The Ballwin Board of Aldermen Public Health & Safety Committee will meet at 6:00 p.m. on Monday, September 27, 2004, prior to the Board meeting at the Donald “Red” Loehr Police and Court Center at 300 Park Drive.  Pending legislation regarding smoking restrictions will be discussed.  No official action will be taken at this meeting.

This meeting and all other meetings are open to the public and the building is handicapped accessible.

Robert Kuntz, City Administrator

The meeting was called to order by Mayor Jones at 7:02 p.m.

 

The Pledge of Allegiance was given. 

The Minutes of the September 8, 2004 Public Health & Safety Committee meeting were submitted for approval.  A motion was made by Alderman Buermann and seconded by Alderman Robinson to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed. 

The Minutes of the September 13, 2004 Public Health & Safety Committee meeting were submitted for approval.  A motion was made by Alderman Robinson and seconded by Alderman Pogue to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed. 

The Minutes of the September 13, 2004 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman McDowell and seconded by Alderman Buermann to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed. 

None.

Nick D’Amato, 352 Ries Bend Road:  Mr. D’Amato asked the Board to postpone the vote on Bill #3318 for approval of the subdivision plat for D’Amato Subdivision.  He said he is working with a developer who has some potential changes.  Mayor Jones said that at Mr. D’Amato’s request, this item will be removed from the agenda.

Al Zenhofer, 15062 Clayton Road:  Mr. Zenhofer said his property adjoins the property to be rezoned at 15068 Clayton Road.  He is concerned that the construction of a sidewalk will kill his trees.  There are 17 trees on his property where the sidewalk is proposed.  He suggested a variance where a sidewalk would not be constructed on the east side next to his house to protect the roots of the trees.  The pines, pin oaks, and spruces are 60 feet tall.  Mayor Jones said this will be discussed when Bill # 3315 is considered. 

Ron Nichols, 567 Spragues Mill Ct.:  Mr. Nichols spoke in opposition to the prohibition of smoking.  He said he was a Ballwin alderman for almost 20 years and is concerned about this controversial issue.  He said he is a non-smoker and is bothered by smoke; however, he is pro business and pro Ballwin.  He said this proposed ordinance does not meet the requirement of being pro business or pro Ballwin.  There are safety and health issues, but this legislation could potentially put at least 4 businesses or more out of business in Ballwin.  He said he does not consider this an act that a Board would undertake and then call themselves pro business.  Business owners should feel that Ballwin is a good place to open and run a business.  The Board should cooperate with the businesses as much as possible, get their input, and work out problems whenever possible.  He asked if 5 businesses went under and other restaurants and bars lost 15-20% of their revenue as a result of an ordinance that bans smoking in its entirety, how would this impact the 2005 budget?  He said if a non-smoking ordinance is passed and it went into effect at the start of 2005, these 4 or 5 small businesses would be out of business within 6 months.  The reduction in revenue from the others would also have an impact on the City of Ballwin during 2005.  He said chain restaurants can usually handle a reduction in sales in the first 6 months or a year.  As Chairman Robinson said at the committee meeting, the Board needs to be very cautious how this issue is handled.  If a study is conducted and determined that this issue will impact the revenue in 2005 and the operating budget in 2005 by $25,000, that could possibly be handled without too much difficulty.  If the revenue would be impacted by $125,000, then this Board needs to know this and determine how they are going to come up with $125,000 to offset the loss of revenue.  He said revenue can be raised in one of two ways; either cut services or raise taxes.  There’s no other way to do this.  He said he has not seen or heard anything that indicates that the Board has a detailed study of what the worst case scenario would be regarding lost revenue.  He said the Board should plan for the worst case scenario if an ordinance is going to be enacted that adversely impacts these businesses.  He suggested a committee be formed that includes business that would be affected, other businesses, Board members, and a couple of citizens to determine if something could be worked out that would be fair to all parties concerned.  He agreed with Alderman Fleming that this issue should be approached in a forward basis instead of continually modifying the proposed legislation.  He said this cannot be done unless these parties are brought together to participate in the discussions.  He said the Board should not rush to judgment and should find out the financial impact that this ordinance would have on the Ballwin residents and work to be as fair as possible to the businesses that are involved so that an environment is not created that would appear as though Ballwin is anti-business. 

