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Board of Aldermen Meeting Agendas & Minutes

 

Every effort is made to ensure that the Agendas and Minutes provided on this and subsequent pages is timely and correct; however, users should keep in mind that this information is provided only as a public convenience. In any case where legal reliance on information is required, the official records of the City of Ballwin should be consulted.

The Board of Aldermen meet on the second and fourth Mondays of each month at 7 p.m. in the Board Room of the Ballwin Government Center, 1 Government Ctr. Schedule and place subject to change. Meetings are open to the public. All citizens are urged to attend.

Board of Aldermen Meeting

Meeting Agenda

CITY OF BALLWIN
BOARD OF ALDERMEN MEETING
January 14, 2013 - 7:00 p.m.
300 Park Drive, Donald “Red” Loehr Police & Court Center 

www.ballwin.mo.us

1. Call to Order

2. Roll Call

3. Pledge of Allegiance

4. Approval of Minutes: December 10, 2012 Board of Aldermen meeting

5. Proclamation: Ryan Berry’s Eagle Scout Achievement

6. Pending Issues: None.

7. Citizen Comments

8. Public Hearing: None.

New Business:

9. Legislation Next Ordinance # 13-01

     A. Bill # 3770 ECC Radio Agreement
     B. Bill # 3771 Essen Place Subdivision
     C. Bill # 3772 Hertz – Special Use Exception

10. Consent Items 

     A. Backhoe Repairs
     B. Street Acceptance – Tall Timbers
     C. Financial Report
     D. Check Signatories

11. Mayor’s Report

12. City Administrator’s Report 

     A. Police Cars
     B. Clarkson Crossing Subdivision Parking

13. Staff Reports 

     A. Personnel Manual Update

14. City Attorney’s Report 

     A. Legal Issues

15. Aldermanic Comments 

16. Adjourn

NOTE: Due to ongoing City business, all meeting agendas should be considered tentative. Additional issues may be introduced during the course of the meeting.

CLOSED SESSION: Pursuant to Section 610.022 RSMo., The Board of Aldermen could, at any time during the meeting, vote to close the public meeting and move to closed session to discuss matters relating to litigation, legal actions, and/or communications from the City Attorney, as provided under Section 610.021(1) RSMo., and/or personnel matters under Section 610.021(13) RSMo., and/or employee matters under Section 610.021(3) RSMo., and/or real estate matters under Section 610.021(2) or other matters as permitted by Chapter 610. 


BOARD OF ALDERMEN MEETING BRIEFS
January 14, 2013 7:00 p.m.
300 Park Drive – Donald “Red” Loehr Police & Court Center

www.ballwin.mo.us

This is a condensed summary of the action items which will be considered at tonight’s Board Meeting. It has been prepared to give you a greater understanding of the issues which will be discussed. If you have comments, questions, or concerns, please call (636) 227-8580. If you would like to know more about the programs or services which we provide, please dial our 24-Hour Information Line (636) 207-2300, or visit us on the web at www.ballwin.mo.us.

CITIZEN COMMENTS

If you wish to address the Board during this meeting, please fill out the “Citizen Comments: To Address the Board of Aldermen” form and place it in the tray on the table in the center of the Board Room before the meeting begins. Topics of a global nature, such as requests for ballot initiative endorsements, should be submitted in writing to the City Clerk at 14811 Manchester Road, prior to the meeting.

Please limit your comments to 3 minutes as an individual and 5 minutes representing a group. Please avoid repeating comments others have already made.

Thank you for your cooperation.

MINUTES

The Minutes from the December 10, 2012 Board of Aldermen meeting are submitted for approval.

PROCLAMATION 

This recognizes Ryan Berry for his Eagle Scout achievement.

EMERGENCY COMMUNICATIONS (Bill # 3770) 

All participating agencies are required to execute this agreement to move forward with the plan for a comprehensive emergency communication system upgrade.

ESSEN PLACE SUBDIVISION (Bill # 3771) 

A petition has been submitted to change the zoning of the 7-acre parcel at 520 Kehrs Mill Road from R-1/C-1 to R-4 to allow the construction of a 20-lot single-family subdivision.

HERTZ SPECIAL USE EXCEPTION (Bill # 3772) 

Hertz Auto Rental has applied for a Special Use Exception for the rental and outdoor storage of motor vehicles and front yard parking at 14703 Manchester Road.

BACKHOE REPAIRS 

As required by our purchasing policy, Board approval is required to authorize this expenditure

STREET ACCEPTANCE – TALL TIMBERS 

A motion is requested to draft legislation to accept this street for public maintenance.

FINANCIAL REPORT- SEMI-ANNUAL STATEMENT 

This is regarding the year-end financial report, and will be published in a newspaper of general circulation.

CHECK SIGNATORIES 

Annual confirmation of our authorized signatory designations is once again required.

POLICE CARS 

It is recommended that 5 Chevrolet Impalas be purchased from Don Brown Chevrolet at a bid cost of $104,550 (with no trade) under State contract.

