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

Boy Scout Pack 621 posted the colors and the Pledge of Allegiance was given.

The Minutes of the December 12, 2005 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Buermann and seconded by Alderman Suozzi to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was passed.

None.

Al Zenthoefer, 15062 Clayton Road:  Mr. Zenthoefer thanked the Board for the Christmas tree pickup.  He also suggested that a tree limb pickup be held in March.

Joann Peterson, 17554 Garden Ridge, Wildwood, Mo.:  Ms. Peterson asked the Board to approve the Clayton Valley Estates development. 

None.

BILL # 3388 - AN ORDINANCE ADOPTING AND ESTABLISHING A ZERO TAX RATE FOR REAL PROPERTY IN THE CITY OF BALLWIN FOR THE FISCAL PERIOD BEGINNING    JANUARY 1, 2006 AND ENDING DECEMBER 31, 2006.

Bill No. 3388 had a first reading at the December 19, 2005 Board Meeting. 

A motion was made by Alderman Gatton and seconded by Alderman Buermann for a second reading of Bill No. 3388.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3388 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3388 with the following results:  Ayes –Lembke, Pogue, Buermann, Fleming, Suozzi, Terbrock, Gatton.   Nays – Robinson.  Whereupon Mayor Young declared Bill No. 3388 approved by a vote of 7-1, and it became Ordinance No. 06-01.

BILL # 3390 - AN ORDINANCE TRANSFERRING A SPECIAL USE EXCEPTION GRANTED IN ORDINANCE # 2660 TO CINGULAR WIRELESS.

A motion was made by Alderman Buermann and seconded by Alderman Lembke for a first reading of Bill No. 3390.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3390 was read for the first time.

Alderman Suozzi asked that the American flag attached to the tower be maintained in an appropriate manner and that the flag be lit appropriately. 

A motion was made by Alderman Suozzi and seconded by Alderman Gatton for a second reading of Bill No. 3390.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3390 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3390 with the following results:  Ayes –Buermann, Fleming, Pogue, Robinson, Gatton, Suozzi, Lembke, Terbrock.    Nays – None.  Whereupon Mayor Young declared Bill No. 3390 approved and it became Ordinance No. 06-02.

BILL # 3391 - AN ORDINANCE AMENDING ORDINANCE NO. 557, KNOWN AS "THE ZONING ORDINANCE" OF THE CITY OF BALLWIN AND AMENDING "THE DISTRICT MAP" BY CHANGING THE ZONING CLASSIFICATION OF CERTAIN LAND IN THE CITY OF BALLWIN FROM R-2 SINGLE FAMILY TO PSD PLANNED SINGLE FAMILY DWELLING DEVELOPMENT DISTRICT.

Patrick Worzer, with Land Design Services, presented the proposed plan for Clayton Valley Estates.  He said the plan meets the zoning classification, and preservation of the trees will be maintained. 

Todd Brady, with California Homes, said the reason for the rezoning request is that a better development will be created because it meets the eastern stub street requirements for future development with one single curb cut off of Clayton, and there is a 20-foot no grade zone around the perimeter.  This will cause less impact on the surrounding properties and keep more of the existing trees. 

Alderman Gatton asked for an explanation of the rain garden structure for rainwater control.  This is the first proposal of this nature to come to this Board.  Mr. Brady said that this is a new concept in the Midwest.  He said they would dig a hole similar to a detention basin  It would be along the drainage path of the water.  The hole will be backfilled with granular material with sod over the top.  It would be a sandy soil mixture.  The storm sewers will pick up the water on the street and discharge above grade so that the water could run over the top of the surface of the ground where the rain garden is located.  The water would percolate into the pit containing the granular material.  The pit would fill with water and allow it to percolate into the ground.  This will slow down the velocity and reduce the amount of the point discharge of water.  He said it’s like a large French drain.  He said they would like to try this because it is a small subdivision and it looks like something that may work.  In lieu of this, he has reached an agreement with the trustees of Wildwood Subdivision to have the ability to pipe to an offsite swale that’s in their common ground.  He said they are prepared to go either way.  They would like to try the rain garden to see if it works, but if the City is not comfortable with it, they are prepared to use the standard storm system and pipe the water to the swale. 