Frank Nehmen, co-owner of Frick’s Bar & Grill:  Mr. Nehmen said he has recently been researching the procedures to sue the City of Ballwin if the proposed non-smoking legislation is passed and his business must close.  He said someone from the City should have talked with him about becoming a non-smoking business instead of proposing legislation to tell him how to run his business.

Mike Probst, owner of The French Quarter:  Mr. Probst said that the business owners are faced with losing 25%-30% of their revenue if the proposed non-smoking legislation is passed.  He said he would have to tell his employees that they no longer have jobs.  He asked the Board how they would feel if their job was at risk, or their business and employees.  He feels very uncomfortable when 8 other people are making this decision for him and the 8 people are not at risk themselves.  Until the culture changes to non-smoking, the businesses will still be at risk.

Elsa Barth, Seventh Inn:  Ms. Barth said there is a separate non-smoking dining room at the Seventh Inn.  She asked the Board to consider this in their discussions and decision.

Raymond Maxwell, 1008 Savoy, Manchester, Mo., Liquor Wholesaler:  Mr. Maxwell said many of the restaurant owners are his customers and friends.  He said this is a personal property rights issue and he does not want to see them lose their businesses.  If the Board passes this legislation, he said they are insuring a free and unworried guardianship of a citizen’s personal property, and that violates the duty of a public official.

Angela Brown, 205 Wildbriar:  Ms. Brown said that if smoking is a health issue, she asked why doesn’t Ballwin offer stop smoking clinics.  She said smoking income should be dedicated solely to this issue. 

Dave Childers, VFW Post Commander:  Mr. Childers said he has attended previous meetings regarding the non-smoking legislation.  He said if the VFW loses the bingo patrons because of the non-smoking legislation, this will put them out of business that has been here since 1946.  He said 8 aldermen are trying to force non-smoking on approximately 280 veterans who have spent 10-20 years of their life protecting the Constitution and defending the Bill of Rights which is freedom of choice.  Mayor Jones said that there is an entire code of laws enacted by the legislative bodies at all levels of government that forces citizens to behave in certain ways to protect everyone.  Mayor Jones said that argument doesn’t go very far.  He said the Board has to make certain decisions and are elected as trustees or custodians of the public trust.  Mayor Jones said that saying that just by enacting an ordinance takes away freedoms that people have fought to protect constitutionally is not a logical argument.  Mr. Childers said that there are several smoke-eaters installed and they are doing the best they can to provide proper ventilation.  It is still freedom of choice for the public that they can come into the VFW or not to come in as is their preference.

Ric Dolgin, 1411 Shady Creek and co-owner of Frick’s Bar & Grill:  Mr. Dolgin asked why is there only a zero tolerance approach on the non-smoking issue.  He said he understands the health ramifications, but said that when a lot of alcohol is sold by the drink, then smoking is part of the business.  He said that Frick’s generates almost 40% of its business via the sale of alcohol.  He would lose a higher percentage of sales than Applebee’s would if they went to non-smoking.  He suggested that if non-smoking legislation is going to be passed, that it be linked up with some of the neighboring communities when they enact similar legislation so that restaurant and bar customers in Ballwin won’t go 5 minutes away to smoke and have a drink at another location.  He also asked if the restaurant and bar owners could sit at the same table and discuss the issue at the Public Health & Safety Committee meetings.  He asked if some middle ground can be found. 