CLARKSON CROSSING SUBDIVISION PARKING 

Based on historical data, it was determined that only 8 summonses were issued over the past 3 years, but all violations occurred while school was in session. Further direction is requested.

PERSONNEL MANUAL UPDATE 

The purpose of this exercise was to insure consistency with internal policies and employment practices, as well as compliance with current State and Federal mandates.

LEGAL ISSUES 

City Attorney Jones will provide a brief update on pending legal issues.

Meeting Minutes

MINUTES OF THE BOARD OF ALDERMEN MEETING
CITY OF BALLWIN – 300 PARK DRIVE
January 14, 2013

The meeting was called to order by Mayor Pogue at 7:00 p.m.

             PRESENT                                        ABSENT
MAYOR TIM POGUE 
ALDERMAN JIMMY TERBROCK 
ALDERMAN MICHAEL FINLEY 
ALDERMAN MARK HARDER 
ALDERMAN SHAMED DOGAN 
ALDERMAN FRANK FLEMING 
ALDERMAN JIM LEAHY 
ALDERMAN RICHARD BOERNER 
ALDERMAN KATHY KERLAGON 
CITY ADMINISTRATOR ROBERT KUNTZ 
CITY ATTORNEY ROBERT E. JONES 

The Pledge of Allegiance was given.

MINUTES

The Minutes of the December 10, 2012 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Fleming and seconded by Alderman Leahy to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion passed.

PRESENTATION
A Proclamation was presented to Ryan Berry for his outstanding Eagle Scout achievements.

PENDING ISSUES
None.

CITIZEN COMMENTS
Lynn Goetz, 504 Kenilworth:  Mr. Goetz said the recent shooting at the theater in Colorado was the only theater within 20 miles of the shooter that was a gun-free zone.  Since 1951, only one mass shooting has been done outside of a gun-free restricted zone.  He said a gun-free zone is a dangerous place to be.  He said there is a sign on the front door of this building that says “No Guns Allowed”.  He asked that the sign be removed. 

Donald Brush, 566 Kehrs Mill Road:  Mr. Brush said the proposed building site is next to his property line.  The lots on the Essen property were to be expanded from 6 foot from 6 feet side yards to 8 feet side yards.  He said that McBride seems to think that moving closer to his property line is the easiest to accomplish this.  The R-4 zoning requires a 60-foot setback to the first house.  By opening up the distance between the homes, it no longer is 60 feet.  He asked that the Board not approve decreasing the setback to less than 60 feet. 


PUBLIC HEARINGS
None.

NEW BUSINESS

LEGISLATION

BILL # 3770 - AN ORDINANCE AUTHORIZING A USER AGREEMENT WITH THE ST. LOUIS COUNTY EMERGENCY COMMUNICATIONS COMMISSION FOR SUBSCRIBER RADIOS FOR AN INTEROPERABLE RADIO SYSTEM FOR THE BALLWIN PUBLIC SAFETY DEPARTMENTS.

A motion was made by Alderman Fleming and seconded by Alderman Leahy for a first reading of Bill No. 3770.   A voice vote was taken with a unanimous affirmative result, the motion passed and Bill No. 3770 was read for the first time.

Alderman Finley asked is the memo from St. Louis County regarding county-wide radio system adopted May 10, 2012, a template of what we are being asked to adopt now?  City Attorney Jones said the memo is incorporated by reference into the agreement. 

Alderman Harder asked about paragraph 4, the cost of conversion of GPS, etc., will be the responsibility of the individual user or agencies which would be the City.  Is there an estimate of how much that would be?  Police Chief Schicker said at this point, no, because it’s still in the building stage and will vary from agency to agency, depending on the type of CAD system that they have. 

Mayor Pogue asked for a brief overview of what entering into this agreement will accomplish.  Police Chief Schicker said, this is the first phase of implementing the interoperable system.  It allows us to move forward with the ECC and the distribution of mobile and portable radios.  The second phase will be the piece apps radio systems which will be our consoles and the other piece apps for both fire and police throughout the County. 

Alderman Finley asked about paragraph 6, property and casualty insurance.  He asked if we currently have this.  City Administrator Kuntz said that we have building and content insurance.  It’s an inventory list that is provided on an annual audit basis as part of our overall insurance coverage.  It’s ours to insure and maintain. 

Alderman Finley asked about paragraph 7d infrastructure.  He asked does the ECC have insurance to cover itself?  Police Chief Schicker said that the ECC is the County which it is covered under its insurance.  City Administrator Kuntz said that they are accepting the responsibility for this aspect of the data, as we are accepting responsibility for the infrastructure equipment that’s provided to each of the agencies.  They will maintain the master data infrastructure that’s necessary to support the system. 

Alderman Finley asked about paragraph 8, to the extent that ECC has sufficient funds available, and it looks like if the ECC does not have sufficient funds, they are supposed to meet with us to go over the costs.  City Attorney Jones said that it’s typical for any agreement with a local government agency, like the City of Ballwin for the County.  No Board can obligate a future Board, so, we can’t promise that it’s going to be budgeted every year, or if the funds are budgeted, will be received on the revenue end to be able to continue funding the program beyond a particular period of time.  They are giving us the radios.  They are swapping out our existing radios and building out the emergency communications system with 25 new tower sites throughout the St. Louis County area and on the fringe with neighboring counties, to implement the ballot initiative that the voters passed in 2009.  This is the first hardware step for interoperable radio systems.  We would like them to continue paying as it goes forward, but once the radios are received, they’ll do it as long as they can.  This is a 5-year agreement. 