Alderman Gatton asked if the City grants permission for the rain garden system and it turns out to be insufficient, what assurances do the homeowners or the City have that California Homes will change it to a standard system.  Mr. Brady recommended a cost estimate for what the offsite improvements would be to continue the storm sewer and establish an escrow to assure construction.  The escrow could be in place for a year or two, long enough to determine if it is functioning properly.  If not, those would be the funds that would guarantee that he would come back to make the change.  He said if he didn’t come back to make the change, the City or the trustees would have the funds available to do the work.

Alderman Gatton said that MSD had not reviewed or approved this at the time of the presentation to the Planning & Zoning Commission.  He asked if MSD has said they will accept this?

Mr. Brady said that MSD has not done anything like this in St. Louis.  He said that MSD’s code is that if it is less than 2cfs of increased runoff, they don’t require detention.  They are in a position that they don’t require this detention.  The rain garden approach may be something that MSD would look favorably upon as a trial.  They would approve a discharge of the pipe at the property line.

Assistant City Administrator Aiken said that this is a new concept.  He said he recently attended a conference on this topic.  He thinks this subdivision is eligible for a waiver because the differential runoff falls below the MSD threshold.  The City has waived detention in such situations in the past.  This could be an opportunity to see if this is an idea with merit because the development is small enough that if it is a complete failure, it’s not going to be any different than if we let them do a standard runoff and waived it in the first place.  Given the added guarantee that Mr. Brady is willing to post an escrow for a couple of years following the completion of the subdivision, so that in the event that it didn’t work at all, there are funds available to do a conventional discharge.  He said we have never done a project like this and there are no hard local standards to go by.  It will be an experiment. 

Alderman Gatton said that it seems to be environmentally friendly, but there should be a backup if the system failed.  We don’t want to create a water problem for the neighboring residents. 

Mr. Brady said it would be in his own best interest to make sure this is designed on the conservative side so that it works to avoid spending additional money.  He said the cheapest method would be to pipe the water.  This would require taking down trees in the common ground, which is another reason to try to do the rain garden. 

Alderman Lembke said that because there is a lot of clay in this area, the water will be sitting in a bowl.  Mr. Brady said a more granular rocky material can be used and this might make it work. 

Mr. Worzer said that the rain garden concept has been around for about 10 years and has been used extensively in other large scale residential developments around the country.  This is an environmentally friendly way of dealing with storm water that gets away from the standard pipe and discharge approach.  A bio swale would be created where the water can be collected.  After it starts to fill up, the water percolates up and will sheet flow over the ground.  In a conventional system, the water discharges at a higher velocity from a flared end.  The idea is opposite of what has conventionally been done in the past.  He said that representatives from MSD also attended this conference, therefore, they are aware of the concept.  The City of Clayton has presented 4 plan review applications with the rain garden concept. 

Alderman Lembke said that after the water percolates out of the swale, it sheet flows off the property at a slow velocity.  This is opposed to a high velocity concentrated at one point with the conventional approach.  Over time, this water will hopefully percolate out and down through the ground, be evaporated or be used by plants and vegetation.  Mr. Worzer said this is correct.  He said soil testing would be performed in advance of the construction.  Alderman Lembke said he likes this concept very much.

Alderman Robinson said he does not like the rain garden process because he does not want Ward 3 to be the test area.  He said the escrow option is not sufficient because if the erosion problem does not arise until 2, 3, or 4 years down the road, the erosion problem will get worse.  The subdivision that adjoins this development doesn’t have enough money to correct the problem or hire an attorney to sue the contractor to correct the problem.  Four years from now, the amount of money in the escrow will not be enough to correct the situation.  He said he does not Ward 3 residents to be the experiment for this new type of drainage system.  He is concerned that the trustees in the subdivision do not have the authority to allow this developer to have this easement without a vote of the residents.  There should be over 50% approval in order to divest themselves of this property right to their common ground.  Some of the people living in the subdivision said there has not been a meeting or discussion with the residents at all concerning any divestiture of any easement related to this common ground.  The letter that has been provided is not a signed agreement.  It’s evidence of intent to have an agreement, but is not a legal signed agreement.  There should be a signed agreement.  The trustees don’t have the authority to enter into an agreement for the residents of the subdivision and have the property right to this common ground. 