Alderman McDowell explained that the proposed non-smoking legislation is only under consideration.  No action has been taken on the enforcement of this bill.  The only difference between this bill and any other bill on the agenda is the controversy of the subject.  It is going through committee, and committee is refining it and will bring it to the entire Board.  Until a decision has been made that represents a majority, the status quo still stands.  It is still under consideration and the Board is listening to the public’s comments.  This is a democratic process.  Alderman McDowell said that there has not been any indication that 8 aldermen have agreed that this bill be passed or not passed.  It is simply going through the proper procedure that any bill would go through before this Board. 

Joe Hartnett, 15567 Meadowbrook Circle Lane, Trustee of Twin Estates at Meadowbrook:  Representing Twin Estates and the three other subdivisions that abut the north and west sides of the proposed Villas at Meadowbrook, Mr. Hartnett asked that no sidewalk be built on the north and west side of the street.  He said the homeowners feel that eliminating the sidewalk will increase their privacy and security.  He asked that the timing of the installation of the irrigation and screening plantings on the west and north side of the development be as recommended in the petition review report.  The developer has requested a significant delay in the implementation of that screening.  He asked that the recommendation of the City Planner be accepted. 

Mayor Jones asked if completing the screening as required by the ordinance and  within 60 days would this eliminate the concern about the sidewalk because the screening would be placed between the sidewalk and the homes.  Mr. Hartnett said that with the sidewalk there will be additional foot traffic and decreased privacy and security. 

Stuart Zymbalist, Simon Homes:  Mr. Zymbalist said that Mr. Simon is neutral on the issue of the elimination of sidewalks on the north and west boundary.  He said that the current city ordinances and planning required the sidewalks.  The cost of installing the sidewalks will be $80,000.  If the Board chooses not to construct the sidewalks, the money would be put into the sidewalk fund.

BILL # 3305 - AN ORDINANCE AMENDING CHAPTER 1, SECTION 1-2 ENTITLED “DEFINITIONS” BY THE ADDITION OF CERTAIN DEFINITIONS FOR REGULATION OF SMOKING IN PUBLIC AND WORK PLACES AND BY THE ADDITION IN CHAPTER 17, A NEW SECTION 17-65 ENTITLED “BALLWIN CLEAN INDOOR AIR ACT”.

Mayor Jones said this bill has been read once. 

A motion was made by Alderman Pogue and seconded by Alderman Gatton for a second reading of Bill No. 3305.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3305 was read for the second time.

City Attorney Lucchesi stated that Bill # 3305 has been changed from the original.  It is not the same bill that previously received a first reading.  Alderman Gatton said that because there were enough changes made in the bill, this should be a different bill number.  Mayor Jones said that Bill # 3305 was the bill without the changes and was read the first time.  Alderman Pogue’s motion for a second reading must be considered to have been for the original proposed legislation that was already read once and his not been amended. 

Alderman Gatton withdrew his second in light of the clarification and Alderman McDowell seconded the motion for a second reading of Bill # 3305 , without amendment.  A voice vote was taken with the following results:  Ayes:  Aldermen Pogue, Gatton, Fleming, and McDowell; Nays:  Aldermen Lembke, Robinson, Buermann, and Suozzi.  Mayor Jones voted in favor of a second reading to break the tie to allow a vote. 

Alderman McDowell said that Bill # 3305 is the original legislation.  There have been so many amendments proposed to the original legislation that a separate bill should be presented.  Essentially there are two bills on the table.  The second reading of Bill # 3305 may take this bill off the table so that the second legislation with all of the changes can be considered. 

A roll call was taken for passage and approval of Bill No. 3305 with the following results:  Ayes – Pogue.   Nays – Suozzi, Lembke, Fleming, McDowell, Robinson, Buermann, Gatton.  Whereupon Mayor Jones reported that Bill No. 3305 has failed.

Alderman McDowell said that the new  bill on this subject is Bill # 3319 and should be introduced pending the committee’s recommendation.  Mayor Jones said he does not know if there will be a recommendation from the committee.  He said that after consideration of Bill # 3318, he will call for Bill # 3319 and see of anyone wants to make a motion for a reading.  Therefore, there is no bill pending addressing the smoking issue at this time.

