bills that were incurred after February, 2010.  There will be no further costs to the City of Ballwin. 

Meeting:  Alderman Terbrock referred to the meeting that Alderman McDermott attended regarding the Red Lobster property and Schrader Funeral Home.  He said that he did not know there was going to be such a meeting.  Even though the result of the meeting was positive, in the past it was determined that individual meetings of this nature should be made known to the rest of the Board.  Mayor Pogue said that this meeting was held at the Government Center with Assistant City Administrator Aiken present.  In the past, the meeting that was discouraged with an individual and the property owner.  City Administrator Kuntz said that we do not have a Great Streets policy.  The purpose was not to express any position of the Board.  It was only to get the property owners to talk to each other.  Alderman Terbrock said that it is not his intent to criticize Alderman McDermott’s intentions regarding this meeting. 

Closed Meetings:  Alderman Boerner asked if there are any closed meeting discussions that could cause a liability for the city by talking to people about some of the issues.  City Attorney Jones said that the closed meetings, as an exception to the Sunshine Law, are regarding the city’s interest in real estate.  No one loses their right as a citizen to communicate with any petitioner.  It cannot be presented as the opinion of the City or the Board of Aldermen.  When a discussion does not involve city property, it wouldn’t be proper to have a closed session discussion.  Mayor Pogue said that in meetings such as the one Alderman McDermott attended, the property owners were informed that this was not for the purpose of expressing the Board’s opinions.  It was strictly to bring the property owners together to discuss the issues themselves. 

Adjourn:  A motion was made by Alderman Fleming and seconded by Alderman Leahy to adjourn.  The motion passed unanimously and the meeting was adjourned at 8:59 p.m.

TIM POGUE, MAYOR

ATTEST: ROBERT A. KUNTZ, CITY ADMINISTRATOR

MC