Alderman Lembke said the second paragraph of the letter states that the area of the main drainage swale is further downstream in the Wildwood Subdivision common ground and is currently not draining completely, allowing storm water to pond.  It is the first intention to try to gain approval for a rain garden in lieu of piped off-site drainage which, if works as intended will not require the off-site underground storm sewer piping and easement.  If this is the case, California Homes will have no obligation to perform the above described work for the Wildwood Subdivision trustees.  Alderman Lembke said that this statement in the letter described an already-existing problem.  Mr. Brady said the rain garden would be in lieu of the easement.  At this point, there is an agreement to get an easement if needed to put a pipe across the common ground. 

Mr. Brady said at this point, he would like to discontinue the rain garden proposal and just do this per MSD standards, with an easement, and install a pipe to the swale to complete the project. 

Scott Rubin, 583 Highland Ridge, Trustee representing Wildwood Plats 2-7, said that three Trustee signatures are sufficient on an agreement.  The easement does not have to be voted upon according to the indentures.  He said the swale will save money for the subdivision.  There has not been a subdivision meeting to discuss these changes.  He said this is not necessary because no property ownership is being given up, just the granting of an easement.  Jim Lucchesi (no relation to Ballwin City Attorney Lucchesi) is the president of the legal representatives that Wildwood uses. 

Alderman Robinson said the residents should be informed and understand the rain garden issue.  Mr. Worzer said this is being offered as an environmental alternative.  Mr. Brady provided Alderman Robinson with a copy of the trust indentures. 

Mayor Young said that it states in the Planning & Zoning Minutes, that if the City’s requirements cannot be satisfied with the rain garden approach, the petitioner will go back and do whatever is necessary.  Based on the information available, Mr. Aiken believed that it’s worth trying the rain garden concept in this development.  Mayor Young said that the rain garden concept would keep trees and shrubs in place for the residents behind the development.  He said he shares the concerns of Alderman Robinson, but sometimes we have to look outside the box.

City Attorney Lucchesi said this discussion is not only regarding the change in zoning, but also Bill # 3392 for the subdivision plat approval.  He said an irrevocable letter of credit will not leave the City holding the bag.  Even a letter of credit is not likely to be a problem.  Half the products purchased at stores come in on a letter of credit.  If there is an erosion problem after 2 years, a letter of credit will have expired. 

Mayor Young said that the property owners in the new development would be responsible to repair their problem.  Alderman Robinson said that with small subdivisions, the trustees don’t have the money to hire an attorney to correct the problem, and the problem doesn’t get corrected.  It becomes a problem without a solution.  He said the subdivision indentures state that the trustees’ right to grant easements is to governmental bodies and utilities.  There is nothing in the indentures to allow the trustees to sell property rights and easements to private developers. 

Alderman Robinson said that this property is owned by the subdivision, individual owners of houses in the subdivision.  This would be giving away a property right. 

Mr. Brady asked if he had a meeting with MSD and allow the easement to be granted to MSD, he still built the sewer in MSD’s easement, would this be acceptable?  Alderman Robinson said he would not have a problem with this.

Alderman Buermann asked about the storm water issue at the Villas at Meadowbrook and the bond.  It was a multi-year criteria that was pro-rated after so many years.  Alderman Robinson said that a separate agreement was signed with the subdivision, and the Board required them to have the agreement completed before Meadowbrook was allowed to proceed with the project.  He said he wants to stick to that format to protect the subdivisions.  The agreements should be completed and then allow the work to begin.  Once the work begins, bargaining positions change, demands change, and we can’t turn back. 

Mayor Young said we can make that a condition of approval and go ahead and grant it because all of the documentation has to be complete before a permit is issued.  Alderman Robinson said we can’t plan for all of those condition.  Mr. Brady said that at no time would he have the easement corporately.  It would be directly to MSD.  MSD requires him to escrow money for public improvements.  Alderman Robinson said that escrow money does not always solve the problem.

Alderman Robinson said that a letter is not good enough.  He said he wants to see an officially signed contract.  Mr. Brady said that this issue is not part of rezoning or subdivision approval.  The process can be approved at this meeting and make this a contingency of the permits to build the project.

Alderman Buermann asked that Mr. Brady come to the next meeting with the signed documents.  Mr. Brady said he will do this.  Alderman Buermann said that on the second reading of this Bill, there will most likely be a negative vote, which will hold the Bill over for two weeks. 