BILL # 3315 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF A SUBDIVISION PLAT FOR CLAYMONT COURT SUBDIVISION AS PROVIDED IN CHAPTER 25 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI.

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a first reading of Bill No. 3315.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3315 was read for the first time.

Mayor Jones asked Mr Kitel what would be necessary for MSD to accept the connection.  Mr. Kitel said that this is not MSD’s system.  There are no as-built drawings, therefore, it was never dedicated to MSD.  There must be MSD acceptance of as-built plans before they can allow connection.  He said everyone involved wants the connection to be made.  Mayor Jones said this is correct, but the problem is the short termination and sheet flow to the inlet.  Whatever it takes to get a tie in and for MSD to accept this system is what should be done.  He said there are 16 plats in Claymont Subdivision and everyone of the sewers has been accepted for maintenance by MSD.  It’s amazing that they are saying that Plat 5 was not dedicated when the script is on the plat.  Mr. Kitel said that MSD is requesting a letter from the Trustees saying it’s okay to tie into it.  Mayor Jones said the problem is that the Trustees do not have jurisdiction over this because there is no common ground in the subdivision and they don’t own the sewer system.  He said this same problem has existed in this subdivision with other small parcels which are in limbo.  In reality, they belong to Mayer Land Company and they never deeded over these parcels that were intended to become common ground in the subdivision.  Mr. Kitel suggested getting a letter from the Trustees for whatever rights they have in this to satisfy MSD.  He also suggested that the open flow could be limited to 2 feet instead of 10 feet. 

Mayor Jones said he would like to bring this to a conclusion and have MSD approve the connection before the Board votes on this.  Alderman Robinson asked what is the developer doing to resolve this issue other than expecting MSD to find out who owns this?  Mr. Kitel said that MSD is the logical owner if it wasn’t still in the hands of the subdivision.  He has pursued this with the Trustees.  Alderman Robinson said this is not going to get done if everybody is pointing the finger at somebody else.  The Trustees are not going to do this because they are volunteers.  MSD is not going to do this.  He said the developer is the one who should find out who the owner is.  Mr. Kitel said if MSD is the one that controls all the rest of the sewer systems, they are saying they don’t have jurisdiction because it was never dedicated to them and that the Trustees are the ones that must give approval.  Alderman Robinson said it doesn’t sound like the developer is doing their best to resolve this issue.  The lawyers for the developer should contact the Trustees or the last owner of record and move in that direction.  Nothing can be done until MSD approves this and won’t do this until it is determined who is the owner.  Mr. Kitel said the Board is holding this up.

Mayor Jones said a legal connection is needed and must be demonstrated before this Board should vote on this proposal.  Mr. Kitel said MSD is saying that if the developer cannot get permission to make the connection, they have no problem with daylighting and he will proceed because MSD gave conceptual approval.  City Attorney Lucchesi said the developer does not have approval from the Planning & Zoning Commission except through a connection, and this Board is not likely to accept a daylight connection.  He said the developer does not have approval for daylighting, only approval for connection to the sewer.  Alderman Robinson said MSD is not approving daylighting.  They are saying that they are not going to say what to do on someone else’s property. 

Alderman McDowell said that this is a land issue and is not a difficult issue to solve.  The Board is bound by procedures that have been utilized in other situations like this.  Mayor Jones said MSD needs to accept the sewer system.  When they do, the connection will be easy.  Mr. Kitel said if he can view the other as-built drawings and determine who prepared the drawings and who ordered them to be prepared, perhaps that would solve the problem.  Mayor Jones suggested that Mr. Kitel do that in preparation for the next Board meeting. 

City Administrator Kuntz asked if the developer is prepared to accept either option regarding the sidewalk issue.  Mr. Kitel said yes.  City Administrator Kuntz said the contribution in lieu of construction, because the city has historically tried to be sensitive to existing vegetation, and the Planning & Zoning Commission did not have a problem with this, but there is a requirement that the construction be with our construction bid, which was the Claymont sidewalks three months ago, and that amount be set aside in a separate sidewalk escrow fund.  Mr. Kitel said that is not an issue. 