Mayor Pogue said this is a voter referendum that had passed enabling 1/10 of a percent sales tax.  It’s a statutory commission. 

Alderman Finley asked about paragraph 16, funding out.  Does this mean that we could defund our portion?  City Administrator Kuntz said this is restating what is true of any contract obligation.  It’s subject to annual appropriation of funds.  City Attorney Jones said we can unilaterally terminate the agreement. 

Alderman Harder asked if this is approved at this meeting, what is the timeframe until the system is fully operational?  Police Chief Schicker said they haven’t provided that information as yet.  They asked for an extension that goes into 2014.  They do not feel that they can get the system fully and completely on line by the federal mandate, which is December 31, 2013.  City Administrator Kuntz said that they are going to move forward, it just won’t be completed.  Police Chief Schicker said that to fully implement all aspects of the system, engineering and construction, they feel that they will be cutting it short, so they have already made an extension request.  We should at least have the radios in the cars by mid-summer.  The plan initially was to put the new radios in the racks and place the current radio to the side.  When they looked at the cost, they decided that the best method was to put a dual band radio in the cars. 

Alderman Harder asked about trade in value.  Police Chief Schicker said that we are keeping the old equipment.  The value is diminished because of moving to the Federal mandate.  There may be some rural communities that can use the equipment. 

Alderman Dogan asked if the radios we are requesting are the same as specified in the agreement.  Police Chief Schicker said yes.  The radios will be universal across St. Louis County.  The features they are referring to would be the GPS cost.  We do not need anything more than what is being offered. 

A motion was made by Alderman Fleming and seconded by Alderman Leahy for a second reading of Bill No. 3770.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3770 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3770 with the following results: 
Ayes – Fleming, Leahy, Kerlagon, Harder Boerner, Dogan, Finley, Terbrock.  Nays – None.  Bill No. 3770 was approved and became Ordinance No. 13-01.

BILL # 3771 - AN ORDINANCE APPROVING A ZONING CHANGE FROM C-1 COMMERCIAL AND R-1 SINGLE FAMILY TO R-4 PLANNED MULTIPLE DWELLING DISTRICT FOR 520 KEHRS MILL ROAD.

A motion was made by Alderman Leahy and seconded by Alderman Boerner for a first reading of Bill No. 3771.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3771 was read for the first time.

Jeannie Aumiller with McBride & Sons, Jeff Schindler, President of McBride & Sons, and Mike Faulkner, with Sterling Surveying and Engineering, who did the engineering layout on the site made a presentation to the Board. 

Ms. Aumiller said this is a triangular piece of property behind the Target store along Kehrs Mill Road.  It is a little over 7 acres and currently has two zoning classifications, C-1 which is adjacent to Target, and the portion adjacent to Kehrs Mill Road is R-1.  It is partially commercial and partially residential at this time.  She said they want to create a neighborhood with an emphasis on common ground and community features, hopefully preserving some of the tree border that exists in the community.  They met with surrounding property owners and received very good feedback at the meeting.  The residents were happy with the type of architecture and housing that is proposed.  This is to be single family detached housing with traditional styles.  The plan is for the same type of houses that were constructed at Magnolia Trace.  There is a mix of ranch style and two-story homes with 2-car garages.  The site plan shows 20 detached homes with a cul-de-sac.  The site plan received unanimous approval from the Planning & Zoning Commission earlier this month.  There is 69% open space.  This is an upscale produce line of homes. 

The Planning Commission suggested, and McBride has agreed, to install an open fence along Kehrs Mill.  This would not be a privacy fence, but an open rail ornamental fence so that landscaping could be seen from Kehrs Mill.  Irrigation has been agreed to along Kehrs Mill in the common ground. 

The Planning Commission requested larger side yard setbacks.  The initial proposal was for 6-foot setbacks.  McBride agreed to do 8-foot side yard setbacks and the plans have been redesigned accordingly. 

Ms. Aumiller said that McBride is requesting R-4 zoning, which requires a 60-foot setback from adjoining single family uses and rights-of-way.  There is a place of encroachment adjacent to the property of the owner who spoke under Citizen Comments.  Currently under the R-1zoning, McBride would only be required to do a 10-foot side yard setback from his lot line to the new house.  Because of the R-4 zoning request, they had to do a 60-foot sideward set back in that area.  Should the R-4 zoning be granted, a variance would be needed for this. 

Ms. Aumiller said the landscape plan will be provided as requested by the Planning & Zoning Commission. 

The fourth condition was to provide a 5-foot wide ADA compliant sidewalk within a 10-foot wide dedicated easement in the southwest corner of the development.  She said it’s McBride’s understanding that if feasible, the Planning Commission would like to see a sidewalk connection to the commercial area.  Doing an ADA compliant sidewalk in the steep grade would be difficult.  It will be considered in further research. 