Alderman Robinson said if more 4-unit developments are put along Clayton Road, this will substantially change the character of the neighborhood, substantially increase traffic hazards and congestion.  It will also overtax public utilities.  He said that bothers him about this development. 

A motion was made by Alderman Suozzi and seconded by Alderman Pogue for a first reading of Bill No. 3391 regarding rezoning.  A voice vote was taken with 6 Ayes and Aldermen Pogue and Robinson voting Nay. 

Alderman Pogue said that Assistant City Administrator Aiken reported that there is not anything in the requirements showing what is the area minimum requirement indicated for useable open space and also that 70% of the open space slopes no more than 8%.  He asked if Mr. Aiken is comfortable with what he has been given regarding this.  Mr. Aiken said that he has not received anything in addition since that report was made.  This is a requirement for a PSD change.  The documentation has not been received. 

Alderman Pogue said that there is no documentation for a requirement for a PSD zoning change.  He said it was stated in the report to Planning & Zoning that we still do not have this. 

Mayor Young asked Mr. Brady if he understands what needs to be brought back to the Board.  Mr. Brady said that his understanding is that he needs to present a contractual agreement from him to provide remediation contract services for the swale, where there issues with drainage, and provide erosion protection over a section of 125 feet long x 10 feet wide; and with that agreement, in exchange for providing those services in their common ground, they will grant to MSD the easement that us needed for the public storm sewer to go from the southwest corner of Clayton Valley Subdivision to the existing swale in the common ground.  This should be in a legal document with signatures notarized, and not just a letter.

Mr. Brady agreed to show that the open space requirements have been met for PSD.  He said because the ground is steep in some areas, he will have to put in retaining walls to create enough flat area that is flat enough to meet the requirement.  This will be provided to City Engineer Kramer and Assistant City Administrator Aiken before the next Board meeting. 

Mr. Brady said he has a letter from MoDOT that they have reviewed the plan and they have agreed to allow the access, although they are going on record about the potential issues with site distance.  He said he will need to go through the exercise they typically go through and show the site distance and do the kinds of things they need to do to make sure proper site distance is provided based on the speed limit.  A sidewalk will be along the frontage of the property. 

A motion was made by Alderman Terbrock and seconded by Alderman Buermann for a second reading of Bill No. 3391.  A voice vote was taken with 6 Ayes and 2 Nays, Aldermen Pogue and Robinson voting Nay.  Due to the lack of a unanimous vote for a second reading at the same meeting as the first vote, the motion for a second reading was defeated. 

BILL # 3392 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF A SUBDIVISION PLAT FOR CLAYTON VALLEY ESTATES SUBDIVISION, AS PROVIDED IN CHAPTER 25 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN, MISSOURI.

City Attorney Lucchesi said that the Bill should be amended as a new paragraph d to state that appropriate escrow for some period of time which is undetermined, following completion of the subdivision, is established with the City in the event the proposed rain garden fails to operate in the manner proposed by the developer. 

City Administrator Kuntz said that based on research, he would like to apply the Meadowbrook model so that there is consistency.  This will apply the same standard of consistency.  Alderman Fleming said the specification of time should state from the end of the development. 

A motion was made by Alderman Suozzi and seconded by Alderman Lembke to table Bill No. 3392.  A voice vote was taken with a unanimous affirmative result and the motion passed.

BILL # 3393 - AN ORDINANCE GRANTING A SPECIAL USE EXCEPTION TO KANG CHU NA FOR A RESTAURANT WITH CARRYOUT AND SALE OF ALCOHOLIC BEVERAGES (NO LIVE ENTERTAINMENT).

Steve Dye, Architect, and Kang Na, owner of the proposed restaurant, presented the plans..  Mr. Dye said the lease goes into effect in April, and it will take a couple of months for the construction to be complete. 

Alderman Robinson asked if Ballwin’s Smoke-Free ordinance had any influence in locating the restaurant in Ballwin.  Mr. Na said that his restaurant is non-smoking. 

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a first reading of Bill No. 3393.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3393 was read for the first time.

A motion was made by Alderman Gatton and seconded by Alderman Fleming for a second reading of Bill No. 3393.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3393 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3393 with the following results:  Ayes – Pogue, Gatton, Suozzi, Robinson, Terbrock, Buermann, Fleming, Lembke.    Nays – None.  Whereupon Mayor Young declared Bill No. 3393 approved and it became Ordinance No. 06-03.