Alderman Suozzi asked if the suggestion is that the sidewalk would come as far around the circle as possible.  Mr. Kitel said the logical ending point would be at the last driveway.  City Administrator Kuntz said that there are public sidewalks that are scheduled for funding next year and this must go into the sidewalk escrow fund and would not be used for any other purpose.

A motion was made by Alderman Gatton and seconded by Alderman Lembke to table Bill #3315 until the storm water system issue is resolved.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed. 

BILL # 3316 - AN ORDINANCE APPROVING THE FINAL SITE DEVELOPMENT PLAN OF BALLWIN POINTE COMMONS DEVELOPMENT IN THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI.

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a first reading of Bill No. 3316.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3316 was read for the first time.

Alderman Gatton said there is concern about how the numbers were determined for a portion of the credit requested against the recreation contribution for this subdivision.  There are some things that Parks and Recreation Director Bruer feels should be part of the development.  If there is going to be a pond, there must be a fountain.  City Administrator Kuntz said there must also be a fence because the pond is adjacent to a soccer field.  He said the numbers reflect the standard fee, with deducts for the amounts of value based on the contractor or developer’s estimates.  The subtraction is for the difference that would be the credited amount if Parks Director Bruer’s concept is endorsed.  City Administrator Kuntz said that this has been a point of contention from the beginning.  He said in the future he would like to see if the Board is amenable to change the legislation so that the Rec fee payment is the City’s option and not the developer’s option.  This is a project that is directly adjacent to a public property.  The pond location has direct amenity benefit to both properties and staff feels that this is a fair compromise.

Mayor Jones said this is a wet retention basin for the development which will be in the shape of a pond that will also be partially on the City’s property.  The developer has asked for a credit against the amount of money that is going to be paid, the recreation fee that is going to be exacted by the city in exchange for some of the improvements.  Mr. Martin, representative for the developer, said that the original numbers provided were engineer estimates.  The actual bid numbers that are available have been provided to Mr. Aiken.  Mr. Martin agreed to do the landscaping, grading, seeding, fence, and the fountain.  He said if they are going to construct the trail, they would like to see a credit for the trail. 

Director of Parks and Recreation Bruer said that for putting the lake on the City’s property, the developer was going to give the City a suitable soccer field.  Mr. Martin said since he was not involved in that discussion, he cannot comment. 

Assistant City Administrator Aiken said he asked for additional information and clarification from the original proposal.  He said the newest numbers reflect this high quality grading, and landscaping around the pond as is yet undefined.  The dollar amount has not been provided.  The developer amended the fence proposal to put in a fence similar to the one that’s around the playground at The Pointe with vertical rails.  There is also a bid proposal for the fountain. 

Alderman Gatton asked if staff is in agreement as to what is going to be done and how much credit is going to be received.  City Administrator Kuntz said if there isn’t anything forthcoming that is substantially different, then everything is okay.

Alderman Pogue asked if the developer is going to fence only part of the pond.  Mr. Martin said the fence will be on the playing field side but not on the development side.  There will be landscaping buffers and park benches on the development side. 

Alderman Gatton asked how much credit the developer is requesting.  City Administrator Kuntz said initially they requested a credit of $42,000.  He said he took the punch list numbers and made the deductions based on Parks Director Bruer’s recommendation.  Based on this calculation, the final credit to the developer would be $22,891 for the extra work.  He said that originally there was $137,791 in a rec fee.  City Administrator Kuntz said Ballwin is still going to get a rec fee in the amount of $114,900.  This can be used to develop the soccer field and other valid improvements.  They would get a credit of $22,891 and install the other improvements that they have agreed to at this meeting. 

Alderman Pogue thanked the developer for working with the City and the demolition contractor for providing a safe environment around The Pointe.

Mayor Jones said this development was considered by the Planning & Zoning Commission and it was recommended unanimously based on compliance with the staff review report. 