Ms. Aumiller said that some of the nearby residents are concerned about cut-through pedestrian traffic.  If an additional pathway is installed, it may encourage more people to cut through the properties. 

The condition #5 is to provide irrigation in all common ground.  Ms. Aumiller said that she believes that the condition by the Planning & Zoning Commission was to provide irrigation in the property along Kehrs Mill.  She said it doesn’t make sense to irrigate the other portions of common ground.  If the plan can be changed to provide irrigation along Kehrs Mill, McBride will be in agreement with this. 

Ms. Aumiller said if the Board wants to approve the rezoning, conditioned upon the granting of the variance, she can understand this position.  There is no variance needed until the site is zoned R-4. 

City Attorney Jones said he agrees with the petitioner that a variance would not be necessary unless the property is rezoned.  It makes more sense to go ahead and consider this matter for approval at this meeting and then send it to the Board of Adjustment.  If they decided to eliminate a house, the petitioner wouldn’t have to go to the Board of Adjustment.  The rezoning should be handled first. 

Mayor Pogue said that this is not the site plan that was approved and given a positive recommendation by Planning & Zoning.  There was discussion about the 60-foot setback.  Does this meet the 60-foot setback from the street?  Ms. Aumiller said it does meet this requirement.  The only encroachment is along the northern property line. 

Ms. Aumiller said in addition to going to the Board of Adjustment for the variance, they also have to go back to the Planning & Zoning Commission for approval of the final development plan.  They will have another opportunity to look at the plan.  The only difference the Planning Commission hasn’t seen is the encroachment of 17 feet into the 60-foot setback.  All the other 60-foot setbacks are included, including the ones from Kehrs Mill.

Mayor Pogue said this was a big discussion at the Planning & Zoning meeting.  There is now an encroachment along the 60-foot setback by more than 25%.  If this would have been presented to Planning & Zoning, there is a chance it might not have gotten a positive recommendation.  A positive recommendation on the first look could change the voting requirements of the Board of Aldermen for approval.  He said it was not mentioned that McBride would encroach the 60-foot setback by that much.  Mayor Pogue said he recommends going back to Planning & Zoning for review with this significant change.  Regarding the irrigation, he said it is his recollection that this included the common ground.  Ms. Aumiller said it is her recollection that this was along Kehrs Mill.  Mayor Pogue said he made the recommendation to Planning & Zoning that the common ground be landscaped including irrigation.  Ms. Aumiller said this is inconsistent with what was discussed with Planning & Zoning.  Mayor Pogue said there seems to be lots of questions over what was accepted and voted upon at the Planning & Zoning meeting. 

Alderman Leahy said that the line along Kehrs Mill should be irrigated, but not the rest of the common ground.  Alderman Boerner said that he attended the Planning & Zoning meeting and it was not clear to him that the common ground was included in the irrigation.  City Attorney Jones said that his notes from the Planning & Zoning meeting shows the irrigation was to be along Kehrs Mill Road.  Assistant City Administrator Aiken said it is his understanding that this included all of the common ground.  Alderman Harder said that part of the common ground and along Kehrs Mill should be irrigated. 

Mayor Pogue asked if vertical walls could be used for the detention area rather than the grassy slope.  Mike Faulkner, with Sterling Surveying and Engineering, said this was discussed.  MSD requires 30 feet from the high water elevation of the detention to the closest building.  He is limited to how high and how much water can be put in the area.  By doing that, there has to be a 30-foot setback, which is the reason why the basin and water quality was moved. 

Ms. Aumiller said that with the spring selling season approaching, going back to the Planning Commission at this time will postpone meeting this timeframe. 

Alderman Terbrock asked about plans for the water quality.  City Engineer Kramer said the new standard is that there is a forebay to get some of the junk out of the water before it goes to the detention basin. 

Alderman Fleming said Bill 3771 says that the zoning is approved based on the five items.  The five items are the sticking points.  Ms. Aumiller said a month will be lost in the process if the bill is not approved now.  The five items, with two minor modifications, is agreeable.

Mayor Pogue said that he would be very reluctant to remove section 1 for approval without being reviewed by Planning & Zoning.  If the whole section is removed, it is criteria that Planning & Zoning be given an opportunity to participate in the review. 

Alderman Fleming said that McBride is asking this Board to approve the zoning portion.  In order to do this, Section 1 would have to be removed that deals with the five points.  Mayor Pogue said this will not make sense.  City Attorney Jones said the preliminary site plan sets the stage.  When the Board of Aldermen considers this again on the final development plan, you can’t approve something that’s not substantially the same as the preliminary development.  City Administrator Kuntz said if all of the items were taken out, it wouldn’t be the same. 