BILL # 3394 - AN ORDINANCE GRANTING A SPECIAL USE EXCEPTION SITE DEVELOPMENT PLAN AMENDMENT FOR THE BALLWIN BAPTIST CHURCH.

Christine Lock, with Bax Engineering, representing Ballwin Baptist Church, reviewed the site plan proposal.  A 7,900 square foot building addition is proposed for educational use. 

A motion was made by Alderman Lembke and seconded by Alderman Gatton for a first reading of Bill No. 3394.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3394 was read for the first time.

A motion was made by Alderman Pogue and seconded by Alderman Buermann for a second reading of Bill No. 3394.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3394 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3394 with the following results:  Ayes –Suozzi, Lembke, Fleming, Buermann, Pogue, Gatton, Terbrock, Robinson.    Nays – None.  Whereupon Mayor Young declared Bill No. 3394 approved and it became Ordinance No. 06-04.

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

Liquor Licenses:  A motion was made by Alderman Robinson and seconded by Alderman Lembke to approve the application for Mi Lupita, at 15295 Manchester Road.  Mr. Na’s Japanese restaurant is at 15589 Manchester Road.  A voice vote was taken with a unanimous affirmative result and the motion passed.

S.U.E. Transfer – Meineke Muffler:  Alderman Gatton stated that he will abstain from this vote due to personally knowing the petitioner and he was previously a franchisee in the chain.  He does not have any issues in terms of voting.  He would like to avoid the appearance of any impropriety. 

Alderman Suozzi asked if the petitioner is aware of the sidewalk reimbursement.  The petitioner said yes and it will be taken care of before closing.

A motion was made by Alderman Suozzi and seconded by Alderman Buermann to accept the S.U.E. transfer.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Discussion:  Planning & Zoning Appointment:  Mayor Young said there are still two openings on the Planning & Zoning Commission.  He said that two individuals have come forward that are interested, however they don’t fit the ward profiles.  This can be discussed at the next meeting with the intent of maintaining proper Ward balance.  The Chairman will not be counted in the Ward balance, which will leave 8 members.

Workshop / Retreat:  The Board agreed to meet on Monday, January 30, 2006 at 6:30 p.m. in the Board room. 

E-Mail:  City Administrator Kuntz explained to the Aldermen the new procedure for their e-mail.  The aldermanic e-mail addresses will be published in the next “Horizon”.

Adult Entertainment:  City Attorney Lucchesi said that if there aren’t any more comments, the proposed legislation will be put in final form to be considered at the January 23 Board meeting.  The model used was litigated in favor of the City of Phoenix and he amended it to comply with the law. 

Retail Sales in Neighborhoods:  City Administrator Kuntz said this will be on the next agenda.  This is a seasonal summer problem.

Helmets:  Alderman Fleming suggested considering helmet legislation.  He said that Ellisville has passed legislation regarding helmets.  Other communities have similar legislations.  Creve Coeur calls for everyone to wear helmets; St. Louis County calls for everyone 17 and under to wear helmets.  He said it’s time that Ballwin has this legislation also. 

Alderman Lembke asked if there have been accidents where young people have fallen off their bikes and had head injuries.  Police Chief Biederman said that to his knowledge, no.  Alderman Robinson said that this legislation will tell parents that they have to make their kids wear helmets. 

Alderman Fleming said that on public roadways and parks, we have a responsibility for people’s safety in the public areas.  Alderman Terbrock said he is in favor of children’s safety, but we should not take responsibility for parenting their children.  If the parents are not responsible enough to make their kids wear helmets, why should Ballwin step in and try to do this? 

Mayor Young said asked how the Police are going to enforce this?  He said that every time we turn around, we are trying to legislate or govern our people on issues that are the individual’s responsibility.  He asked if we are going to start doing this, where does it stop? 

Alderman Fleming said that if a child falls off a skateboard or bike in our park, this will give them more safety.  Mayor Young said that this is up to the parents, and Ballwin should not be regulating this.  He suggested holding over this subject at this time.

Adjourn:  A motion was made by Alderman Buermann and seconded by Alderman Suozzi to adjourn.  The motion passed unanimously and the meeting was adjourned at 8:54 p.m.

Walter S. Young, Mayor

ATTEST:

Robert A. Kuntz, City Administrator

MC