Mayor Jones said the credit is not in Bill 3316.  City Attorney Lucchesi said the Bill should be amended to say that in Paragraph C, “The recreation fee of $137,791 be provided by the developer and the developer will get a credit of $22,891”. 

A motion was made by Alderman Lembke and seconded by Alderman Gatton for a second reading, as amended, of Bill No. 3316.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3316 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3316 with the following results:  Ayes – Gatton, McDowell, Robinson, Suozzi, Pogue, Lembke, Buermann.    Nays – Fleming  Whereupon Mayor Jones declared Bill No. 3316 approved by a vote of 7 – 1, and it became Ordinance No. 04-39.

Alderman Suozzi asked about the name change from “Ballwin Pointe Commons” to “Coachlight”.  Mayor Jones said when the final site development plan is filed with the City, it will have the correct name.  Mr. Martin said it will.  City Attorney Lucchesi said that since everything at this point is on record as “Ballwin Pointe Commons”, this ordinance should not be changed until the final development plan is filed with the correct name. 

BILL # 3317 - AN ORDINANCE APPROVING THE FINAL SITE DEVELOPMENT PLAN OF THE VILLAS AT MEADOWBROOK PSD DEVELOPMENT IN THE CITY OF BALLWIN,       ST. LOUIS COUNTY, MISSOURI.

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a first reading of Bill No. 3317.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3317 was read for the first time.

Mr. Stuart Zymbalist, with Simon Homes, said that Simon Homes and the Jones Company are neutral on the subject of the requirement for sidewalks on the north and west boundary.  He said the Planning Commission members on September 7 were concerned about changing the requirement for sidewalks.  Thirty people have signed deposits to buy homes based on a plan with sidewalks.  If there are any changes, they want to get started before the weather gets bad.  Mr. Zymbalist said the sidewalk issue is a decision that the Board has to make. 

Alderman Lembke asked if staff is asking for more than $40,000 to eliminate the sidewalks to go into the escrow fund would Simon Homes be opposed to this.  Mr. Zymbalist said yes.  Alderman Lembke asked what is staff’s recommendation regarding the sidewalks being eliminated, and what would normally be asked for in the escrow fund?  City Administrator Kuntz said the final calculation has not been made, but the City will probably pay more than Mr. Simon will.  Unlike a private contractor, the City has more regulations, more bid requirements, and more cost involved.  The developer could build the sidewalk cheaper than the City.  That number could be closer to $100,000 if it were constructed under bid by the City.  This is higher than the $80,000 that the developer has budgeted.

Mayor Jones said that we don’t want to accept a $40,000 payment in lieu of a $100,000 sidewalk and then be called upon to construct the sidewalk later at the cost of $100,000.  Mr. Zymbalist said if he builds the sidewalk, the cost for sidewalks on the north and west would be $80,000.  He said they cannot do this at a cost of $100,000.  Alderman McDowell suggested taking the $80,000 and apply it to a sidewalk in another area.  City Administrator Kuntz said this could be done as long as it goes into a sidewalk escrow fund for sidewalk construction.  He said the developer’s estimate could not be accepted and would have to be based on the most recent competitive bid experience. 

Alderman Suozzi asked about the discussion at the Planning & Zoning Commission meeting.  Mayor Jones said that Commissioner Byatt felt very strongly that the sidewalks were required to promote the pedestrian access in this development.  The screening, which is required but exceeds most other developments, should expel the fear of neighboring property owners of the pedestrian traffic.  Alderman Gatton said that several commission members said that it is in the ordinance to build sidewalks on both sides of the street in new developments, and they didn’t see any reason to give a variance or recommend that the normal process be changed.  The Commission members agreed that this is a Board decision because they were not in a position to override ordinances.  Alderman McDowell said that sidewalks should be constructed in a positive way.  This is going to be a senior community, elderly adults, and the developer and residents do not have a problem with not putting a sidewalk at this location.  Alderman Lembke agreed.  He said he is leaning toward the wishes of the residents that live in Chesterfield on the north and west side.  He asked if they would consider a compromise between $80,000 and $100,000, and make it $90,000.  Mr. Zymbalist said he will have to check on this. 