Assistant City Administrator Aiken said he does not see how the Board can approve a plan that violates the Zoning Ordinance.  The site development plan is part of the zoning change request.  If they don’t get the variance, you have the zoning authorized and no development plan.  The Zoning Ordinance specifically requires the development plan be approved with the zoning.  He doesn’t believe that they can be separated.  The Board would be taking a chance by approving it on the contingency because that leaves the issue open.  If the Board of Adjustment doesn’t grant the variance, you’ve granted the zoning, but no development plan.  He said the irrigation of the back common ground area is important.  If the sidewalk is to later be extended down to the adjoining right-of-way to connect with Target, if it’s not ADA compliant, there’s a question of whether it should be built.

Alderman Boerner asked, “If you were to advise the builders, the developer, to do, at the Planning & Zoning meeting, that they are saying what do we do next, what would you have advised them to do?”  Assistant City Administrator Aiken said “If I had known that this circumstance is a problem with the R-4 60 foot setback, I would have recommended that the Planning & Zoning Commission not approve it.  It’s in violation of the R-4 district, and let them go to the Board of Adjustment to get their variance.  If they get their variance and come back to the Planning Commission, if the Commission is happy with everything else, it would then come back to the Board of Aldermen for the final decision.  The problem is that the Planning Commission didn’t know that McBride had this problem.” 

Alderman Boerner asked would the risk be greater than eliminating one of the homes?  Ms. Aumiller said if you approve it with the condition of the ADA sidewalk, we’ll be okay with that and we could come back to alter that condition.  From a technical perspective, it doesn’t seem that a variance to the R-4 district can be granted when the property isn’t zoned R-4 already. 

Ms. Aumiller said that McBride doesn’t have anything to apply to the variance from.  Assistant City Administrator Aiken said, this is why it should go back to the Planning Commission.  If there’s a negative finding on the basis of the non-compliance, the negative finding can be appealed to the Board of Adjustment.  If the variance is granted, it goes back to Planning & Zoning, and then potentially on to the Board of Aldermen.  Ms. Aumiller said she already has a unanimous recommendation of the Planning Commission.  Mayor Pogue said not with this plan.  She said the only modification to the plan is encroachment into the common ground and that was discussed that the area would probably be change at the Planning Commission.  She said there is only an encroachment of 17 feet.  City Attorney Jones said that the R-4 ordinance does require the application for the rezoning to include the preliminary site plan showing all the buildings and dimensions.  That’s not what Planning & Zoning looked at.  She said the Board is empowered to make changes to the Planning Commission’s plan.  City Attorney Jones said it can’t without the variance from the Board of Adjustment. 

City Attorney Jones said the first paragraph of Section 1 could be altered to state that an 8-foot side yard shall be provided without encroachment into the 60-foot setback from adjoining residential property. 

Alderman Terbrock said he would like to see irrigation in the upper side of the rear common ground area.  Ms. Aumiller said the future homeowners will have to pay the charges for irrigation of other areas of common ground.  These are maintenance costs and water charges.  Alderman Terbrock said the homeowners will not be happy when they see dead grass in the common ground areas.  Ms. Aumiller said they rarely irrigate common ground.  Alderman Leahy said that if the irrigation is installed, the homeowner’s association can decide to turn it off so that no one has to pay to water the common ground. 

Alderman Fleming said the staff report states that it is recommended that the sidewalk through the common ground area be taken to the right-of-way.  It was agreed that a pedestrian access would make sense.  Since residents have complained about pedestrians cutting through their properties, it doesn’t make good sense to create another cut-through area.  This would come out at the loading dock behind Target. 

A motion was made by Alderman Fleming and seconded by Alderman Boerner to amend the language in Section 1, point #2 to include the phrase “the builder shall not encroach upon the 60-foot setback of adjacent residential properties, as suggested by the City Attorney.  A voice vote was taken with a unanimous affirmative result and the motion passed.

A motion was made by Alderman Fleming and seconded by Alderman Boerner that in Section 1.5 to provide irrigation in all planted landscape areas within the common ground.  A voice vote was taken with a unanimous affirmative result and the motion passed.

A motion was made by Alderman Boerner to eliminate the requirement for the sidewalk at the southwest corner.  Alderman Fleming said he thinks it should be kept for the reason that Assistant City Administrator Aiken thinks it can be done and is an opportunity.  This will be keeping with good consistent building practice. 

Alderman Terbrock said the easement at least should be provided for future use.  City Attorney Jones said that paragraph 4 could be amended to provide an easement, and if feasible, build a sidewalk.  City Administrator Kuntz said to construct the sidewalk, or if not ADA feasible, at least provide the easement.  The goal is not to take the second choice.  The goal is to get the sidewalk constructed. 

Alderman Boerner said he is in agreement with the amendment, and withdrew the motion. 

Mayor Pogue suggested that if feasible, to construct an ADA compliant sidewalk, if not feasible, to provide an easement for future construction. 

A motion was made by Alderman Terbrock and seconded by Alderman Leahy to construct a 5-foot wide ADA compliant sidewalk connecting the interior roadway with the adjoining right-of-way at the southwest corner of the site within a publically dedicated 10-foot wide right-of-way.  A voice vote was taken with a unanimous affirmative result and the motion passed.

City Attorney Jones said that they will have to go to Planning & Zoning for the final plan approval, but not to the Board of Adjustment for a variance.  A variance is no longer needed. 