City Administrator Kuntz said a specific formula needs to be applied.  He asked if the Board is going to split the difference every time this situation comes up.  He said that currently the practice is to base it on the most recent competitive bid experience.  If the number is split, this will happen again on future projects. 

Alderman McDowell suggested that if the sidewalk prevailing rate applies and it is acceptable with staff that the sidewalks not be constructed and put into a sidewalk escrow. 

Mr. Zymbalist described the timeframe that was discussed with the Planning & Zoning Commission.  Subject to weather, 45 working days for the clearing and 45 days for grading; installation of retaining walls and storm and sanitary sewers and water line, and landscaping along the perimeter.  He said the original proposal indicated 6 single unattached houses.  This has been changed to 12.  The roadway entrance was approved at 26 feet, but based on the requirements of the fire district, the roadway will be 32 feet wide in some places.  Seven traffic calming devices will be installed to slow down traffic with the approval of the fire district.  They have gotten approval from MSD and applications have been submitted for the clearing and grading work.

A motion was made by Alderman McDowell and seconded by Alderman Lembke for a second reading of Bill No. 3317 with the stipulations that the developer build the sidewalk per plan or pay the fee per Ballwin’s cost to do the work.  A voice vote was taken with 7 yes votes and Alderman Fleming voting no.  The motion was declared passed.  Bill No. 3317 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3317 with the following results:  Ayes – McDowell, Lembke, Buermann, Robinson, Pogue, Gatton, Suozzi.    Nays – Fleming.  Whereupon Mayor Jones declared Bill No. 3317 approved and it became Ordinance No. 04-40.

BILL # 3318 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF A SUBDIVISION PLAT FOR D’AMATO SUBDIVISION AS PROVIDED IN CHAPTER 25 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI.

This bill has been held over at the request of the petitioner due to potential changes, as indicated under Citizen Comments at the start of this meeting.

BILL # 3319 - AN ORDINANCE AMENDING CHAPTER 1, SECTION 1-2 ENTITLED “DEFINITIONS” BY THE ADDITION OF CERTAIN DEFINITIONS FOR REGULATION OF SMOKING IN PUBLIC AND WORK PLACES AND BY THE ADDITION IN CHAPTER 17, A NEW SECTION 17-65 ENTITLED “BALLWIN CLEAN INDOOR AIR ACT”.

A motion was made by Alderman Pogue for a first reading of Bill No. 3319.  There was no second to the motion.  Bill #3319 was not read.

A motion was made by Alderman Gatton and seconded by Alderman Buermann to adopt the consent items.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Future Meetings:  Mayor Jones said there will be a Budget Work sessions for the Capital Improvement Plan at 5:15 p.m. on October 25, and on November 8 at 5:15 p.m. for the Operating Plan.  Further discussion on the budget, if needed, will be held on November 22.  If both budgets are adopted no later than December 13, the December 27 Board meeting can be cancelled for the holidays.

A motion was made by Alderman Lembke and seconded by Alderman Buermann to accept the budget meeting sessions suggested by Mayor Jones.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Emergency Legislation:  Mayor Jones said the Policy Manual does not state that all 8 aldermen must sponsor legislation.  He said if one alderman wishes to sponsor and read a proposed ordinance, this should be allowed.  If one alderman wants to propose legislation and it can’t be posted in time that it can be read by title only, it still should and can be proposed without the process of calling other Board members and certifying the names of the assenting Board members to the City Administrator.  The Policy Manual only addresses emergency legislation, which has not occurred.

Alderman Lembke said this could be a violation of the Sunshine Law if a conference call were set up with an additional 4 members.  Mayor Jones said if the calls were made one at a time, this would not be a violation. 