A motion was made by Alderman Terbrock and seconded by Alderman Leahy for a second reading of Bill No. 3771, as amended.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3771 was read for the second time. 

A roll call was taken for passage and approval of Bill No. 3771 with the following results:  Ayes – Terbrock, Leahy, Boerner, Kerlagon, Dogan, Fleming, Harder, Finley.  Nays – None.  Bill No. 3771 was approved and became Ordinance No. 13-02.

BILL # 3772 - AN ORDINANCE GRANTING A SPECIAL USE EXCEPTION TO HERTZ CORP. FOR OPERATION OF AN AUTO RENTAL FACILITY AT 14703 MANCHESTER ROAD.

A motion was made by Alderman Leahy and seconded by Alderman Fleming for a first reading of Bill No. 3772.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3772 was read for the first time.

Victoria Wilson, representative for Hertz Corporation, was present to answer questions from the Board, of which there were none. 

A motion was made by Alderman Fleming and seconded by Alderman Leahy for a second reading of Bill No. 3772.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3772 was read for the second time.

Findings:  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 is absent.

A roll call was taken for passage and approval of Bill No. 3772 with the following results: 
Ayes – Fleming, Leahy, Kerlagon, Finley, Harder, Boerner, Terbrock, Dogan.  Nays – None.  Bill No. 3772 was approved and became Ordinance No. 13-03.

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. Backhoe Repairs   (Board approval is required to authorize this expenditure.)
B. Street Acceptance – Tall Timbers   (Board approval to draft legislation for public maintenance)
C. Financial Report   (This year-end financial report will be published in a newspaper of general circulation)
D. Check Signatories   (Annual confirmation designations is required)

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

MAYOR’S REPORT
Wendy’s will open to the public at 10:00 a.m. on Tuesday, January 15.  They had a special event this evening with Ballwin Elementary School in which they gave the school a $500 donation and a special dinner for the 5th graders and families at no cost.  This was also a fund raiser event for the school. 

Ballwin Athletic Association International Baseball Tournament for 2013:  A motion was made by Alderman Kerlagon and seconded by Alderman Terbrock to enter into an agreement with the Ballwin Athletic Association to co-host the International Baseball Tournament in 2013.  A voice vote was taken with a unanimous affirmative result and the motion passed.

CITY ADMINISTRATOR’S REPORT

Professional Service Agreement:  City Administrator Kuntz said at the Board Retreat on January 12, Ellisville Councilman Matt Pirrello asked that the Board consider a professional service agreement with a law firm to draft and prepare legislation for the State representatives to consider enabling representation for us to form a district and to be able to fund it.  This is a no-fee proposal and will be provided for consideration on the agenda at the next Board meeting.  The Mayor of Town & Country, Mr. Dalton, needs to start working on the legislation because the session just opened in January.  This will retain his services to provide the draft, which will then come back to the Board for approval before it is submitted as a model for enabling legislation.  Mayor Pogue said that the cities will have to approve it to move on for legislative submission. 

Alderman Boerner said if there are any appointments of positions, the Board approves that.  It doesn’t require Board approval for the Mayor to appoint a representative to that district Board.  Mayor Pogue said that any appointments made are represented by the City.  City Administrator Kuntz said this will be the same procedure that we do for everything.  Each city will have a specified number of seats.  When there’s a vacancy, the Mayor would make an announcement of the position and ask for nominations for Board approval.  Mr. Dalton will prepare model legislation for consideration by the state legislature that will spell out the powers and duties of a district.  The Boards of the three cities will be allowed to review this before it is submitted to the State.

Alderman Terbrock asked for clarification of the purpose of the legislation.  City Attorney Jones said this will be enabling legislation to set up a district that may or may not have taxing authority, similar to the Great Rivers Greenway District.  The form of any tax is still under discussion.  City Administrator Kuntz said it may not be in the legislation.  It may just say a tax to be determined by vote of the public.  It would be a special purpose district. 

Alderman Boerner asked if this is going to be a corporation, a legal entity.  It should then have by-laws and articles of incorporation.  Alderman Terbrock said he is not in favor of any new taxing districts.  He said this could grow into a monster.  Mayor Pogue said he has raised this question many times at the Great Streets meetings, as to if this is a necessity.  That’s the reason for the impact study that was discussed, to break it down to see what the maintenance fees will be in the future. 

Alderman Terbrock said he thinks that after the first pot of money is spent, it’s going to be funded by whoever wants to be involved.  At that point, there will be tax money piling up with discussions about what to do with it.  He said he is not in favor of this at all.  If this can be done without forming a tax district, he would be in favor of this. 

City Administrator Kuntz said it was his understanding to create a district, but one of the spinoffs was that based on voter approval and a local initiative, question could be raised if the need was justified by each of the bodies to consider raising funds.  He said he isn’t sure that we need to raise a lot of money and then figure out how it will be spent.  It’s better to have a district that has a life that transcends each aldermanic race and perpetuates the economic development of the entire corridor.  This could be headed by the Chamber of Commerce with the cities as supporting members.  He said we should not sign a blank check that will provide a tax.  It would have to be voted on by the public.  If you don’t know how the money will be spent, people won’t approve it.  Alderman Terbrock said that this can become a waste of tax money. 