City Administrator Kuntz said another option is that it takes a super majority to eliminate the current policy and it is not necessary to establish a substitute policy.  This procedure would not be a requirement.  He said a revision can be drafted for consideration, or a vote can be taken to totally eliminate it from the manual.

Alderman McDowell said this may invite legislation that may not be ready for a vote at that specific meeting.  City Administrator Kuntz said that under Aldermanic Comments, a request could be made to draft legislation and the City Attorney would do that if there are 5 votes and it would be ready for the next meeting. 

Public Works:  Director of Public Works Kramer said that the Ballwin Public Works Department was invited by St. Louis County to participate in the snow and equipment rodeo.  Four other cities participated with dozens of county employees from the Parks and Highway Departments.  Ballwin entered the snow plow, back hoe, and front loader competitions.  All three required a written test and a skills test.  Joe Gregor outscored two dozen other competitors in the back hoe competition.  He also beat the winner from last year, who had won this event for several years.  Joe has brought recognition to the City of Ballwin and the Public Works Department.  Mayor Jones congratulated Joe on this accomplishment.

Ballwin History Book:  City Administrator Kuntz requested a motion to accept the proposal, as endorsed by the Historical Commission.  He said Mr. David Fiedler has written articles for the “Press Journal” and published several books. 

A motion was made by Alderman Lembke and seconded by Alderman Suozzi to accept the proposal from Mr. Fiedler and to move forward with preparation of the Ballwin History Book.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Mayor Jones said this is very exciting.  He asked the Historical Commission to pursue this project and they have done it.  It’s going to be produced at 40% off retail and will cost $12 per soft cover copy.

Use Tax:  City Administrator Kuntz said the “Horizon” is scheduled to come out the 3rd week in October.  The Use Tax is explained in this issue and is important to this community.  He said this is a misunderstood issue and efforts are being made to clarify this to the residents. 

Provisional Judge Pay:  City Administrator Kuntz said a policy or ordinance is needed to deal with absences or a conflict that requires a substitute.  This needs to be resolved to be included in next year’s budget.  Alderman Gatton said that the Chairman of the Planning & Zoning Commission is a compensated position while the others are volunteers.  He suggested extending this policy to apply to this position as well.

City Administrator Kuntz said that the last time this issue came up there was a client-attorney conflict.  He paid the substitute judge based on his hourly rate for the time incurred.  In the past when one has showed up and the other hasn’t, he gave out only 1 check.  He said Mayor Jones is familiar with the problem because he is a former Ballwin Judge.  It’s not as simple as a substitution because sometimes there are phone calls and preparation time.  He said all parties should be treated fairly on a consistent basis. 

City Attorney Lucchesi said a meeting to discuss litigation regarding the tennis courts will be held tomorrow morning.

Parks & Recreation Committee:  Alderman Lembke said in preparing an agenda for an upcoming Parks & Recreation Committee meeting, he met with City Administrator Kuntz and Director of Parks and Recreation Bruer.  Future goals were discussed.  Some will be considered in the 2005 budgeting process and others won’t be discussed until after the first of the year.  He said a committee meeting will most likely not bel held until January or February. 

Bill # 3319:  Alderman McDowell said that Bill 3319 was not read due to lack of a second to the motion.  City Administrator Kuntz said this bill will not be on the next agenda because it wasn’t carried over.  He said a motion was not made to table the legislation.  The Public Health & Safety Committee does not plan to meet on this issue before the next Board meeting.  Chairman of the Public Health & Safety Committee, Alderman Robinson, said that no meeting is planned at this time.  If there are changes, he will contact the committee members and the Board.

Finance & Administration Committee:  Alderman Buermann said that the Finance & Administration Committee will meet at 6:00 p.m. on October 11, prior to the Board meeting.

Arts Commission:  Alderman Lembke asked that the Board consider coming to and supporting the Arts Commission exhibition to be held on November 19.  The commission will appreciate Board support.

A motion was made by Alderman Buermann and seconded by Alderman Fleming to adjourn.  The motion passed unanimously and the meeting was adjourned at 8:57 p.m.

MC