City Administrator Kuntz said, if the goal is to create a mechanism, a structure and a district that concentrates on the priority of promoting and developing the Manchester Road corridor, that transcends one city and incorporates three cities, then this is what needs to be done.  He said he thinks this is all that is being asked for at this time.  Alderman Harder said we could fund it ourselves for a number of years until or if the need arises.

Mayor Pogue said the legislation sets up the overlay district and will enable us to get a recommending body, like a board of governors, overlooking this and sending recommendations to the cities.  He said he doesn’t see any reason that the tax is needed at this point.  Alderman Terbrock said that by having it on the record, the door is always open.  At some point, someone will want to use it.  He said he is not in favor of this. 

Alderman Terbrock said he sees this becoming a tax fund that MoDOT figures out certain expenses become our responsibility and not theirs any longer.  This could become a nasty monster that no one ever intended it to be.  He said he is opposed to having a mechanism in place for somebody to start piling tax money into and give someone an avenue to figure out how to get their hands on the money.  Thirty or forty years from now, changes can cause this to happen. 

City Administrator Kuntz said that at the next meeting, he will bring to the Board the authorization to have a lobbyist draft a proposal, subject to Board approval, to submit for enabling legislation. 

Police Cars:  City Administrator Kuntz said this is an annual acquisition purchase.  This will be a State bid award, subject to Board approval.  The recommendation is for five Chevrolet Impalas.  This is a 5 – 6 rotation every year.  Based on the maintenance schedule, cars are kept on an average of 3 years.  This is a 24/7 usage of the cars.  There is no trade in.  Alternate bids would be solicited after delivery to sources for the high bid of the used police vehicles.  By using the 3-year rotation, this caps the annual maintenance costs and maximizes the value to the secondary market for the used police vehicles.  There are 26 police cars in the fleet. 

A motion was made by Alderman Terbrock and seconded by Alderman Boerner to accept the recommendation for the purchase of five police vehicles.  A voice vote was taken with a unanimous affirmative result and the motion passed.

CVS Parking:  This report will be provided at the next meeting regarding the fire lane. 

Clarkson Crossing Subdivision Parking:  City Administrator Kuntz said the summonses were issued during the school year, not during the summer months.  The study was done by the Police Department. 

Alderman Harder said that the residents would like to see this changed.  It worked when there was a problem, but now it is a nuisance.  He told them to get a petition signed by the residents and bring it to the Board meeting.  Most likely, the petition will be presented at the next Board meeting.  The street in question is Westpar. 

STAFF REPORTS

Personnel Manual Update:  City Administrator Kuntz said that the Personnel Manual is a document that includes a variety from initial employment to termination.  No attempt was made to address any substantive issues with this review.  There are no additional benefits or change in any of the employee rights and benefits that are currently preauthorized by the Board.  The review was done for compliance with federal standards, different court changes, procedures and the new collective bargaining that was signed by the Governor.  This was done by a law firm and reviewed by our City Attorney and staff. 

Human Resource Coordinator Morrison said the senior staff has reviewed the Personnel Manual and City Attorney Jones reviewed it.  The safety manual was also reviewed for compliance.  There were parts that were reorganized/rearranged to put into different classifications and some things were eliminated which could tie the city’s hands in certain situations.  Policies were changed to comply with federal and state regulations.  An example is the benefit section.  In the past, we used to list every benefit.  The section was reduced to say that we offer these types of benefits and we reserve the right to change them at any time.  If not, we would have to come to the Board every May or June when the benefits change to change that section of the policy manual.  All of the long-standing policies have stayed the same.  They also cleaned up the language in the sexual harassment section. 

Alderman Harder asked about the number of hours part-time and full-time employees work on page 1 of General Employee Status.  It states that a part-time employee generally works 20 hours or more per week.  A full-time person generally works 8 hours per day and 40 hours per week.  Is there a better clarification of part-time employees?  If someone works 39 hours, they’re not considered full-time.  Ms. Morrison said the City has always gone by 40 hours and 2,080 hours in a year as the definition of full time.  Half of that amount is part-time.  Those are the two different clarifications as far as individuals who can earn paid leave benefits. 

City Administrator Kuntz said that some of this is dictated by the Fair Labor Standards Act and other federal guidelines that we have no control over.  This review will help City Attorney Jones in defending the city and will give management and employees clearer guidelines as to what to expect if we move through any process.  Human Resource Coordinator Morrison said that part-time employees that work 20 hours typically earn paid leave benefits on a prorate basis.  Anyone under 20 hours won’t earn paid leave benefits. 

City Administrator Kuntz said that each department also has internal work rules.  Employee review and acceptance signature of this document is a condition of employment.  This is an organizational rule that has been adopted by the Board.  This is an official policy that as a condition of employment, the employee will acknowledge receipt and will abide by these terms and conditions.  The City will also abide by the terms and conditions that we agreed to as the employer.  It’s all legal. 


A motion was made by Alderman Kerlagon and seconded by Alderman Fleming to incorporate this adoption as an official action of the Board.  A voice vote was taken with a unanimous affirmative result and the motion passed.

CITY ATTORNEY’S REPORT

Legal Issues Update: 
Ameren Rate Increase:  City Attorney Jones said on December 12, Ameren Missouri approved a 10.05% rate hike.  On December 27, the tariff allowing the rate increase was approved.  On January 3, the order became final.  Notice was sent to the City of Ballwin that Ballwin will have to examine its gross receipts tax rate and roll back the tax rate if legally required to do so.  We adopted an ordinance in 2011 saying that we would not make any automatic adjustments based upon this particular statute, which says that Ameren and the other PSC controlled utilities have to notify us of a rate increase of more than 7% is enacted, and we have to potentially roll back.  By enacting the ordinance that we adopted in September, 2011, we do not have to do that.  This means we stick with the 7% rate even though there is a tax increase that was approved by the Commission.  No further action is required.

Breezeview Case:  City Attorney Jones said that Walter Young appealed the decision of the Circuit Court in the Breezeview case.  Two procedural deadlines have already passed that he has failed to adhere to.  The appeal will most likely be dismissed.  The court will probably give him an opportunity to cure that.  The City of Ballwin will be required to file a brief by sometime in early March. 

Kimball Class Action Suit:  City Attorney Jones said this is a class of plaintiffs that alleged that they were customers of AT&T Mobility Systems, and that they were taxed on access to the internet and data type plan that are on many cell phones, and that this should not have been subject to the City’s business license gross receipts tax on telecommunications.  In 2010, AT&T specifically demanded that the City refund all such taxes that were received as a result of access to the internet.  We refused to do so, as did every other city that received the request.  The class action attorneys that originally handled the AT&T telecommunications case filed a motion to enforce a settlement reached in the AT&T case, specifically with regard to those internet taxes.  That motion was granted in August, 2012.  We, as a group of cities, are still in a process of trying to find out exactly how much money they should have paid but didn’t as a result of unilaterally deciding that they didn’t want to pay internet taxes.  He said, as he understands it, the same plaintiffs class sued AT&T in the Chicago Federal District Court.  A settlement was reached which caused AT&T to have to demand that money back in 2010.  Since that effort failed, the same plaintiffs are trying to do it themselves.  The question is whether or not they have the standing, since they are not the tax payer; the phone company is.  Ballwin received the official copy of the complaint and a request to waive the service of process.  He said he will be responding to that by waiving service of process.  The total amount that’s being requested is over $14 million from 263 different cities.  The amount that they’ve estimated that Ballwin would be responsible for is $143,802 for a period of time from 2005 through 2010 on internet access.  He said his firm represents eleven of the 163 cities and have been in touch with a group of attorneys that handled the class action previously against AT&T.  They are interested in working with attorneys from his firm.  They have also been approached by the State and County leagues about potentially providing a joint defense.  He said he doesn’t think the City of Ballwin is going to have to pay full fare for defense of this action.  It will either be some representatives from his firm on a legal team, or some other attorneys that will provide teamed legal defense.  Our response plea will not be due until 60 days from January 9, which would be approximately March 7. 

City Administrator Kuntz said that a group strategy is being formed, and Ballwin is not in this alone.

ALDERMANIC COMMENTS
Alderman Boerner said that as he looks at the annual and 6 month report, it shows that the TIF revenue bonds are a liability to the city of $14 million.  He said we stated that we don’t have a liability and we are debt free.  He asked to get representation from the auditors for justification for putting that full amount, and to report to the Board.  What justification do they have for putting that on our balance sheet? 

City Administrator Kuntz said that this came from the auditors.  He said he had some of the frustration about this because it is misrepresentative.  It implies that we have no lien holding ability.  We are governed by the intergovernmental agreement.  Why is it that we have to carry this on our balance statement and how does that look to the members of the general public when we are making one statement and then they see this number.  He said he hasn’t asked the current auditors that question.  This should be a focal point with detail in a public session.  He said that what he and City Attorney Jones are telling the Board is truthful and accurate.  He said he will see that someone with that level of objective expertise to come before the Board and answer questions.  This will add to the credibility of the discussion.  City Administrator Kuntz said that we have sufficient revenues set aside to meet our obligations through 2013. 

City Administrator Kuntz said that we have no standing in property tax appeals.  We’re getting notices of successful tax appeal rollbacks that are 2 years old, which is forcing us to calculate our receipts based on prior decisions that are then being withheld under future payments.  He was told that it’s not just Ballwin.  The way the debt was structured was a statutory requirement. 

Alderman Finley expressed congratulations to State Senator Eric Schmid, Representative Sue Allen, and Representative Andrew Koenig, who were inaugurated to their new terms today.  Alderman Dogan congratulated Representative Dwight Shornhorst. 

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 9:34 p.m. 

TIM POGUE, MAYOR

ATTEST:
ROBERT A. KUNTZ, CITY ADMINISTRATOR

MC